Televising Juries?

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• TERENCE SMITH:

  The Texas Court of Criminal Appeals took the rare step Monday of halting jury selection in a criminal trial.

  At issue was the decision made earlier by a district judge to allow cameras from the PBS documentary series "Frontline" to tape the proceedings of the capital murder trial, including jury deliberations. If Judge Ted Poe's decision holds, it would mark the first time cameras would be permitted to record such jury deliberations in a capital case in Texas, and possibly the country.

  The defendant signed a waiver allowing the recordings. Seventeen-year-old Cedric Harrison is on trial for fatally shooting a man in Houston last June.

  In a brief filed with Judge Poe, lawyers for "Frontline" wrote: "Taping the trial would provide a greater understanding of the reality of capital law and the administration of our capital system." Prosecutors are appealing the ruling.

  We join the debate now with Chip Babcock, an attorney in Dallas who is representing Judge Poe in the appeals process; and Warren Diepraam, the lead prosecutor in the Harrison case. He's the assistant district attorney in Harris County, Texas. Gentlemen, welcome to you both.

  Chip Babcock, you're representing the judge in this appeal, and obviously, he cannot speak about a pending case that is before him, but what are the arguments in favor of his ruling opening the jury deliberations to cameras?

• CHIP BABCOCK:

  Well, first of all, the judge has provided that all the jurors who are going to be involved in this have consented to being filmed.

  And if you think about it, there really isn't much difference here than a print reporter who is outside the jury room and as they finish their deliberations and either acquit or convict a defendant, the print reporter talks to them all and finds out exactly what went on in the jury room and writes a long piece about what the jury deliberated on.

  Here the only difference is that there's going to be an unmanned camera – an unmanned camera in the room recording more accurately than the hearsay of a print recorder would record. And it's going to be impounded. It's not going to be contemporaneously shown.

  And, if it's allowed, it will shed light on one of the most important things that we do — literally if the defendant is convicted, a life-and-death decision.

  And I think that we're all aware that the national and international community is looking at our system of justice, not only in the United States, but in Texas in particular, as how do we administer the death penalty.

  And seeing how a jury reaches this very important life-and- death decision, it seems to me will aid in the understanding, the educational understanding of that process.

• TERENCE SMITH:

  Warren Diepraam, you have appealed this. What are the arguments against it?

• WARREN DIEPRAAM:

  There are a couple of primary arguments against it.

  The first argument, and the most important argument, is that when a jury knows that it's being filmed, or any people know that they are being filmed, they tend to act for the camera and change their personality for the camera. That I have seen personally in this case when we started picking the jury. The jurors started answering the questions based upon the presence of the cameras in the courtroom, and it's just going to get worse if the cameras are allowed in the jury deliberation room.

  The second important point on this is, this is a capital murder case. It's the most serious offense that we have in this country, and certainly in the state of Texas. And there's a lot of concerns that the jurors have expressed, and the people have expressed, about safety issues. They can't go back there and talk freely about what is happening, about what happened in the case.

  They can't criticize my evidence or the defense's evidence, and reach a decision, because there's going to be a fear factor that the jurors are going to have to worry about when they're answering those questioning. And they have expressed fears of retaliation and those are legitimate concerns.

• TERENCE SMITH:

  What would you say to that, Chip Babcock?

• CHIP BABCOCK:

  Well, first of all, it's my understanding that Warren has been there and he's a fine prosecutor. But all the jurors who have expressed any concern about serving on a jury that is having its deliberations filmed have been excused without objection by the state.

  As to the point that Warren makes about people changing their behavior, you know, we're not in Central Park with a bunch of people lounging around and a camera crew comes up and they start hamming it up. We have seen, Warren and I have seen, actual cases where jury deliberations have occurred and have been filmed. And those films reveal that the jurors quickly ignore the fact there's a camera present.

  I have been involved in cases that have been filmed gavel to gavel, and I will tell you from personal experience, I forget about it and I do my job. And I have seen literally hundreds of mock juries filmed where they knew that I was watching and it did not seem to me to inhibit what they said. In fact, they said some mean things about me that I sort of wish they hadn't, but it certainly didn't change their behavior. I don't think there is any empirical evidence to suggesting that an unmanned camera in a jury deliberation room changes anybody's behavior.

• TERENCE SMITH:

  All right, Warren Diepraam, what about the point that was made at the very outset by Chip Babcock: If a reporter can interview a juror after the trial, what is the difference here between that and something reminding of course that this material would be broadcast only after the verdict had been reached?

• WARREN DIEPRAAM:

  There's a significant difference because jurors have the choice in Mr. Babcock's scenario to not participate and to not answer any questions. And that's a pretty common occurrence here in Harris County, and I'm sure in other places, when jurors are asked questions either by the lawyers or the judge or by the media, they are given a choice to say, "no, thank you, I don't want to participate." They are not going to have the choice in this case. They are going to have to participate.

  Secondly, knowing that somebody is going to be asking a question after deliberations is not going to affect what happens inside the jury room. I'm sure if that reporter were inside the jury room asking them questions, that the answers to the questions would change and they wouldn't feel free to openly discuss the ideas and the evidence and the facts of case and what should ultimately happen.

  So it's a big difference with somebody outside afterwards, where there's freedom of choice to discuss the case with the media, and being forced to participate — in like a Wal-Mart where you have got cameras watching you all over the place. There's a big difference between those two.

• TERENCE SMITH:

  Okay. Mr. Babcock, I was trying to ask you about the point of possible fear of retaliation apparently expressed by some jurors, if what they say in the jury room is actually filmed and ultimately broadcast.

• CHIP BABCOCK:

  Well, a couple things. My understanding is anybody who said that they didn't want to participate was excused. Very few people did, but there were some, and they were excuses without objection from either side. So I'm not quite sure where the 'fear of retaliation' is coming from.

  In fact, I was in court, yesterday, and Warren said that the state was not advancing the dangerousness argument in opposition to this filming, nor do their papers in the court of criminal appeals advance that argument. It does seem to me that the fact that the jurors have consented to this is important.

  And it also seems to me that we should not be scared to show off our criminal justice system and frankly, because this is new, I think the judicial system is slow to change. And I think we're just afraid of this. But I think that if people watch this jury deliberate, they will see people, twelve people, come together with extreme seriousness of purpose. And it will enhance appreciation for and frankly support for our system.

• TERENCE SMITH:

  Mr. Diepraam, what about that — might it enhance the public's impression of the judicial system?

• WARREN DIEPRAAM:

  There's no doubt that there's an educational value in what these folks are attempting to do.

  But there would be also an educational value in watching the National Security Council meetings on preparations for war with Iraq, or watching the Supreme Court debate some of the issues in front of them, or watching the president's bedroom and seeing how he conducts himself in there. That would be educational — no doubt about it.

  The problem is, is there are overriding concerns that dictate that cameras should not be allowed in a jury deliberation process. Sure, it would be educational, and I'm sure everybody would love to see it. The people who have commented on it overwhelmingly say that it's a bad idea, but several of the university professors, who indicated they think it's a bad idea, said we would like to see it because it would be educational. That's not the point.

  The point is that jurors are not giving us fair and accurate responses to the questions on the issues in this case. And I was there. I spoke to seven jurors yesterday and I saw a big difference in the way they responded to the questions that I asked them regarding their feelings on issues in this case and how they responded, and how other jurors responded to similar questions when there were no cameras and no potential to be filmed in deliberations. And several of those jurors did express fears about retaliation.

• TERENCE SMITH:

  Mr. Babcock, if the judge is upheld on this, would you expect that this filming in jury deliberations would become routine in cases in Texas and cases elsewhere?

• CHIP BABCOCK:

  No, I wouldn't expect it to become routine, because this is all about the discretion of the judge.

  And I think the various district judges in our state have various views about cameras. I don't think a majority of our judges believe this is a good idea, but I think some of them do. So I think that if this is allowed by the Texas Court of Criminal Appeals it might happen again. Do I think it will be routine? No, I don't think it will be routine.

• TERENCE SMITH:

  Okay. Thank you both very much. We'll stay tuned and find out.