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When a Houston jury considers the death-penalty case of a 17-year-old charged with shooting a man to death during a carjacking last year, a camera won’t be in the room videotaping those deliberations. A divided Court of Criminal Appeals held on Feb. 12 that Article 36.22 of the Code of Criminal Procedure “clearly and indisputably” prohibits the videotaping of jury deliberations and the fact that a bill filed in the Texas Senate would more clearly prohibit cameras in the jury room “is of no consequence.” Article 36.22 specifically states that no “person” shall be with the jury while it deliberates. The five CCA judges who joined in the majority opinion held that the prohibition applies to an unmanned camera that is videotaping while jurors discuss a case. “Each of the millions of viewers of the videotape is a person, and the playing of the videotape (live or not) permits these persons to ‘be with the jury while it is deliberating’ under the ‘plain’ language of the first sentence of Article 36.22,” Judge Barbara Hervey wrote for the majority in Rosenthal v. Poe. Hervey said in the opinion that the court’s interpretation of the statute’s first sentence is “consistent with the ancient and centuries-old rule that jury deliberations should be private and confidential.” At issue in the case was an order by Judge Ted Poe, of Houston’s 228th District Court, that would have allowed the PBS documentary series “Frontline” to place an unmanned camera in the room with jurors considering the case of Cedric Harrison, who is charged with the capital murder of Felix Sabio. Heather Ramsey, Poe’s court coordinator, said in an earlier interview that the judge agreed to have a camera in the jury room for “educational purposes.” The Harris County District Attorney’s Office filed a mandamus against Poe with the CCA, asking the court to vacate the judge’s order. The CCA stayed Harrison’s trial on Nov. 25, 2002 — the first day of individual voir dire in the case. The trial has been on hold since that time. Houston attorney Chip Babcock, a Jackson Walker partner who represents Poe, says eight of the nine judges on the court think cameras in the jury deliberating room are a “bad idea.” If a court wants to hold that way, it can find a vehicle, Babcock says. The arguments made by the DA’s Office provided the vehicle that the majority used to construe the law in such a way as to prohibit cameras in the jury room, he says. Bill Delmore, chief of the legal services bureau in the Harris County DA’s Office, says prosecutors argued that Article 36.22 imposes a “veil of confidentiality” over the deliberations. “The presence of a camera completely defeats the purpose of the statute in guarding the privacy and confidentiality of the deliberations,” says Delmore, who argued the case before the CCA in January. Another Reality TV Show? Williamson County District Attorney John Bradley praises the court’s decision. “We were one step away from making our criminal justice system yet another reality TV show. I think that would have made voyeurism a substitute for criminal justice,” Bradley says. Babcock says a camera is just a tool and, as such, is no different than pen and paper. A juror could take notes on everything that is said during deliberations and publish a book after a trial concludes, and the statute does not prohibit that, he says. But Judge Cheryl Johnson, who did not join in the majority opinion but concurred in the judgment, said in a separate opinion that the law gives jurors the power to reveal what was said during deliberations or to choose to keep those matters secret. “To permit someone other than the jurors to choose to reveal all or part of the deliberations is to break a promise made to them by society — that their deliberations would be kept secret. The promise is no less a promise just because the jurors have left the room,” Johnson said in the opinion. But John Parras, an attorney for “Frontline,” alleges that the court was legislating from the bench in Rosenthal. “This court was outcome-oriented. They’ve strained the law to reach an outcome that is more appropriate for the Legislature, not the judiciary, to reach,” says Parras, of counsel at Houston’s DeGuerin & Dickson. “This is, in my opinion, judicial activism from a court that touts itself as a strict constructionist court,” Parras says. “It seems to me to be sort of judicial activism in the face of legislative inaction,” says University of Texas School of Law professor George Dix, who specializes in criminal law. Dix says the Legislature provided the state’s Code of Criminal Procedures but has not updated the code to accommodate changes in technology. While Dix agrees with the result in Rosenthal, he disagrees with the CCA majority’s holding that Article 36.22 clearly prohibits the videotaping of a jury deliberating a case. “They say it is clear, and it just isn’t,” he says. “But it’s so clearly a right result,” Dix says. “It is what the Legislature would say if they addressed it, but they didn’t.” However, the majority’s holding troubled two CCA judges. Because the majority reasoned that the issue of whether to allow an unmanned camera to film deliberations is not an “unsettled or uncertain” question of law, it determined that the court could conditionally grant the mandamus relief sought in Rosenthal. Presiding Judge Sharon Keller and Judge Mike Keasler disagreed in separate dissenting opinions. Judge Lawrence Meyers also dissented but did not write an opinion to explain his reasons. “My heart is with the majority, but my mind cannot agree. As much as I would like to grant the district attorney mandamus relief and prevent Co-Production from recording the jury’s deliberations, I find no ‘clear and indisputable’ duty for Judge Poe to vacate his order,” Keasler wrote. Keasler said in his dissent that he found nothing in the plain language of Article 36.22 that mentions television, videotaping or recording of any kind. “Indeed, how could it? When the predecessor statute was enacted in 1925, television was the stuff of science fiction,” he wrote. In her dissenting opinion, Keller said the court held in 2001′s Hill v. 5th Court of Appeals and 2002′s Banales v. 13th Court of Appeals that a trial court’s ruling on a pure question of law is not subject to writ review if the law is unsettled or uncertain. Keller said in the opinion that she believes the language of Article 36.22 “does not unambiguously answer the question of whether the camera should be considered a ‘person’ for purposes of the statute.” The ambiguity of the language would seem to create at least some doubt about the proper interpretation, making mandamus relief inappropriate, accordingto Keller’s dissent. “I think this opinion is going to create much mischief in the mandamus jurisdiction of this court in the years to come,” Babcock says. In the future when defendants and prosecutors want to stop trials over rulings in which the law is not all that clear, they are likely to cite the CCA’s opinion in Rosenthal, he says.

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