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In Hermes' view: "Most adults don't have the freedom to attend court between 9:30 a.m. and 4:30 p.m., Monday through Friday. As a result, we rely on proxies, often the press. But the press is a filter. It makes determinations about which cases to cover, and which parts of those cases are important. That does not necessarily accord with the citizenry being able to observe the functioning of the courts on a day-to-day basis."
For decades, the Arkansas Supreme Court has overseen a technology patchwork of its own, and again, the West Memphis case figures prominently in that history. The release of "Paradise Lost" generated so much interest in the West Memphis case that huge sums of money were contributed for new lawyers and investigations.
In 2010, the Arkansas Supreme Court agreed to consider petitions from the three regarding, in particular, new DNA evidence. That same year, the state's high court decided that it would live-stream oral arguments on the appellate cases it heard. Whether by coincidence or not, an oral argument concerning DNA in the West Memphis case became the first in the state Supreme Court's history to be streamed — and archived on the court's website.
The ruling that followed that hearing would prove pivotal, not just for the three in prison, but for future interpretation of state DNA law. Yet, while the court has forged ahead into the digital era for its own proceedings, it holds lower courts to a rule that's been in place since 1993 — the year that Intel Corp. shipped its first Pentium chip.
That rule grants judges the discretion to permit cameras in their courtrooms, "provided that the participants will not be distracted, nor will the dignity of the proceedings be impaired." But there are several exceptions, the most important of which is that judges may not permit cameras if any attorney or witness objects.
The rule also requires that cameras may not record jurors, minors, victims of sexual crimes, undercover police agents or informants, matters involving probate or domestic relations, drug courts, or discussions that occur in the judge's chambers.
In light of those constraints — and media's lack of interest in most proceedings — it's not surprising that cameras remain a rarity in Arkansas courts, or that guidelines where they are used are few. "Everybody's sort of winging it," one broadcaster said. At a recent hearing in Marion — again, related to the West Memphis case — the judge allowed an array of news cameras to line the back of the courtroom, but guards turned away observers who tried to enter carrying a cell phone.
As director of the Arkansas Judicial Discipline and Disability Commission, David Stewart is required to understand what the state Supreme Court expects of judges. He sees the issue of cameras as one that needs careful sorting.
"I think it is being intellectually honest to say that if it is constitutional to permit the public to attend a trial of any nature, there should be no legal impediment to a live broadcast or streaming of a trial," Stewart wrote in an e-mail. "However, I also believe that there are constitutional issues to deal with in determining what types of trial can, or should, be prohibited from public scrutiny."
In short, Stewart said he thinks that Arkansas's current rule gets it right. "Crimes are against the state, therefore criminal trials, as a rule, should be open to the public," he wrote. But other issues, such as divorces and probates "are nobody's business, with the exception that they must be dealt with under a structured legal environment for the parties' protection."
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