*1 The STATE of Texas ex rel. Charles A.
ROSENTHAL, Jr., Attorney District County, Relator,
of Harris POE, Honorable Ted 228th County, District Court of Harris Respondent.
No. 74515. Court of Appeals Criminal of Texas.
Feb. *2 Babcock, Houston, Appel- L.
Charles lant. III, DA, Delmore,
William Asst. J. Paul, Houston, Atty., Matthew State’s Aus- tin, for State.
OPINION
HERVEY, J., opinion of delivered PRICE, WOMACK, in which Court COCHRAN, HOLCOMB, JJ., joined. original proceed- This an mandamus writ of mandamus ing. Relator seeks a vacate a of directing respondent portion authorizing his order trial capital in a murder will respondent’s court. We conditional- ly grant mandamus relief. carefully that after
The record reflects parties’ in- considering weighing terests, signed per- an Respondent order Foundation, WGBH Educational mitting Inc., Films, Mead and the PBS Street Frontline (collectively program television “Co-Production”) video- to as referred broadcast, tape public later all of deliberations) proceedings (including Ryan trial of Cedric capital murder 913,903 Harrison, Number Cause County.1 228th District Court of Harris authorizing video- part As his order taping, respondent found Co-Produc- pur- tion “has demonstrated seriousness resources pose significant and committed lodged "to Respondent unchallenged objection makes the factual cates that relator first days filming proceedings” all three par- interested assertion his brief relator, proceeding, selection. including “dis- before the commencement ties to has procedures Respondent does not claim that relator parameters [the] cussed (videotaping procedurally claim filming process defaulted the for several months before trial,” deliberations) proceed- raised in this objection the start of no ing. the Court relator. The record before indi- writing filming to this educational endeavor and is “to the deliberations.”2 uniquely deserving the exclusive footage broadcast records.” Unat- proceedings began, When selection recording tended cameras and sound required each veniremember was to fill out *3 equipment record will delibera- juror questionnaire form which asked the tions no Co-production with one from videotaping veniremember whether present during room these de- proceedings public to be aired for televi- Respondent other liberations. has taken purposes sion after the trial would affect aspects of pro- measures to ensure that none of the various the veniremember’s de- liberations such as the veniremember’s ceedings will broadcast “until after the “ability fair.” The record further all conclusion of matters in the trial that, dire, beginning reflects of voir court.” respondent carefully explained to the Respon- The record further reflects that proceedings veniremembers that the trial videotaping dent did not authorize be videotaped for broadcast after the proceedings carefully until after having trial for educational purposes asked questioned lawyer Mr. Harrison and his the veniremembers whether this would af- about Mr. Harrison’s decision to consent to Respondent fect their deliberations. also being satisfied that that he informed veniremembers had freely Mr. Harrison consented to it. The never heard of this before and happening record reflects that Harrison also Mr. videotaped pro- that he believed that the writing, any waived in or statutory consti- “edited, would be cut down ceedings any tutional to use right recordings hour, kind of an hours.” some two trial, in a “as evidence motion for on new ques- The second [RESPONDENT]: or in appeal, post-conviction pro- direct you that out has to tionnaire filled do ceedings in or state federal court” and to videoing partic- with television or of this use of the recordings “as evidence case, In I particular ular trial. this error or that may during misconduct occur that the be vid- suspect entire trial trial and Mr. Harri- deliberations.” showing public eoed for television writing acknowledged son also his un- over completely after trial is derstanding “that recorded possibility. is a down road. That tions used in a for new cannot be motion aspect that every And includes trial, post-conviction pro- appeal, direct all including jury way selection trial ceedings Federal pursuant Texas and through jury every as- 606(b).” Rule of Evidence Mr. Harrison’s pect the trial in between. Mr. Har- attorney writing asserted your of you question- Several stated in “was voluntarily rison’s waiver executed want you naire that did not to be vid- freely” and that Mr. Harrison was why That’s we great. eoed. That’s “competent to make such waiver.” Mr. I question. want to ex- asked And writing Harrison’s mother stated plain that a little further and see “re- responses. she had consulted with Mr. Harrison there’s further Because garding waiver” and business and she consented that’s first order of [his] attorneys provided court-appointed 2. Relator asserts that Mr. Harrison has not that his complain post-convic- waived by consenting "his assistance of counsel ineffective proceedings recording tion recording of the deliberations.” trial, deprived him of a fair in a know, never done I this has been up, we will after we cleared ever, law, in any courtroom court of in this case. As start the selection case the defense in this mentioned, anywhere. And I case will be videoed for this They object, this. don’t agreeing television at some later date from why it just And that is you so know. trial, aspects jury selection to all it’s in this But taking place will be case. including jury It will deliberations. hap- Never heard of the first time. It be live. not be aired live. will you probably will[.] never pening and words, isn’t live TV. It’s vid- edited, the pur- What is PERSON]: eoed. Will be cut down some [VENIRE hour, pose videoing hours. I’m not this? kind of an two *4 sure. pub- To educate [RESPONDENT]: in our justice lic on administration in Everything place that takes a public has a better courtroom. So is secret in the that no one room sense understanding of real world place know what takes back there will in our This is a place what takes courts. except it would recorded. That is the be among about conception everybody case, it would re- possibility this be courtrooms, criminal cases. especially corded. my opinion And the more own Now, other ones that al- than the truth, way about the public can know ready question answered that on the are, are as things really better we you. let me ask the rest of questionnaire, systеm benefits from people. And the anyone there in this audience who Is this, we all under. system operate this having feels that the trial videoed for a So, public it’s why that’s television. showing, including jury later Yes? [RESPONDENT]: tions, any your way would affect deci- say you When [VENIRE PERSON]: in this I how it sion case? don’t would deliberations, through that means you it you [sic]. affect But would affect all the jury room where going into the any way you just at all? as Could discussing the matter are in this forthright candid with a trying up to come verdict? without cam- case with camera and So, really question. era? That’s That is correct. [RESPONDENT]: there, already other than ones that have There be a back won’t it will question, any are there there. And answered there’s a camera back not live. videoing place. who feel of this record takes It’s others what people trial for television would ever see showing TV None these you any later time affect until trial is over. It’s secured at a after the trial, in the way during keep you viewing from Court. fair, room, being objec- dynamics being you from the mechanics and keep how room, tive, all of you saying something, keep discussion recorded, televised things? of those would be date. shown at a later Anybody else? else, So, peo- other than those anybody do, raise hands. you your
If out the form that would ple that filled get question again before You’ll this concern? Are there give them a you one of that are on the each Okay. people? in, you I’m going to ask this sworn venire- reflects that 13 one more time. Because it’s record question by agreement” I’ll members “excused you. far as were important. level with As “they problem because had a having about completed [had] preliminary questioning the case videoed.” and was directed to return to relator’s ... court for
[RESPONDENT]: Just so individual voir dire the rec- examination” clear, perfectly ord is lawyers at a later stayed date. This Court the Court with agreement: the Court’s proceedings in respondent’s court before Any juror that problem had a in any individual voir dire began. examination way of аnswering Question 118 will This granted Court later relator’s motion if they excused problem had a about for leave stay to file with the remaining having videoed; the case is that correct? effect “pending further orders correct, [MR. That Court.” HARRISON]: Your Honor. Is right?
[RESPONDENT]:
A.
Principles
General Mandamus
Yes, Judge.
[RELATOR]:
This
grant
Court will
mandamus
And
[RESPONDENT]:
then there were
relief if relator can demonstrate that the
jurors.
13 of
you
those
Do
have those
sought
act
to be compelled
purely
“min
marked?
isterial” and that relator has no other ade
Yes,
[THE CLERK]:
sir.
*5
quate legal remedy. See Hill v. Fifth
Okay.
[RESPONDENT]:
Read into the
924,
Appeals,
Court
34 S.W.3d
927-28
record
jurors.
those 13
These are the
(Tex.Cr.App.2001). We have described
people that
already
have
been excused the “ministerial act” requirement as a re
by agreement
Question
based on
118. quirement
that
the relator have “a clear
day
sought”
The next
relief
that
meaning
two more veniremembers
sought
were “excused
relief
must
by agreement” for
be “clear and indis
similar
reasons.
putable”
That same
such that its
day
“beyond
relator filed this
merits are
original
dispute”
mandamus proceeding
“nothing
in this
left to the exercise
Court seeking
to bar
of discretion or
videotaping
judgment.”
id. Man
See
deliberations. Relator
damus
asserts
does not lie to correct a trial court’s
that, when he filed
pro-
ruling
this mandamus
on an
ques
“unsettled or uncertain”
ceeding, “a panel
prospective jurors
tion of law. See id.3
Hill,
however,
possible
In
we noted a
Gray,
conflict be
This statement from
must
Curry
tween our decisions
State ex
presented
in
rel.
v.
be read
in
context of the issue
Gray,
(Tex.Cr.App.1987),
Relying respondent that, in a involved when the issue sition delibera videotaping that gues one of first im- proceeding is mandamus judicial discretion tions is matter of dispositive of necessarily this is pression, im this involves an issue of first because requirement. ministerial act Hill, court fol pression. language a statute “plain” lowed Act B. Ministerial sought have de which the relator jurisdiction is subject-matter When Hill, clared unconstitutional. See invoked, inherent a trial court’s properly at 926. held that the relator S.W.3d We includes broad discretion over power “clear legal right” failed to establish a Though proceedings.4 its conduct statute declared unconstitutional discretion limits this broad some issue part because constitutional exist,5 it very find diffi this Court would (and impression was one of first also respondent has no dis cult to decide that could not importantly) more because we permit cretion to court con hold “the trial would be (even broadcast) for live refusing act ducting ministerial specifically the absence a statute apply plain language” of the statute Patrick, 86 at it. prohibits Cf. relator to have un sought declared (discussing the maxim “whatever Hill, permitted”).6 not forbidden is constitutional. See 34 S.W.3d Constitution, J., (collateral (Burger, dissenting) estop- Texas C 4. See Article Section concept strange pel it is jurisdiction "is mutant as (setting grant to dis out broad cases); Patrick, transformed to control” in criminal courts); trict State v. Reynolds v. 21 n. 18 Johnson, (Tex.Cr.App.2002); State v. 595-96 *6 1999) (Tex.Cr.App. (acknowledging the ambi (Tex.Cr.App.1991); S.W.2d ju guity estoppel” in this Court’s "collateral 974 S.W.2d Awadelkariem J., risprudence) (Meyers, dissenting) and at 22 J., concurring); (Tex.Cr.App.1998) (Meyers, therefore, (same). problem Gray, The real (Tex. parte Krupps, Ex 712 S.W.2d necessarily at was not that relator was P.J., 1986) (Onion, concurring) Cr.App. tempting compel to have this Court the trial ("judge’s be control of the courtroom must way” court "to a certain that the rule as maintained with as little burden on him attempting to relator was have this Court J., (Campbell, possible”) and at 160 dissent compel way” the trial court "to rule a certain J., (same) (Miller, dissenting) ing) and at 163 on an the reso uncertain unsettled issue (same) lution of which involved a amount of fair discretion. if, lie 5. Relator asserts that mandamus would Gray Healey We reconcile on this basis: required example, jurors court district Hill, together when read with cases these disguise with ski “to themselves masks may support proposition that mandamus Pig during compel speak Latin deliberations.” a trial court a certain lie "to rule But, undisput- way” that is be this case does an issue "clear and That so. “beyond dis- able” such that its merits are present such extreme circumstances. pute” clearly spells or the "law out when certainty duty performed that such Patrick, we decided that mandamus relief nothing judg- or [sic] left to discretion act- the district court was warranted because law is from "stat- ment” whether that ute, rule, derived and, subject-matter jurisdiction ed without opinion [superior] court.” Patrick, therefore, power to act. See had no course, Hill, at 928 Of See n. 5. present This case does not cir- mandamus will not lie even these under presented jurisdictionаl issue in Patrick right aggrieved party has a cumstances if the dispute respondent juris- no has there is usually appeal appeal since the case. subject-matter in this diction over the legal remedy. adequate See considered an Gray, 726 at 127. argues Relator that respondent ations, has there would be pro- no reason for no permit discretion to posing Senate Bill No. 164 appar- [which jury deliberations because ently the first sen has been filed pending and is 36.22, tence of Article legislative Texas Code of Crim current session] bar the re- Procedure, inal clearly prohibits cording it. The trials com- first sentence of menced on provides September Article 36.22 or after 2003.” “[n]o shall permitted to be with Respondent argues in his brief: while it is deliberating.”7 Relator Relator reads unambiguous into this claims that videotaping the jury’s delibera provision [of Article a require- 36.22] tions will unlawfully pierce the “veil of ment that deliberations be conducted confidentiality” of jury deliberations estab under a “veil of confidentiality,” such lished the first sentence of Article be “unobserved and unheard 36.22. Relator further claims main (Rela- by others during deliberations.” taining the confidentiality of jury “deliber 6). p. tor’s Brief at 4 & That is not what ations is essential to preservation of the provision rather, requires; merely jurors’ ability to fully freely consider prohibits any “person” being pres- from aspects case, all without fear of ent, “with”, i.e. jury during embarrassment, retaliation, ap By tions. preventing presence probation.” persons deliberations, during Arti- cle 36.22 Respondent goal preventing achieves the claims that it is within his being subjected sound to outside permit discretion to videotaping of pressures. purpose This “statute, deliberations because no influences rule, clearly evidenced the title of the or common law in clearly Texas” provision: “Conversing with the prohibits jury.” an unattended camera to video- case, In this recording jury deliberations tape the jury deliberations for later public possibly cannot introduce outside influ- Rеspondent broadcast. argues that video- ences and pressures on the taping jury deliberations does not violate —there “person” would be no present “convers- “plain” language of Article 36.22 be- ing Instead, jury.” with the there would cause Article 36.22 does not establish an *7 merely presence be the of an unattend- absolute “veil confidentiality” of jury of ed, remote-controlled video camera only prohibits deliberations but persons jury room. The camera is not a from being present jury with the during person, nor it capable interacting is or purpose deliberations for the preventing conversing with about sub- jurors from being subjected to in- outside ject, much less about the case on trial. fluences pressures. and Respondent fur- ther asserts that if Article 36.22 did “cre- This case boils down to what the ate a veil confidentiality, then Legislature meant in the first sentence of would not be free to by violate this statute by Article 36.22 language, person its “[n]o speaking about deliberations after a ver- permitted shall be jury to be with a while rendered, dict is very practice common it is deliberating.” normally We construe in Texas.” Respondent also if asserts that a statute according “plain” to its textual “current taped law did forbid jury deliber- meaning without resort to extratextual 36.22, caption 7. Article "Conversing permitted whose is shall be to converse with a Jury,” entirety provides: with in its except pres- about the case on trial person permitted No by permission shall be to be with a ence and of the court. jury deliberating. while it is No State, af- types questions asked normally Boykin sources. See will, influence has been (Tex.Cr.App.1991). We how- ter an outside improper ever, also our brought jury resort extratextual sources on a for which to bear addition, construe a we decide it statute presumes prejudice.8 law ambiguous construing statute is or that an cannot be determined whether normally according to “plain” statute its textual introducing an “outside influence event meaning lead conse- will to “absurd jury has affeсted pressure” and on the quences.” Jordan v. (not before) See after jury until deliberations (Tex.Cr.App.2001). Mandamus though Even has occurred.9 the event compliance may compel lie with even an many the veniremembers this case ambiguous if we statute can determine videotaping indicated that their indisputable” meaning “clear of the them, not real- will affect deliberations statute resort extratextual sources. determined until after the ly cannot be Hill, at 927-28. See completed has its deliberations. Respondent videotaping claims that involving In a case tele- notorious Texas does violate the first deliberations not vising of defendant’s which portions Article 36.22 the unat- sentence of because televising did include is not a with “person [the] tended camera tions,10 Clark’s observations about Justice jury” possibly “cannot introduce out- impact ju- television “potential pressures jury” side on the influences argument responsive to the rors” are also deliberating. while it But each of the that an unattended camera videotape millions of viewers is not an “outside influ- person, playing videotape and the pressure.” ence and (live not) “be permits persons these deliberating” it with while un- said, As been the chief function has der the of the fist “plain” language sen- judicial machinery our is to ascertain tence of Article 36.22. television, however, The use of truth. materially said to contribute cannot be
And, videotaping
objective. Rather
use
to this
its
an
unattended camera does introduce
injection
of an irrelevant
amounts to
influence
pressure”
“outside
on the
proceedings.
court
In addi-
factor into
deliberating. Questioning
it is
while
tion
teaches that
there
experience
during
the veniremembers
voir dire about
might
situations
which
will affect
numerous
whether this
their deliberations
so
cause actual unfairness —some
subtle
all but
this is an “outside
admits
defy
detection
the accused
pressure”
influence
since these are
*8
State,
504,
Romo)
See
affect their deliberations.
8. See
v.
506
would
Romо
grounds,
Romo,
(Tex.Cr.App.1982),
on other
overruled
506.
73,
(Tex.Cr.App.1996),
933
89
Cockrell v.
1173,
denied,
t.
520 U.S.
117
Texas,
532,
cer
v.
381 U.S.
85 S.Ct.
10. See Estes
1442,
(1997) (juror
S.Ct.
203 594; 127- Gray, 726 S.W.2d at State, 388, 39 S.W.2d S.W.3d 118 Tex.Crim. (1931) identify to (requiring presence spectators in the those publicly of custom, we withhold issuance is our As majority disagreed with who respondent oppor- an of to accord the writ of the “deliberations was error because See unnecessary. to make that tunity secret”); kept jury required to are be Hill, also lift at 929. We Abramovsky & Jonathan L. Abraham court. proceedings respondent’s stay of Edelstein, Jury Room: Cameras Dangerous and Prece Unnecessary An COCHRAN, PRICE, JOHNSON, and dent, (1996); Cohn Ariz.St.L.J. 865 JJ., concurring opinions. filed Dow, in the Marjorie & David Cameras P.J., KEASLER, J., KELLER, and and the Pursuit Courtroom: Television of dissenting opinions. filed 154, McFarland Inc. Company, Justice & (2d Moore, ed.1998); Lloyd Jury: E. J., MEYERS, dissents. Liberty Kings, Tools Palladium of PRICE, J., concurring opinion. filed this (2d ed.1973). Publishing Anderson opinion agree and join majority I
Finally, respondent points instances of manda- conditionally issuing a writ (Arizona jurisdictions and where other case. I write appropriate mus is this Wisconsin) videotaping have permitted rea- separately express some additional and claims that had deliberations my conclusion. sons impact “no on deliberations.” Relator speculates delib- point and Keasler As the amici experiment erations in the Arizona affect- out, principle a “cardinal there is since two out of ed deliberations pri- shall remain the three cases chosen initial broadcast every vate and secret case.” United hung juries resulted and mistrials. Co., F.2d Virginia Erection States however, practice jurisdictions, of other Cir.1964). (4th Judge Keasler interpretation does not control our Arti- recog- this Court has points also out that cle 36.22. that “[t]he nized Alsup secret.” required kept Adequate Remedy Legal C. 388, 390, 118 Tex.Crim. (1931). end, To this citizens appeal respon- Relator has no Texas, legisla- through that this of the State of dent’s order. We decided ture, Code adequate legal remedy predecessor enacted satisfies the no Patrick, Procedure Article 36.22.1 requirement. See 86 Criminal mаndamus private pub- was intended to be a solemnly make what lished made and that verdicts deliberation, licly subject can attacked returned into court be constant testimony those who investigation; aside on the set to the destruction all publication all ver- part took in their discussion and frankness and freedom of be, be, many dicts fol- could conference. hope by inquiry an discover- lowed Supplied). (Emphasis ing might something which invalidate the reads in full: The Article finding. would be harassed be- Jurors person permitted to with a shall be be No party in effort to set the defeated deliberating. No while it from them evidence of facts which secure permitted to with a converse shall might establish misconduct sufficient set pres- except in case about the If thus secured aside a verdict. evidence used, permission of court. result would ence could be thus *10 But policy supports the the law is but jury? is he with the What the door point. not the Mandamus is an extraordi ajar to the room a was and woman was nary remedy, only issuing when there is a standing listening? around the corner Is right sought clear to the relief and when she with the jury? What if there were a remedy. there is no other adequate State window in the room and a lip-reader with ex rel. Hill v. Appeals Court the telescope interpret jurors were to what District, (Tex. saying top building were from the Fifth case, Crim.App.2001). Code of jury? across the street? Is she with the clearly Criminal Procedure Article 36.22 These no situations would be different provides sought, to the relief us, than the case if the especially before remedy the State has no adequate other people who observed the did tell not than mandamus. they what until learned after verdict was rendered.
There parts are two to Article 36.22. first, The person permit- that no shall be What if Co-Production wanted broad- ted be with a while is deliberat- proceedings cast interpreta- the live? An second, ing. person The that no shall be tion of the Article allows deliberations permitted to converse with except taped and lаter broadcast allows under limited circumstances. If the Arti- same proceedings taped and broad- cle had included part, the second I If cast live. statute read is as with might agree A cam- dissenters. it, dissenters would have us a camera read a person even present era could be in is “person” viewing not a people deliberations, room during but the not jury. broadcast are “with” the person not jurors. could with the converse Judge Keasler’s dissent on lan- focuses guage deliberating,” But “while the is 36.22 designed protect Article party could rely “person” the terms something deliberations from more and “with” conversing jurors. than someone with the same manner. very presence person of another who is not If trial judge is within his discretion under the same oath as the affects allowing the video camera into the brings deliberations. The camera room, then how can his decision be shock- jury just surely viewers as it ing and appalling? No one has accused brings to the viewers. For what judge having impure trial motive. purpose could first sentence in His “It important intention is clear. the Article have been enacted? my opinion, country, that our our commu- judges
Some believe that the nity, statute is knows place what takes these sufficiently clear enough to conclude courtrooms. And better educated be, judge they’ll that the trial scope exceeded the folks can the better have an If his discretion. we were to conclude that appreciation understanding case, apply greatest judicial Article 36.22 did not in this A system ever invented.” many disturbing there are equally judge scenar- who acts within his discretion n pure ios would be within a trial court’s motive should not said shocking discretion. have made an order appalling. For if a example, what had a against glass water the wall of the jury problem in this case is that the trial intentioned, listening? person, room and was He is a judge, however exceeded well Tex.Code Crim. Proc. art. 36.22. *11 blindfolded, the ma- Lady is but Justice scope
the of his because Article discretion pro- clearly that Article 36.22 jority sees prohibits permitting person a be 36.22 case. trial court’s action this hibits the it Permit- with the while deliberates. condi- this Court to appropriate It is broadcast, recording whether the ting application for tionally the relator’s grant rendered, has after the verdict been live or of mandamus. writ it that And was has the same effect. designed to comments, that Article 36.22 was majori-
effect join I the these With prohibit. Foreknowledge that one’s secret ty opinion. kept cannot will not be secret JOHNSON, J., a concurring filed form content of change
help opinion. and, perhaps, the result.2 the deliberations 36.22, by A its out judges point line that Article of this Court was crossed As other lie if mandamus will not permit. opinions, in their language, clear does not It is the law is unsettled or uncertain. argument made that The can be concept led to the statement that that has presence same of a video camera is will not lie in a case of first mandamus presence as But that person. a However, concepts some are impression. rea- argument very persuasive. is not that, challenged, and certain so settled hypotheticals given son the above and impression only first the case is one of are actual scenario with which we faced that no concept so settled because Article 36.22 prohibited this case are under challenge thought has it reasonable one perceive is that to with the is to be argue sanctity I that the it. would happening with one’s senses what is concepts. those jury room is one of It that privacy nullifies the room. point of this Court out judges As other designed protect. Article 36.22 was as far back as opinions, in their least State, Alsup v. 388 39 Tex.Crim. legislature currently That ad- 903(1931), has held this Court dressing issue is of no moment. The required to be deliberations are that If legislation. enacts this or legislature produced The statute that kept secret. lan- misinterprets some other court holding changed significantly has not statute, guage legislature does not seventy years.1 in the last leg- сorrecting issue statement us. The things make pur- islature amends the statute to important most word Regardless, clear. the current and “kept.” keep more To poses of this discussion is legislature ap- of the are not condition over specified future acts to maintain in a time, instance, today secrecy. is to to maintain propriate to consider. Our task in this UnabRidged Encyclopedic written, law and our deci- consider the Dic- Webster’s tionaby (1989). we legis- speak When sion can be no different whether the secret, it is change keeping not. assumed lature chooses enact permitted to with a interesting person No shall be It is to note Poe’s com- case, deliberating they upon a while secrecy: venire ment permitted to nor be converse with "Everything place in a room takes impaneled, except in the after he has been one know is secret in the sense no will court, permission presence place except would what takes back there except in a of misdemeanor where the case added). (emphasis recorded.” sepa- permitted by the court have been permitted to con- shall be rate. No until article 36.22 read: From 1925 juror about the case on trial. verse with the *12 matter remain promis- will secret until the to Frontline’s According murder trial. by er is released promisee. prom- the The Request Permission to Record and may ise the by promisee giving undone Proceedings Broadcast in this case: permission the promiser speak by to the The proceed- will Co-Production record promisee choosing to reveal the matter. in ings the courtroom using traditional It keeping is not to until secret wait equipment camera and recording sound the promisee has left the room before re- equipment including stationary and vealing the secret. wireless microphones standard broad- jurors, gives Our law the promis- to cast television. Care will taken to ees, power the to reveal are matters that filming ensure that all un- courtroom is otherwise to be kept secret. After the obtrusive. Jury deliberations will be re- trial, jurors speak conclusion operated using corded remote cameras keep about their deliberations or choose to recording sound mini- equipment and to jurors they them secret. If speak, the mize jurors. to distractions the may reveal all or only some of the discus- placement and number of all cameras positions sions and taken and abandoned. will microphones and be determined in power That to is meaningless choose court, consultation (emphasis crew, by choice made judge, camera added)1 production company. permit To someone Frontline requested, granted, and was other than the to choose reveal to right exclusive this later broadcast foot- all or part of the deliberations is to break age, as well as exclusive access to the promise made to them society—that and Frontline video audio material. also their deliberations would be kept secret. apparently has the to exercise sole promise just promise no less a editing over process control and will because have left room. turn the capital pro- entire murder trial I concur judgment the Court. ceedings “documentary special into a in length [which] will be two to three hours COCHRAN, J., a concurring filed give space bring sufficient time and opinion. depth understanding complex to this join opinion. I the majority I write challenging topic.” separately provide additional explana- Included in my tion for the exhibits submitted to decision. this Court Poe Judge (“Respondent”) I. and Frontline is a copy prior of PBS’s what, First, precisely, is the procedure program, televised “Inside entitled Room,” here? issue Poe has granted Jury which includes video and au- (“Frontline ”) footage Mead Street Films the ex- dio from a jury deliberations rights videotape (including au- I clusive 1986 Milwaukee criminal trial. dio) capital videotape. deliberations this viewed that It is instructive.2 M.A., repeats, George Higgins, lawyer, 1. Frontline in its brief to Court V. Stanford writer, commentator, mystery television filming that: will "the documentary wrote that PBS place by unobtrusively placed, remotely take exemplified these operated cameras.” Brief Real Parties Higgins, "Hawthorne Effect.” Television: Films, Interest Mead Inc. And Street WGBH Truth, Truth, J., but Not the Whole Wall St. p. 5. Educational Foundation 14, 1986, According Higgins, Apr. at 26. "people the "Hawthorne Effect” occurs when spoken, different, every raneously word re- aware apparent It several used and made, mote-controlled cameras were every person gesture every outside the courtroom fo- cameraman simultaneously it. recorded speaking as he close-up one of those cameras for cused Thus, eyes of one ears speaking, particular shots during jury room close-ups of the next moved the camera and, mil- proposal, Frontline’s tions under *13 juror to speaker, jumped and then jury in the eyes and ears will be lions across juror developed as conversations years and after those room in the months cameraman, though liter- the room.3 deliberations.4 room, jury ally contempo- outside the was Rudman, JJ., nonconcur- they being & statement are aware that are observed who rence). case, (in adopting their this alter behavior case, example, at thirteen this least circumspection) In eloquence
vast and extreme peremptorily excused prospective jurors were they expecta- imagine to to be the meet what they that and because admitted the Id. The tions of observers.” "Hawthorne broadcasting jury deliberations the later explained Effect” has also been as: ability the might their to decide case affect produc- improvement process a Initial fairly. jurors for rea- were eliminated These by the caused obtrusive observation tion ability to wholly unconnected to their sons process. The effect was first noticed in fairly the evi- or to consider the law follow plant the Hаwthorne of Western Electric. dence. consequence a increased not as Production changes working actual conditions the 3. Protocol submitted to Maine In the CBS plant's management introduced the but sought permission to Supreme when it Court management state, demonstrated interest because jury in that CBS set deliberations film improvements. videotaping: in such procedure jury room out its Cybernetica Principia Web at remote-con- be two hidden There would http://pespmcl.vub.ac.be/ASC/HAWTHO.EF- room, jury so to as trolled cameras FEC.html. photographers standing in the room. avoid a In their statement of nonconcurrence to prefer use standard-size cameras We the jury project videotape CBS deliberations in opposed cigar-size su- because of as trial, Supreme jus- a Court civil two Maine maneuverability quality. picture perior problem: tices noted the same pictures feed to a would These cameras jury a To film trial and the room, presence so their separate participants, the that follow when all of virtually undetectable. be judge, litigants, lawyers, have necessary to con- probably It be 1. will process replicate a consented to the cannot a the remote-controlled struct "blind” for without the electronic intrusions. Se- one-way e.g., a the cameras in room — who do not lection those a cabinet.... mirror or thinking out before millions of mind observers, loud room, place we would Inside those who will but in serve microphones strategically so as small silence, by jury’s will its nature distort room, but we would the sounds in the cover process. such circum- deliberative stances, asking any juror to wear wireless not presence cameras that microphone. how reaches its deci- seek record SJC-228, Order, Docket No. Administrative very pro- sion will distort deliberative 5, 1996). (Feb. Me. Front- LEXIS purport By the cameras record. cess protocol production has not been sub- line's object process of measurement the court, рresum- as exhibit to mitted any changed will be con- measurement of CBS. ably least similar reached on the basis of such mea- clusions Poe, rep- Respondent, What is *14 tions, the Frontline cameraman would be anywhere ence to jurisdic- case in any jurors. Thus, Judge “with” the Poe’s or- tion in trial judge which a allowed televi- der, granting right Frontline the to video- sion jury crew to film deliberations when deliberations, tape jury the violates article objected one of the parties process. to that The 36.22. cameraman the jury outside case, In this District Attorney the of Har- filming room the occurring deliberations County ris vehemently objected has to this exactly inside the room is like a silent project. joined by He is amicus briefs reporter sitting behind a inside screen that from the District County Texas Attor- room, room. One is inside the literally Association, neys’ the El Paso At- District while the other is figuratively inside the torney, and Bexar County the At- District room. Both privy every are to word of torney. case, In this we are concerned every juror. But the cameraman also sees only filming with jury the every gesture and records and act as well. parties when litigation one of the to the objects to procedure. the jury A camera that is in room the with a person at the other it is the equiva- end of
II. lent of that in the room. being Second, does Poe’s violate a simply order camera physi- extends the viewer’s Yes, Texas law? violates a stat- specific sight hearing, just cal senses of as a ute as well as centuries of common law as periscope allows the submarine command- Respondent that public *15 and other are eyes its if his and jury during deliberations lowed, jury con- deliberations could be his present, are mouth not. ears courtroom, jury in open ducted an door, restaurant, argument, Respondent’s
room without
At oral
counsel
an
presenting
other location without
jury
asked whether
agreed, when
ripe
issue
for mandamus.
they
“public,”
are “secret” or
tions
Indeed, innu-
He is
are secret.
correct.
theory,
counties
install
Under
could
English judges, ac-
merable American and
mirrors,
one-way
large
police
as is done in
ademics,
have extolled the
rooms,
and writers
interrogation
parties,
so that
the
jury
of secret
deliber-
mystical functioning
attorneys, judges,
general public
and the
might
it
peer
jury
on the
as
deliberates
ations.7
See,
843,
room,
door,
according
e.g.,
the
to one’s
Washington,
Saxbe v.
417
close
U.S.
and —
2811,
849-50,
(1974)
Holy
the
Ghost or Socratic
beliefs—either
94 S.Ct.
210
Virtually
exception,
without
American
than the
to which the
has
case
agree
courts
that:
been
impinges
submitted
decision
presence
of
person]
[another
upon
privacy
secrecy.8
jury room
the cardinal princi-
violate[s]
expressed:
As more strongly
ple that
of
deliberations
shall
no one should
with a
private
remain
and secrеt in
be
while it is
every
case.
presence
any person
engaged
its deliberations. The
independence
thought
ju
checked
jury’s
to have the
deliberations conduct
secret,
rors were
arguments
privately
made to
that their
ed
feel
and in
free from all out
intrusions,
freely published
and ballots
side
were to be
and extraneous influences or
93-1277,
world”);
Pless,
intimidations”);
S.Rep.
p.
No.
13-
McDonald
U.S.
(1974) (Senate
267-68,
Judiciary
(1915) (if
Re
Committee
35 S.Ct.
211 influence, ar- respondent not outside upon proposition system is founded the statute. that will hear the evi- order not violate gues, interested his does court, that open upon and evi- dence Court, brief to this his Respondent, alone, among and that deliberate dence controlling author- argues “there is no that until a verdict is reached. themselves ity clearly prohibits that permit persons To ... various surprising. This is not deliberations.” is with the in its deliberations to article 36.22 was When the forerunner and strike open grave the door to abuse current arti- in 1925 and when thе enacted system.9 directly at heart 1965, videotaping cle was enacted 36.22 Texas, course, agrees The State of controlled with remote required deliberations of a are “[t]he microphones not techno- cameras was kept secret.”10 simply had logically possible. issue Respondent argues l)although that: that it before this case. Now never arisen secret, article 36.22 arisen, Legislature acting is has filming explicitly prohibit does not implicit is stat- explicit what make deliberations; these televising secret ute.11 2) only is purpose keep- there one Furthermore, statutory law ing prevent those deliberations secret —to governs criminal jurors. type of law influencing outsiders from explicitly proceedings. But As article 1.27 filming because the deliberations (4th Cir.1964). opinions propriety ex F.2d soundness room”)(quoting pressed by him in States, (Tex.Crim. Tex.App. 9. Little v. United F.2d Jack (10th Cir.1934); see also Johnson Duck App.1886)). Cir.1981) (not worth, (7th 650 F.2d Respondent argues that ing that "to stifle free debate in the room secrecy confidential- required is no there significantly jury’s ability would hinder juries petit under ity of deliberations judgment,” reach a ‘common sense rule, as there is [Rule 606] or has, jury’s privacy "if an intrusion into the proceedings pursuant grand jury to article have, likely stifling the effect such Procedure. of the Code Criminal 20.02 debate, by jury the defendant’s to trial Legislature certainly how Texas knows violated”). may well have been *17 deliberations, impose secrecy upon jury to respect yet to do with to and chose not so State, 388, 390, 10. Alsup v. 118 Tex.Crim. 39 petit jurors. 902, (1931); 903 see Golden Ea also however, argue the possible, It reverse. Jackson, 362, gle Archery, Inc. 24 S.W.3d secrecy jury well of so (Tex.2000) (stating discharge 367 that ”[t]o juris- in American common-law established effectively,jurors their be able to duties must thought Legislature prudence that the never without discuss the evidence issues fear a necessary to statute. state obvious up deliberations will later be held their public scrutiny”); 135 Tex. Fernandez notes, at least two bills 11.As Keasler 1067, 12, 19-20, Crim. Legislature currently pending in the Texas (1938) ("it dangerous would be a and exceed filming jury explicitly prohibit the of delib- ingly pernicious practice for courts to Already the Electronic Media Rules erations. permit sanctity jury of room be County Courts of for the District Harris invaded, interrogated jurors and the to be prohibit proceedings explicitly civil Houston arguments used in their deliberations coverage proceedings of media open "[electronic searching ... the door It would chambers, proceedings closed to the every held inquiry in relation to act word selection, room, public, jury jury deliberations.” transpired which http://www.justex.net/CivilMediaR- juror placed See subject each individual ules.html, upon Rule 4.1. trial before the court to answer for the “[ijf states, this Code provide fails to physical rule without ‘intrusion into a constitu- procedure of in any particular state of case tionally protected area’... constitutes a arise, which the rules of the common (as here) search —at least where the tech- law shall applied govern.”12 nology in question is not in general public petit deliberations of a jury, like those of a use.”16 Justice Sealia noted that this test grand jury, have always been secret under preservation “assures of that degree of the common law of the State of Texas.13 privacy against government that existed
Respondent’s order
indisputably puts when
the Fourth Amendment was
eyes
Frontline’s
and ears
into the
adopted.”17 Similarly, barring remote-
deliberation
through
room
modern mira-
controlled cameras from videotaping secret
cles of
If
technology.
“the Fourth Amend-
preservation
deliberations assures
ment protects people,
places”14
not
article
that degree
privacy
that exist-
protects jurors,
36.22
not
rooms. The
ed when article 36.22 was first enacted.
Supreme Court has held that modern tech-
secrecy
“The
of deliberations is the cor-
nology, when it acts as the substitute for
nerstone
Anglo
of the modern
American
ears,
eyes,
or noses of those who could
jury system.”18
contends,
Rеspondent
not
lawfully
otherwise
upon
intrude
a citi-
however, that
only
there is
one purpose to
domain,
zen’s private
may be
legal
secrecy
served
equivalent
of a person.
Kyllo
In
v. United
States,15
protecting
from outside
Supreme
Court held that “ob-
tions—
influence and
taining by
disagree.
coercion. I
sense-enhancing
Main-
technology [a
taining
thermal
imaging
secrecy
device]
information
regarding the interior of the
has traditionally
home that
been supported by five
could not otherwise have been obtained
distinct rationales:
12. Tex.Code Crim. Proc. art. 1.27.
attorney
doubted that if a district
can be re
duly-elected
moved
divulg
from his
office for
Ansel,
ing
proceedings
grand jury,
13. See
the secret
Stern v. State ex
of a
rel.
(Tex.
1994,
judge may be
App.-Houston
commanded to rescind an order
[14th Dist.]
denied)
permitting
writ
(upholding
television cameraman from
removal
vid
of district
eotaping
attorney
distributing
proceedings
petit
the secret
grand
secret
tes
media).
Stem,
jury.
timony to
the district attor
lawsuit,
ney argued, in a removal
that he did
States,
351,
Texas,
347,
violate
v. United
"law” in the State
389 U.S.
Katz
(1967).
S.Ct.
expressly prohibited
because no statute
L.Ed.2d 576
his
handing
conduct
copies
grand
out
testimony
public.
Id. at
533 U.S.
619. The
121 S.Ct.
150 L.Ed.2d
(2001).
appeals
court
held that
attorney
the district
purpose
violated the common law
behind arti
which,
time,
cle 20.02
at that
stated
16. Id. at
213
of
ver-
finality
jury
the
8.
the
tampering
jury
protecting
preventing
1.
21
dicts;
influences;19
by outside
freedom debate
4.
of
protecting robust
protecting
jury
post-verdict
2.
the
from
deliberations;22
during
and
harassment;20
in the
community
5.
trust
promoting
jury.23
States,
be,
be,
See,
by
inqui
e.g.,
many
followed
v.
483
and
would
19.
Tanner United
U.S.
2739,
107, 117-23,
discovering something
ry
hope
of
107 S.Ct.
According to one the me- our com- dia, appears just policies mon-lаw another sanctity of the and secre- institution about which cy jury public has a “right to know.”24 are seriously by threatened interviewing jurors after a years, trial. In recent Respondent argues that the educational seriousness of this threat has grown by “self-evident,” value of project is magnitudes. several Newspapers and “[pjublic confidence is furthered programs radio quoted jurors have ex- policy openness in criminal trials and tensively, jurors have appeared singly or proceedings.” I wholeheartedly agree television, in groups on and some have general with that proposition. “A trial is a written articles and even books about public event. transpires What the court experiences. their Reporters have tele- room public property.”25 But the phoned jurors at arrange home to post- deliberation room is not the courtroom. juries verdict Hung interviews. “[wjhile Respondent argues also questioned been on the reasons for their open tradition of access has heretofore inability to reach a verdict. Even se- been limited to proceedings courtroom questered jurors have pursued by been cases, criminal there is no reason to cut off the media and have had questions shout- access to the room door.” As dis- ed at them. above, many cussed there are reasons for
Popular grossly culture is now cutting odds off access at the room door. jury’s with the history and function. Those Anglo- reasons have served the jurors Potential are being taught system justice American well many for their deliberations will not be secret at centuries. It place is not the of this Court They all. can expect to be interviewed. to overturn those centuries of law absent They will be asked for specific their reasons and explicit legislative directives. those of their fellow If convict- the Texas Legislature should decide to ing, acquitting, being agree. unable to open throw door of the reached;
verdict actually making such (emphasis original). Id. at 619 If public informаtion might public available to the property, "previ- become ously anonymous invite jurors, reaching the retribution group rightly 'community decision based lay fear. values’ and perspectives, they justify will feel jury system incorporated must it in Con- our public opinion.” the court of Abraham S. stitution the Framers was not intended Goldstein, Jury Secrecy and the Media: The satisfy yearnings perfect knowledge Interviews, Problem reached, Postverdict 1993 U. Ill. provide how a verdict is nor to L.Rev. 314. primacy assurances logic in human affairs. was it Nor subordi- Goldstein, (foot- supra 22 at note 296-97 “right nated to a to know” found in the omitted).
215 “purely room, then, sought compelled act so. tion it do Until ministerial.”30 stays 86.22 and door closed under article American law. common phraseol- under either sought The relief indisputable” such ogy must be “clear argues that will program Frontline its “beyond dispute.”31 merits are that its informative, entirely educational and Further, “Survivor-type reali- and not sensational is one which is accom- a “ministerial” act by Per- suggested Relator.26 ty show” as of discretion without the exercise plished so, Maine agree but I with those two haps If there is discretion judgment. or who, justices per- asked when whether judicial determination attendant or deliberations, concluded filming mit act, it is ministerial in nature. not would be served public “[t]he better implicated act if the Nor is a ministerial documentary emphasized, rather claims weigh conflicting court must confidentiality of upon, than intruded legal require collateral matters which or and the af- protection resolution.32 from of that forded abuses Banales, Thus, we held example, for process.”27 judge not have a that a trial did ministerial imposing spe- refrain certain duty to on the defen- probation cific conditions of III. dant; judicial had to exercise he the district final issue whether decision, making wrong discretion attorney is entitled to relief mandamus. Hill, might it In we held that though be.33 notes, As correctly Keasler judge have a ministerial a trial did not fact might mere that an order be “terri- “bail-pending-appeal” duty to declare ble,” is not “shocking,” “appalling,”28 unconstitutional; duty he had the statute sufficient manda- to have rescinded via discretion, judicial regardless to exercise jurisdiction very mus. Our mandamus legal he made “correct” of whether if the limited. Mandamus is available we held that the trial Gray, decision.34 1) can he has no relator demonstrate that: duty not ministerial judge did have a 2) law;29 remedy at adequate way plea in a certain on a of double rule facts, under the law the re- judicial relevant exercising he dis- jeopardy; was cretion, incorrectly, making his spondent “clearly abused” even his discretion Appeals applaud lofty goals good 26. I inten- 30. See Banales v. Court 33, District, Frontline, 93 S.W.3d 35 Thirteenth Judicial Respondent tions both 2002) v. (Tex.Crim.App. State ex rel. Hill respect appli- alter the or its cannot law Dist., Appeals 34 S.W.3d Court cation this case. Fifth 924, (Tex.Crim.App.2001); ex rel. State (Tex. Gray, Curry Order, SJC-228, 27. No. Administrative reh'g). Crim.App.1987) (opinion on (Me. 5, 1996) (Glass- Me. at 5 Feb. LEXIS JJ, Rudman, & nonconcur- man statement in Mays, ex Wade v. 31. State rel. rence). 1985). (Tex.Crim.App. Curry Gray, ex rel. 32. State (Keasler, J., post & 224 dissent- 28. See at 221 (cite omitted). ing). 33. 93 S.W.3d Everyone agrees that Relator does remedy at S.W.3d at 928. adequate 34. 34 law. *21 instances,
ruling.35 In all of these rights manda- to film and jury broadcast the entire mus relief was not compel trial, available to including jury deliberations.37 At particular deciding outcome because first, the Frontline’s re- opposed defense judicial outcome involved a discretionary quest, eventually the defendant ac- situations, act.36 In all of those the trial he, quiesced mother, his and his de- judge had a limited right wrong to be fense signed counsel a written consent to long as there were at legally least viable procedure. the process, explicit- he options available. ly any waived post-verdict complaint he
The difference between those cases and might concerning the content of the one, however, present is that in each of videotape depicting jury cases, those the act was a “discretiоnary Thus, tions.38 ostensibly defendant one, judicial” directly related to the sub- dog “has no in hunt.” this He has not stantive or procedural rights of parties. any any filed brief or taken position That is not present true in the situation. proceeding. mandamus The capital mur- der defendant is not the party real Respondent’s
Does order this case interest; Frontline is. But serve how does a or procedural substantive inter- ests of either company television parties right or of the fair have the to a justice? administration of purpose discretionary judicial ruling on exclusive a criminal trial is to determine the guilt or access to those deliberations from individual; single innocence of a it is not which the public is excluded?39 If the for the benefit of television viewers or the public were entitled delib- media. They, like all pub- members of the room, eration press then the generally lic, have a stake in seeing that trials are would equal right have an of access to the conducted fairly and reach accurate resolu- excluded, proceedings, but tions, but they are not the tail that wags the press standing has no a spe- assert dog. right cial or exclusive entry. Nor does any right judi- it have
Here,
“discretionary
to a
parties
preparing
were
for a
cial
party,
murder trial when a third
capital
ruling” on that
“exclusive access” re-
proceeding,
quest
unconnected to the criminal
because
secret
de-
fray
entered the
and asked for exclusive
play
significant
liberations would not
“a
not, however,
35.
While “to or not tape,” is a answer, question requires jurisdiction, American Respondent it is not has *23 “discretionary judicial a request- decision” provided any not us with case from by any party ed to litigation or autho- jurisdiction otherwise, which has ever held rized law.43 Where is the source of the precedent while the upholding secrecy judicial authority grant to a particular jury of legion. deliberations is Respon- member of the media exclusive access and dent had a duty deny ministerial to Front- rights to videotape secret request line’s when it opposed by was a tions the face of a party’s objection? party to this lawsuit. Respondent points to no such source. The Thus, agree I with majority rights parties and interests of the Relator, Attorney the District of Harris jurors in a proceeding criminal fair County, is entitled to relief on mandamus. legal determination of the issues and the orderly justice pre- administration of take KELLER, P.J., dissenting filed a rights cedence over the non-litigant of opinion. special members of the media to access to non-public proceedings.44 relief, To show entitlement to mandamus (1) a relator
Therefore,
must demonstrate two things:
I conclude that a trial judge
there is no other
judicial
adequate legal remedy,
lacks
authority45 to enter an order
(2)
granting rights to a
the act
third-party nonlitigant
sought to be
compelled
to videotape
secret
purely
ministerial.1 I believe that
Harmоn,
42.
discovering
flagrant
Buntion v.
827 S.W.2d
tant than
misconduct
(Tex.
1992)
Crim.App.
(emphasis
origi-
n.
jurors,
of those
one cannot doubt that idle
nal).
secrecy
trumps any
of
inter-
non-litigant
est of a
member of the media to
Patrick,
43. See State v.
595-97
purest
invade that
room—even with the
(mandamus
(Tex.Crim.App.2002)
proper
opposed by any party
of motives—when
or
beyond statutory
when trial court acted
au-
"
juror.
thorization; noting
'implicitly
autho-
rized' acts must be in furtherance of some
Patrick,
45. See
legislative
purpose
I.
ute,
consequences
particular
cap-
charged
construction.18
with
Harrison
Cedric
Felix
The State is
murder of
ital
Sabio.
I have serious doubts about whether
November
penalty.
the death
On
seeking
a clear and
sources can show
extratextual
selection was
days
three
before
simply
indisputable right
may
to relief.
It
filed a motion
begin,
set to
Co-Production
impossible
meaning
of a statute
permission to record
requesting
beyond
ambiguous language
trial,
murder
capital
broadcast
entire
dispute, however clear the extratextual
Harri-
jury’s
including
deliberations.
ambiguity
seem to
factors
be.
the Dis-
filming,
son consented
statutory language
to cre-
would seem
Attorney objected. Judge
grant-
Poe
trict
proper
some
ate
least
doubt about
request
and ordered the
ed the
doubt defeats
interpretation,
any such
filmed.
requirement
act
for manda-
the ministerial
peti-
filed a
Attorney
The District
then
mus.
Court,
in this
for writ of mandamus
tion
if
But
one
that extratextu-
even
assumes
Poe from autho-
seeking
prevent Judge
might,
factors
an
situa-
appropriate
al
stay
taping.
granted
rizing
We
tion,
meaning beyond
render a statute’s
proceedings
criminal trial
and filed and
they do not
Even
dispute,
do so here.
set this case
submission.
that we
arguendo
we were
assume
reject
ultimately
argu-
Respondent’s
II.
arguments
and find the
ments
State’s
saying
It
without
Poe’s
goes
persuasive,
more
is not the same
shocking.
thought
of record-
order is
rendering
indisputable,
issue
free
*26
televising
jury’s
and later
a
ing
all doubt.19
out,
appalling.
point
the amici
tions is
As
I respectfully dissent.
justice sys-
guided
are
our criminal
we
by
principle
tem
“the cardinal
KEASLER, J.,
dissenting
this
delivered
pri-
shall remain
opinion.
Indeed,
in every
and secret
case.”1
vate
understandable,
well-intentioned,
might
In a
of debate
be stifled and
“[f]reedom
prevent
genuine
independence
thought
effort to
a
di-
checked
principled
jury system,
arguments
in our
criminal
made to feel that their
saster
State’s
were
majority
freely published
has
created law
were
regrettably
and ballots
State,
35,
(Tex.Crim.App.2002);
v.
37-38
873
see also
18. See Brown
Gov’t.Code,
State,
73,
(Tex.
(Tex.Crim.App.1997);
Tex.
v.
94
Cockrell
denied,
1173,
§ 311.023.
Crim.App.1996),
520 U.S.
cert.
(1997)(Baf-
S.Ct.
ness to return an unpopular and Poe’s order violates Art. 36.22 and Rule the community’s system trust in a 606(b) of the Rules of Evidence. He relies on the laypeople decisions of provisions claims these two create a “zone all be by barrage postver- undermined a privacy” around deliberations. dict scrutiny of conduct.”3 Even we Judge responds Poe that the District At- recognized “[t]he deliberations of torney satisfy has failed to the require- required kept secret.”4 ments mandamus relief because he fails to establish that a duty ministerial has In his concurring opinion, Judge Price been violated. He further argues that oth- implies that because Judge pure Poe had er courts videotaped jury nationwide have motives, and because his order does deliberations, to jus- no detriment law, violate the the order therefore cannot system. tice Nothing be shocking. could be further Indeed, from the truth. shocking the most justified
of actions are often
as having
IV.
originated from
purest
of motives.
extraordinary
Mandamus is an
remedy
Supreme
And as former
Court Justice Pot-
sparingly.6
to be invoked
Its issuance is
said,
ter
big
Stewart
“there is a
difference never a
right
matter of
rests
you
between what
have a right to do and sound discretion of the Court.7 To obtain
what
right
to do.” Just because the
Court,
mandamus relief from
relator
order did
not violate
law does not
(1)
relief,
must
right
show:
a clear
it any
shocking.
make
less
judicial
when the
in question
conduct
vio-
(2)
duty;
lates ministerial
no ade-
points
Co-Production
out
that other
quate remedy at law to
the alleged
redress
courts have recorded and later televised
harm.8 The District Attorney
has no
deliberations,
including a Milwaukee
appeal Judge
order
Poe’s
before delib-
criminal trial and several Arizona criminal
begin,9
erations
so he establishes that he
trials.5 But it has never been done when
adequate remedy
has no
at law. The issue
parties objects,
one of the
as here. And it
in this
case is whether
Poe’s order
certainly
has
never been
in a cаpital
done
duty.
violates ministerial
murder trial which the State seeks the
*27
penalty.
death
higher
The stakes are
to-
An act is ministerial if it does not involve
day than ever before.
the exercise of
discretion.10 If there is
States,
1, 13,
Juiy Secrecy,”
2. Clark v. United
289 U.S.
53
the Cloak of
146 U. Pa. L.Rev.
465,
(1933).
217,
(1997).
S.Ct.
terial act as against proscription violates the a statute’s a clear the relator have jury. majori- The “person” being with sought sought.14 relief The relief must be ty that “each of the millions of concludes indisputable clear such that its merits videotape person” viewers of the is a dispute.15 are The act must be beyond (live videotape that “the playing plainly pre- positively commanded so not) permits persons to ‘be with the these as to be scribed under law free from jury deliberating’.”17 while But this it is doubt.16 simply each viеwer is not the case. While will indeed a the viewers not be person, as provides Article 36.22 follows: deliberating. while No person permitted shall be to be with Instead, viewing viewers will deliberating. it per- while No long jury has deliberated. after the permitted son shall be converse with except about the case on trial In her concurring opinion, Coch- cameraman, permission ran no presence surmises else, it is one will be “with” while court. deliberating. assumption bases this She enacted in our statute was 1965 when viewing on her of the video another entire Code of Criminal Procedure was supposition jury’s and her predecessor rewritten and codified. “presumably”18 thing the same will to Art. was Art. in 1925. 36.22 enacted nothing here. occur But record That as follows: provided statute us that in this case there before indicates viewing be a permitted No shall be to be with will live cameraman Indeed, they argü- at oral deliberating upon while deliberates. 15. Id. at 927-28. 10. State ex rel. Hill v. Court of Appeals (Tex.Crim. Dist., Fifth *28 App.2001). at 16. Id. 928. 11. Id. Ante, slip op. 17. at 201.
12. 180-81. Id. J., (Cochran, Ante, op. n. 2 slip 18. at 196-97
13. Id. at 181. concurring). 14. State ex rel. Hill v. Court of Appeals (Tex.Crim. Dist., Fifth App.2001). ment Co-Productions’ counsel assured this majority tions.”22 The and I must be Court the camera would not reading two different statutes. IWhile manned. Finding a violation of Art. agree 36.22 that videotaping jury deliberations requires an assumption of facts not in ought law, prohibited by I find noth- directly record and contradicted at oral ing plain language of Art. 36.22 argument. which televising, videotaping, mentions recording kind. just The statute The Attorney’s District reliance on Evi- Indeed, does not encompass activity. 606(b) dence Rule equally is unfounded. how could it? predecessor When the stat- Rules of evidence do not come into play ute was enacted television was the until trial proceedings begin. Judge Poe’s stuff of science fiction. order possibly cannot violate a rule of evi- dence yet when the trial has not begun. My heart with majority, my is Moreover, 606(b) Rule prohibits mind agree. cannot As much Ias would from testifying regarding deliberations. grant like Attorney the Distriсt manda- Television testimony, is not trial nothing so mus relief and prevent Co-Production about Poe’s order violates the rule. deliberations, recording jury’s from I find no “clear and indisputable”23 duty for The majority states that “videotaping Judge Poe to vacate his order. deliberations with an unattended camera does introduce an ‘outside influ- pressure’
ence and
on the
while it is
y.
deliberating.”19 I wholeheartedly agree.
my position
The ramifications of
are not
But that
is not
question
before us.
as
they may appear
extreme as
to be. As
question
videotaping
not whether
notes,
majority
legislation
there is
jury’s
good
deliberations is a
idea.
It
pending at
prohibit
this moment to
record-
issue, however,
ais
terrible idea. The
ing jury
Bill
deliberations. Senate
only
videotaping
whether
consti- was filed January 6th and referred to the
tutes
“clear” violation of Art. 36.22.
Senate’s Jurisprudence
Committee
Jan-
uary 30th. An identical
Bill
House
majority
states
“mandamus can
January
was filed
21st. Both bills seek to
compel
he to
compliance with even an am-
add an Art. 36.215 to the
which
Code
biguous statute.”20 I disagree. Manda-
prohibit
using
“any
mus is
available
when there is “clear
audio, visual,
produce
device to
or make an
right to the
sought.”21 Ambiguous
relief
broadcast,
or audio-visual
recording, or
opposite
is the
If
clear.
a statute is
photograph
while the
ambiguous, there should be no entitlement
bills,
deliberating.”
currently
Both
as
to mandamus relief on a claim that a judge
written, apply only to trials “commenced
violates that statute.
September
on or after
2003.”
Regardless,
in this case the majority
does not find Art.
ambiguous.
my
36.22
In-
But if
position
prevail,
were to
either
stead,
plain
it finds that the
language of bill could be
apply
amended to
retroactive-
“clearly
the statute
and indisputably pro-
ly
trial currently pending,
long
as
hibits the
yet begun.
deliberations have not
19. Id.
Ante,
slip op.
at 202.
Id. at 200.
*29
Hill,
21. not offend application would A retroactive subject facto clause since the post ex rather than issue procedural to a pertains Houston, for appel- Troy McKinney, W. Additionally, either right.24 a substantive lant. through legislative be rushed bill could law, given into quickly process, signed Summerlin, Atty., Asst. Dist. E. Robert date, rather than effective an immediate Paul, Attorney, Houston, State’s Matthew If 2003. September of delayed date Austin, for state. occur, could the new statute this were to manda- very denying case. So affect this Attorney would
mus relief to District OPINION recording in the necessarily result not PER CURIAM. in this case. The jury deliberations prevent could and the Governor legislature guilty to and was appellant pleaded The it. driving court of while by the trial convicted pre- were to Additionally, my opinion The trial court followed intoxicated. legislature prompt- and the did not act
vail appel and sentenced plea agreement the trial court’s action ly prohibit jail, probated for one days lant to 180 case, confi- it would not mean the end of had appellant fine. The year, and a $500 jury deliberations. This would be dential suppress and motion to pre-trial filed a would, case, aberration which one appeal. timely general notice filed most, airing on television of result not meet appeal notice of did general The I jury’s most secret deliberations. single Appel Texas Rule of requirements But it would happen. would hate to see 25.2(b)(3). The Court late Procedure case, an isolated an action that her no appellant notified the Appeals Texas, assuming repeated never be Rule comply appeal tice of did passes. legislation new 25.2(b)(3). amended appellant filed an I dissent. respectfully with the complied which appeal, notice of 25.2(d).
Rule, After the to Rule pursuant had ex appeal a notice of filing time for filed, the but before briefs were pired, appeal Appeals dismissed Court SIPPLE, Appellant, Denise Rita stating that once jurisdiction want v. appeal over an jurisdiction lost Court The STATE of Texas. a defective notice filing on the based No. 592-01. 25.2(d) not be used Rule could appeal, jurisdiction appeal. over give the Court Appeals of Texas. Court of Criminal (Tex. State, 592, 594 Sipple v. Feb. 2000). The Court referenced App.-Waco (Tex.Crim. Riewe, State filed a motion appellant App.2000). denied. rehearing that was (Tex. which disturb vest application of statutes Ibarra ed, altering proce (retroactive rights; laws provision of substantive Crim.App.1999) laws prohibition). within operates only prohibit dure do not fall Texas Constitution made indefensible. notes surement jury process will not be will be televised "live.” to be the resented Rather, videotapes process. would be sealed Order, SJC-228, jury’s verdict and by the court until Docket No. held Administrative (Feb. 1996) (Glassman complete. post-trial motions 1996 Me. LEXIS (as Frontline its prior program uses developed, interpreted, and applied in equivalent well as experiments in several American courts. jurisdictions) precedent for its Article 36.22 of the of Criminal Code present position that videotaping jury de- Procedure reads: not, permissible. liberations is Were it No shall permitted to be with argument goes, surely these other courts while it deliberating. No per- would not allowed argument it.5 This permitted son shall be to converse with however, weight, carries no because on about the case on trial except occasions, prior those all parties presence permission consented to filming. par- no Because the court. ty objected, the issue was never contested he recording While on appeal. I am unable to find refer-
Notes
notes
in both Arizona and
deliberations is to inform the
Colorado,
sought
CBS
where
and ABC
to
jury process.
purpose
the
film,
highest
"the
court of each
had
state
system
judicial
protecting
the confiden-
given permission
tape
the media to
tiality
deliberations is a centuries-old
That
deliberations."
has not
in Tex-
occurred
recognition
justice
best
is
served
the
as.
free,
fostering
open
of a
and candid debate
attempts
Prior to CBS’s unsuccessful
reaching
a decision. Such free debate
pro-
film
deliberatiоns in a Maine civil
only
jurors
can
occur when
are
the
assured
ceeding,
guidance
court
asked for
complete confidentiality.
of a
The need for
Court,
Supreme
from that state’s
which then
public
encompass
to know does not
permitting
issued an order
such
furnishing
workshop
specified protocol,
under a
including the con-
sociological,
psychiatric
psychological or
parties
sent of all
as well as that
the indi-
evaluation of the
or of the delibera-
jurors.
vidual
justices
Two of the seven
filed
process.
tive
nonconcurrence, stating,
a statement in
inter
Order,
SJC-228,
Administrative
No.
Docket
alia, that:
(Feb. 5, 1996) (Glassman
notes
First
Amendment.
as we know it
367, 374,
supposed
to reach
Craig Harney,
its decisions in the
331 U.S.
mystery
security
secrecy
(1947).
...
S.Ct.