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In a move that media advocates decry as a first step toward secret trials, a Florida Bar committee is proposing to give judges increased discretion to prevent news organizations from showing the faces of jurors. The Bar’s Committee on Rules of Judicial Administration is proposing to amend a rule governing media coverage of trials in a way that would let judges prohibit photographing or videotaping of prospective or seated jurors without first holding an evidentiary hearing, as is currently required. The committee, chaired by Judge Peter D. Webster, of the 1st District Court of Appeal in Tallahassee, has been soliciting comment on the proposed change to Rule 2.170, and plans to submit it to the Florida Supreme Court for review, along with a package of other proposed rule changes, by Feb. 1. If adopted, the amendment would take effect Jan. 1, 2004. Webster, who became chairman after the committee approved the proposal, said in an interview that the proposal is meant to give judges a way to protect jurors without having to go to the extreme of closing a courtroom altogether. “Florida is one of the most liberal states in the country with regard to allowing media access to courtrooms and has been in the forefront from the beginning,” he said. “I don’t think the intent was to set off in a different direction. Rather, it was to allow judges, in cases where they truly believed jurors might be at risk — the obvious example would be a high-profile criminal case — to say, ‘We’re not going to allow jurors’ faces to be shown.’” The First Amendment Foundation, a Tallahassee-based media-backed nonprofit group that advocates open courts, strongly opposes the proposed amendment. Jon Kaney, the group’s general counsel, said that while the privacy of jury deliberations long has been sacrosanct in America, the identity of jurors is not. “The publicness of the trial is wounded if we give into the idea that we could bring in anonymous people,” he said. “They are making the decision, and in the absence of a clear threat to their safety, they should do that in public, just as the judge does and everybody else does. America lives on TV. We’re all on TV all the time. There’s nothing wrong with being seen in public. Yet the judiciary, left to its own resources, has an overexcited sensitivity to identity issues that are radically distinct from privacy issues.” The proposal stems from a 4th District Court of Appeal decision on Dec. 24, 1997. In that case, WFTV Inc. v. State of Florida, the appellate court held that a Palm Beach Circuit Court had improperly denied an evidentiary hearing on whether media coverage would have a substantial effect on jurors in a DUI manslaughter case. The rules committee, in supporting the amendment, has sided with the dissent in the 4th District Court of Appeal opinion. In that dissent, Judge Gary M. Farmer argued he did not consider an order directing that jurors not be shown to be an exclusion of the media from the trial. It’s merely a matter of a trial judge being able to exercise ordinary control over a courtroom, Farmer wrote. “I simply cannot imagine any basis for challenging a trial judge’s direction in a criminal case not to show the jurors on television.” But the majority didn’t see it that way. They found that jurors are trial participants and cited a 1979 Florida Supreme Court decision. In In re Post-Newsweek Stations of Florida Inc., the state supreme court held that a trial is, with few exceptions, “a public event which by its very nature denies certain aspects of privacy.” Why the nearly five-year time lag between that decision and the Bar committee’s effort to amend the rule? The issue has been kicking around in committees for years, said Craig Shaw, Florida Bar staff liaison to the Rules of Judicial Administration Committee. It generally takes a long time for such matters to make their way up to the Florida Supreme Court, because nonemergency rules of procedure are only amended on a regular schedule, every two years, he said. One reason this proposal did surface is because the committee has many judge members, Shaw speculated. “Anytime they can give themselves a rule giving themselves more discretion, they do so,” Shaw said. The committee has 36 voting members, of whom 19 are county, circuit or district court judges. Juror safety was a key concern of the committee members, who approved the proposal unanimously earlier this year, Shaw added. The committee will consider lawyers’ responses to the proposal before sending it up to the state supreme court. Those whose concerns are not addressed in the final proposal may submit objections to the court. Judge Webster notes that the proposal, if adopted by the Florida Supreme Court, could nonetheless be challenged on grounds of constitutionality. Any procedural rules the court adopts are adopted subject to the understanding that the court expresses no opinion as to whether they’re constitutional or otherwise legal. That’s because courts generally act only on concrete controversies and would wait for a case to be brought before weighing in, Webster said. The question in such a case would be whether the rule properly balances a defendant’s right to a fair trial with the media’s rights under the First Amendment. “The feeling of the committee was that this does not violate the First Amendment, because the media is not being prohibited from covering a trial, just from showing jurors’ faces,” he said. Karen Kammer, a Miami lawyer who represents Post-Newsweek and NBC, called the proposal an outrage and said it would have a disproportionate impact on television stations. Post-Newsweek operates WPLG-Channel 10 in Miami. NBC owns WTVJ-Channel 6 in Miami. “There’s this view out there that the juries are so sensitive as a group that they can’t possibly function” if there’s a camera in the back of the courtroom, said Kammer, a former broadcast journalist who is of counsel at Mitrani, Rynor, Adamsky & Macaulay. “Not only is that insulting to jurors, who are smart and capable, but it’s also quite short-sighted. The fact that now judges, without any objective standard, could say, ‘In this trial, I don’t think it’s appropriate to videotape or take a picture of a juror,’ is scary. It’s the first step in a very short road to having all kinds of secret minitrials or portions of trials where we’re not going to be able to see witnesses, jurors or other parties.” Webster counters that, unlike the federal court system, the trend in Florida courts is toward openness. “The presidential election cases were broadcast around the world, live, online, from all the courts here in Florida,” he said. “When it got to the U.S. Supreme Court, there was nothing. So if somebody wants to pick on a court system, maybe they ought to start with the federal court system first. Frankly I think that’s outrageous, but nobody listens to me.”

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