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Two years later, HBO released "Paradise Lost: The Child Murders at Robin Hood Hills," a documentary about the case that included extensive trial footage. Many viewers were stunned by the lack of evidence that resulted in sentences of life in prison for Jessie Misskelley and Jason Baldwin, and death for Damien Echols. A movement to free them was born. Ironically, however, because of complaints that arose because the trials were filmed, no cameras were allowed at any of the men's appeals, from 1995 to 2009.
Recording trials would not assure that anyone, let alone distinguished filmmakers, would ever look at them, much less use them to make a compelling documentary. It is enough, proponents of electronic recording say, that such records exist — to be used, or not, in the future.
America's tradition of public trials is rooted in British Common Law. The Founding Fathers believed that holding trials in public would protect them against such corrupting influences as petty prosecutions, lying witnesses and vain or inane judges. The Constitution's Sixth Amendment guarantees defendants the right to a public trial.
But what about the public? Does it have a right to see and hear what happens when their government tries someone for a crime? The answer is yes. As Judge Wright put it: "People are welcome to come and watch whatever they want to."
If practicalities such as work, childcare, or the limited size of a courtroom make attending in person impossible, courts have ruled that the public has the right to know what transpired in court — to whatever extent someone who was physically present, such as a newspaper reporter, may relate it. A central purpose of the First Amendment is to ensure that citizens can participate effectively in self-government by holding informed discussions of governmental affairs.
As a Massachusetts court ruled in 1884, "It is desirable that [judicial proceedings] should take place under the public eye, because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed."
But bringing direct citizen observation of courts from 1884 to 2012 has proven difficult. The trial in Harper Lee's book "To Kill a Mockingbird," where the whole town showed up, was fictional. But it represented a time when it was at least conceivable that a fair number of citizens could cram into a courtroom to watch with their "own eyes."
Today, in terms of technology, most U.S. courtrooms hunker about a half-century behind the nation that buzzes outside their doors. In an era when a crime can be recorded on a passerby's cell phone and broadcast instantly on YouTube, any trial that might result will likely occur in a courtroom that is closer, with regard to technology and media, to the quill than to the computer.
That is especially true in federal courts. Just this year the U.S. Supreme Court refused media requests to permit even audio recording of the oral arguments it held on the nation's sweeping healthcare reform law — an issue of profound public interest. When guards at the federal courthouse in Little Rock turn away people who try to enter with a camera, including one on a cell phone, they are enforcing a federal rule that's existed since 1946.
States have been modestly more venturesome. When Texas businessman Billy Sol Estes, a friend of President Lyndon Johnson, was charged with fraud, TV networks were anxious to broadcast his trial. The judge allowed them to do so with parts of it. But in 1965, the U.S. Supreme Court ruled that the presence of cameras had violated Estes' right to a fair trial. Yet, even as they made that ruling, the justices observed: "It is said that the ever-advancing techniques of public communication and the adjustment of the public to its presence may bring about a change in the effect of telecasting upon the fairness of criminal trials."
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