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As technology pushed ahead, state courts struggled with how to handle it within the constraints of the Estes ruling. Eventually, in 1981, the U.S. Supreme Court changed its stance. Without overturning Estes — or changing the rules for federal courts — it ruled that states could allow cameras and broadcasting at criminal trials.
A decade later, Court TV (now TruTV) began offering cable subscribers continuous live coverage of high-profile criminal trials. The network came into its own with its coverage of the Menendez brothers' first trial in 1993 and, two years later, the trial of O.J. Simpson. Tim Sullivan, who headed the network's news department, recalled:
"Before we started, some trials had been televised on an ad hoc basis, but Court TV was the first television network to do it nationwide on a regular basis. So we had to educate judges and the public about what it was going to be like. There was a lot of reluctance at first. But, as the years went on, they got used to it, and it sort of became accepted in many states." Sullivan said that almost all trials the network broadcast came from within "a group of 16 to 18 states."
Arkansas is not one of those states. In 1993, after the West Memphis murders, filmmakers Berlinger and Sinofsky brought their camera crew to Crittenden County and began begging permission to film the upcoming trials. "They weren't sure they wanted cameras in the courtroom," Berlinger recalled.
At one point, while discussions were underway, Circuit Judge David Burnett allowed the crew to film a meeting he held with the sheriff and other officials about security. Burnett mentioned that he was concerned about the adequacy of the sound system in the courthouse at Corning, where the first trial was to be held.
"We offered to install a PA system," Berlinger said. "I think that was our window to getting them to agree." With that opening, Berlinger and Sinofsky negotiated a deal with Burnett to allow two cameras at both trials. One, set up near the judge and facing the audience, was a pool camera, for all electronic media. The second, set up near the jury box, with a view of the judge, witnesses and side views of the audience was exclusively HBO's.
While the makers of "Paradise Lost" secured that extraordinary access for what would become two of Arkansas's most extraordinary trials, most other criminal trials begin and end in obscurity. In Arkansas and many other states, the concerns of judges — not to mention those of prosecutors, defense attorneys, jurors, witnesses, defendants and even families — have led most courts to opt for the simple expediency of banning cameras altogether.
"So it's a weird situation," said Jeff Hermes, director of Harvard University's Digital Media Law Project. "The Supreme Court said we can't presume that the mere presence of cameras violates a fair trial. But it did not go so far as to say that there's a First Amendment right on the part of citizens to have trials photographed or broadcast."
As a result, Hermes said, "we have a patchwork," with decisions about recording, broadcasting and archiving trials made "on a state-by-state, judge-by-judge basis." That presents a problem, he said, when the focus turns to what he termed "the public's access to the courtroom in the modern era."
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