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He has made national news countless times for his creative sentences, such as requiring probationers to venture out in public with signs advertising their crimes. And Judge Ted Poe’s latest call is no less controversial. Setting Texas’ criminal bar on its collective ear, Poe, of Harris County’s 228th District Court, agreed on Nov. 11 to allow an unmanned television camera to film jury deliberations in a death penalty case — a first-of-its-kind decision in a capital murder case in the United States, according to several legal experts. The defendant has agreed to allow a camera to film the jury that decides his fate. But the Harris County district attorney’s office filed a mandamus against Poe with the Court of Criminal Appeals to eliminate the camera, calling Poe’s decision a “patently illegal order” that invades the traditional sanctity of the jury room. On Nov. 25 — the first day of individual voir dire in the case — the Court of Criminal Appeals granted a stay to stop the trial and directed Poe to explain his ruling concerning the camera by today. Across Texas, seven prominent prosecutors and defense attorneys alike question Poe’s decision to allow a camera into his jury room, saying he’s turned the most serious decision a jury can make into fodder for a reality TV show. The consequences for trial and appellate courts for creating such a groundbreaking precedent in Texas are mind-boggling, three criminal law experts say. Poe declines to comment on the case while the mandamus action against him is pending. “He wants to,” says Poe’s court coordinator Heather Ramsey. “He just doesn’t feel that it’s proper.” Ramsey says Poe agreed to allow — for “educational purposes” — a crew from the PBS television documentary series “Frontline” to place an unmanned camera in the jury deliberation room while jurors consider the death penalty case of 17-year-old Cedric R. Harrison. Harrison’s attorney, Houston solo Ricardo Rodriguez, says he initially was opposed to allowing a camera into the jury room during his client’s trial. But Rodriguez says Harrison’s mother helped change his mind. “She said, ‘If the state wants to kill my son, then I think it should be videotaped so the whole world can see it,’” says Rodriguez, who believes the cameras will do nothing but ensure a fair trial. “What is the state afraid of?” There is plenty to be afraid of, says Bill Delmore, chief of the legal services bureau of the Harris County district attorney’s office. For starters, how do you pick a jury for a death penalty case when jurors know they’ll be filmed? Delmore asks that question in his mandamus petition. “The desire to appear on a ‘Survivor’-style reality television series should not be added to the qualifications for jury service,” Delmore wrote in the petition. “Realistically, I can’t see any good that comes out of this,” says Harris County District Attorney Chuck Rosenthal, who equates allowing a camera in a jury room to allowing one in a voting booth. “I think the way people vote ought to be secret because people ought to be able to give the opinion about an issue without having to be scrutinized by others.” All jurors who object to being filmed were dismissed automatically from jury service, Ramsey says. Out of a panel of 110 jurors, only 13 objected to being filmed, Ramsey says. John Parras, an associate with Houston’s DeGuerin & Dickson who represents “Frontline,” says the district attorney’s mandamus of Poe has no merit. “The law clearly gives trial judges the authority to allow the recording of court proceedings,” Parras says. Rick Wetzel, the Court of Criminal Appeals’ general counsel, says the court stayed the trial to maintain the status quo until a decision is made whether to consider the case. Wetzel says it’s not unusual for the court to get involved in an ongoing trial but that no one has complained previously about a judge allowing a camera in a jury room. “We have had complaints before when courts wouldn’t allow cameras in the courtroom,” Wetzel says. “Those have universally failed.” Wetzel says if a judge doesn’t want cameras in the courtroom, the judge doesn’t have to have cameras. There’s nothing illegal about Poe’s decision, says Chip Babcock, a partner in Jackson Walker who represents Poe in the mandamus proceeding. Babcock adds that there’s nothing similar between a reality TV show and the sobering work produced by “Frontline.” “[Poe] thought that ‘Frontline’ had a seriousness of purpose about it,” Babcock says. “And his first interest is ensuring a fair trial.” A negative reaction to Poe’s decision — a first of its kind in a death penalty case in Texas — is predictable, Babcock says. “Just because it’s new doesn’t mean it shouldn’t be done,” Babcock says. “But this is a profession that is not changed easily.” While Babcock says there are no laws in Texas preventing cameras in the jury room, the Harris County district attorney’s office argues there are two. The first, according to the mandamus petition, is Article 36.22 of the Code of Criminal Procedure; it states that “no person shall be permitted to be with a jury while it is deliberating.” The second rule cited by the district attorney’s office is Rule 606(b) of the Texas Rules of Evidence; it prevents a jury from testifying “as to any matter or statement occurring during the jury’s deliberations.” The rule makes an exception allowing jurors to testify in cases in which “outside influence was improperly brought to bear upon any juror; or to rebut a claim that the juror was not qualified to serve.” “It’s clear that 606 in conjunction with Article 36.22 is designed to create a zone of confidentiality around the jury’s deliberations,” Delmore says. Yet Babcock says neither of the laws applies to the trial in Poe’s courtroom. No “person” will be in the jury room during the trial except the jurors and an unmanned camera, he says. The tapes of the trial will be held by Poe until after the verdict has been rendered and will not be viewed by anyone until the trial is over, Babcock says. There’s nothing unusual about jurors discussing their views on a case after they’ve completed jury service — it’s their First Amendment right, Babcock says. News reporters interview jurors all the time after verdicts, he says, which is different from “testifying” in a courtroom about deliberations. “What people keep forgetting is we’re just talking about a tool here,” Babcock says of Poe’s decision to allow filming of jury deliberations for educational reasons. David Anderson, a University of Texas School of Law professor who teaches mass communications law, says he thinks the Court of Criminal Appeals is hoping that Poe will deal with the issue so the court won’t have to. “If the judge doesn’t back off, the court will forbid it,” Anderson predicts. Citing the Article 36.22 provision that no person can be permitted to be with the jury when it deliberates, Anderson says he sees “no tenable distinction” between a person and an unmanned camera. PERMANENT DAMAGE? Several prosecutors outside of Houston strongly disagree with Poe’s decision. “It’s completely inappropriate,” says John Bradley, Williamson County, Texas’ district attorney. “From a legal standpoint, the deliberations of a jury for hundreds of years have been secret. And to change that for the sake of a publicity stunt will do permanent damage to our jury system.” Chuck Mallin, chief of the appellate section of the Tarrant County, Texas, district attorney’s office, agrees and says that the potential for jurors to play to the cameras during deliberation is too great. “I don’t think people can be honest with their deliberations with the cameras there,” Mallin says. “It’s just human nature.” Some prominent criminal defense attorneys also are wary of the prospect of cameras in the jury room because they believe the cameras will record juror misconduct — an activity that could threaten a conviction or an acquittal. “It could benefit the defendant. It could harm him, too. You just don’t know how it’s going to play out,” says criminal defense lawyer Randy Schaffer, a Houston solo. Creating a precedent of allowing a camera in a jury room also will create a trend among criminal defense attorneys, Schaffer says. “Does this mean in the next case I can come in and say, ‘I demand to have a camera in the jury room to record any jury misconduct?’ I want to have a videotape. I’ll extend it to all criminal cases,” Schaffer says. “A good defense lawyer will take the precedent if it happens and turn it into a right.” Stanley Schneider, a criminal defense lawyer and partner in Houston’s Schneider & McKinney, says allowing a camera in a jury box is an undeniable outside influence. “Are they automatically going to become 12 angry men” because of the camera, Schneider asks. Schneider, a veteran of several high-profile Houston trials, says he never liked the idea of cameras in the courtroom. Yet, Schneider admits, there were no negative side effects when CBS News’ “48 Hours” filmed the testimony in a child abuse trial earlier this year in which Schneider’s client was acquitted. “It appeared that the jurors didn’t pay any mind to the cameras at all, but I still didn’t like it,” Schneider says. “The cameras had a purpose, and I think the watchful eye of the media keeps everyone honest.” Brian Wice, another Houston criminal defense lawyer, praises Poe for having the courage of his convictions to allow cameras in the jury room. But Wice says he is concerned whether a 17-year-old can knowingly and voluntarily consent to having jury deliberations videotaped. If Harrison is convicted and sentenced to die, a claim will be made that his lawyers “dropped the ball” on this, Wice predicts. Most of the attorneys who stand up for Poe’s decision are media lawyers such as Paul Watler, a shareholder in Dallas-based Jenkens & Gilchrist. “I think the same reasons and policy considerations that support cameras in the courtroom are applicable in the jury room as well,” Watler says. “And that’s to better afford the public to see and understand what goes on in the criminal courts in their name.” Unmanned cameras were allowed in a Texas jury room recently when Dallas County Court-at-Law No. 3 Judge Bob Jenevein allowed “CBS Evening News” to film jury deliberations in two low-level vehicle accident cases for news stories that aired on May 2 and May 3. Jenevein had an educational motive similar to Poe’s for allowing the camera into his jury room — he fashioned a continuing legal education class around the videotapes. “We saw no playing to the cameras,” Jenevein says. “And I assume and believe that our jury was pretty typical.” Still, the subject matter in Poe’s court is much more serious, Jenevein says, and another key difference in Jenevein’s experiment is that none of the lawyers objected to the cameras. Yet Jenevein commends Poe for his decision. “I applaud Judge Poe for having the courage to innovate.”

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