BROOKE GLADSTONE: The award-winning public television program Frontline is trying to go where no camera has gone before -- into a room where a jury is deliberating a capital murder case. The defendant, 17 year old Cedric Harrison, has said yes. So have the potential jurors, and so has Judge Ted Poe of Harrison County, Texas. But District Attorney Charles Rosenthal stands firm with a resounding no.
CHARLES ROSENTHAL: I am a firm believer that there are certain issues in everyday life Americans that should be kept secret. This would be as great a travesty as placing a camera at a polling place to record individuals' votes for their particular preference for any elected official.
BROOKE GLADSTONE:Usually the judge determines what may or may not be taped in a proceeding before his court. But since the D.A. objects, the Texas Court of Appeals will decide whether to let the cameras in. Professor Gerald Treece of the South Texas College of Law in Houston opposes cameras in the jury room. We'll hear from him shortly. But first, Michael Sullivan, Frontline's executive producer for special projects, explains why his program should have fly-on-the-wall status as a jury decides matters of life and death.
MICHAEL SULLIVAN: The heart of the matter in capital cases we discovered in our, our years of research on this is the jury. Lawyers who try capital murder cases say picking the jury is the most important thing they do -- more important than the trial itself. They tell us what goes on in the jury room is more important than what goes on in the courtroom. So as we were trying to do a film to reveal the process of capital murder trials in America, we decided that the heart of the matter was the jury and set out to, to work with people to see how deep an access we could get to this process, and we found a judge who was willing to allow us to do the complete trial, including jury deliberations.
BROOKE GLADSTONE:Professor Treece, you've been quoted in several articles basically saying that TV cameras have no place in jury deliberations. What are your arguments?
PROFESSOR TREECE: Well, first of all let me say that Judge Ted Poe is one of the most respected jurists in all of Texas -- certainly here in Houston he's well thought of. But what the judge is doing is saying that the public's right to be informed and to be educated is greater than any juror's interest in privacy. Even though in a case such as this you've got the state objecting through the Harris County District Attorney's Office, the bigger problem that I see is the potential for a juror not being able to freely express himself or herself, a juror who is chilled in their expression because of the fact you have a camera there. That type of chilling effect also leads into potential security problems if a person says certain things which then are recorded, would that lead then to some potential threat against that individual?
BROOKE GLADSTONE:Michael Sullivan, with regard to the chilling of jury deliberations and jury speech -- a sense of self-consciousness -- some jury deliberations have been recorded in the past. What do we know from those?
MICHAEL SULLIVAN: The, the best sort of body of evidence is about 30 cases that were filmed by both CBS and ABC during the last, oh, 7 or 8 years in Maricopa County, Arizona. The jurors to a person were interviewed afterwards; said the cameras had no impact on their behavior, and I think even more importantly, the, the judges that, that presided over those cases, the attorneys on both sides in those cases --cases that included I think 3 first degree murder trials -- not death penalty cases but first degree murder trials -- said they saw no discernible effect on the jury's behavior from the cameras. The jurors were all saying listen, I noticed the camera the first 5 minutes I was in the jury room, and after that we got down to business.
BROOKE GLADSTONE: So on that issue, Professor Treece, does that anecdotal evidence persuade you at all?
PROFESSOR TREECE:First of all, I'm easy to persuade, because I've always liked the idea of public access to public activity, but in a situation such as this I'm still very much concerned that we're getting involved into a situation without any standards, without any guidelines to help us determine the interest of the jurors --whether or not those jurors' rights are being protected and whether or not the process is being protected.
MICHAEL SULLIVAN: Your listeners should understand that the --there's an elaborate questionnaire that is given to all the jurors in this case in which they are informed about the filming. They're asked many questions about it. The judge has talked to them in open court about any reservations they have. Of the original panel of 110 jurors in the case of Cedric Harrison, 14 said they would be made uncomfortable by the filming, and they were all excused from service. So I think the judge in fact has gone out of his way to protect the privacy of any juror who has a problem with this. I do not think that's an issue in this case.
PROFESSOR TREECE: Are we supposed to have a jury pool that up to this moment has never had to answer that question? Why should those people be eliminated from the process in determining guilt, innocence in a capital case and then perhaps the ultimate issue in Texas - life or death? Our problem is going to even go deeper. It's probably the, the best issue on appeal concerning either the conviction in a capital case or the life or death punishment.
BROOKE GLADSTONE:And the point you raise is an interesting one. Are we looking at some sort of public TV form of the Eisenberg principle here? Are you changing the complexion or the character of the jury pool by dint of having those cameras in there and allowing people to opt out because of them? Michael Sullivan?
MICHAEL SULLIVAN: Well no one knows in which direction -- that is, no one knows, you know, what the other points of view of those jurors were. Would be very interesting to find out. Here's the, really the hard point. Everybody is speculating about what's going to happen here, and everyone's speculation comes from their own sense of the world. The big thing listeners ought to do is ask themselves what would they do under these circumstances? Would they really not speak out? Would they really grandstand for the cameras? I don't think that's what normal people do!
BROOKE GLADSTONE: Okay. Thank you both.
MICHAEL SULLIVAN: Thank you.
PROFESSOR TREECE: Thank you.
BROOKE GLADSTONE: Michael Sullivan is executive producer of special projects for PBS's Frontline, and he joined us from the WGBH studios in Boston. Professor Gerald Treece is from South Texas College of Law, and he joined us on the line from his home in Houston. [MUSIC]