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Last July, the state of Arkansas condemned a man to die. Few actions by government are weightier. But, while any kid could have recorded a prank on his cellphone that day and uploaded it quickly to YouTube, Jerry Lard's trial for killing a police officer was not electronically recorded. No one outside the courtroom saw — or will ever see — the drama that led the jury to reach its profound decision.
Circuit Judge Herbert W. Wright of Little Rock thinks that's for the best. After watching some high-profile trials on television, Wright has concluded that the presence of cameras in a courtroom serves no purpose "other than for people's entertainment." He worries that some judges and attorneys end up "performing" for cameras and being "more concerned about how their actions are going to be perceived than about what they're supposed to be doing."
There's also the matter of retaliation. Wright said that when he practiced as an attorney, he had first-hand experience with witnesses who wanted to cooperate in a trial but harbored the "legitimate concern" that, as they put it, if they testified, "These folks will hurt me."
In fairness, the judge acknowledged that cameras do have a potential upside. He said, "I think a lot of judges would behave better if cameras were on them." And in elections where voters face a "vacuum of information on judicial candidates," Wright said, "seeing how judges or attorneys handle themselves in court would be a benefit."
Judges fret perennially about declining confidence in courts, while citizens, faced with mounting evidence of wrongful convictions, want assurances that, should those occur, they have a way of learning about them — and seeing that they are corrected. Yet, newspapers are cutting back their coverage of courts, while Americans turn increasingly to electronic media for news. Live-streaming of court proceedings is being tried in some states, but most judges, like Wright, recoil from the conflicts they perceive between justice and having a camera in court.
As courts nationally wrestle with how to respond to modern media, Arkansas's case of the West Memphis Three has come to symbolize the civic importance of cameras to courtroom transparency. Because both trials in that case were recorded, events that unfolded in a nondescript Jonesboro court in 1994 have now been seen the world over. As a direct result, three men who are now widely presumed to be innocent were released from prison.
All odds were against such an outcome. Most courts in Arkansas, as elsewhere, ban cameras to this day. Though judges here may allow them, few do. Only a phenomenal set of circumstances brought to the world's attention the convictions of three teen-agers who, but for the cameras at their trials, would almost surely be forgotten today.
The crime (the murder of three children), the age of the accused (all teen-agers), and the alleged motive (Satanism) were sensational enough to attract a television network's attention. Working for HBO, filmmakers Joe Berlinger and Bruce Sinofsky spent eight months "embedding" themselves in East Arkansas, as Berlinger put it, in hopes of getting permission to film the two upcoming trials. The effort proved essential, because Circuit Judge David Burnett, who would officiate at the trials, told the filmmakers that he would not allow filming unless both prosecutors, all six defense lawyers and the families of both the victims and the defendants approved.
Berlinger and Sinofsky succeeded. But, Berlinger said, "Obviously, convincing all parties is a very high threshold ... and, in my opinion, allowing interested parties to determine public access is contrary to the public good gained by having cameras in the courtroom."
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."
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."
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."
Other states are taking a more proactive approach to letting citizens see into courts. Earlier this year, the Supreme Court of Illinois invited circuit courts and media to participate in an experimental program that would allow electronic trial coverage. Chief Justice Thomas L. Kilbride described the move as "another step to bring more transparency and more accountability to the Illinois court system."
Kilbride wrote: "The provisions of this new policy keep discretion in the chief circuit judge and the trial judge to assure that a fair and impartial trial is not compromised, yet affords a closer look at the workings of our court system to the public through the eyes of the electronic news media and news photographers."
Other states have also enacted rules establishing how smart phones, laptop computers and other wireless devices can be used in court. Several permit people, except jurors, to use electronic devices to silently take notes and to transmit them, as text, to news outlets, blogs, and sites such as Twitter.
Sullivan, formerly of TruTV, said such rules are needed. "We've gotten to a place technologically in which there is no difference between a video camera and the eyes and ears of a reporter from a newspaper. In fact, in many ways, the technology is more reliable because the camera can only be accurate."
Where courts have refused to allow cameras, the results have sometimes been absurd. Interest was high nationally in California's Proposition 8, which limited marriage to a man and a woman. But broadcast of a federal hearing on it was not allowed. Enterprising producers filled the void by having actors recreate what happened in the courtroom using transcripts from the hearing and notes taken by observers who'd attended.
Later, U.S. District Judge Vaughn Walker, who presided, asked rhetorically: "Would you rather have people know what happened by way of reenactments or by the real thing?" He answered: "The real thing is always much better."
On May 2, 2011, a National Public Radio station in Boston began live-streaming civil proceedings from a district court in the nearby town of Quincy. The experimental project, called OpenCourt, was funded with a $1 million grant from the Knight Foundation. The goal, as a producer put it, was to allow the public to see "how justice is done."
The staff at WBUR worked with court officials to address concerns, such as those raised by Judge Wright, about who could be recorded, by whom and when. Rules are being developed as the experiment continues. Ultimately, court officials decided to leave Wright's main concern, about participants "performing" for the cameras — and another, about certain media decisions — to the parties' sense of professional responsibility.
Thus, for the past year and a half, anyone with an Internet connection has been able to see and hear live proceedings from that court. In June, OpenCourt began placing its archives of those proceedings online. According to the project's website, its creators hope that by confronting legal and technical issues in this one "test kitchen," it can help other courts "by highlighting our most important mistakes and successes."
The project was permitted under a Massachusetts high court rule, approved in 2000. That rule, like Arkansas's, permits the use of cameras in district courts with certain limitations. But once live-streaming from the Quincy court began, it was immediately challenged by a prosecutor, a group of defense attorneys, and a defendant.
Last March, in an important ruling titled "Commonwealth vs. Norman Barnes," the Supreme Judicial Court of Massachusetts ordered that, once a court has granted permission for electronic recording, any restriction on the right to stream, broadcast, publish or archive what is recorded "represents a form of prior restraint on the freedoms of the press and speech protected by the First Amendment."
Hermes, of Harvard's Digital Media Law Project, who is an advisor to OpenCourt, sees the resulting legal situation as a "three-part structure." Here's how he describes that: First, "There is a First Amendment right to be in a criminal court." Second, "There is no constitutional right to run a camera there." Third, "But, if the judge allows the camera to run, there is a nearly absolute First Amendment right on the part of the media outlet to disseminate the recording."
OpenCourt, having survived two supreme-court challenges, live-streamed its first criminal trial from Quincy in September. More challenges followed, but OpenCourt prevailed and continues.
As one justice wrote: "There is no reason to single OpenCourt out and impose on it a variety of restrictions that do not apply to other media organizations." Said another: "It's always been my position that the more the public knows about what happens in the judicial system, the more confidence they'll have that the judicial system is protecting their rights."
In August 2011, when word leaked that attorneys for the West Memphis Three may have reached an agreement with state prosecutors that would allow for the men's release, Circuit Judge David Laser of Jonesboro, who would be presiding, expected "a media event." And he was not looking forward to it. He had already announced a ban on cameras.
But by then, the times — and technology — had changed. The role of cameras in the West Memphis case was about to come full circle.
As requests from media poured in, Stephanie Harris of Little Rock, who works as communications counsel for the Arkansas Supreme Court, e-mailed Laser an offer to help. Harris, an attorney with newspaper experience, considers it part of her job to assist courts with the logistics of working with media. Besides abiding by the Supreme Court's rules, she said, her only constraint is that she remain neutral.
Laser accepted her offer, and within about 24 hours the two coordinated a plan to allow a single pool camera in the courtroom. Harris praised the judge's cooperation. "He was very aware of the interest in this case," she said. "He was very sensitive to the feelings on all sides, and he wanted the public to have access. He wanted the media to have access and he wanted to have transparency."
"Although courts are open to the public," she observed, "I would say that traditionally, there's been a practical obscurity." She understands courts' many reasons for that, but adds, "I also think the media are responsible. They are sensitive to those issues, and if they're allowed access, they sure don't want to mess it up. So I think the [courts'] fears are valid, but I also think they can be addressed."
On the day that the West Memphis Three were freed, media of all kinds clambered outside the courthouse. The scene was almost a circus. But inside, Laser's courtroom was calm. One pool TV camera, operated by Little Rock's KARK, stood on a tripod in the jury box, a point from which it could record the judge, the three men who had agreed to enter a plea, and the rest of the courtroom.
"It all went really smoothly," Laser said later. Noting that he's been a judge for 13 years, he added, "Except for the hullaballoo around the courthouse, it was like any other day in criminal court."
(For more about the OpenCourt pilot project, see: www.OpenCourt.us.)
Mara Leveritt is the author of "Devil's Knot," about the trials of the West Memphis Three.