Clayton County Deputy Chief Assistant District Attorney Katie Powers speaking to jurors during a recent trial in Superior Court. (Staff Photo: Kathy Jefcoats)
Decades before gavel to gavel coverage of the O.J. Simpson murder trial polarized the country, an Ohio osteopath stood under a media spotlight so intense the U.S. Supreme Court labeled it a carnival.
The press was allowed unprecedented access to jurors in the murder trial of Dr. Sam Sheppard, accused in the 1954 beating death of his pregnant wife, Marilyn. Reporters were allowed access to evidence and to the Sheppard home, and to tape Sheppard being interviewed by police.
The bias against Sheppard was palpable. One of the Ohio newspapers once ran a front page headline that read, “Why isn’t Sam Sheppard in Jail?”
The coroner’s inquest into Marilyn Sheppard’s death was televised. The coroner, who was not an attorney, questioned Sheppard for five hours without his lawyer present.
The trial judge didn’t sequester jurors or admonish them to stay away from media reports on the case. The judge even famously told one reporter on the first day of the nine-week trial, “He’s guilty as hell. There’s no question about it.” Not many were surprised when Sheppard was convicted.
The media exposure was so egregious and influential, the U.S. Supreme Court found in 1964 that Sheppard was denied his constitutional right to a fair trial and cited five specific violations why he should get a second one.
The Sheppard case, which has been studied by legal and journalism scholars for more than 50 years, presents a classic example of how the media’s first amendment right to freedom of the press often clashes with a defendant’s sixth amendment right to a fair trial.
During the time of the Sheppard coverage, media was limited to radio, television and newspapers. However, methods of disseminating information have increased to include the Internet with its myriad websites, YouTube and blogs.
According to a 2008 New York Times article, the number of web-based news organizations is rising as traditional newspapers are shrinking or failing altogether. The article stated that publishing online costs half what it takes to print traditional papers but online advertising is not enough to sustain a newsroom.
The question for judges becomes, “What is a media outlet?” Clayton County chief judges Deborah Benefield of Superior Court, John Carbo of State Court and newly-sworn in Wanda Dallas of Magistrate Court, determine who is allowed to electronically record their proceedings. Under Georgia law, all courtroom proceedings are deemed open with limited exceptions.
“In the beginning, it was very clear who the media were,” said Carbo. “They were television, radio and newspapers. It’s not so clear now with YouTube and bloggers. At some point, you have to define who the media are.”
In general, members of the public share the same access to courts that members of the media do. One difference is who can bring in a video or digital camera in order to preserve the hearings for broadcast to a wider audience. Under the courts’ Uniform Rules, cameras in the courtroom are allowed to be used only by members of the media.
Even though Georgia law allows cameras in state and local courtrooms — they are prohibited inside federal courts — a presiding judge can deny the request if he or she finds the media coverage could impact the defendant’s right to a fair trial.
In Clayton County, judges traditionally encourage open and accessible courts.
“My default is that I approve the requests as they come in and then ask the parties if they object,” said Benefield.
From time to time, sovereign citizens come to State Court with traffic tickets. Carbo said the offender typically arrives with an entourage. Once, a supporter pulled out a cellphone to videotape the hearing and Carbo had to stop the taping. The Clayton County Courthouse allows cellphones — nearly all of which have a built-in camera — but no other electronic recording devices.
The sovereign supporters wanted to post the proceedings on a YouTube.com channel, he said.
Carbo said he has encountered resistance on cameras in the courtrooms from attorneys just once.
“The defense attorney said he didn’t believe his client could have a fair trial if the cameras were in here,” he said. “I knew the media had a right to be heard so I invited them into the courtroom for a hearing but they never showed.”
Sometimes world events can impact what goes on inside a Clayton County courtroom. Hours before jury selection was to begin in the trial of a Pakistani man accused of strangling his daughter because she wanted out of her arranged marriage, the world learned 9/11 terrorist Osama bin Laden had been killed by American military forces.
Trial Judge Albert Collier denied an Atlanta television news request to have a camera tape the murder trial. Clayton County Executive Assistant District Attorney Jason Green and defense attorney Alan Begner agreed that allowing television cameras in to broadcast the proceedings would sensationalize an already controversial case.
“News last night of the death changes things,” said Collier at the time. “I’m going to deny the request.”
However, Collier allowed digital photos to be taken by a local newspaper reporter.
Benefield said she thinks the law governing who can and cannot record courtroom proceedings is “fine,” with one exception, and Carbo’s experience with the sovereign citizens is a good example.
“There is the question of ‘who is the media?’” she said. “What if we start allowing anyone in with a camera and their account of the proceedings conflicts with the official record? I just see huge problems along those lines. The court has to decide who is the media.”
Dallas said she has never had an issue with cameras being in the courtroom. However, she had to deal with jurors who disregarded instructions to not research the crime they had been impaneled to hear.
“We found out some did over the weekend and they were held in contempt, of course,” said Dallas. “The first trial ended in a mistrial and the second ended in a not guilty verdict. That’s why it’s so important for a defendant to have a fair trial. The state is entitled to a fair trial, too.”
Another time, Carbo said civil jurors tried to have lunch at the nursing home at the center of the case they were hearing after being told not to go to the scene or investigate the case on their own.
As far as preserving the integrity of a trial case by entrusting jurors to follow instructions, Benefield said all judges and attorneys can do is have faith in the panel.
“There is an immense amount of stuff available at the push of a button,” she said. “It goes back to the honor system. They take an oath. We tell them, ‘these are things you can’t do as prospective jurors.’ The parties are entitled to a fair trial. At the end of the day, all we have is the honor system.”
Dallas, who was just appointed to finish out a four-year term vacated by former Chief Magistrate Daphne Walker, said she is investigating why Clayton County magistrate courtrooms are kept locked during first appearance hearings after being alerted to that fact by Clayton News Daily.
Courthouse officials have told Clayton News Daily that access to the first appearance courtrooms is regulated because of safety issues. The law doesn’t allow courtrooms to be locked except in rare cases, including child or sexual assault witnesses giving sensitive testimony.
Members of the public are also allowed access to the county courthouse without having to explain their presence to anyone.
“I’ve told deputies who work in my courtroom they are not allowed to question why people are here,” she said. “And I have no signs posted outside my courtroom with restrictions. Of course, if someone needs help or direction, deputies can be a valuable resource but they are not to stop people and ask them why they are here.”
However, access to first appearance hearings in Clayton County Magistrate Court is regulated by a deputy posted at the door. A limited number of the public is allowed to attend. Several benches separating the inmates from the public are kept empty, diminishing the amount of space allotted for the public, which typically includes inmate families and supporters.
Lawyers and members of the media sit in the jury box.
Dallas appeared perplexed at learning of the closure, so did Benefield and Carbo. However, Benefield said she understands security issues.
“The bottom line is you have the right to control the courtroom,” she said. “If someone is disruptive, he has to leave. But it’s absolutely essential for courtrooms to be open so people have confidence in the judicial system. The people have the right to see what elected and appointed officials do and how they act within the boundaries of the law.”
Not only does public access assure confidence in the system, it protects judges, too, said Benefield.
“We issue decisions that are not always popular but the law is what it is,” she said. “By the public being able to see the proceedings, they can see why a decision was made, that it was made because of the law not because ‘she’s mean.’ It’s difficult for judges to defend themselves so it’s valuable for the public and the parties to see the process so they can have confidence in the outcome.”
A recent U.S. Supreme Court that originated from Georgia, confirms the public’s right to courtroom access. In Presley v. Georgia (2010), a defendant in a drug trafficking case objected to his uncle being removed from the courtroom during jury selection and the high court agreed.
Benefield said the ruling means the remedy for excluding the public must be narrow and not simply mean closing off the entire procedure to everyone.
“It’s got to be a rare case for a closure,” she said. “Whoever is seeking the closure must have an overriding interest. The remedy must be narrow and a reasonable alternative be found. It’s a balancing thing. There also needs to be a written order on record and a reason why part of a proceeding is closed.”
The same rules apply to sealing court records, which are also open to public scrutiny. Carbo has gotten attorney requests to seal records in product liability cases based on trade secrets. Not all requests are granted.
“I’ve read some of the requests and told attorneys that I saw no mention of trade secrets in the paperwork,” he said. “I’ve denied sealed orders because of that.”
Benefield said she typically seals records involving psychological evaluation and Department of Family and Children Services.
“These are records that are routinely sealed which I’m OK with,” she said.
Temporary Protective Orders, typically referred to as restraining orders, are kept out of the public eye to protect the alleged victims, Social Security numbers are redacted and final orders of divorce are sometimes sealed because they contain personal financial information.
However, the sealings are done at each judge’s discretion.
“I wouldn’t mind having a set of guidelines on sealing records,” said Benefield.
“We look at it as ‘everything’ is public except — fill in the blank — and then there has to be a basis for that exception,” he said.