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Jury deliberations in criminal trials may soon be filmed in Ohio by a commercial television network. Arizona and Colorado have already allowed it. Putting cameras in once-sacrosanct jury deliberation rooms is fraught with controversy. Supporters see the project as an educational opportunity, while critics assert it is nothing more than another permutation of “reality TV,” and that it will have a chilling effect on jury deliberations. State v., the occasional series produced by ABC News, has aired five shows, the first in the summer of 2002. Pretrial preparations, attorney-client consultations, trials and jury deliberations are shown. Four other shows have been completed. Courts rarely allow the observation of jury deliberations. CBS got permission to film a few in Arizona in 1996 and PBS filmed one in Milwaukee in 1985. No studies have been done on its effects on jury deliberations or on the decision-making processes of counsel or defendants. Only one thing is for sure: Attorneys disagree on whether it’s a blessing or a curse. “I would never allow a client to consent to it,” said Jeralyn Merritt, a Denver criminal defense attorney and the treasurer of the National Association of Criminal Defense Lawyers (NADCL). “It’s an excuse for voyeurism trumped up as journalism.” Merritt has analyzed criminal cases for Fox News, CNN and MSNBC. Those who favor it pointed to the educational benefits. In Colorado, where cameras have generally been allowed in courtrooms for about 25 years, Chief Justice Mary Mullarkey wants a “more informed citizenry.” She sees the allowing of cameras in as a “good educational tool,” but one that should “not be undertaken on a routine basis.” Jerry Hernandez was a Phoenix public defender when he and his client Rudy Santos consented to the taping of a second-degree murder trial. Santos claimed self-defense. State v. Santos, No. CR2000-014002 (Maricopa Co., Ariz., Super. Ct.). “I wanted people to get an appreciation of public defenders,” said Hernandez, now a Tempe, Ariz., solo practitioner. “We’re vilified every day.” He said his client consented “because he’s the type of guy who likes attention. He’s a shrewd guy.” On camera, he described Santos as “not the sharpest knife in the closet.” In the hour-long program, jury deliberations were taut and sometimes vitriolic. The physical evidence against Santos was strong. The jury hung, 5-3, for acquittal. Hernandez urged Santos to accept a plea agreement of five to 10 years in prison rather than risk 22 years in a retrial. Hernandez advised that the defense was made weaker by the prosecution knowing what Santos’ testimony would be. Santos insisted that he had acted in self-defense and refused the deal. Some familiar with the trial wondered if Santos would have taken the deal had the cameras not been rolling. In the retrial, not taped, the jury convicted Santos after only 90 minutes of deliberations. INHIBITS JURORS? Michael McVey, the trial judge in Santos, doesn’t “think it’s wise to be recording jury deliberations. I think it inhibits some jurors from speaking where they would otherwise feel free to speak. And I think there are other jurors who are more prone to performing rather than deliberating in the presence of cameras.” Ohio’s Chief Justice Thomas Moyer had the benefit of seeing the Arizona programs before finding that no rule precluded Michael Bicks, the producer of State v., from filming. Although he wouldn’t want it to become routine, Moyer asserted that allowing cameras into a jury room would enable “citizens to see that jury service is very important … [and] that jurors deliberate in earnest.” Noting that “the jury system is what makes our justice system democratic,” he hopes that after seeing the programs, a citizen “would be more inclined to respond to a summons for juror service.” To film in Ohio, ABC must now find trial judges, prosecutors, defense counsel, defendants and jurors who will permit it. Counsel must agree in writing not to subpoena footage that is not aired. Kevin Lyons, Peoria County state’s attorney and the Illinois director of the National District Attorneys Association, asserted that allowing cameras in had a “chilling effect because jurors know their actions will be dissected. It’s not a good idea.” However, he acknowledged that he’d enjoyed and been enlightened by the shows he’d seen. The immediate past president of NADCL, Larry Goldman, said the “recording of deliberations is dangerous.” Conceding its “slight educational value,” Goldman, of New York’s Law offices of Lawrence S. Goldman, asserted that “it’s part of the reality mania. … It’s entertainment at the cost of a just verdict.” Bicks, the producer, asserts that “I’m doing this because as a journalist I want to open up the system in our democracy,” he said. “The ultimate power we give citizens is arguably deciding another citizen’s fate . … You have to do it in a way that doesn’t affect the system. Our agreement is that if at any time someone thinks we are affecting the outcome, we will leave.” An editorial last year in Judicature, the journal of the American Judicature Society, was critical of having cameras in the jury room. It concluded that insights that might have been gleaned by viewing the entire process are distorted by editing. Allowing jurors to opt out because they don’t want to be filmed, it said, has an impact on the selection process and thereby on the outcome.

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