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Aug 27, 2014

Prosecutor's Exclusive Access to Courtroom Cameras a Problem

Criminal defense attorneys in Warren County, Ohio are objecting to a closed-circuit video and audio system that allowed Prosecuting Attorney David Fornshell to observe trials from three courtrooms at his desk, the ABA Journal reports, citing articles from the Cincinnati Inquirer and the Dayton Daily News.

The audio is also piped into the "media rooms" that overlook the three courtrooms in the county courthouse, although the audio system in one courtroom is currently inoperative. The video is available only to Fornshell, who can view the video feed from two of the three courtrooms at once. He can also control the direction of the cameras from his desk, but cannot zoom in. The audio and video are also available in the victim advocacy section of the prosecutor's office.

The audio feed has been available for "a dozen years,” Fornshell told the Inquirer, and uses microphones that are clearly visible in the courtroom, including on the defense table. A sign on the defense table advises attorneys to press the microphone's mute button while talking to their clients. "This is the same audio feed that the media is hearing,” Fornshell told the Daily News. "To suggest I not have the exact same audio feed the media receives is nonsensical."

The first of the cameras was installed in one of the courtrooms at the request and expense of Fornshall's office for a 2011 trial of a man who was convicted of killing a sheriff's sergeant by running him over during a high-speed chase. Judge James Flannery approved that installation, as long as the system did not allow the recording of the video, and he and the court's other judges agreed to the subsequent installation in the other two courtrooms.

Defense attorneys claim they were unaware of the audio and video system until the family of murder defendant told his lawyer that they could hear all his conversations with his client at the defense table through the audio system. "This raises all sorts of issues — attorney/client privilege and separation of witnesses who could be listening to the trial in the prosecutor’s office, attorney John Kaspar told the Daily News.

After the uproar, the judges decided to continue to allow the feeds, despite requests from defense attorneys in an upcoming murder trial to stop the practice.

"It is alarming to me that no one advised us about it," attorney Charles H. Rittgers told the Daily News. "This is supposed to be a level playing field. If the prosecutor has it, the defense attorneys should have the same opportunity."

This raises several questions: Are the audio/video systems in the Warren County subject the the Ohio courts' rule (Rule 12) on broadcasting and photographing court proceedings? If so, do they comply with those rules? And can the news media or the public access the feeds?

The rule provides that "[r]equests for permission for the broadcasting, televising, recording, or taking of photographs in the courtroom shall be in writing," and that "[t]he judge assigned to the trial or hearing shall permit the broadcasting or recording by electronic means and the taking of photographs in court proceedings that are open to the public as provided by Ohio law."  This gives judges little discretion: if a proceeding is open to the public, it is open to cameras. Thus the placement of the video cameras in the Warren County courtrooms in and of itself does not seem to run afoul of the rule.

But the rule also provides that "the written order of the judge [allowing the cameras] shall be made
a part of the record of the proceedings," and that "[t]he judge shall inform victims and witnesses of their right to object to being filmed, videotaped, recorded, or photographed." There was apparently no such order or notice here, and the attorneys who practice in the court were apparently unaware of the cameras. This is a problem, and means that the camera setup was in violation of the rule.

One of the defense attorneys' objections is that the audio and video were available to the prosecutor, but not to them. There's nothing in the camera rule that dictates who should have access to the feed, although there is a provision for "pooling" of the equipment and the feed, requiring that it be organized by the media without the involvement of the court. The attorneys may have an argument on due process grounds.

Finally, what of the defense attorneys' complaint that the audio system transmitted their private conversations with their clients? The court rule provides that "[t]here shall be no audio pickup or broadcast of conferences conducted in a court facility between attorneys and clients or co-counsel or of conferences conducted at the bench between counsel and the judge." While the Warren County system provided a button to mute the microphones so they would not pick up these conversations, the way the rule is written implies that the system must not be able to transmit these exchanges. This creates another problem for the Warren County system.

A possible solution may be coming from the court itself. According to WHIO, in response to the defense attorneys' complaints Warren County Administrative Judge Donald Oda sent a letter to the local bar association saying that while the court was unable to provide the feeds directly on the internet, "due to the recent interest these feeds have generated, we are looking to transmitting the feeds into the attorney waiting area next to the stairwell and to the law library. That way, anyone who wants to watch or listen can view the feed remotely, without having to go and sit in each of the courtrooms."

This is a good interim solution, and resolves some of the issues with a feed available only to prosecutors. But the court should work to overcome the technical obstacles to making the feed available to the public via the internet.

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