From the Winter 2004 issue of The News Media & The Law, page 37.
By Liam Hurley
Public interest in various high-profile trials over the past few months paved the way for greater camera access to America’s courtrooms.
For the first time ever, the Supreme Court of Delaware is allowing cameras in the state’s Supreme and Chancery courts, albeit for a six-month experiment. In Iowa, a Superior Court judge welcomed photojournalists to attend a highly publicized murder trial, while in Ohio and California judges denied requests to close high-profile proceedings to still and broadcast cameras.
But it is not all good news for open government advocates. In Alabama, the judicial misconduct case of former Supreme Court Chief Justice Roy Moore was closed to the broadcast media, as was singer Michael Jackson’s January arraignment on child molestation charges in California. Although public interest in each case was extraordinary, both courts refused to allow cameras inside the courtroom.
R.I. Supreme Court grants stay in criminal contempt proceedings
The Rhode Island Supreme Court delayed contempt-of-court proceedings against two Providence news organizations in January so it could further investigate charges against them.
On the recommendation of the state’s attorney general, The Providence Journal and TV station KLEE-6 were found in contempt of court in November by Judge William Dmitri of Superior Court in Providence for allegedly violating his pretrial order that prohibited them from identifying witnesses at a murder trial. The news organizations’ attorney, Joseph Cavanagh Jr., filed a petition with the high court in December seeking a stay. He called the pretrial draft order “patently unconstitutional.”
The Supreme Court ruled Jan. 9 that it needed more information about each news group’s knowledge of Dmitri’s pretrial order.
At the request of Attorney General Patrick Lynch, Dmitri issued a restraining order Oct. 22 that prohibited the media from identifying potential witnesses at the murder trial of Charles Pona. Pona was accused of murdering 15-year-old Jennifer Rivera, who was shot and killed outside her Providence home one day before she was to testify against him in a different trial.
On Nov. 12, Pona was found guilty in the murder of Rivera. He was sentenced to life in prison, plus 20 years.
During that trial, the Journal published a photograph of witness Miguel Perez. The picture, however, was taken at a December 2001 court appearance in an unrelated matter. KLEE-6 recorded witness Dennis Fullen’s Nov. 4 testimony and subsequently aired the footage. The station also broadcast the Journal‘s picture of Perez.
Lynch asked the court following the trial to hold both news organizations in criminal contempt for violating the Oct. 22 order. The charges were not filed sooner because Dmitri did not want to distract the court proceedings, according to Lynch. Dmitri did, however, ban all cameras from the court following the KLEE-6 broadcast.
“I saw it and see it as an issue of witness protection,” Lynch said in a Nov. 18 statement. “It is significant to note that this office worked to construct an order that would protect witnesses by concealing their facial identities and home and work addresses, while allowing the media to broadcast and publish all that was newsworthy about their testimony.”
In the media’s petition, Cavanagh said the file photo of Perez was taken legally at a separate court appearance, and it was therefore unconstitutional to bar its publication. He further argued that neither media outlet was aware of the Oct. 22 order until after it was issued, and neither outlet had a chance to contest it.
Cavanagh said the restraining order does not pass the “clear and present danger” test of the First Amendment. “Clear and Present Danger” is a test born from the 1919 U.S. Supreme Court case Schenk v. The United States, in which Charles T. Schenk, then-general secretary of the American Socialist Party, was charged with conspiring to cause insubordination in the armed forces — in part by mailing more than 15,000 leaflets to young men in a plea to undermine the wartime draft process.
The court ruled against Schenk, with Justice Oliver Wendell Holmes claiming Congress has the right to prevent free speech if it constitutes a “clear and present danger.”
On Jan. 9, the high court postponed all further proceedings in the case pending a full inquiry by Dmitri.
Judge bars cameras from Jackson’s arraignment
Judge Rodney S. Melville of Superior Court in Santa Barbara, Calif., banned all cameras from singer Michael Jackson’s Jan. 16 arraignment on child molestation charges.
Melville cited “the privacy rights of all participants,” “preserving the security and dignity of the court” and the “importance of maintaining public trust and confidence in the judicial system” as the primary reasons for his decision.
Several news outlets from around the world had sought to televise and photograph Jackson’s arraignment, including news organizations in Britain, Japan, Denmark and Germany, the Los Angeles Times reported.
California permits cameras in its courtrooms, but at the discretion of the judge and only upon request at least five days before the proceedings.
Ken Paulson, executive director of The First Amendment Center in Nashville, Tenn., said while it is common for courts to shield the identity of minors in sex-related cases, cameras are not the reason trials lose their integrity.
“The fact that they are protecting the victim is no surprise,” Paulson said. “But there is unlikely to be a negative impact on justice because of the cameras.
“There is always the fear that lawyers will play to the cameras, but the attorneys in this case already have,” he added. “It is ridiculous to suggest that keeping cameras out of this courtroom would restore dignity and solemnity to this trial.”
Jackson’s arraignment was open to the public. The court seated 120, with half of those seats reserved for media. Close-circuit TV coverage was also available in an overflow room at the courthouse.
Delaware Supreme Court allows expanded camera role
The Supreme Court of Delaware approved a six-month experiment that will allow still cameras and audio- and video-recording equipment into the state’s Superior and Chancery courts.
Media will be allowed to capture live footage of civil, non-jury trials in the state’s three Superior courts and three Chancery courts, which hear commercial affairs cases. TV cameras and audio-recording devices were previously only allowed in arguments before the Supreme Court.
The Radio-Television News Directors Association and Foundation has long ranked Delaware’s court system among the worst in the nation in terms of camera access. The Supreme Court had argued that bulky camera equipment and the potential for “sensationalized” coverage would be distracting in court proceedings.
However, in a Dec. 16 opinion letter concerning the court’s experiment, Chief Justice E. Norman Veasey said recent renovations to the state’s courtrooms have eliminated the possibility that media equipment would be an intrusion.
“Importantly, for the first time in Delaware history, these new courtrooms were designed to accommodate electronic cables under the flooring so that there would be no media cables and wires cluttering our courtroom floors,” Veasey wrote, of his court’s Dec. 10 decision.
John H. Taylor, editorial page editor for the Delaware News Journal, said he is happy the media will now receive greater access to the public court system, but that the longstanding arguments of intrusiveness were flawed from the start.
“(Justice Veasey) is worried about clogging the courtroom and causing a distraction, which is a valid concern because there should not be distractions in court,” Taylor said. “But we use cameras that don’t make a noise. Everything is digitized.
“The main cause of courtroom distraction is not cameras, but judges that lose control of their court.”
The state’s Bar/Bench Media Committee, on which Taylor serves, first presented the Supreme Court with guidelines for camera coverage of trial courts in 1994.
Cameras banned from California capital murder trial
Judge Paul Vortmann of Tulare County Superior Court in Visalia, Calif., banned cameras from the murder trial of Todd and Lacey Givens, which began in December. TV station KSEE-24 in Visalia had requested the court’s permission to televise the opening remarks live.
The Givens are accused of murdering Barry “Scotty” Holstone and his sister Patrice Holstone in April 2001. Barry died of multiple stab wounds, while Patrice died of a gunshot wound to the head, according to a coroner’s report. Their bodies were found burned near the Givens’ farm in Ivanhoe, Calif.
Vortmann banned cameras throughout the trial, saying photography of any kind would be “inappropriate.” Prosecutor Ed Gil agreed, saying witnesses were concerned for their safety.
If convicted of first-degree murder, the Givens could receive death penalties.
Iowa judge lets cameras in despite witness protests
Judge William Joy of Warren County Superior Court in Indianola, Iowa, allowed camera access to the October trial of Rodney Heemstra, a Warren County farmer who was charged with the murder of a neighboring farmer. On Dec. 19, Heemstra was found guilty.
Before the trial began, defense witnesses expressed trepidation over the presence of television cameras and audio recording equipment. Broadcasting and audio recording is typically allowed in Iowa courtrooms, but at the discretion of the presiding judge.
Heemstra, 44, shot and killed his neighbor Tommy Lyon, 52, over a long-running land dispute. In January 2003, Lyon failed to return from feeding his cattle; his body was later found in a well. Heemstra was charged with murder.
The trial was moved from Indianola to Sioux City because of the vast amount of media attention the case drew.
Alta Michener, Evan Kimble and Dennis Dittner, three potential defense witnesses, all filed motions to ban TV cameras and audio recording equipment from the courtroom, each saying they feared for their safety.
Judge Joy denied the motions, however, and the trial proceeded without incident. On Dec. 19, a jury convicted Heemstra of murder and later sentenced him to life in prison.
Cameras banned from trial of Alabama chief justice
The judiciary court in Alabama denied former state Supreme Court Chief Justice Roy Moore’s request for cameras to be allowed in his November trial for judicial misconduct.
The hearing was held at the Alabama Supreme Court’s judiciary building, which seats 200 people. Moore said that barring any member of the media from his trial “[w]ould deny the defendant . . . a constitutionally mandated public trial . . . in addition to frustrating the will of the people to see the truth unfold.”
Moore was on trial for ignoring a December 2002 Alabama District Court order to remove a monument of the Ten Commandments from the Alabama Judicial Court building. Moore was found guilty in November 2003 and removed from the bench.
Cameras are allowed in trial and appellate courtrooms in Alabama on a case-by-case basis. In this case, the judiciary court said only its final judgment could be broadcast and photographed by the media.
Clark’s Hague testimony censored
Cameras were banned from the courtroom when retired Gen. Wesley Clark testified at The Hague during the trial of former Yugoslav leader Slobodan Milosevic in December.
Cameras typically broadcast the proceedings on closed-circuit TV and the Internet, but were blacked out by request of the U.S. State Department. Transcripts of Clark’s testimony were also held for 48 hours before being publicly released, to allow State Department lawyers to delete any information they considered harmful to national interests.
Clark, a Democratic candidate for president and the former supreme commander of NATO forces during the war in Kosovo, took the stand in December in the Netherlands. Milosevic is facing 66 charges of genocide, war crimes and crimes against humanity in Croatia, Bosnia-Herzegovina and Kosovo.
U.N. prosecutors said closing the session would damage public perception of the trial’s fairness.
Secret testimony is usually reserved for intelligence matters and to protect the identity of rape victims or witnesses who fear for their safety, under the rules that govern the International War Crimes Tribunal. Many political and military officials — some on Clark’s level, others of higher office or appointment — have already publicly testified against Milosevic and other former leaders. Former Secretary of State Madeline Albright gave her testimony in public session against Bosnian Serb leader Biljan a Plavsic.
Ohio Supreme Court orders judge to allow cameras in trial
The Supreme Court of Ohio in October ordered Judge Victor Pontius Jr. of the Common Pleas Court in Fayette County to allow station WBNS-10 to record and televise witness testimony in the murder trial of Matthew McCullough.
Pontius had ruled that television coverage would be restricted to opening and closing arguments.
On Sept. 14, 2001, McCullough pleaded guilty to murder in the death of Precious Canter, a mother of two from Washington Court House, Ohio. McCullough, who was 19 at the time, entered a plea deal to avoid the death penalty. He was sentenced to life in prison with the possibility of parole.
However, the state District Court of Appeals overruled that conviction in November 2002, saying Pontius did not sufficiently inform McCullough of his rights prior to the trial. McCullough was tried again in October 2003, and again found guilty of murder.
WBNS-10 requested a court order, also known as a “writ of mandamus,” from the Supreme Court of Ohio after Pontius ruled to limit camera access in the second trial to the opening and closing arguments. Neither the prosecution nor the defense had sought to close the proceedings in any way.
In a brief to the high court, John Zeiger, attorney for WBNS-10, said Pontius “unilaterally restricted access to these proceedings based solely on what are his own predilections and bias toward the electronic media.”
The Supreme Court ruled unanimously for issuing the order.
Judge in California cop-killer trial rejects ban on cameras
Judge Patrick Hegarty of Superior Court in Burbank, Calif., denied a request to ban the media from taking pictures at the December arraignment of alleged cop-killer David A. Garcia.
Deputy Public Defender Andrew Corum asked the court for the ban. Hegarty refused, saying Garcia was no different than any other alleged criminal, and thus still and broadcast cameras were free to photograph the hearing.
Garcia, 19, and Ramon Aranda, 26, allegedly shot and killed Burbank police officer Matthew Pavelka, 26, and critically wounded officer Gregory Campbell, 41, during a shootout in November. Aranda was also killed in the shootout.
Garcia was caught in Tijuana, Mexico, on Thanksgiving day after a two-week manhunt. If found guilty, Garcia could receive the death penalty.