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Updates to Mass. electronic court access rule make permissibility of tech usage uniform

It’s not the inclusion of citizen journalists or the expansion of permissible technology usage in courtrooms for reporting that makes the recent updates to Supreme Judicial Court (SJC) Rule 1:19 so worthwhile. The most important thing is the existence of a rule about technology usage itself, said judiciary-media committee member Bob Ambrogi.

“There really hadn’t been [a set rule] before, and so what that meant was that, from courtroom to courtroom, from judge to judge, you’d get different standards being applied,” he said. “It wasn’t that you couldn’t do this stuff before, but there was no easy way to know how to do it, and the judges would have their own standards on this.”

A lawyer and blogger, Ambrogi has been a member of the judiciary-media committee for about 9 years. He is also the executive director of the Massachusetts Newspaper Publishers Association, and was on the subcommittee that researched and proposed potential updates to Rule 1:19.

The SJC approached the judiciary-media committee to explore possible changes to the rule after many citizen journalists inquired about technology usage in the courtroom, Ambrogi said.

“The SJC started to come to the realization that the rules on technology in the courts were outmoded if not even nonexistent for the most part. Although there was a rule on camera in the courts, it didn’t really address newer technologies that were being used in the courts,” he said. “So I think this was seen as an opportunity to modernize the rules to apply to the kind of technology that reporters are using today.

“I think it’s also an attempt to recognize that even the definition of a reporter is changing, and to acknowledge the idea that the news media aren’t just necessarily people who work for formal news organizations like the papers and television stations, but bloggers and citizen journalists can also be members of the news media as well and should be covered under the rule.”

While subcommittee members eventually agreed on the include of citizen journalists, some expressed concerns that allowing anyone to use cameras in the courts might make it easier for gang members to identify and intimidate witnesses, Ambrogi said.

“Judges are very cognizant of that,” he said. “I think that’s why to some extent the concern with this rule is it’s really much less about the mainstream media than it is about the fact that the definition of the media is changing so much that if you’re going to allow wider use of technology and photography in the courtroom, you have to put some constraints around it to prevent the possibility of abuse by people who are not really journalists but who are there for some other reason.”

The solution came in the form of a registration system: If a journalist fills out a registration form and submits it to the SJC’s public information office, then that journalist can bring a camera or electronic device into a courtroom as long as he or she shows an acknowledgment form upon entering the courthouse. The registration system allows the SJC to keep track of everyone who uses cameras and electronic devices in Massachusetts courtrooms without requiring journalists to have professional credentials to gain electronic access.

“Journalists in general have a strong resistance to any kind of formal credentialing system in the sense that no journalist wants the government deciding who is a journalist and who has the right to report the news, and the First Amendment treats everybody equally in terms of their ability to cover what’s going on in the courts,” Ambrogi said. “There’s not even a distinction between journalists and average citizens. Anywhere a journalist has access, it’s the same access any citizen has to the courts and to report on what’s going on in the courts.”

But judges also have to address concerns about potential harm to testifying witnesses and protecting defendants’ rights, he said.

“At the same time, under this rule, the court system really felt it needed to have control over the use of technology because technology is something that can be abused in the courtroom in some ways,” he said.

The rule forms a balancing approach between the two concerns. The updates were “probably overdue,” Ambrogi said, and he’s not sure if they go far enough in granting liberty to journalists. However, he also noted that Massachusetts courts are quite progressive in granting electronic courtroom access.

“In the process of drafting this rule, I did personally look at what other states were doing and try to find examples from other states of rules that they had drafted to speak to this issue of technology and bloggers and whatnot in the courtroom, and very few states have really done it,” he said. “Of course the federal court system is woefully behind the times in terms of allowing cameras in the courtrooms. We’re still guided by a U.S. Supreme Court that has said not over their dead bodies will they ever let cameras in the Supreme Court. So I think Massachusetts is ahead on this.”

In his capacity as the MNPA executive director, he brings concerns of journalists in the field to the judiciary-media committee. He said he hasn’t heard of any issues with the rule since it went into effect last September.

“I think it’s going well,” he said. “Time will tell.”

Camera use in federal courtrooms

The media’s use of technology has evolved since the ‘60s, but on the federal level, courts have struggled to keep up with the rapidly changing industry. The courts are naturally more slow-moving than the media, whose success hinges on having the latest information as soon as possible. Even today, the use of cameras in federal criminal courtrooms of all levels is strictly prohibited, except in the Second and Ninth Circuit Appeals courts and in rare pilot programs the federal system has implemented, once in the ‘90s, and once again for  a three-year trial period starting in 2011 in 14 federal district courts.

I’ve previously explored the U.S. Supreme Court’s extreme hesitancy to allow use of cameras during the ‘60s, but one particular case deserves reexamination from that post.

In the 1965 case of Estes v. Texas, the court threw out a conviction because a trial judge had allowed about a dozen reporters to videotape a pretrial hearing. The U.S. Supreme Court played up the self-consciousness cameras can create for everyone involved – lawyers, judges and witnesses posturing to the camera, trying their best to impress rather than to get at the truth. At that point in time, 48 state courts and the federal courts had banned camera use in courtrooms.

The use of cameras in the criminal courtroom is an inherent denial of due process, the court said:

The television camera is a powerful weapon. Intentionally or inadvertently it can destroy an accused and his case in the eyes of the public … We have already examined the ways in which public sentiment can affect the trial participants. To the extent that television shapes that sentiment, it can strip the accused of a fair trial.

The court refused to consider the possibility of a future where camera usage did not automatically render a judicial proceeding inherently unfair. Instead, the court wrote, “Our judgment cannot be rested on the hypothesis of tomorrow but must take the facts as they are presented today. The judgment is therefore reversed.”

But in the next decades that followed, camera technology rapidly improved and even American ownership of televisions increased dramatically.

This set the scene for the 1981 U.S.  Supreme Court decision Chandler v. Florida. A criminally convicted defendant challenged a Florida state law that allowed camera usage in criminal courtrooms, charging that camera use had resulted in an unfair trial.

Upon decision, the Supreme Court declined to directly overturn Estes, concluding that it “did not announce a constitutional rule that all photographic or broadcast coverage of criminal trials is inherently a denial of due process.” But in practice, the court did in fact overturn the spirit of the Estes decision. The court also declined to establish a First Amendment right to use cameras in a criminal courtroom. Instead, the court rooted its decision in the concept of federalism, that federal government and state governments are both sovereign. Painting the decision as a states’ rights issue instead of a First Amendment issued, the court said:

It is not necessary either to ignore or to discount the potential danger to the fairness of a trial in a particular case in order to conclude that Florida may permit the electronic media to cover trials in its state courts. Dangers lurk in this, as in most experiments, but unless we were to conclude that television coverage under all conditions is prohibited by the Constitution, the states must be free to experiment. We are not empowered by the Constitution to oversee or harness state procedural experimentation; only when the state action infringes fundamental guarantees are we authorized to intervene.

Currently every state in the U.S. allows some use of cameras in courtrooms. Mississippi and South Dakota, the last holdouts, changed their camera use policies in 2001. Currently the federal courts allow the public access to audio recordings, and all the 14 district courts (for example, the Northern District of California) have archived copies of some videotaped judicial proceedings accessible online. The federal Cameras in Courts project will last up to 2014, which the Federal Judicial Center will conduct a study of that will determine the fate of camera usage in federal courtrooms in the future.

OpenCourt scores for press freedom

It was a balmy August day in 2012, and members of OpenCourt awaited the start of a Massachusetts Supreme Judicial Court hearing that would determine the organization’s ability to expand live streamed video coverage of judicial proceedings in Quincy District Court. But more than just OpenCourt’s ability to expand was at stake; if the SJC ruled to allow OpenCourt to expand its live streaming of judicial proceedings, it could be a major win for press freedom in Massachusetts.

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The Norfolk District Attorney (DA) and the Committee for Public Counsel Services (CPCS) had petitioned the SJC to temporarily halt OpenCourt’s expansion into a second room at Quincy District Court pending formation and SJC approval of broadcasting guidelines. The DA argued that OpenCourt’s interim broadcasting guidelines did not offer enough protection to minors and sexual assault and domestic violence victims, while the CPCS feared violations of their clients’ constitutional rights.

So when Justice Margot Botsford issued a memorandum and judgment five days after the Aug. 9 hearing that denied the DA’s and CPCS’s petitions, OpenCourt Executive Director John Davidow felt gratified.

“The idea that prior restraint, that the state could have editorial control over something that had not yet been published, was deeply disturbing, as a member of the media,” Davidow said in a Feb. 11, 2013 interview. “We [at OpenCourt] were pleased, but mostly pleased because we felt like this was a real case of finding the proper balance between the First and Sixth Amendment.”

Though Davidow would’ve preferred to mediate issues out of court, he said the legal challenge actually benefitted OpenCourt.

“Had the district attorney’s office and other folks not objected and we had to prove our case before the SJC and make it clear that what’s public in court is public and the public should have access to it if it is recorded, we never would’ve had that opportunity” to prove the importance of public access, Davidow said. “In many ways it was helpful to get the clarity that came with these suits filed by the district attorney … it made us sharpen our understanding of the issues around it.”

OpenCourt, a pilot project in Quincy District Court for use of cameras in the courtroom under SJC Rule 1:19 run through Boston NPR channel WBUR, started merely as an idea at a media judiciary committee meeting Davidow participated in sometime in fall 2009. As interest in the idea grew, Davidow extensively researched use of cameras in courtrooms around the country, taking time to speak with many judiciary and media law organizations and judicial officers. Davidow submitted a proposal for the project, then named “Order in the Court 2.0,” to the Knight Foundation’s News Challenge as one of 2,364 hopeful applicants. In June 2010, the Knight Foundation announced OpenCourt as one of its News Challenge winners that year. Following approval from the SJC, OpenCourt went live in Quincy District Court on May 2, 2011.

“I think that there were all sorts of concerns initially, that we were going to give up people’s identities, lawyers and prosecutors would act differently because the cameras were on, judges may not accept pleas that they normally would, and … people not willing to come forward because there were cameras in the courtroom,” Davidow said. “All those things never really truly materialized.”

The main issue OpenCourt encountered in its early days was what to do with archival footage. Almost immediately, people challenged OpenCourt on the archives issue, Davidow said, so OpenCourt temporarily shut down access to its archives until it came up with a policy addressing the concerns. It is now OpenCourt’s practice to not post archival footage until two business days have passed so that anyone can express any issues with the posting of the footage. Even after the footage has been posted, OpenCourt will take it down if someone flags the video and explains the issue. Access to archival footage is free to anyone with Internet access who registers with the site.

Currently the project is on a brief hiatus as OpenCourt Producer Val Wang stepped down earlier this month. OpenCourt will resume live streaming in March. For now project members are focusing on another project that follows specific kinds of cases, Davidow said. He also hopes to expand the project, and it wouldn’t surprise him if one day the official court record is video, not audio, recordings.

“There’s a lot of interest from the courts themselves on how to deal with this,” he said. “The courts want to be more transparent. We got our strongest support from the judicial branch. I think there’s this sense of inevitability that Open Court is just somewhat ahead of the curve of where the courts are inevitably going to go.”

Davidow said he is proud of OpenCourt’s vision and what it has done to make the courts more accessible to the general public.

“The founders in this country wanted justice to be done in public,” he said. “You think of the movie ‘To Kill a Mockingbird,’ where the entire town is piled into that courthouse to watch that trial. That’s what the founders imagined. For a long time, the media was there, and they were that bridge to what was going on in the courts as people got more and more removed from it.

“And then, given the realities of where the media is and other technologies, the public became more and more distanced from this major branch of our government … So [OpenCourt] was one small step in bringing the courts forward, leveraging the technology that exists and is continuing to evolve.”