Camera on 2nd floor of Courtroom when verdict is read

During Jury Deliberations:  Guilt Phase

Hearing before the Presiding Judge:  Mark Forcum

November 8, 2004

JUDGE: Good morning everyone. This is People versus Peterson. And his appearance has been waived, is that correct, Mr. Geragos?

GERAGOS: That's correct, Your Honor. Good morning.

JUDGE: And good morning, Mr. Geragos. Mr. Harris.

D. HARRIS: Good morning.

JUDGE: Mr. Distaso.

DISTASO: Good morning, Your Honor.

JUDGE: Good morning, Mr. Harris.

P. HARRIS: Good morning.

JUDGE: And we have two attorneys from the media that are present as well.

OLSON: Yes, Your Honor, Karl Olson representing the San Francisco Chronicle, Contra Costa Times, Los Angeles Times, Sacramento Bee, San Jose Mercury News and Associated Press.

JUDGE: So you represent essentially the print media?

OLSON: The print media coalition.

JUDGE: All right. Good morning to you.

WILCOX: Good morning, Your Honor, Rochelle Wilcox representing the broadcast media.

JUDGE: Good morning. And the purpose of this hearing was to analyze the amended order that I filed on October 28th. I had it served on counsel for the specific purpose of giving them the opportunity to respond if they had concerns about it.

GERAGOS: Judge, could I -- initially I had indicated when we were in Judge Delucchi's court that my reading of Rule 980 is specifically under subsection (e)(1), that the judge that is assigned to this matter, the judge assigned to the proceeding shall rule upon the request. And the judge assigned to this proceeding is Judge Delucchi. I understand that as the presiding judge that you have authority over the exits and entrances of the courthouse, but I believe as the order as presently worded and what it presently encompasses that the judge that should rule on this should be Judge Delucchi. He said he would take it if the Court was inclined to send it, but then since you were the one who issued the order we should come here first. It's my belief that since the proceeding had been assigned to him by the Administrative Office of the Courts through the Chief Justice that he is the one who would make the order regarding People versus Scott Peterson and I would ask that the matter go over there since he's heard most of the arguments on media access so far as well.

JUDGE: That request is denied. We have worked out and I think it's worked very effectively. Judge Delucchi is an outstanding judge, controls what goes on in the courtroom. As presiding judge, it is my responsibility to control what happens in this courthouse. So that's an appropriate division or line of authority for each of us. And so since this request involves managing what goes on on this floor, the second floor, then appropriately and consistently it will stay here.

GERAGOS: Can I bring to the Court's attention what I consider to be a problem with that. My reading of the rule, also Rule 980, is that specifically subsection (6), which is entitled "Prohibited Coverage" specifically says "The judge shall not permit media coverage of the following," and subsection (iv) is "jurors or spectators." It's my position that there you cannot put a camera on the second floor that would show spectators coming out of the courtroom because it's prohibited by law and, so, therefore, and part of the problem is if we have a situation where we have one judge making rulings in one courtroom and another judge making rulings that affect what's going on or coming out of that courtroom that we run smack dab in the middle of the prohibition of Rule 980 which says that no spectators or jurors can be filmed. What we presumably have here is spectators coming out of the courtroom being filmed as they're coming out of the courtroom, which is expressly prohibited by Rule 980.

JUDGE: Okay. Did you want to make any other argument, Mr. Geragos, about the efficacy of this order?

GERAGOS: As specifically, judge, the issue I think and what was ruled upon by Judge Delucchi was that there was -- he was taking into account, at least inside of his courtroom, the number of factors, not the least of which was the parties' opposition to it and that he did not want to create a spectacle, that he was giving a live audio feed to wanting to placate the desire of the press to have something that they could feed to their audience.

JUDGE: Actually, I think the timing of that is slightly different. I think Judge Delucchi ruled on media television coverage of the verdict, which, again, he controls from his courtroom. But myself and the court CEO asked him to provide audio access so that we wouldn't have a big crush of people in the building on the second floor waiting for the verdict. So the timing of it --

GERAGOS: I don't know what the machinations are. I know that, behind the scenes, at least when we argued the matter in front of Judge Delucchi the, part of his reasoning, and I think I would be backed up by both Ms. Wilcox and by the district attorneys, that part of the reasoning was that he was supplying the audio feed and therefore didn't feel compelled to give a feed by the camera. The reasoning at least for the camera --

JUDGE: Right.

GERAGOS: -- and I think the parties' opposition is that however this verdict turns out, if in fact there is a verdict, that the need or the desire to have pictures of how the people react as they're coming out of the courtroom do not seem to be something that he was balancing as something that had a compelling public interest.

JUDGE: Okay.

GERAGOS: And I believe that that's still the case. Whether one believes that they can have a minute or two to compose themselves, whichever side that may be as they're leaving the courtroom, I still believe that no matter how you interpret it you run afoul of subsection (6) which prohibits coverage of the spectators. To have them coming out of the courtroom is obviously you're showing that they were spectators at this event and Rule 980 prohibits it. I don't think I need to go and argue the rest of the things that were argued in front of Judge Delucchi who's already made a ruling as to what's going on in the courtroom, I think subsection (6) covers this.

JUDGE: Okay. Thank you, Mr. Geragos. Who would like to be heard from the prosecution side?

D. HARRIS: I will be doing that, Your Honor.

JUDGE: Okay. Thank you, Mr. Harris.

D. HARRIS: Your Honor, to go back somewhat and give you some of the argument that was made in front of Judge Delucchi so you have that factual background before you as well. The parties did file a joint opposition to the proposed order to allow live coverage of the verdict. And as Mr. Geragos indicated, one of the strongest reasons was for the families involved. This particular order of this court is predicated on when there's a verdict so we are assuming, operating from that particular assumption. When there's a verdict one side or the other is going to be suffering a tragedy at that point in time. And so we discussed that with the families and we brought it to Judge Delucchi's attention about what the families felt about how this was going to work out. And this was an argument that was made before the Court. Ms. Wilcox for the broadcast media argued why it should be there and Judge Delucchi specifically ruled on that particular human versus human need of the families to have a chance to live with this for the rest of their lives versus the broadcast media's need to look at their faces when this occurred. And we want to bring it to this Court's attention again this is something as we've seen from experience in the legal community anymore, something that happens, if there is a video, it's going to be shown over and over and over and over and over again. And having the victims or the defendant's family coming out of the door, and whatever their reactions are, having to watch that over and over again is something that they're going to have to live with. The families are asking the Court, informing the Court, not to allow that to happen. It's operated sufficiently. We had to come before this Court once before when we had a problem with the -- everybody kind of getting into that bottleneck downstairs --

JUDGE: Right.

D. HARRIS: -- at the security check point. Since then the media pooling being about 25 feet away has worked perfectly that we don't see a need to change at this point in time. I mean there is no compelling need that the media come forth with and say there's a need now to cover that particular door of that courtroom when there's a verdict in this particular case. And as this Court has already indicated, Judge Delucchi is going to allow a live audio feed so the media's going to have their instant information. There is no need for them to have a camera, the equivalent of in the courtroom by focusing on the door of whoever is coming out. If there's reporters in the courtroom, if they want to come out and report, it's not going to take them but maybe five additional seconds to go down the escalator to outside where the cameras are at for them to report on information. So, again, there is no compelling, and, in fact, there's no real need other than that interest of wanting to see the reactions of whoever it is that suffers coming out of that door. We also do agree with the defense in this particular case that the Rule of Court does prohibit filming of spectators or jurors. The jurors probably won't be coming out that door, but spectators will. Now the argument that might be advanced by the media is, well, they can sit there for a while and compose themself, but that's not something that they get to decide because they're subject to whatever happens in the courtroom. If the bailiff needs them to be moved out, if the Court needs to have the courtroom cleared, they then have to go out immediately or have to deal with walking out to face the camera and that's something I don't think the families, either families should have to do at that point in time. They should be given an opportunity to go someplace and take their time to compose themself and decide if they want to go before the cameras. So we, we would ask, we join with the defense and ask the Court to reconsider that and move the cameras --

JUDGE: I understand your arguments and they're very compelling. What about the public's right to know, though? This case has garnered significant public interest and attention throughout the entire country and doesn't the media have a right to sort of portray what's occurring in an accurate way?

D. HARRIS: Well, the cameras are not going to change their accuracy or lack of accuracy. But to quote Judge Delucchi as he was responding to the media's request in saying what his order was, he says you won't find a camera in the U.S. Supreme Court. We had --

JUDGE: But we've had cameras in high profile cases in California, the Westerfield case in San Diego I think was filmed, the entire trial was filmed, I believe. So there are precedents in California law for the public's right to know or right to have access to things.

D. HARRIS: Well, the public's right to know does not include that they have a right to have cameras. That's an individual -- it is at the court's discretion whether they're allowed in there. The trial judge in this particular case has weighed all the competing interest and found that the public doesn't have the right to have that camera there.

JUDGE: I agree with that and I absolutely agree with Judge Delucchi, but this is a broader issue here because we're talking about now outside of the courtroom literally.

D. HARRIS: And I understand what the Court's making the distinction. But for all practical purposes there really isn't a distinction because the people that are in the courtroom that are there that are going through the same issues, the families of both the victim and the families of the defendant are still in that courtroom. So the interest that Judge Delucchi was weighing to protect them still applies as they walk out of that courtroom and they're faced with the camera basically that's approximately two courtrooms away. And as we've argued over there, with a telephoto lens, it's going to be reaching out directly into their face. It's going to be reaching out, zooming in to try and get as much grief and suffering as they can get for the ratings on TV. And that's not something that they should have to look at forever versus the public's right to know. Well, the public's right to know is protected (a) because it's not a closed proceeding. So as the Court can look around right now and see that there are numerous media representatives here, and there's no camera here today. So the information is going to be out there. There's going to be a live feed so they're going to get it, the audio of it happening exactly. So the only thing that we're trying to do is we're asking the Court to look at the human side of this and protect the rights of the families against the media's intrusiveness.

JUDGE: I have one last question of you. The -- and I understand and I have great empathy for what you're saying. The other side of the equation is though the family members have become public figures themselves by agreeing to go on the media and be interviewed, in one instance by Barbara Walters. So have they not kind of opened the door to becoming public figures from a media sense and almost encouraged the avid interests that the public has in this case?

D. HARRIS: That argument can be made, but, again, the circumstances are different. First, when the victim's family were going out they were trying to get support to look for this missing individual.

JUDGE: Right. Well, that's an excellent point.

D. HARRIS: Later on, if there were interviews that were done it was to -- for a later point in time to whatever purpose there were. The Court has seen that there's been a gag order in place and most of the parties have been complying with them and they have not been going out. They come into court, they don't have much of a choice but to walk by the cameras. But, again, that's not an emotional charged situation where they're walking into court. We're just talking about for that moment in time when they have to come out of that courtroom, whatever the verdict is going to be. And we think that it's -- if they want to go out through the front door to the cameras 20 minutes later after they compose themselves, that's the choice that they can make and we're just asking the Court to push the camera back to the first floor where it's worked perfectly so far and leave it there for the sake of the families.

JUDGE: Okay.

D. HARRIS: With that we'll submit.

JUDGE: Okay. Thank you, Mr. Harris. Mr. Olson.

OLSON: Yes, Your Honor. The most relevant factor when you're talking about Rule 980 and certainly the most relevant factor when you're talking about any judicial proceedings is the importance of promoting public access to the process. That's one of the factors in Rule 980. And of course access to judicial proceedings have been recognized in the Westfield newspapers case and Press-Enterprise cases involving preliminary hearings and jury voir dire. And it is the most relevant factor now because the interests in safeguarding a fair trial have already been addressed, a fair trial has been achieved in this case. Mr. Geragos, at many points, both pretrial and trial, has suggested that the media coverage of this case would deprive his client of a fair trial. That hasn't happened. And it certainly isn't going to happen at the post-verdict stage. The press, my clients and the print media who are requesting one pool still camera, which, I believe, according to your order, will be located approximately 40 feet from 2M, 40 feet away. This is by no means from our standpoint an ideal situation, we would like to be in the courtroom. But the press has an interest in showing images of the conclusion of this trial, a trial, which, of course, has captivated the intense public attention, understandably, for the past two years.

JUDGE: But isn't there a certain negative connotation to that? I mean, counsel raise a good point, there's a human dynamic here; there's going to be an impact on these families in a very real way. And can't the press achieve its goals by having the cameras where they've been throughout the entire trial?

OLSON: I think that we are talking about the conclusion of a trial. We are talking about a moment which obviously is the most significant part of the trial and I think there is a substantial public interest in allowing the pool still camera here on the second floor after that verdict is delivered. In terms of the interests of the families which have been advanced, number one, I think this court has correctly identified the fact that they have become public figures. The Peterson family, for example, consented to a lengthy profile on them, on Mr. Peterson, on the whole family before the trial occurred. No one forced them to do that. And they will have time inside that courtroom after the verdict is delivered to compose themselves to decide what, if anything, they will do after that verdict. No one's going to rush them out, I'm sure, and so the interests that have been advanced on the part of the family I think will be addressed by the fact that we're not going to, apparently, be in the courtroom and by the fact that these cameras, if a still camera and a television camera were allowed here, would be about 40 feet away from the front door. And they'll have a chance to decide what if anything they want to show of their face and what if anything they want to do in response to that verdict. So we are not talking about intrusive access at all here, we are talking about a minimum, a bare minimum of access to a case which has captivated public attention and which the public does have a right to know how it turns out and part of that is a right to see an image of how people have reacted after this.

JUDGE: One of the parts of this trial that probably attracted the most public attention was when Amber Frey testified, correct? And the arrangement that I authorized at that point gave the media plenty of opportunity to depict her, her reaction, her being here, what would be different by keeping the status quo rather than having a camera up here on the second floor?

OLSON: I think that being here on the second floor is important for several reasons. Number one, more contemporaneous access. The Supreme Court in NBC Subsidiary dealt with a contention that had been raised by those that wanted to close the courtroom. That, well, you can have the transcript on a delayed basis after the trial. And the California Supreme Court 20 Cal.4th 1211 and also I think at 1225 said delay is not satisfactory. There is an interest in contemporaneous access. And while not being in the courtroom is not going to give us contemporaneous access in terms of cameras, being on the second floor will give us more contemporaneous access. And I think photo access as a practical matter may be denied entirely if we are outside because I think that many of the principals in this case probably are -- we will not be able to have pictures of them at all. I think that they'll be taken somewhere else and so we will not get pictures of the principals in this case. And so I think that as a practical matter that would result in denial of access in a way that it did not result in the situation with Amber Frey. I know that hosting this trial has been a job for the Court and a job the Court probably didn't ask for, but I think what has happened, the press has behaved responsibly and has not interfered with a fair trial at all and has not interfered with privacy rights and I think allowing a still camera here on the second floor so that there can be at least semi-contemporaneous access to what happens when people come out of the courtroom is a bare minimum, really a bare minimum to ask for to safeguard the importance of promoting public access to this high profile trial that people have, have watched with great interest and want to watch as it concludes.

JUDGE: Okay. Thank you very much, Mr. Olson. Ms. Wilcox.

WILCOX: Thank you, Your Honor. Initially I'd like to respond to counsel's point regarding subsection (6) and whether or not Your Honor's order is precluded by that subsection which prohibits taking media of the spectators. Taken to its extreme, their argument is that no media coverage is allowed at all, even outside the courthouse, because there were spectators inside the courthouse. I think the rule clearly is intended to limit coverage or to allow the judge to limit coverage within the courtroom itself. And that's exemplified by subsection (iv) of the rule which contemplates a different rule by this court, by the presiding judge, than the order that is entered by the judge in control of the courtroom. It talks about the judge's order may incorporate any local rule or order of the presiding or supervising judge regulating media activity outside of the courtroom. I think by that it's clear that the rules that are set out here and the factors that are set out here are for the Court's consideration in evaluating what goes on inside the courtroom itself and there is no prohibition on taking media coverage, on media coverage of the spectators once they have actually left the courtroom. Everybody knows who the spectators are. It will be a public proceeding and the media will be able to report that so-and-so was there and was a spectator and really can't limit it in the way that they have advocated. I'd also like to reiterate what Mr. Olson said. He said that as a practical matter the camera location downstairs will probably be useless. As we understand it it will almost certainly be useless. The family members, many of them, are going to come out of the courtroom and veer off in the direction of the executive and the administrative offices and go upstairs or go downstairs and they won't even, many of them, be coming in the direction of the camera itself. So we're talking about a very short period of time that the cameras would have any ability to relay to the public that this trial has ended. It's -- it is hard to --

JUDGE: Does the public really have, though, a need to see someone who's upset? I mean, let's assume, you know, that one side or the other, as counsel have argued here, is going to be very upset by the verdict, is it really necessary for the media to portray that sort of sadness?

WILCOX: I --

JUDGE: Certainly it can be described contemporaneously, you know, reporters are allowed, you know, in the courtroom, in the building, but does it really enhance the First Amendment or its purposes by portraying somebody that way?

WILCOX: A couple points, Your Honor. First, it's not -- I question whether that would actually be caught by the camera. Counsel suggested that they'll be whisked out of the courtroom pretty quickly. Judge Delucchi has really tried hard to protect the family members in this proceeding and it seems to me to be very unlikely that he would not give them a chance to compose themselves and that the face that they present would not be a composed face. But even --

JUDGE: But no one can say how long it would take for someone to compose themselves.

WILCOX: Agreed and --

JUDGE: Every person would react differently to that experience, of course, I think. So -- but going back to my question, does it really, you know, the broad purposes of media coverage, are they served by being able to see sadness or on a human level that's a concern.

WILCOX: I recognize the concern that that poses for the family members, but I would suggest and I believe --

JUDGE: I think we should all be concerned about it as good, hopefully, good human beings.

WILCOX: Absolutely. A couple of points, Your Honor. The public has empathized with the family members in this proceeding throughout this proceeding in a way that is tangible. They came out in response to the families as a request for help. They have been there and they have wanted to understand what happened all along. And I would submit that if the camera does catch their sadness and their distress over the verdict, whatever it is, that there is a strong public interest in that. I am not suggesting that that's what we hope to catch, but it is still in the public interest to see how an event like this affects everybody. This is a murder of a vibrant woman in her eighth month, eighth month of pregnancy and the public responded to that. And regardless of the verdict, it will affect the family members in profound ways. And it is in the public interest to understand that. And frequently as, as I'm sure the Court knows, the television or the still camera can express something in a way that words simply cannot. We are a society that has become reliant on pictures. We are a society that understands things when we see them and accepts things better when we see them. They will be told what happened and they may be told that one of the family members came out crying. But for them to actually see it will affect them in ways that simply could not happen were it not for the camera. That's not to say that that's going to happen. I -- I really, I recognize that it may take a while to compose themselves, but we're talking about really a few seconds of time and even a split second of time if the family members go off to the side. I just want to point out that this Modesto and across the nation people have followed this and they need the closure that the verdict, the reading of the verdict will bring and allowing them to see the participants at the end gives them the ability to find closure in a way that they may not have if they just read about it.

JUDGE: Okay. Thank you very much.

WILCOX: Thank you, Your Honor.

JUDGE: Well, this is a very interesting legal issue and our job as judges is always to be fair and balanced. And I think we've done a good job in this county in working with the parties and working with the media in a positive way so that each could ensure that there would be a fair trial. Trial counsel have made, I believe, though, compelling arguments of the need to preserve the dignity of the family members and on a human level that can't and shouldn't ever be disregarded. Further, when I spoke about this issue with the Assistant Presiding Judge, Judge Miram, this morning, he correctly pointed out that, you know, the original intent of this order was to ensure that there be no interference with the other court business that we have in this building, and that as worked very well. We have a trial, Judge Parsons has a trial right now going on right between this location where the cameras theoretically would be and where the Peterson courtroom is. And I think we need to be consistent and not interfere with what we're all about, which is we have to run a courthouse and other business has to continue to go on here without interference. Finally, I think it's important to be consistent with Judge Delucchi's order. I respect his order and its purposes and I think it's important to be consistent with it and not undermine his order in any way. So I'm going to vacate the October 28th order that I issued, reinstate the June 22nd order. I am going to do what I did however with the media with respect to when Amber Frey was here. Because of the intense public interest in this case and the need for access by the press to these proceedings, I am going to authorize three additional cameras on the first floor, two additional broadcast media cameras and one additional still camera so that that I think would assist the media in being able to capture what occurs at that point in time. And I think that's a fair and balanced resolution of all of this. And I thank you all for your interest and your very fine arguments.