by Rudy E. Verner, Steven D. Zansberg

This article provides an overview of the constitutional basis for open courts, Colorado’s expanded media coverage rule, and the history of television and other news media gaining access to courtrooms. It also discusses the use of blogging, tweeting, and other forms of new media to report on court proceedings. It was printed in the September 2011 issue of The Colorado Lawyer (Volume 40, Page 39) and will publish in two CBA-CLE Legal Connection blog posts. The first part of the article can be found here. Reproduced by permission of the Colorado Bar Association. © Colorado Bar Association. All rights reserved.

Expanded media coverage (EMC) refers to the news media’s use of cameras and microphones to record judicial proceedings, such as a trial, a sentencing hearing, or other court proceeding. Although courtroom proceedings presumptively are open to the public and members of the press, media organizations are required to get permission from the judge before gaining access for EMC. Private attorneys, prosecutors, and state trial judges will benefit from understanding how the EMC process works and the standards governing EMC.

Television Coverage of Federal Court Proceedings

The U.S. judiciary has had a longstanding prohibition on television or other electronic coverage of federal court proceedings by the media. However, recent efforts have been undertaken to broaden access to federal courts, including introduction of a bill in the U.S. Senate to permit television coverage of all open sessions of the U.S. Supreme Court,³⁵ and a decision by the U.S. Judicial Conference to expand a two-year pilot program that made audio recordings of court proceedings available through Public Access to Court Electronic Records (PACER) at a handful of federal district and bankruptcy courts nationwide.³⁶

In 2010, the Ninth Circuit Court of Appeals allowed C-Span to televise oral argument in the Proposition 8 case, the legal challenge to California’s voter-approved ban on same-sex marriage. Beginning in July 2011, fourteen federal trial courts are taking part in a three-year pilot program, which will evaluate the effect of cameras in courtrooms.³⁷ The pilot program—in which Colorado was not chosen to participate—involves participation by more than 100 U.S. district judges, including judges who favor cameras in court and those who are skeptical of coverage.³⁸ Districts volunteering for the pilot program must follow guidelines adopted by a committee of the U.S. Judicial Conference and the program will be limited to civil proceedings in which the parties have consented to having their cases recorded.³⁹

Experience Under the EMC Rule

The first case in which cameras were permitted to cover a criminal trial in Colorado occurred during the experimental program that predated adoption of the prior EMC Canon. In October 1984, Boulder County District Judge Murray Richtel presided over the prosecution of Danny Arevalo, who was convicted of murdering Michael Manning, the three-year-old son of his girlfriend. In the twenty-six years since the Arevalo trial, television stations have been granted access to broadcast portions of criminal and civil trials statewide in Colorado, both live and on videotape. Moreover, many high-profile trials have been televised, along with numerous sentencing hearings, advisements, and arraignments. A number of these cases were appealed, but none has been overturned on the basis that EMC was granted.

In one recent example, Weld County District Court Judge Thomas J. Quammen granted the media’s request for EMC of the sentencing of Vance Fulkerson, the University of Northern Colorado professor who pleaded guilty to making surreptitious video recordings of students using the bathroom in his home. In his ruling, Judge Quammen explained why, in his view, granting EMC coverage of a sentencing hearing furthered the same objectives as opening other judicial proceedings, such as trials and arraignments, to public attendance:

The fact that we have a TV camera or a newspaper representative here doesn’t change the public nature of these proceedings. . . .

Anybody can come in here and observe what is happening. This isn’t my court, this belongs to the people of the State of Colorado. . . .

The People have a right to know not only what the Court does, they have a right to know how the Court does it, they have a right to know how their prosecutors handle cases, and this is up for public review, up for public scrutiny. . . .⁴⁰

Judge Quammen also explained why the sentencing hearing in that case should not be closed to the public, as the defendant had requested, and again described the role that EMC plays:

Only in very, very defined areas do we take the drastic step of closing a courtroom.

Now the Court is satisfied that there has not been a sufficient showing that there is a clear and present danger to warrant that extreme remedy in this case. . . .

[A]s the Court indicated, what happens here is public information and the people have a right out there to draw whatever conclusions that they want to about what happened, why it happened, and whether it should have happened or not have happened, but they can’t make those decisions, informed decision[s], unless they are informed.

And so the Court finds that expanding the media coverage is not going to interfere with the rights of the parties to be treated fairly and have a fair trial; and in this case, a fair sentencing.⁴¹

Numerous other criminal proceedings have been opened to EMC in recent years. For example:

> In 2009, Chief Judge Stephen J. Schapanski of the Larimer County District Court granted EMC for the sentencing of Richard Heene, the Fort Collins man who duped police, the Federal Aviation Administration, and the public into believing that his son had accidentally been carried away by an experimental balloon in an attempt to gain publicity for a reality show pitch.

> In 2008, Judge John Madden II of the Denver District Court granted EMC in the trial of Jon Philips, the custodial father charged with child abuse resulting in death for the forced starvation of 7-year-old Chandler Grafner.

> Former Weld County Chief Judge Roger A. Klein granted EMC in People v. Nelson, the murder trial of the Greeley police dispatcher charged with killing the wife of a police officer with whom she was having an affair.

> In another high-profile case, Denver District Court Judge Christina Habas granted EMC for the sentencing of Lisl Auman, the woman who pleaded guilty to accessory to first-degree murder in the slaying of a Denver police officer, and whose case prompted a national debate on the limits of the felony murder rule.

In the civil arena:

> Retired Chief Judge Larry Naves of the Denver District Court granted the medias request to show live coverage of the trial in Ward Churchill’s wrongful termination and First Amendment retaliation suit against the University of Colorado.⁴²

> A judge has granted EMC in a state enforcement action under the Colorado Consumer Protection Act,⁴³ a suit against the Colorado Rockies for the right to distribute team programs on the sidewalk in front of Coors Field,44 and a defamation and invasion of privacy case brought by a manager of the Denver Athletic Club.⁴⁵

> Additionally, as noted above, the Colorado Supreme Court has allowed arguments to be televised in Lorenz v. State,⁴⁶ a case involving the constitutionality of a statute prohibiting public officials from holding interests in gaming establishments.

> The Colorado Court of Appeals permitted television coverage of the arguments in People v. Kriho,⁴⁷ a case in which a juror was held in contempt for failing to disclose information during voir dire, and People v. Auman,⁴⁸ an appeal involving the applicability of the felony murder rule to a suspect in police custody.

Denial of EMC

Courts periodically will exercise their discretion to deny EMC requests or impose additional restrictions on coverage to protect a litigant’s rights. Sometimes, the denial or restriction is motivated by a professed concern for the safety of the parties or witnesses. For example, in advance of the trial of Willie Clark, the gang member convicted of murdering Denver Broncos cornerback Darrent Williams, Judge Christina Habas denied EMC for still and video cameras, citing concerns over the safety of witnesses (including one in the federal witness protection program) but granted access for microphones and audio transmission of the trial.⁴⁹

The EMC Rule in Practice

Practitioners faced with a request for EMC should consult the standards for granting coverage in subsection (a)(2) of the EMC rule⁵⁰ and the procedures for filing an objection in subsection (a)(6).⁵¹ Because the facts and circumstances of criminal matters tend to vary significantly, there are no standard grounds for opposing EMC. In the past, defendants have argued that photographs or video showing them entering a not guilty plea or appearing in prison clothes during an advisement or arraignment could taint the pool of potential jurors and substantially prejudice their right to a fair trial. Also, concerns are frequently raised that the presence of cameras will have a chilling effect on a witness’s willingness to testify openly and fully about the events at issue. Finally, counsel has objected on grounds that allowing video coverage will cause opposing counsel to “play to the camera” and foster a “circus atmosphere” by encouraging inflammatory sound bites and histrionic performances, above and beyond what would be done for the benefit of the seated jurors and others attending the trial.

By and large, such grounds have not been deemed a sufficient basis to deny EMC. Judges have on occasion imposed limitations on EMC by, for example, prohibiting the media from recording the testimony of minors or sexual assault victims. However, judges have not required the news media’s representatives to be present during the entire course of a trial, rejecting claims that such a requirement was necessary to avoid the impression on the part of jurors that a certain witness’s testimony should be afforded greater weight than others.

New Media Coverage of Judicial Proceedings

In advance of the Supreme Court’s 2010 rule change, there had been some preliminary discussion about extending the EMC rule to Blackberries, iPhones, and other electronic devices that allow live text transmission—but not video, photographs, or audio from the courtroom. Reporters and members of the public increasingly use Twitter, blogs, and other forms of new media to report on judicial proceedings. The Supreme Court did not extend the Rule 2 requirements to these relatively novel methods of reporting. Therefore, tweeters, bloggers, and other reporters sending live text transmissions generally do not need to seek permission from the court before reporting on a trial or hearing. However, such persons should be aware of any standing orders from the court in a given case regarding the use of such technology.

Recent experience with live text transmission in Colorado courtrooms has been positive. For example, the Greeley Tribune blogged live from the trial of Shawna Nelson, the Greeley police dispatcher convicted of killing the wife of a police officer with whom she was having an affair. The Tribune reportedly experienced a record number of hits to its website during the trial,⁵² bolstering the role of blogging as an effective tool for reporting on high-profile trials. A number of other recent trials have been successfully covered by live blogging from the courtroom, including the trial concerning the firing of CU professor Ward Churchill and, from a “spillover” courtroom, the murder trial of Willie Clark.

Conclusion

EMC in Colorado has been successful for more than two decades; as a result, Colorado citizens have had the opportunity to observe first-hand the workings of the state’s judicial system. Colorado’s recently re-adopted EMC rule facilitates the people’s constitutional right to “attend” judicial proceedings and does not specifically require users of new media technology to gain permission from the judge to report on courtroom proceedings. As video and audio signals continue to be disseminated over more convenient and accessible platforms—from streaming video over websites to mobile digital television—the citizens of Colorado will have additional opportunities to monitor the conduct of their government, ensuring that the Founders’ vision for a transparent and account able system of justice is not lost.

Notes

35. See Bill to Permit the Televising of Supreme Court Proceedings, S. 446, 111th Cong. (2010).

36. “Judicial Conference Moves Federal Courts Toward More Public Access,” available at www.law.com/jsp/article.jsp?id=1202446305242.

37. “14 U.S. Courts, Not Colorado, Will Pilot Courtroom Cameras,” available at www.lawweekonline.com/2011/06/14-u-s-courts-not-colorado-will-pilot-courtroom-cameras.

38. Id.

39. Id.

40. People v. Fulkerson, Case No. 09-CR-1187, 38 Med.L.Rptr. (BNA) 1513 (Weld Cty. Dist. Ct., March 3, 2010) (reporter’s transcript of motions hearing on file with authors).

41. Id.

42. Churchill v. Univ. of Colorado, Case No. 06-CV-11473 (Denver Dist. Ct., Nov. 24, 2010).

43. Martinez, supra note 18.

44. Lewis v. Colorado Rockies Baseball Club, Ltd., 941 P.2d 266 (Colo. 1997) (Judge Herbert Stern III).

45. Roberts v. Scheriff, July 1995 (Judge Edward Simons).

46. Lorenz v. State, 928 P.2d 1274 (Colo. 1996).

47. People v. Kriho, 996 P.2d 158 (Colo.App. 1999).

48. People v. Auman, 67 P.3d 741 (Colo.App. 2002), rev’d, 109 P.3d 647 (Colo. 2005).

49. Judge Habas also imposed a strict prohibition on photography outside the courtroom and in the hallways of the fourth floor of Denver’s City and County Building while court was in session. Although blogging and tweeting were prohibited from the courtroom, in this case they were permitted from the nearby spillover courtroom. Judge Habas later authorized still and video photography EMC for Willie Clark’s sentencing hearing.

50. See Rule 2(a)(2)(A) to (C).

51. See Rule 2(a)(6).

52. See Machuca, “Web readers can’t get enough of Shawna Nelson trial,” The Tribune (March 3, 2008), available at www.greeleytribune.com/article/20080303/NEWS/329307688&parentprofile=search.

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