Bench Bar Press Committee

1999 Report on Activities

Bench-Bar-Press Liaison Committee (Fire Brigade)

  During 1999, the Fire Brigade was contracted for assistance on twelve occasions. These contacts involved seven different courts located in five different counties. Five of the calls came directly from the press, five from the bar (representing the press in each instance) and two from the bench. Eleven of the calls were handled by the undersigned alone while one was proffered for consideration by an ad hoc Liaison Committee.

The issues addressed break down as follows:

Gag order:	1
Cameras in court:	4
Fair coverage:	2
Access issues	5

For discussion, the calls will be grouped categorically.

GAG ORDER

A media lawyer's complaint was properly lodged over a King County Superior Court Judge's entry of an order in a high profile murder case which included a sweeping gag order. (With a high level of mutual distrust and a shared distrust of the press, the prosecutor and defense attorney had presented to the judge an agreed order prohibiting them from speaking with reporters at all!) A copy of State v. Bassett, 128 Wn 2d 612 (1996) was provided to the trial judge who promptly rescinded the order.

CAMERAS IN COURT

Problems persist in the area of courtroom photography, both still and video. One reason for this is the lingering memory in many lawyers and judges of the long abandoned rule of CJC 3 (A) (7) which give each individual veto power over being photographed.

One conscientious judge consulted the old B-B-P Principles and Considerations which are published anew each year in the state rule book and there discovered (and followed) the language of CJC (A) (7). This is certainly a problem we should fix! Usually surfacing as after-the-fact complaints, these matters were typically handled with a phone call or email to the judge explaining the discretion now conferred on him or her by GR 16. By the end of the year I had developed a form memorandum for this purpose as well as for distribution to new judges. A copy is attached.

In one case the issue arose beforehand when word went out that there would be no room for anyone other than attorneys and court personnel at an arraignment occurring in a small hospital room. After our discussions, the judge agreed to make room for one reporter (to be chosen by agreement among the media) as representative of the public. Unfortunately, space limitations were found to require the barring of cameras.

There was one jury trial in which television cameras were initially to be totally barred. After consultation, the judge lifted the ban as to pretrial motions, openings and closings but kept it in place as to testimony. Encouraged to make case-specific findings to support any restrictions, the judge did articulate reasons for his exercise of discretion. A television station's attempt to challenge the sufficiency of those findings through discretionary appellate review was unsuccessful.

FAIR COVERAGE

Although not strictly within the change of the Fire Brigade, some small efforts as liaison between bench and press merit brief mention.

In one case a judge had concerns that an upcoming editorial might roundly criticize that judge based on a mistaken view of facts as presented in a news article the paper had run. (Not present for the court proceedings in question, the reporter had accepted the account of an interested party). I advised the editor on how to obtain a copy of the videotape of the proceedings and suggested the small expense and delay of doing so before running the editorial would be justified in the interest of fairness and accuracy. No editorial ever ran.

In another case (OK, maybe a couple), I was requested to contact a reporter to find out if he was "out to get" the judge before the judge would return a phone message. I didn't mind doing this and I think everyone came out ahead. On the other hand, I gave different advice to a judge who a national news show seemed to be trying to lure into a spitting match with the executive branch of government.

ACCESS ISSIES

I was contacted on behalf of a reporter who was having some difficulty getting information about what was believed to be a pending Sexually Violent Predator case in a rural county. Neither the judge nor clerk nor anyone else would confirm anything. I then spoke with both judge and clerk. An order had been entered by agreement of both parties which sealed the court file and closed all proceedings. I advised giving the press confirmation that there was an RCW 71.05 proceeding in progress and publicly filing a sealing order. I pointed the judge to In re: DAH, the controlling authority at that time on closure issues. Both judge and clerk seemed appreciative.

Several minor brush fires flared up over the year concerning press access to Suspect Information Reports ("superforms"). The point has been repeatedly emphasized that the certification for determination of probable cause - upon which a District Court Judge relies in ordering a suspect detained and in setting bail - must be treated as a public document. Administrative limitations, timing difficulties and staff training are usually cited as the cause of the problems encountered.

An unusual and frustrating experience for all came with the arrests and charging of some 400 protesters during the WTO conference in Seattle. The press was interested in identifying the hometowns of those charged. It was learned that defendants' addresses are not shown on the docket screens visible at the Seattle Municipal Court public terminals although they can easily be found in the hard files. Court staff were only willing to pull files from manual review at a rate of 25 per day and were unwilling or unable to pull the information off the computer system. My impression was that S.M.C. would like to have been more helpful but were prevented from doing so because all their computer experts were busy working to avoid the impending Y2K catastrophe.

I was contacted on behalf of a reporter who was frustrated on encountering a sealed exhibit in a civil case. I spoke with the judge who informed me the intent was only to seal the original until such time as a copy could be substituted with irrelevant personal data re: non-parties redacted. He said he would hound the attorneys on the case to see that this was done within a couple days. The reporter was pleased when advised of this.

The issue that most engaged the Committee arose in November when it became known that a Prosecuting Attorney in a Western Washington county had issued an Inquiry Judge subpoena duces tecum to a college newspaper. A local newspaper sought permission to intervene and argue that the motion to quash the subpoena should be heard in open court. Journeying to the courthouse, the newspaper's lawyers couldn't get past the court staff in their effort to get the judge to hear their argument on the point and, in the words of a subsequent critical editorial, "the door was unceremoniously shut in their faces."

I was contacted (indirectly) by the newspaper editor in what I believe to be a sincere desire to smooth things over with the judge and to have all of us learn what we could from the episode.

I proceed to summarize the incident to a representative group of B-B-P regulars and solicit their views on the legal and practical issues presented. With their quick and clear responses in hand, I was able to convey to the principals (the judge and the editor) some consensus conclusions:

1. Inquiry Judge proceedings almost certainly have to remain closed except in the odd circumstance where the Prosecutor agrees to opening them up;
2. The newspaper would not have legal standing to intervene in the ongoing Inquiry Judge proceeding; and
3. Notwithstanding the above, it would still likely have been a wise and prudent course for the judge to have allowed the would-be-intervenor to present in open court its side of the argument for access.

Other than some difficulty in fully convincing everyone of everyone else's good faith (which no doubt resulted from shortcomings in my own diplomatic skills), I believe the process worked well and a net benefit was realized.

Respectfully submitted,

William L. Downing, Chair

MEMORANDUM

To:

Fr: Bill Downing

Re: Cameras in Court

As you may know, I currently serve as the chair of the Bench-Bar-Press Liaison Committee, commonly known as the "Fire Brigade". The function of the position is to work behind the scenes in hopes of minimizing potential conflicts between the courts and the press in order that each can receive the benefits that come from maintaining a working relationship marked by understanding and respect. The thinking is that ultimately a better informed public results from having a press better able to do its job; from the judges' point of view, I am frequently reminded of the advice of Keith Callow early in my career: "If you can help it, you don't want to get into scraps with people who by their ink by the barrel."

Of course, these days, little ink is bought by the television stations, convinced as they are that a picture is worth a thousand words. And that brings me to my point.

I understand that recently there has been some discussion in your court as whether photography was to be permitted during a court session over which you were presiding. In the course of that discussion, there may have been some emphasis placed on whether or not certain individuals had objections to being photographed.

Historically, this was a central inquiry; now it really is not. Before 1992, in the era when many of us learned this business, courtroom photography was governed by the Code of Judicial Conduct which provided "no witness, juror or party who expresses any prior objection to the judge shall be photographed nor shall the testimony of such a witness, juror or party be broadcast or telecast." (CJC 3 (A) (7)

In December of 1991, this was repealed. Sensibly, the subject of cameras in the courtroom was moved to the General Rules and their use was generally "authorized during sessions of the courts." Beyond this general authorization, GR 16 vests the trial judge with discretion over the decision to place appropriate restrictions on courtroom photography.

This grant of discretion, in my view, carries with it an implicit requirement that a situation-specific reason exist to justify any restriction and that this reason be stated on the record. Valid reasons might include anything that could negatively impact the reliability of the truth-seeking function of court proceedings. Perhaps a witness due to age, emotional state or circumstances of the case, would find it difficult to testify freely while being filmed. Perhaps a scheduled lineup would be compromised by publication of a photo of the face of a suspect at a preliminary appearance. These are just a couple examples of the many specific reasons that might be found and stated on the record for placing restrictions on courtroom photography in a given case.

In my view, however, generalized reasons are not a suitable exercise of discretion. For example, "I never allow cameras", "Television makes a circus out of court proceedings" or "Any individual who objects should not be photographed" should have no place.

I don't at all mean to even suggest to any judge how to rule on any issue. I did however, for the purposes stated early in this memo, want to make sure you were not deceived about the extinction of the old CJC 3 (A) (7) analysis, that you were aware of the court's discretion under GR 16 and that you had some examples of how that discretion might be exercised in practice.

Please give me a call if you have any questions or concerns or would like to discuss these issues further.