Modification of Order:  Use of Cameras in the Courthouse

Guilt Phase

Hearing before the Presiding Judge, Mark Forcum

June 21, 2004

JUDGE: All right. Good afternoon. This is People versus Scott Peterson. An administrative matter that does not pertain to the merits of the case. This is SC 55500. Will you please state your appearances.

D. HARRIS: David Harris --

GERAGOS: Good afternoon. I'll defer to the prosecution first.

JUDGE: Okay.

D. HARRIS: David Harris for the prosecution.

JUDGE: Good afternoon.

DISTASO: Rick Distaso for the People, Your Honor.

JUDGE: Good afternoon.

GERAGOS: Mark Geragos, G-e-r-a-g-o-s, for Scott Peterson, and Pat Harris, also.

JUDGE: Okay. Good afternoon to all of you. Apparently both sides wish for the Court to modify its order that was filed on January 28th '04 that pertains to the use of cameras in the courthouse. And so we'll start with the prosecution, Mr. Distaso and Mr. Harris.

DISTASO: Mr. Harris is going to handle that.

JUDGE: You may proceed with your request.

D. HARRIS: Your Honor, what we're requesting is the Court to modify the existing order that allows pool cameras or still and video cameras in the first floor level. What we've discovered is that there has become a somewhat logistical problem with jurors, witnesses and members of the family coming back through kind of at that choke point where they have to put their stuff through the x-ray machine and everybody's waiting. We've discovered that jurors are being filmed at the same time that witnesses are being filmed. There was an issue that came up on Thursday that's been kind of a hot topic which was the subject of an in-camera proceeding this morning. Judge Delucchi has announced on the record that he's going to have that posted on the Internet tonight, so it's going to be public information as soon as that's done. And because of that, we had to have a hearing on whether there was improper communication between a juror and a family member who's also a witness. Because they came through there, they got stuck at the same place at the same time. A comment was made by them back and forth about a news camera coming up, from what they were describing, getting into their face basically, overhearing a comment that, in a sense, turned into a tornado and was much blown out of proportion as the judge found on the record this morning. So it's been the discussion of the parties, and we discussed that with Judge Delucchi as well, that we think that if this Court could modify the order so that the cameras were not allowed to be on the first floor level, so that there is not that problem with the security area, we think that that would eliminate most of those problems with jurors being involved in witnesses' shots, witnesses coming into contact with the jurors, and so since we're asking the Court to change that order.

JUDGE: Okay. Thank you very much, Mr. Harris. Mr. Geragos.

GERAGOS: Yes, judge. The only thing that I say to augment that is that it appears what's going on now -- because you have the one little funneled-in area where the cameras are on the inside -- what's going on is that the pool camera or the still photographers are taking pictures of witnesses and/or family members, whether it's the defendant's family or the Rocha family, what's happening is that it's violations of 980 and other applicable code sections because jurors are getting in the picture. And, for instance, the one reference that Mr. Harris made to the video that's been played ad nauseam over the weekend, even though at one point in there a juror's face was -- there was a pixel distortion, when the juror walked away, he was shown. He was clearly recognized such that his relatives contacted him and said that they had seen him on TV. They knew that he was the person who was being speculated about in the news media over the weekend. I feel very strongly that this, and obviously this court has gone, not just Your Honor, but Judge Delucchi as well, has gone out of its way to try to ensure that this case has been media friendly, so to speak, and user friendly in this courthouse and has gone to Herculean great lengths to do that. However, at the same time, this is not supposed to be an interactive process. And that's what its becoming. We don't want to end up like some of the other trials of note of recently where the media ends up insinuating themselves, either intentionally or unintentionally, into the trial itself. That's what we've had happen over the weekend. I think that just by moving those cameras to a location right out front and fashioning that as a decorum order or a modification of the Court's previous order. What that will allow for is the same filming to be done, however, at the same time, it will hopefully obviate the problem that we've had accrue over the weekend that actually did obviously intrude onto the trial itself.

JUDGE: And what do you see as the main problem with what is currently happening, Mr. Geragos?

GERAGOS: Well, what's currently happening, number one, is that you have a situation where specifically because you, people are entering at the same location and jurors are entering at the same location and members of the audience, which includes people who are prohibited to have contacts with the jurors. Since it's at the same time and they all have to go through the same, there may be incidental contact. If there is incidental contact, then you have a news camera that's in the face of these people, as we had on Thursday, to the extent that a comment is made because it's right there. The next thing you know, and I made this statement earlier today, it is by no means the lion's share of the media that has done this, but a couple of significant and irresponsible members of the media have then run with that and kind of created a situation where the juror himself is identified, which I think is a violation of California law. That that juror then has friends and family contact him. He's not supposed to talk about it. Next thing you know we're in having two hours worth of hearings and another hearing here, all in an effort to try to ensure that there isn't this incidental contact that gets blown out of proportion. That's why we've suggested that the jurors, that the Sheriff make some accommodation, and I believe that they are, they've caucused an order to do that. And I'm asking that the Court, I think that we're jointly asking that the Court make a modification of what I call the decorum order to ensure that that won't happen. I do not think that it will impinge upon the media's ability whatsoever to get the shots that they need to get of people entering and leaving the courthouse. What it will do, however, is stop what I think can create a situation that spins out of control, which is what we've had over the weekend.

JUDGE: Okay. Thank you very much, Mr. Geragos. The parties did come and meet with me in my chambers this morning and I asked them to come back this afternoon so that we have a formal record of the request. I do have some concerns about what you're asking me to do, though, in further thinking about it. And that is, had the juror engaged in some level of misconduct, which he obviously didn't.

Judge Delucchi apparently made that finding. But if he had engaged in some level of misconduct, wouldn't it have been appropriate for the media to have caught that. And wouldn't it better off for the parties to know that now if he had engaged in this conduct. So the media's presence does fulfill a positive role in one sense.

GERAGOS: Yeah, I don't have any dispute with that. And that's why I say, I'm taking great pains to say it. This is not a media bashing. This is, in a certain sense, what has happened is a certain irresponsible members have taken a situation and blown this thing and actually fabricated something that did not in fact happen. And, in some sense, but for that camera there, there would not have been the encounter in the first place. The encounter as, I think Mr. Harris just indicated will be in the transcript of the hearing that we already had, that the encounter specifically referred to the "news shot" and the fact that there was a news camera placed directly between these two people. That's what provoked it. I think that that's, to some degree, it exacerbates a situation that is already bad in terms of funneling everybody into this whole thing.

JUDGE: And you have a concern, the prosecution has a concern about the cameras coming within a close proximity of witnesses, jurors, family members, correct?

GERAGOS: That's correct. And I think that there's also this problem that when you take a joint or a wide-scan picture so to speak that you run into the problem that we have where the juror is shown. When the juror is shown, then you've got the problem with the family members or others may see it when it's run, and there needs to be some kind of protection for that, otherwise we're going to run into a situation similar to what I refer to anecdotally as the Tyco situation where one of the jurors was going to put on the front page of the newspaper at a certain point and basically intimidated into a -- intimidated the juror and then subsequently the judge into declaring a mistrial. I don't think --

JUDGE: Well, I don't think you're anywhere near that.

GERAGOS: Well, we're not. But we are clearly at a slippery slope of some kind when the news camera itself is to some degree creating the situation.

JUDGE: Well, there's a couple of different issues here. One of which is the juror's right to privacy. And it concerns me that in the photographs I saw you could tell what kind of clothing this juror was wearing and you could probably figure out who the juror was if you had observed anything going on in the courtroom. So that is a legitimate concern. There's a legitimate concern about how the jurors get into the courthouse. And I believe the Sheriff's Office and the Court are in the process of working with the parties to remedy that. And as Presiding Judge, I'm happy to work with the parties to do that subject to Judge Delucchi's ultimate approval since he's the trial judge. So that's one set of issues. The second set of issues involving the media coverage. I think some of this is getting intermingled with one another. You know, this society is obviously built on a free and open media. And the ability of that media to communicate with the public about matters of pubic interest. And this case is something that has a great deal of public interest. To the extent that the media can film attorneys, parties, people coming through the security checkpoint, that does have some level of public interest in explaining the events of the day that go on in the trial. So I think there has to be a balance here and not an overreaction to the fact that there was this incident last week. And, in my view, it is overreacting to just say to the media you need to now leave the courthouse altogether. What I think would be a preferable approach would be to require the media to use a pool camera down on the first floor and move back let's say 25 feet away from the security checkpoint so that witnesses are not intimidated, family members are not intimidated and we don't have a potential problem with jurors being identified in an inappropriate way. I think that that's a fair balance. It gets the cameras out of those individuals' faces, but it does not deprive the media of what I think is a legitimate right to be here and involved in this process for the public's benefits. Because that's really what the media is ultimately is serving under the First Amendment is bringing information to life about a case. And subject to any further monitoring, which this court will do if there's going to be any violations of that, then I'm happy to consider then the next step, which would be to remove the media altogether at a later point. That is a measured middle ground approach that accommodates the interests of everyone here. Did you want to --

GERAGOS: Yeah, I was just going to say that is not that dissimilar from what the original request was.

JUDGE: Right.

GERAGOS: The original request was to just have some kind of a buffer zone. I know you're talking at least informally, what was the distance between that security area and the outside what I guess they call "the pen," which is, my understanding is about 30 feet. If we were to do it, and I guess what the Court is envisioning is doing it in the other direction on the interior --

JUDGE: Right.

GERAGOS: -- which is fine. You get the same shots, but there is some kind of a buffer zone, so to speak.

JUDGE: Right.

GERAGOS: So that you don't, you don't have people with cameras in their face as they're coming through. So I don't have a problem with that.

JUDGE: Okay.

GERAGOS: I agree wholeheartedly with the Court's analysis. Clearly, the media's got interest in this. Clearly, the lion's share of the media has been very responsible in this case. It's just when you have a situation that kind of fosters this kind of speculation, so to speak, I think we've got to do something to alleviate that.

JUDGE: Sure. No, and I understand your reasoning and the prosecution's reasoning in their request. I think ultimately the solution for the jurors, and to make sure there's no problem there, is for the court to work with the Sheriff's Office to develop a plan for the jurors to be able to get into the building without any difficulty, which is a separate issue of course from this. You know, I don't think it's -- I think this is a proper, balanced way to do this because the irony of this situation would be because a juror does something they weren't supposed to do, it isn't fair then for the media to bear the brunt of that, per se. So what I'm going to do then is modify the order that I issued on January 28th which -- and continue to ban cameras from the courthouse other than on the first floor and require that any type of television cameras on the first floor be subject to a pooling arrangement so there can only be one pool camera present on the first floor and it needs to be placed 25 feet behind the security checkpoint area where witnesses, jurors, attorneys and other interested citizens come into the courthouse. And apparently there is -- is there an attorney here from a media outlet or group of outlets?

BURKE: Yes, Your Honor, Thomas Burke of Davis, Wright, Tremaine on behalf of the pool.

JUDGE: All right. Good afternoon to you.

BURKE: Good afternoon. I'm sorry I was late, Your Honor, I came as soon as I could.

JUDGE: That's all right. We don't want to hold up the trial and I don't want to hold up Judge Delucchi so we proceeded. You've heard this discussion and I would assume you're comfortable with the outcome of it?

BURKE: Yes, Your Honor, the balance the Court struck is appropriate.

JUDGE: Okay. All right. Well, thank you everybody. Have a nice afternoon.

GERAGOS: Thank you, Your Honor.

JUDGE: Nice seeing all of you.