- The Washington Times - Tuesday, February 18, 2003

The science of government is the science of experiment. That is why the law is backward. It resists experimentation, and doctrines persist from blind imitation of the past. Accordingly, Mr. Bumble was provoked in "Oliver Twist" to grumble, "If the law supposes that, the law is a ass, a idiot."
Secrecy of jury deliberations was inherited by the United States from the British common law. That inheritance has endured without seeking to determine whether circumspect exceptions might heighten confidence in jury verdicts, promote education in the law, make jurors more scrupulous in returning fair verdicts. A precious experiment that would have edged open the door on deliberative secrecy was thwarted last week by the Court of Criminal Appeals of Texas. In Charles A. Rosenthal, Jr., District Attorney of Harris County vs. the Honorable Ted Poe, Judge 228th District Court of Harris County (Feb. 12, 2003), the highest Texas appellate court nixed a trial order in a capital murder case authorizing the videotaping of jury deliberations with the consent of the defendant for delayed viewing.
WGBH Educational Foundation, Mead Street Films Inc. and the PBS television program "Frontline" approached District Court Judge Ted Poe requesting to videotape all of the proceedings, including jury deliberations, in the murder trial of Cedric Ryan Harrison. The request was granted with impeccable concern for the rights of the defendant Mr. Harrison, the anxieties of jurors, and the fairness of the verdict.
Jury deliberations would be taped with unattended cameras and sound recording devices. No non-juror would be present in the jury cloister. Broadcast of the videotape would be embargoed until the conclusion of all matters in the trial court.
Defendant Harrison, his lawyer and mother were meticulously questioned to confirm their informed and voluntary consent to the videotaping. Mr. Harrison's attorney declared in writing that his client's waiver of jury deliberative secrecy "was executed voluntarily and freely," and, that the defendant was "competent to make such waiver." Judge Poe also forestalled any post-trial ambuscading of the prosecution's case by obtaining from Mr. Harrison a written waiver of any right to use the videotaping to upset a conviction.
Members of the jury pool who believed the videotaping would affect their deliberations were excused. Fifteen fell into that category. But their dismissals did not skew the remainder in favor of either the prosecution or defense.
The district attorney sought a writ of mandamus in the Texas Court of Criminal Appeals to scuttle the unobtrusive videotape experiment. Reliance was placed on Article 36.22 of the Texas Code of Criminal Procedure, which provides that "[n]o person shall be permitted to be with a jury while it is deliberating." Without ironclad secrecy, it was said, jurors would shade, muffle or compromise their views to avoid embarrassment or retaliation or to win public acclaim.
But to equate under the Code videotaping equipment in the jury room with a human presence is either Pickwickian or obtuse. The machinery can neither threaten, speak, gesticulate, nor otherwise vex or disrupt like an illegal 13th juror might. Further, the selection process excluded jurors who self-doubted whether videotaping would impair their deliberative candor. Moreover, neither the prosecution nor defense could gripe over a fair jury verdict. The latter had consented to the videotaping, and the former omitted any claim that invading deliberative confidentiality would tilt jurors towards acquittal.
In an intellectually anemic opinion, the Court of Criminal Appeals reversed the videotaping order. Writing for the majority, Judge Barbara Hervey insisted that "each of the millions of viewers of the videotape is a person, and the playing of the videotape (live or not) permits these persons to 'be with the jury while it is deliberating' under the 'plain' language of the first sentence of Article 36.22."
But stating a conclusion is not reasoning. To liken the influence of television viewers on jury deliberations in watching days or weeks after the verdict with a physical presence while the verdict is under debate is to mistake an acorn for an oak. Common experience enshrined in the Constitution recognizes the uniquely dynamic force of face-to-face encounters. Thus, the Sixth Amendment entitles a defendant to confront his accusers.
Judge Harvey hypothesized that jurors who verified before Judge Poe that videotaping would not distort their deliberations might nevertheless be influenced by the prospect of a belated broadcast after the fact. But courts routinely accept juror pledges of impartiality as unimpeachable, such as commitments to rely solely on the trial evidence despite massive pretrial publicity. In addition, the United States Supreme Court in Chandler vs. Florida (1981), denied that televising criminal trials even when the accused objects necessarily sabotages fair and reliable verdicts.
Chief Justice Warren Burger explained that live broadcasting taints a conviction only when the defendant demonstrates with "specificity that the presence of cameras impaired the ability of jurors to decide the case on only the evidence before them or that the trial was affected adversely by the impact on any of the participants of the presence of cameras and the prospect of broadcast." In contrast, Judge Harvey summoned rank speculation about jury behavior, without more, to interdict videotaping. In an analogous arena the United States Congress the inauguration of television changed not a crumb of the nature and quality of its legislative and debating follies.
Contrary to the orthodox assumption, jury deliberations in the sunshine are twice-blessed: knowledge that the world is watching will make jurors fastidious in appraising the evidence, applying the law, and eschewing racial, ethnic, gender, religious or other bigotries.
It is like the difference between confidential and ill-considered kitchen chat about an issue and speaking to millions on television. Emmett Till's vile white supremacist murderers might have been convicted if jury deliberations had been broadcast. In addition, controversial verdicts a la Rodney Glenn King or O.J. Simpson are less likely to spark riots or community unrest if suspicions of prejudice are disproved by videotaped jury deliberations.
Shouldn't broadcasts be given at least an experimental chance to prove their worth?

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