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In a courtroom packed with spectators on Jan. 15, the Texas Court of Criminal Appeals heard arguments on whether it should require a Houston judge to rescind his ruling that allows a camera to film jurors deliberating in a death penalty case. Chip Babcock, attorney for 228th District Judge Ted Poe of Houston, argued that no Texas law specifically prohibits cameras in the jury room and that the court will be “writing legislation” if it grants the mandamus relief sought by the state. Babcock told the Court of Criminal Appeals that a bill before the Legislature would address the issue and said the court should leave it up to state lawmakers to decide. S.B. 164 by Sen. Jon Lindsay, R-Houston, would prohibit audio or visual recordings or photographs to be made of jury deliberations. “But that isn’t the law right now,” said Babcock, a media law expert and partner in Dallas-based Jackson Walker. He argued that the Court of Criminal Appeals would be engaging in “judicial activism” if it disallows cameras before the Legislature acts on the proposed legislation. Bill Delmore, chief of the legal services bureau in the Harris County district attorney’s office, argued that a law that’s been on the books since 1879 prohibits a camera in the jury room while a case is being deliberated. Delmore argued that Poe’s ruling violates Article 36.22 of the Code of Criminal Procedure, which states that no person shall be with a jury while it deliberates. “We believe that a camera in the jury deliberation room puts thousands and perhaps even millions of viewers in the jury room with the jury while they’re deliberating and violates the statute,” Delmore says in an interview after the hearing. Delmore also argued that Poe’s decision to dismiss jurors who disagreed with having a camera in the room during jury deliberations is illegal because it is not authorized by the Legislature. A juror’s objection to being filmed while deliberating is not one of the reasons for challenges for cause listed in Article 35.16 of the Code of Criminal Procedure, and Delmore contended that otherwise qualified jurors cannot be disqualified for that reason. The Harris County district attorney’s office filed a mandamus against Poe after he decided in November 2002 to allow the PBS television documentary series “Frontline” to place an unmanned camera in the jury room while jurors consider the death penalty case of 17-year-old Cedric Harrison. Harrison is charged with shooting a man to death during a carjacking in June 2002. The Court of Criminal Appeals stayed his trial on Nov. 25 — the first day of individual voir dire in the case — until a determination can be made about Poe’s ruling concerning the camera. The case — Rosenthal v. Poe — has drawn international interest. Poe’s decision is believed to be the first of its kind in a capital murder case in the United States. George Dix, a criminal law professor at the University of Texas School of Law, says that while Arizona and Colorado have allowed cameras in jury deliberating rooms, this is the first appellate case that considers whether a camera can be allowed despite one of the party’s objections. A camera wouldn’t be allowed if a defendant objected, so what’s at issue in Rosenthal is the state’s rights, he says. “That to me is the real essence. Does the state have the right to go to a jury that isn’t subjected to these pressures?” The court heard arguments in the Eidman Courtroom at the University of Texas School of Law. Dix says the law school offered its facilities for the arguments because a large crowd was expected and UT has the capabilities to pipe audio and video of proceedings to other rooms. Allegra Young, a spokeswoman for the law school, estimates that about 100 people — about half of them students — were in the courtroom for the arguments and about 80 more watched the proceedings from two overflow rooms. FIRST IMPRESSION The Court of Criminal Appeals grilled both attorneys during the arguments but aimed more questions at Babcock. Judge Tom Price questioned whether Poe had considered the potential ramifications of his ruling. “What I fear is we’re going to reduce jury deliberations to reality TV, like ‘Survivor,’” Price said. “We’ve seen what happens with O.J. Simpson when everyone became a star.” Babcock said Poe decided that a camera could be placed in the jury room for the purpose of educating the public on the administration of justice in the courtroom. The videotape would not be broadcast until after the proceedings. Harris County District Attorney Chuck Rosenthal strongly objects to having jury deliberations filmed. In an interview with several reporters, Rosenthal says he thinks cameras put “a chilling effect” on a trial. Delmore argued before the Court of Criminal Appeals that allowing a camera in the jury room “increases the likelihood” that the Harrison case would result in a hung jury and a mistrial. Some jurors might be fearful of retaliation and afraid to say if they think the defendant should be put to death, Delmore said. Judge Paul Womack questioned the meaning of language in Article 36.22 that says nobody can be “with” a jury when it deliberates. Could Poe order that the door be taken off the jury room and microphones be placed down the hall to pick up the sound, as long as a person isn’t physically in the room with the jurors? Womack asked. Dix says Womack appeared to be questioning whether the Legislature intended for the words of the statute to be taken literally or intended to prevent “invasion of the privacy of the proceedings” in any way. Babcock argued to the Court of Criminal Appeals that an unmanned camera in the jury room would be no different than if a juror wrote down everything that was said during deliberations and then gave a verbatim account to “Frontline.” A key issue in Rosenthal is whether the Court of Criminal Appeals can decide to disallow a camera in a mandamus proceeding. Babcock cited the Court of Criminal Appeals’ unanimous May 2002 decision in Banales v. 13th Court of Appeals. In that case, the 13th Court granted mandamus relief to a man required by 105th District Judge Manuel Banales, as a condition of probation, to place a sign in his yard to notify the public he was a registered sex offender. The appeals court held that Banales, of Corpus Christi, Texas, had “no discretion” under Code of Criminal Procedure Article 42.12, � 11(a)(23) to modify the man’s probation in that manner. But Judge Barbara Hervey, writing for the Court of Criminal Appeals in Banales, said that the 13th Court abused its discretion to grant mandamus relief because the issue was one of first impression. The Court of Criminal Appeals held that the probationer had no “clear legal right” to mandamus relief and could have sought relief by filing an application for writ of habeas corpus. Rosenthal also involves an issue of first impression and should not implicate the Court of Criminal Appeals’ mandamus jurisdiction, Babcock argued last week. But Delmore said mandamus relief is available in this case because the purpose of Article 36.22 is “perfectly clear.” Court of Criminal Appeals Judge Cathy Cochran cited another case in which the court granted a mandamus to the state when the issue was one of first impression. In a 5-3 decision in September 2002, the Court of Criminal Appeals held in State v. Patrick that the state had a right to relief from a ruling by 282nd District Judge Karen Greene of Dallas that would have allowed death row inmate Jesse Joe Patrick to obtain DNA testing if he paid for it. The court’s opinion, written by Court of Criminal Appeals Presiding Judge Sharon Keller, said Greene wasn’t authorized under Article 64.05 of the Code of Criminal Procedure to order the testing for Patrick, who didn’t meet the statute’s requirements. “Doesn’t that stand for the same proposition?” Cochran asked. Babcock didn’t address Cochran’s question directly but contended that current law doesn’t deal with the situation in Rosenthal. If the Legislature amends Article 36, that will “make it clear as a bell,” he said. The court gave no indication when it might rule.

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