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Wireless technology, such as cellular phones and BlackBerrys, has raised a new concern in the legal system: Is text messaging being used to tamper with trials? That fear surfaced during a recent Michigan murder trial when a Detroit judge caught wind of a rumor that someone in the courtroom had used a cellphone to send a text message to a sequestered witness out in a hallway about testimony that was being given inside. When sheriff’s deputies notified the judge of the rumor, the judge ordered all cellphones to be put away and kept away for good. “This is only the tip of the iceberg and the sanctity of the courtroom could be tarnished as technological advances improve. It’s very scary right now,” said Wayne County, Mich., Prosecutor Kim Worthy, whose office is handling the Detroit murder trial. Worthy noted that while cellphones could be hurting the integrity of the legal process, text messaging isn’t the only menace. Cameraphones are just as potentially abusive, she said. For example, in October, while prosecuting a murder trial involving an infamous Detroit gang member, Worthy learned that spectators were using cameraphones to take pictures of witnesses. This led to having to relocate some witnesses for protection, she said. “The witnesses were very fearful already,” said Worthy, who reported the problem to the chief judge. Cameraphones have since been banned from Wayne County courts, and court officials are currently reviewing a proposal to ban all cellphones from the county courts by June 1. Worthy supports banning all cellphones for the public, but not for lawyers or police officers. Wayne County Circuit Judge Daniel Ryan said cellphones, BlackBerrys and other wireless devices are a growing concern for judges, largely because of their capabilities. He said that the potential danger of text messaging for sequestered witnesses has especially alarmed judges. “We are constantly monitoring for that. That is one of our primary concerns with cellphone use,” Ryan said. “If individuals who are in the courtroom can communicate with those outside as to what the testimony is, it undermines the integrity of the subsequent witness testimony.” Most recently, wireless gadgets caught the ire of the Judicial Conference of the United States, which recently sent letters to chief judges in all federal courts warning them of the security risks associated with wireless technology. The Judicial Conference, which does not have a policy specifically on wireless communication, advised judges to adopt policies to regulate the use of such technology in the courts. But while some in the legal system fear the potential abuse of text messaging, others are embracing the technology. Some lawyers say text messaging, when used legally and ethically, is a useful tool for obtaining and relaying crucial information when they’re stuck in court. Commercial litigator Fil Agusti of Washington’s Steptoe & Johnson said he often relies on text messaging when he’s in court. It’s especially vital in a large bankruptcy case, he said, where lawyers have to stay for the entire hearing because something could affect their client. For example, a few weeks ago, a big settlement development in a high-profile bankruptcy case that affected one of Agusti’s clients was announced in a Connecticut federal court. Agusti could not leave the courtroom quite yet, so he sent a text message to his client about the settlement. “I felt pretty sure that my client was going to get some press inquiries, so I just gave the very rough terms of what the settlement was,” Agusti said. “It’s a handy little tool.” Agusti noted that he never could have done that in the Southern District of New York, where cellphones and BlackBerrys are taken away from lawyers and locked in a cubbyhole until court’s over. He said he understands fears about potential cellphone abuse and witness tampering in criminal trials. “But we in bankruptcy court don’t have much of that,” he said. Instant evidence Like Agusti, New York attorney Steven Reich also likes to rely on wireless technology when he’s in court. Reich, who co-chairs the criminal defense practice of Los Angeles-based Manatt, Phelps & Phillips from its New York office, said federal courts in Connecticut are especially open to technology. In a recent false-advertising trial, he noted, both sides had technology consultants in the courtroom. Reich needed a certain document to be admitted at evidence, but it was back at the office. From the courtroom, he sent an e-mail to his office in New York requesting the document, which was e-mailed back in the actual PDF format and printed off in the courtroom. “It’s a tremendous help,” Reich said of wireless technology, adding that it beats the alternative of having to “send someone out to a pay phone.” The Administrative Office of the U.S. Courts doesn’t keep data on how many federal courts ban cellphones. The National Center for State Courts also doesn’t track bans in state courts, but reports that most prohibit them because they’re disruptive.

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