New Hampshire Supreme Court rules in favor of cameras in courtrooms; other courts limit access

From the Winter 2003 issue of The News Media & The Law, page 44.

By Paula Canning and April Thorn

“[T]he use of cameras by the electronic media is merely an extension of the reporting function of the more traditional arms of the press,” New Hampshire Supreme Court Justice Joseph P. Nadeau wrote in a December decision responding to media requests that the court adopt a presumption that courts be open to the public.

Writing for the state’s high court, Nadeau said that judges should limit camera coverage only if there is “substantial likelihood of harm to any person or other harmful consequences” and “only when no other practical alternative is available.”

The high court ruled in response to efforts by WMUR-TV Channel 9 in Manchester, The Boston Globe and the New Hampshire Association of Broadcasters to change a trial court’s ruling, made without a hearing, that camera presence would infringe upon “the defendant’s constitutional right to a fair trial.” The Radio-Television News Directors Association and The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief.

The ruling will affect administrative policies in two counties that had prohibited cameras in courtrooms altogether.

WMUR and other news organizations had tried to cover the highly publicized case of Robert Tulloch, one of two Vermont teenagers accused of murdering two Dartmouth professors in January 2001. Tulloch ultimately pleaded guilty but the high court reviewed the media petition anyway.

Finding that the media had been able to adequately cover the Tulloch proceedings, the high court did not rule that media have a constitutional right to camera coverage, but it did find that courts should presume that camera coverage will be allowed. (Petition of WMUR Channel 9)

Media granted limited access to murder trial

John Hall, on trial for murder in Merrimack County, was the first to challenge the presumption of camera access laid down by the New Hampshire high court. Judge Kathleen McGuire ruled against the defendant’s plea for a ban on cameras in his murder trial, which was scheduled to begin in March.

Jim Basset, a Concord attorney for WMUR-TV, said that cameras will be permitted in the courtroom for the upcoming trial, but they will be “subject to various location restrictions inside the courtroom.” For example, they will not be permitted to film the defendant while he is on the witness stand.

Hall is on trial for the second time for the April 1999 murder of his mother, Joan Hall. The state supreme court overturned his June 2000 conviction for second degree murder on the grounds that the jury had been instructed falsely on how to consider Hall’s state of mind.

Cameras were not allowed in the courtroom during Hall’s first trial, but Hall allegedly experienced a panic attack during sentencing when a camera allegedly was forced in his face before he entered the courtroom. Hall was brought to Concord hospital where doctors gave him tranquilizers. Hall’s position, according to Basset, was that if cameras were to be at the trial, he might have another panic attack.

“It was never clear from the medical records and there was no reference made by doctors that the cause of Hall’s panic attack was the cameras and not possibly the fact that he might be sentenced to prison for the rest of his life,” Basset said.

Florida court rules against plan to ban photographing jurors

The Florida Supreme Court has rejected a judicial plan that would allow judges to restrict both audio-visual and still photography of jurors in Florida state courtrooms.

The proposed change would have allowed judges to ban the photographing of jurors without having to first ascertain potential harm to the jurors or to the judicial process.

When the plan was first announced in October 2002, The Orlando Sentinel and The South Florida Sun-Sentinel in Fort Lauderdale as well as six other media organizations opposed the move. The media submitted a 13-page brief to Judge Peter Webster outlining their opposition to the change.

Rachel Fugate, an attorney for the media group, applauded the court’s decision: “Jurors make life and death decisions everyday.” They are the administrators of justice, she said, and a decision to shield the public from that “would greatly undermine the public’s confidence in our judicial system.”

Media allowed to cover hearing on 17-year-old’s early release

In Fort Myers, Fla., the media were granted access to the Dec. 2002 early release hearing for 17-year-old Sarah Sciandra, who in 1998 was convicted of manslaughter in the death of Brianna Dwyer, the 3-year-old she was babysitting. Collier County Judge Martin Lawrence denied requests by Sciandra’s attorney and family in late November for a closed hearing.

Lawrence granted the media access to the hearing, but reserved the right to close the hearing at any time if the press disrupted the proceedings.

David Goldberg, Sciandra’s attorney, said the press was not disruptive, but that he wanted a closed hearing because camera coverage would be emotionally overwhelming for Sciandra.

“Sarah had been through so much in the last few weeks. A therapist thought [camera coverage] would have an ill effect on the child,” said Goldberg.

Sarah’s hearing has resulted in her return to the Florida Institute for Girls in Palm Beach County, where she can be held until the age of 21.

News organizations sue state of New York over camera ban

An Erie County judge ruled in early February that a state law banning cameras in trial courtrooms does not apply to still photography.

The Buffalo News, a Buffalo CBS-affiliated television station, an NBC-affiliated station and an independent television station Dec.13 filed a lawsuit against New York over a state law prohibiting broadcast and still camera coverage of trial courtrooms.

The media had requested permission for camera coverage of the murder trial of James Kopp, but attorneys from the Attorney General’s office and from the defense urged Erie County Judge Michael L. D’Amico to deny their request.

The News sought a declaratory judgment interpreting the statute to be inapplicable to still photographic coverage, or, if applicable, then determining it to be unconstitutional, according to a Jan. 24 statement from the newspaper.

The defense attorney encouraged the court to permit a single television camera to record the trial without the filming of the jurors but he objected to any type of still photography.

According to the News statement, the New York State Attorney General filed papers claiming that “there is no state constitutional right of access to the courts.”

Kopp, an anti-abortion activist, faces both federal and state charges in the October 1998 murder of Amherst abortion provider Dr. Barnett A. Slepian.

New York media denied access to arraignment of murder suspect

Town of Union Justice Richard H. Miller refused camera coverage of the Dec. 18 arraignment of John A. Leonard, charged with the murder of his girlfriend, Nicole M. Hicks.

According to Broome County Public Defender Jay L. Wilbur, who was not present, camera prohibition is necessary in certain stages of court proceedings and was applied to Leonard’s case due to the “nature of charges.” The Binghamton Press & Sun-Bulletin reported that Leonard did not want cameras because he was afraid that his 5-year-old son would see the arraignment. Leonard committed suicide Jan. 29.

Orange County judge to hear testimony on cameras at Avila trial

An Orange County Superior Court judge in Santa Ana will hear testimony March 21 to decide whether to admit cameras into the courtroom for the trial of Alejandro Avila, who is charged with kidnapping and slaying 5-year-old Samantha Runnion.

The trial will not proceed until this issue is resolved. Cameras were not allowed at Avila’s preliminary hearing in October 2002. Deputy District Attorney Susan Schroeder said her office wants cameras at the trial, while the defense objects to cameras.

Delaware commission requests cameras access in trial courtrooms

The Delaware Supreme Court is reviewing a proposal to allow cameras in the state’s trial courtrooms. The Bar and Bench Media Conference of Delaware, made up of judges, lawyers and media representatives, submitted the proposal to the supreme court on July 30. A similar proposal to allow cameras had been set aside in 1994.

“We’ve essentially been on hold for a number of years,” said Henry du Pont Ridgely, superior court president judge and chairman of the Bar and Bench Media Conference of Delaware.

The proposal asks the state to allow television and still cameras along with audio-recording equipment in the trial courts of Delaware. The cameras would be present on a test basis until the state decides if they are helpful. Ridgely said the issue of cameras in the courtroom has been provocative for some time. He said using a test period will be the best way to determine if the cameras should be permanent.

Under the proposal, judges could grant permission for hearings and trials to be recorded after media companies make written requests. Proposed rules do not allow media to identify jurors or some witnesses, such as undercover law-enforcement officers or sex-abuse victims, without their consent.

Ridgely said judges can determine how much coverage a certain case or a certain witness gets, and can terminate coverage at anytime.

The proposal asks television stations to work together and share one television camera. The equipment used must be unobtrusive, without bright flashes or loud camera shutter clicks.

All 50 states permit coverage of court proceedings to some extent. The media have been allowed to photograph and record arguments in the Delaware Supreme Court since 1982. However, they are not permitted in the trial courts.

The proposal sets no time by which the supreme court must decide.

“A majority of the legal community and judges support cameras in the courtrooms,” Ridgely said. “We are waiting for the supreme court’s position on it. Ultimately they have the final decision.”

Mississippi Supreme Court asks for public opinion on cameras in courts

The Media and the Courts Study Committee of Mississippi in December requested that the Mississippi Supreme Court allow broadcast and still cameras into the state’s courtrooms.

The Supreme Court began broadcasting its hearings on April 2, 2001. The state spent about $55,000 to install five voice-activated video cameras in the court’s chambers. Although outside cameras remain prohibited in the court, television and radio crews are allowed to plug into the system through a hook-up in a separate room in the building. Five news outlets can plug in and record the hearings at once.

The state’s Code of Judicial Conduct currently bans outside cameras in Mississippi courtrooms.

In late January, the supreme court asked for public opinion in the matter. The court will then study the feedback along with the committee’s proposal.

The committee has suggested a pilot program for cameras in the courtroom and some members have been in favor of it, said Beverly Pettigrew Kraft, public information officer for the state of Mississippi. According to Kraft, the court should decide on the matter by March 14.

Media groups request ‘gavel-to-gavel’ coverage of sniper trials

Media groups have asked for camera access to all proceedings for the Washington-area sniper suspects.

John Allen Muhammad and his alleged accomplice, 17-year-old Lee Boyd Malvo, are charged in 13 attacks during a three-week shooting spree in Virginia, Maryland and the District of Columbia in October. Ten people died. Both men are charged or suspected in other shootings across the country as well.

They are first being tried in Virginia. Malvo is charged in the killing of FBI analyst Linda Franklin, 47, outside of a Home Depot store in Falls Church on Oct. 14. Malvo faces trial on two counts of capital murder in Fairfax County. Muhammad faces trial in Prince William County in the killing of Dean H. Meyers, 53, at a gas station near Manassas on Oct. 9. Muhammad will face two counts of capital murder as well.

Prince William County Circuit Judge LeRoy F. Millette Jr. ruled Dec. 12 that Muhammad will not have a televised trial. A hearing will be held to determine whether or not cameras will be permitted at the Malvo trial.

Millette ruled on a motion filed by the Radio-Television News Directors Association, which stated that the strong public interest in the trial meant that it should be accessible to the broadest possible audience.

Major networks, several Washington D.C. television stations and media groups, including The Reporters Committee for Freedom of the Press, joined RTNDA in the petition.

Kathleen Kirby, attorney for the RTNDA, said a lack of cameras would not reduce publicity in the case. Kirby said Millette’s decision was probably due to the fact that both parties objected.

According to the Richmond Times-Dispatch, Muhammad’s lawyer, Peter D. Greenspun, said a televised trial could prejudice potential jurors in other jurisdictions where Muhammad faces charges.

Kirby said cameras in the courtrooms are up to a judges’ discretion, although they have to demonstrate good cause in order to remove cameras from the court. In the Muhammad case, the judge said he was concerned that broadcasting trial coverage could subsequently taint jury pools in upcoming trials, and make it difficult for jurors to follow instructions, Kirby explained.

The RTNDA submitted a petition Jan. 30 to allow cameras in the courtroom during certain preliminary hearings and the trial of the Malvo.

The petition asks Judge Jane Marum Roush for permission to pool equipment and personnel for broadcast coverage from an unobtrusive location in the courtroom.

“There is a significant need for recording and telecast of these proceedings, because the physical confine of the courtroom and the importance of preserving order and decorum in the courtroom necessarily limit attendance . . . . . . Without electronic coverage, the public will not be able to witness first-hand the orderly administration of justice in a case of keen interest and importance,” the petition read.

The media parties have a tentative hearing date of March 3 for Roush to decide on the petition. Both parties in the Malvo case object to broadcasting his trial.

Kirby said the media groups want “gavel-to-gavel” coverage of both the Muhammad and Malvo trials.

In Iowa, cameras banned from capturing defendant’s children

A children’s advocate Nov. 21, 2002 asked a Le Mars, Iowa, court to ban photography while the children of a northwest Iowa man accused of murdering another son testified. District Judge James D. Scott ruled Nov. 25, 2002 in favor of the motion, saying photographing the children could potentially harm them. Scott said he would consider any challenges to the ruling, but none were made.

Donald Boss was found guilty Dec. 16, 2002 of first-degree murder in the death of his 10-year-old adopted son, Timothy Boss. He is serving a life sentence without parole.