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Taping Jury Deliberations

Press Conference
To the Court of Criminal Appeals
State of Texas vs. Cedric Harrison

The Rice Hotel, Empire Room, Houston, Texas
Monday, December 2, 2002 at 10:30 a.m. (CST)

Michael Sullivan, Executive Producer, Special Projects/FRONTLINE
That's the way I started my career being a cameraman at Monday morning press conferences. It's funny to be on the other side.

Good morning. My name's Mike Sullivan. I'm the executive producer for Special Projects at FRONTLINE, the PBS documentary series. I'm here today with our Texas legal team, John Parras, a lawyer with the DeGuerin & Dickson firm here in Houston, and Jim Hemphill of George & Donaldson in Austin.

We're here to brief you today on the public and legal controversy surrounding Judge Ted Poe's order allowing FRONTLINE to videotape the entire proceedings, including jury deliberations in the capital murder trial of 17-year-old Cedric Harrison. We're going to begin this morning with a couple of opening statements. I'll take you briefly through the history of this project and tackle some of the public concerns about -- that have surfaced about the filming of jury deliberations. Then John Parras will give you an overview of the brief that FRONTLINE will file today in support of Judge Poe with the Court of Criminal Appeals and then we'll be happy to stay here and answer all of your questions.

The first thing we'd like everyone to understand is that the process that led to Judge Poe's decision to allow this filming was long, complicated, and meticulously thorough. It began almost two and a half years ago in June 2000 when FRONTLINE producers Mary Navasky and Karen O'Connor first came to Harris County in search of a fresh and revealing way to more deeply explore the growing controversy about the death penalty. They began a series of conversations with prosecutors, defense attorneys, and judges who handled death penalty cases here in Harris County. Over a period of months, they sat through and observed several capital murder trials, discussed them in detail with the judges, the attorneys on both sides, and with some of the jurors after they had rendered their verdicts.

As a result of that extensive research, we came to two major conclusions. First, that an inside view of a capital murder trial would be very illuminating to the general public and at the heart of a documentary about that process would be the jury. We concluded this because the attorneys who tried these cases seemed unanimous in saying that selecting a jury was the most important thing they did in a capital trial and that the ultimate outcome in a death penalty case depended a lot more on what happened in the jury room than what happened in the courtroom. Our focus on the jury would only intensify when earlier this year the U.S. Supreme Court ruled that only juries, not judges, should have the power to decide life and death in capital cases.

As we began to explore the possibilities of recording a complete capital trial, many in the Harris County Courthouse pointed us toward Judge Ted Poe. We learned that he was an experienced prosecutor who had won eight death penalty cases himself. He presided over 15 more during his 20 years on the bench and that he was deeply respected by both sides, prosecution and defense, for the fair way he handled them during these cases. He had also been a pioneer in introducing cameras into the courts here. He was one of the first judges in Harris County to allow television cameras to record a criminal trial, and I might add over the objection of the District Attorney at the time.

As we began to talk with Judge Poe about this project, we also conducted some wider research. We hired John Parras to thoroughly review the law in Texas as to the legality of the possible legality or illegality of filming jury deliberations. John's research clearly demonstrated there was absolutely nothing in the statutes that prohibited such filming and that the decision to do so rested solely with the trial judge, just as it does in allowing cameras to record in open court. We also took a detailed look at the previous experiments in filming jury deliberations in other states to see if there was anything that had happened there that might deter us or the court from proceeding with jury deliberations in a death penalty case. We found nothing in those previous cases to give us cause.

After several months of detailed discussions with Judge Poe and with the prosecutors and the defense attorneys who tried capital cases in his court, the Judge agreed in principle to entertain a request from us the next time a death penalty case came into his court. As it turned out, it would be a long wait before such a case appeared. Two of them finally came into his court this summer. The first, the case of 35-year-old Cary Grant, accused of the murder and robbery of a former girlfriend, ended in a plea bargain and the second, the case of 17-year-old Cedric Harrison, accused of car jacking and murder, proceeded to trial and we formally asked Judge Poe for permission to film the entire proceedings. The Judge set some very stringent conditions. He insisted that the defendant and his attorney agree to the filming. He insisted that the jury be fully informed about the filming and that anyone who objected would be excused from service. And he insisted on absolute control of the details of the production, that only an obscure remote-controlled camera would be in the jury room and that all videotapes of these deliberations would be sealed by the court until the case was completed.

When all those conditions were met, on November 11th, Judge Poe signed an order authorizing the filming and we began recording the early days of the jury selection process until it was halted by the Court of Criminal Appeals responding to a petition to stop the filming by the Harris County District Attorney. The District Attorney has argued in his brief that the filming will adversely affect the deliberation process, that with cameras present, jurors will begin grandstanding in the jury room. I quote, It might cause people to want to be on the jury if they have an agenda and it basically gives them a platform from which to annunciate that agenda, end quote. This is what he said in his brief.

As the public debate has widened on this, others have made the exact opposite argument. The New York Times in its editorial asking the court to reverse Judge Poe said that it feared that jurors, especially less educated and articulate ones, may be wary of speaking out to question the credibility of witnesses and take an unpopular stand like holding out for an acquittal. Some have argued that cameras make it more likely the jury will vote for a death penalty. Others have argued it makes it much more likely that they will vote for a life sentence. Jurors will grandstand, jurors will be timid, more likely to vote for a death penalty, more likely to vote for life. What is so apparent to us about this debate is that everyone's conclusions are based on speculation. Everyone is guessing about what the impact of cameras will be, but there is a body of empirical evidence available to help us all deal with this central question: Will jurors behavior and their deliberations be altered by the cameras?

The Cedric Harrison case is not the first time jury deliberations have been filmed in the United States. In 1986, FRONTLINE aired the first footage of jury deliberations in a criminal trial, a gun possession case in Wisconsin. In 1996 and again in 2001, CBS and then ABC recorded jury deliberations in several criminal trials in Maricopa County, Arizona, including first-degree murder trials. Those projects were endorsed by the American Bar Association and the Chief Justice of the Arizona Supreme Court. Interviews with jurors following the verdicts clearly indicated they felt the cameras had no effect on their deliberation or their verdicts. More importantly, the officials who administered those trials have reported they found no discernible impact of the cameras on the jury's decision making.

Amidst all the speculation circulating about the impact of cameras on jurors, this testimony from the Arizona experiments is the only and therefore the best evidence of what is likely to happen in this Harris County case, and that evidence clearly says that no harm will come if cameras are allowed. Given those stark facts, given Judge Poe's distinguished record and the care with which he has handled this project over two and a half years, we remain mystified at what actually lies beneath the District Attorney's highly emotional protest. Is he worried about the strength of his case against this defendant? Does he believe the administration of the death penalty in Texas will be somehow undermined by this kind of scrutiny? And why does he seem to so mistrust the jury system? Why does he believe that jurors will be at their worst and not their best when their work is observed by a camera? In the absence of any real evidence, the jurors will misbehave or their deliberations will be tainted by cameras, we believe that the inherent public education benefit of this project must be given its due. Perhaps the best expression of the importance came from Judge Poe himself last week when he was answering a juror's question about why he was allowing the filming of jury deliberations in this case. This is what the Judge said.

"The more the public can know about the truth, the way things really are, the better we are as a people. And the system benefits from this, the system we all operate under."

We think Judge Poe has it right. Now, I'd like to turn your attention to the very important case that's in front of the Court of Criminal Appeals. John Parras is here to give you the high points of the very detailed and powerful brief authored by him and Jim Hemphill that FRONTLINE will file today in support of Judge Poe, a brief I encourage you all to read and compare with that filed by the District Attorney. John?

John Parras, Attorney at Law/DeGuerin & Dickson, Houston, Texas
As Michael said, my name is John Parras and I'm a lawyer with the law firm of DeGuerin & Dickson here in Houston. Mr. Jim Hemphill is co-counsel with me with a law firm in Austin. Today, we will file a brief in the Court of Criminal Appeals in support of Judge Poe's decision to allow FRONTLINE to film jury deliberations. Judge Poe has the authority and discretion to permit the filming of jury deliberations. Judge Poe's decision to shine a bright light on the process and open it up is admirable and courageous. The District Attorney's attempt to characterize Judge Poe's decision as illegal is without merit. We believe that Judge Poe's decision shows faith in jurors and in the criminal justice system. This is an important opportunity to educate the public about the most important civic responsibility an individual can undertake.

The only party objecting to this educational endeavor is the District Attorney. The District Attorney is making an emotional, not a legal argument and it's difficult to understand why. The defendant, Cedric Harrison, has consented to the filming. The defendant's lawyers have consented to the filming. The defendant's mother has consented to the filming and ultimately, the jurors that decide this case will consent to the filming as well. The District Attorney's Office cites no legal authority in support of its position to block the filming. Judge Poe has the authority to grant FRONTLINE's request and we support his discretion to do so.

Our criminal justice system is based on a trust in jurors. We trust that jurors will be fair and impartial, that they will ignore inadmissible evidence improperly admitted and not take into account the defendant's decision to not testify. In short, we trust that they will follow the law. Why does the District Attorney doubt jurors when they say that their deliberations and their verdict will not be affected by cameras in the jury room? Ultimately, the District Attorney displays a lack of faith in the jury system.

We look forward to presenting our arguments to the Court of Criminal Appeals in our brief, and if permitted, at oral argument. This is an issue of significance and we welcome the opportunity to respond. We stand with Judge Poe and are confident that a reasoned analysis of the law will demonstrate that Judge Poe is right.

At this time, we will take questions that you all may have and field them together.


Q:     Question
MS:   Michael Sullivan
JH:   Jim Hemphill
JP:    John Parras

Q:      Martha Gray. Are those cases that FRONTLINE filmed capital cases or?

MS:   FRONTLINE filmed one case early on '86 and that was a gun possession charge. It was just a felony in possession of a gun that was being tried. The more relevant cases I think are more interesting because they're not about FRONTLINE are -- were done by ABC and CBS in Arizona and the ABC filming done most recently in 2001 included I think -- to check the facts -- but I think three first-degree murder cases. None of them were death penalty cases, but they were first-degree murder cases.

Q:      So, this will be the first death penalty case jury in --

MS:   Yes. But I think it's -- the important thing is, it's not -- it's not different in kind. This has happened before. This is different only in degree and there's been lots of good evidence, lots of good experimentation out there that we relied on in deciding to go for this in the first place, that I think Judge Poe relied on in seeing if there are any potential problems here. And we really direct your attention that way because everything else is speculation. Everyone's guessing and guessing in completely different directions, if you'll notice, about what will happen, but there's a pretty good body of evidence. I think ABC shot up to 30 trials. They didn't broadcast that many. And CBS shot several as well. So, there's quite a body of evidence there if anyone wants to check. And we do commend your attention to Arizona.

Q:      Why did FRONTLINE pick Harris County to do a death penalty case?

MS:   Well, I think in part we were looking -- we actually -- the producers were in several other states. I think they were in Georgia, Alabama, and Louisiana before they came here. I think partly it is they got a good reception in Harris County. People talked to them. People were interested in their project. They learned a lot. They learned more here than anywhere else. And so it was as much like films often occur, it's where you can -- you do them where you can do them and we found they had a very good reception here. They were very impressed with the quality of people they met. The discussions were at a very high level and they thought they could do a very interesting film. And I think the opposite happened. I think the people in the Harris County Courthouse came to trust the sincerity of our producers, the incredible amount of time they were spending here educating them self to the system here, and they came to respect them as well.

Q:      Did it have anything to do with the number of executions Harris County carries out every year?

MS:   Well, it certainly, there's certainly a higher probability of cases here, absolutely. As you well know, as counties go in America, there's a fairly high number of death penalty cases here. But no, it was really -- it was a matter of this was a film about getting access to the system, and so in the end, we went to a good place that was interested in giving us access and interested in us and what we were up to.

Q:      Did the District Attorney ever raise any objections prior to the beginning of jury selection? And were you surprised that they've gone as far as to stop it?

MS:   Well, he's very much on the record as his predecessor's been in objecting to cameras in the court in general. So, we did not expect he would look favorably at this. We -- I have to say -- are surprised with the emotional content of his argument and the lengths he seems to be willing to go to try to stop this, and as I said earlier, it does make us wonder what lies beneath his objections because the law's pretty clear. The evidence of other experiments is pretty clear this is not a harmful thing. And yet his objections are incredibly strenuous and he's taken the extraordinary act of taking Judge Poe's order to the Court of Criminal Appeals.

Q:      But did FRONTLINE ever have discussion with Chuck Rosenthal with the jury, the negotiation process with Judge Poe?

MS:   We did -- we did talk to him, but it was in the early stage, I think even before he was quite in office. He was -- I guess it was clear he was going to be the next District Attorney. And we talked about access to the criminal courts in general and never got to this specific issue.

Q:      Did FRONTLINE ever talk to Warren Diepraam as chief prosecutor in Ted Poe's court?

MS:   We have had discussions with Warren, yeah.

Q:      Was he objecting to this from the beginning?

MS:   He certainly -- he certainly objected formally. Informally, he did not object to us, no.

Q:      If there is no -- if legally there's nothing preventing this, why hasn't it been done before?

MS:   I don't think -- I'm not sure anyone ever asked (laughs) along this (inaudible). I don't -- I don't know. I don't know. It's -- why wasn't it done in Arizona? I don't know.

Q:      And as far as you refer to this as an "experiment," do you think a case where life, where there's a possibility of life or death, do you think that's the type of case you'd experiment with or?

MS:   Well, I don't think -- I mean I think the reason we're interested -- we didn't come here to do jury deliberations. We came here to explore the process of death penalty trials and was really only after being educated by the lawyers here about what's really important in these trials as far as their concern, which is the jury, picking of the jury and what happens in that jury room, that we started to focus our attention on trying to see if it was possible to examine what went on in the jury room. And once we thought that, then we just checked out to see, well, what's happened before with people who have done this. And honestly, there's never -- there's never been a hint that there's any harm in this process. I mean, you're this close with a first-degree murder trial in Arizona to a death penalty case. It's not different in kind, only in degree. So, it's just nothing in our experience or in other people's experience indicated to us that we should think there's a problem. Jurors will behave in any substantial way differently with cameras than without cameras and I think that's what -- that's what the evidence shows, not what everyone's speculating.

Q:      What about the overarching principle? I guess this one's for lawyers. It's sort of an overarching principle of American law in general that says juries' deliberations are secret, that you can't mess with the process, that you can ask them afterwards, but you can't see it in motion. How would you respond to that?

JP:     Well, there's no particular statute that says that jury deliberations are secret. There is a statute in Texas' law that says the deliberations of a grand jury are secret. It plainly says it, unambiguously says it, no questions asked. So, then the question is: Is it prohibited? Is the judge prohibited from permitting the recording of jury deliberations? And an analysis of the statutes and the case law, it shows that the judge has discretion to permit this. There's -- I believe that the legislature has not acted in this regard and there are rules for other courts. There are rules for civil courts as well as the appellate courts and there's case law that says those rules do not apply to the criminal court. And so in the absence of a prohibition, the judge has discretion. If he has the choice of making one of two decisions, one permitting it and one denying it, then mandamus is not proper and he should -- and his decision should stand.

Q:      John, I have a question. In Rosenthal's writ of mandamus, he cites Rule 606-B that says the jury must not be contacted by any person. And he's kind of citing the camera as -- although he doesn't spell it out completely, he's kind of trying to say that the camera would be contact. Can you just respond to that part?

JP:     What the rule is designed to do is to prevent jurors from after the verdict being used by lawyers to impeach their verdict. So, what the rule does is it prohibits the use of juror statements made during deliberations and post-trial proceedings. And it says that no person shall be in the jury room while they're deliberating. Case law construing that rule permits people to be in the jury room or it doesn't find that it's complete error if someone's in the jury room. There must be something more. There must be a conversation about the case that harms a party. Cameras do not hold conversations. They do not discuss the case. They cannot be shown to harm a party. That to me are speculation.

Q:      Gentlemen, can you tell in Spanish --


The question is: (Spanish, not transcribed/translated)

JP:     Excuse me.

Q:      Are y'all going to file --

Q:      And if you can say it in Spanish, why is the DA against cameras?

(Spanish, not transcribed/translated)

Q:      Are y'all going to file this today?

JP:     Yes. And there will be copies for everybody.

Q:      How will we know what you actually filed? You know, 'cause I don't want to write the paper, you know, if you get stuck in traffic in the court facilities. (Laughs.)

JP:     There's someone in Austin -- (laughter) -- there's someone in Austin waiting to file the brief. If we don't get our signature page there, there's a replacement to go in today.

Q:      And what do you --

JH:     My office is -- my office is in Austin and we are prepared to file it and have everything ready to go. So, it will be filed today. There's no question about that.

Q:      How do we -- how do we confirm that brief?

JH:     Call the Court of Criminal Appeals.

Q:      Okay. I'll just (inaudible) --

Q:      (Inaudible.)

Q:      I'm sorry.

Q:      What does that (inaudible) response on this? Or how completely do you think the court's going to act? Can you say at this point?

MS:   It's really hard to tell how long the court (interruption - saw running in background). Oops, (inaudible). (Laughter.) (Saw running in background.)

It's really hard to tell. The State has asked for an expedited review. It would certainly be I think a good thing if this could be resolved in time for the case to be actually tried in January, but the timetables really -- it's up to the Court of Criminal Appeals.

Q:      And this is separate from Judge Poe's response?

MS:   Our response is, yes. Yes. Judge Poe, I understand, will also be filing a response in the Court of Criminal Appeals probably late this afternoon.

JP:     On the timing issue of how soon will we expect a response, I would hope that the court takes its time to review this seriously and not return a knee jerk reaction.

Q:      Is jury selection stopped -- halted right now till there's --

JH:     It is. It is right now. And we do hope that the Court of Criminal Appeals will sit down and take a look at the law, take a look at the briefs and ask us to come up there and have oral argument so we can find out what the court's concerns might be, so the District Attorney can voice what his concerns are. And we look forward and have requested that the Court of Criminal Appeals allow us the opportunity to be heard in oral argument up in Austin.

Q:      Can we get your name, sir, and the correct spelling?

JH:     Sure. My name's Jim Hemphill, H-e-m-p-h-i-l-l. And I'm a lawyer with the George & Donaldson firm in Austin.

Q:      Can you give us your name?

JP:     I'm John Parras, P-a-r-r-a-s, and I work with Dick DeGuerin's law firm, DeGuerin & Dickson.

Q:      Is this filed just kind of as a court brief since a response wasn't actually --

JP:     Actually, we are a named party in interest by the District Attorney and so we feel that we have standing as a named party in interest to file this response.

Q:      Your office is not representing the office of Jackson White -- the defendant -- your office is not -- I mean Harrison. Your office is not representing the defendant?

JP:     No. We were retained two years ago to help FRONTLINE in this education endeavor.

Q:      And why didn't you ask sooner to film jury deliberations?

MS:   Simply, there was no cases in front of Judge Poe's court until this summer and there were two of them and we started getting involved with both of those. One was pled out -- the Cary Grant case -- and this one before us, this is literally the first case since we've entered discussions with Judge Poe about this, the first death penalty case that's come through his court.

Q:      How big of a role did the judge who was hearing the case play in the request you have as to the (inaudible), if any?

MS:   Judge Poe?

Q:      Yeah.

MS:   Well, he clearly was interested in this project. He saw the merits of it. And, therefore, he felt responsible to entertain a specific request from us for filming and went through all the hard work of figuring out how it should be done, what the restrictions on it should be. And clearly, he's interested. He sees value in this. Clearly, you can tell from the statement of his I read. He's a man who believes that the more sunshine we let in the system, the better -- better off the democracy is.

Q:      Did y'all approach any of the other 21 felony district judges?

MS:   We had extensive discussions with many of them through this process, but many of them said you really should go talk to Judge Poe. On their recommendation, we went to him.

Q:      My question is: Did they tell you no?

MS:   Uh, I don't --

Q:      Did you like have them go down the checklist kind of thing or?

MS:   No, I think the discussions were really centered on this specific issue of jury deliberations were centered on Judge Poe 'cause he expressed the most interest in it.

Q:      Is it possible to get a copy of the FRONTLINE program that was done on the jury deliberations on gun possession (inaudible)?

MS:   Sure. We can have Jim Bracciale or Erin Martin Kane from our communications office will be happy to send you a copy.

Q:      Okay.

JP:     I'd like to have -- make a statement to Judge Poe (inaudible).

MS:   Sure.

JP:     You've asked a lot of questions about Judge Ted Poe. He is the Senior District Judge here in Harris County. He spent his professional life in the criminal justice system both as a prosecutor and a judge and is highly regarded by both sides of the Bar in this county and beyond. He's long been an advocate of open courts and frequently permits the press access to the courts and entertains high school students to teach them about our jury system.

Q:      Have any media organizations or, you know, like the First Amendment (inaudible) organizations joined your cause like that or have they given you support? Are they (inaudible) anything from the court in response?

JP:     Not to my knowledge. I think the fact that it actually is done by other organizations out there is a strong support, that ABC and CBS are organizations that film jury deliberations and that put them on TV for the education of the public is very strong support for us.

Q:      Thank you.

MS:   Thanks.

(End of Press Conference)

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