Courts


Panelists Hon. Joseph Welty, Bill Montgomery and Justice Robert Brutinel discuss mobile devices in the courtroom, Oct. 17, 2014, Phoenix Ariz.

Panelists Hon. Joseph Welty, Bill Montgomery and Justice Robert Brutinel discuss mobile devices in the courtroom, Oct. 17, 2014, Phoenix Ariz.

A recent panel discussion on mobile devices in courtrooms yielded surprising agreement on the role of those devices in the justice system. It took the lone media representative on the panel to throw a little cold water on that unified discussion.

I mentioned before the October 17 event, held at the ASU Cronkite School. Tonight, as sad word emerges from the Arizona Republic of its latest round of forced journalist departures, let me give a synopsis of the Arizona dialogue about technology in courtrooms.

The First Amendment Coalition of Arizona event was introduced by journo and educator Mark Scarp (Mark is also the Past President of the Society of Professional Journalists Valley of the Sun Chapter). The panel, moderated by attorney David Bodney, included:

  • Justice Robert Brutinel, chair of a Court committee that examined the issue
  • Hon. Joseph Welty, Presiding Criminal Judge for Maricopa County
  • Bill Montgomery, Maricopa County Attorney
  • Criminal defense attorney Jennifer Willmott (and counsel in the Jodi Arias case)
  • Cathie Batbie, news director at KVOA-TV (Channel 4-NBC) in Tucson

As previously mentioned, the panel discussed the impact of two rule changes, specifically made to Supreme Court Rule 122.1 (use of mobile devices in courtrooms) and Rule 122 (video, audio and still photography in courtrooms).

ASU Cronkite Journalism School, site for panel discussion of mobile devices in courtrooms, Oct. 17, 2014.

ASU Cronkite Journalism School, site for panel discussion of mobile devices in courtrooms, Oct. 17, 2014.

Justice Brutinel led off the conversation by explaining the committee’s thinking. As he sat in the journalism school’s First Amendment Forum, he stated a truism: “There’s a division between the interests of journalists and the interests of justice.”

Initially, he said, the committee considered some drastic approaches. Could a rule simply exclude all digital technology from the courthouse? Could it create a technological wall that prevented its use anywhere in the building?

No, and no, as it turned out. The first would be unworkable and overbearing in numerous ways. And the second would violate FCC regulations.

It wasn’t a slam-dunk, though. Justice Brutinel said that it was hotly contested by the committee, and a full prohibition was argued three separate times. It was finally determined that was not a reasonable position. In fact, there was no good and abiding reason not to allow such devices, with some restrictions.

Guiding the work of the committee, Justice Brutinel said, were certain realities, such as the fact that virtually everyone has a portable electronic device (or three) today. But also discussed among committee members were certain beliefs, held by at least a few: The presence of cameras changes the way people behave (though that effect may wane over time). And it is more difficult than ever before to determine who is a “journalist.”

The answer to the second issue is simple: Courts no longer ask if a person requesting electronic use is part of the media. The same rules apply to all.

L to R: Justice Robert Brutinel, Jennifer Willmott, Cathie Batbie

L to R: Justice Robert Brutinel, Jennifer Willmott, Cathie Batbie

As David Bodney said, the most important takeaway of the new rules is that you must ask for permission; the judge wants to know if you will interfere in the process, so they want to be asked.

That seemingly simple imprecation was challenged by KVOA’s Cathie Batbie, though. She explained how there appeared to be uniform approaches in the Tucson Superior Courts to disallow cameras, no matter the request. “We’re a visual medium, and the public has a right to that access.”

The dialogue that followed may be the definition of the devil in the details. When many on the panel urged that the press should simply take an appeal to the Court of Appeals, Batbie explained again the reality of a profession that travels faster than one whose holdings are conveyed in a West’s bound volume. Such a litigious approach, while possible, Batbie said, was unlikely to occur—or to be helpful.

“How do you get information to the public when you have these hurdles?” Batbie asked. The answer, she suggested, is “Don’t set rules based on some bad journalists, but on what’s right for the public.”

“You do want people to know what you’re doing every day.”

That statement (or perhaps it was a question) went unanswered.

Judge Welty discussed the “logistical challenges” associated with Rule 122. They are “not insurmountable,” he said, but the initial result was that journalists asked to be at every proceeding, just to be cover their bases. Then, as the date for proceedings approached, media made strategic decisions and often didn’t appear.

The Presiding Criminal Judge was the first panelist to use the phrases “gavel to gavel coverage” and “live-streaming,” developments that clearly troubled numerous members of the panel. Judge Welty called it “presenting trials as TV dramas.”

“I’m not sure it’s journalism; it may be reality TV.”

Bill Montgomery offered, “Is it a modern version of the Roman Circus and just trying to provide entertainment?” (which may have been a statement and not a question)

“This is a business environment that is not healthy to our republic,” Montgomery continued, “and that does not create confidence in our justice system.”

“When someone drives several states to get a prosecutor’s autograph, and when he’s told no, he breaks down, this system is not working.”

Jennifer Willmott, counsel in a case often derided as a Roman Circus, said that “What we want is an honest and fair trial.”

Willmott extended the discussion about media inside the courtroom to the larger world: “Cyberlynchings occur on social media among people who know noting about the case.”

Judge Welty added, “Are [TV stations] producing a TV drama or presenting information about our institutions?” (I think he was being rhetorical.)

Faced with prosecutor, court and defense all wrinkling their nose in distaste at TV coverage of trials (or I should say trial; can you say Jodi Arias?), Cathie Batbie could merely offer, “Streaming video is huge. It’s important to provide that coverage, with safeguards.”

Mark Scarp introduces the panel, including (L to R) moderator David Bodney, Hon. Joseph Welty, Bill Montgomery.

Mark Scarp introduces the panel, including (L to R) moderator David Bodney, Hon. Joseph Welty, Bill Montgomery.

After the event, Montgomery said that the new rules allow for flexibility, and broader understanding of the trial system by the public is a good thing.

But when “talking heads give their theory of the prosecution and they don’t even undertsand the law in our jurisdiction,” they do a disservice to viewers.

“Bad media can affect how people act in the courtroom,” Montgomery added.

So what comes next? Enforcement—and education.

Judge Welty said that Rule 122.1 is “completely technology-driven.” Over the next five years, he said, tools like Google glass and iwatches “will make the curent rule meaningless.” When that happens, he said, “We’ll move to enforcing violations rather than banning devices.”

Finally, he offered a call to action: “This issue behooves the State Bar to put together a program for lawyers on all their ethical responsibilities” in regard to mobile devices in courtrooms.

Who’s in? I do know if the Bar puts on such a seminar, it’ll probably be live-streamed.

AZ Black Bar logoToday, I catch up with another Arizona legal event of note: the Arizona Black Bar’s Hayzel B. Daniels Scholarship Award Dinner.

Held on October 16, 2014, at the Phoenix Art Museum, the event carried through on its theme of “closing the opportunity gap and building coalitions.”

In the story of bridging the gap between communities, the keynote speaker was an inspired choice. Attorney Connie Rice is the co-founder of the Advancement Project, described by organizers as “an organization that was created to develop and inspire community-based solutions based on the same high quality legal analysis and public education campaigns that produced the landmark civil rights victories of earlier eras.”

AZ Black Bar Connie-L-Rice

Connie L. Rice

Rice spent decades suing for justice in Los Angeles, but her work yielded not only positive outcomes for underserved communities; it also yielded respect and more from California centers of power. For as Judge Carol Berry introduced her, “Connie Rice would wake up every morning thinking of new ways to sue the Los Angeles Police Department. Today, they give her a parking space.”

Rice’s remarks were salted with numerous memories of toiling in the high-pressure L.A. legal community. “I learned from Johnnie Cochran,” she said of the storied trial lawyer. “I did whatever he did—but better.”

Her speech at the Phoenix Art Museum focused on the LAPD, which she claimed has come a long way.

Recalling her initial impressions, Rice said, “I had never been to a town where everyone hated the cops.”

Her answer to alleged dehumanizing practices was through the courts.

“Back then, I was totally fearless. We had seven major class actions; we won. But with every victory, what could I show the community?”

To Rice, the problems—and the solutions—lay deeper.

“Why do the police have to brutalize people?” she wondered. “Why do they make every African American get out of their car and lie on the ground?”

“Why do the police have to brutalize people?” Connie Rice wondered. (Photo: Phoenix Art Museum, Oct. 16, 2014.)

“Why do the police have to brutalize people?” Connie Rice wondered. (Photo: Phoenix Art Museum, Oct. 16, 2014.)

Part of the solution, she started to believe, came from new ways of seeing. For if an officer could look at a little Black boy and “see only an arrest statistic, and not feel love,” change would never occur.

The drug war and the prevalence of gangs was then making parts of Los Angeles a place of daily terror. And that spurred Rice to consider new approaches.

“I was winning my cases, but my clients were losing their lives. The first of the civil rights is the right to be safe. The first of all freedoms is the freedom from violence.”

She told the audience that her book Power Concedes Nothing is where she “documented my journey into copland and gangland, and then knit them together.”

Attorney Gerald P. Richard II, President, Arizona Black Bar

Attorney Gerald P. Richard II, President, Arizona Black Bar

The book explains how she was invited into the police department to help investigate police corruption and stayed to help rewrite the department’s anti-gang efforts.

Those efforts are credited by Rice with significant decreases in gang-related deaths. And it was “the most important thing I’ve done.”

Of her work with the police department, Rice says, “It’s all about cross-pollination, the opening of hearts and minds.”

Rice says the approaches are replicable across the country.

“If we can turn the LAPD into a bunch of heartfelt cops, anybody can do this. The lesson is, you can unlock everybody’s heart if you take the time to learn what’s in others’ hearts.”

To hear from Connie Rice herself, watch this video from a previous award.

Congratulations to the Black Bar and its leadership, including its President Gerald P. Richard II. Not only is he an esteemed attorney who serves as the Assistant to the Phoenix Police Chief, he also was an event honoree, receiving the Cecil B. Patterson Jr. Community Service Award.

Finally, if you’re curious what your correspondent writes on when he arrives at an event and realizes his pad is full and he needs more, click here.

Elizabeth F. Loftus

Elizabeth F. Loftus

This Wednesday, October 22, the University of Arizona law school co-hosts an event with cognitive psychologist Elizabeth Loftus. Speaking on her topic “The Memory Factory,” Loftus explores “how the mind is a ‘memory factory,’ one that can construct a richly detailed and emotionally vivid story, believed sincerely by the speaker although it is entirely false.”

Often described as a memory expert, Loftus’s own university page describes her own work this way: “Her experiments reveal how memories can be changed by things that we are told. Facts, ideas, suggestions and other post-event information can modify our memories. The legal field, so reliant on memories, has been a significant application of the memory research.”

You are likely familiar with her work via the pitched “memory wars” that waged in legal circles. Through her research on “the malleability of human memory,” Loftus examined eyewitness memory and what was called “the misinformation effect.” Numerous cases and headlines over the years have centered on how false and recovered memories may be created, even inadvertently; those dialogues played out most notoriously in childhood sexual abuse cases.

University of Arizona Law School logoThe free event is open to the public and does not require registration (though seating may be limited).

When: Wednesday, October 22, 7:00 pm (doors at 6:00)

Where: Ares Auditorium (room 164), James E. Rogers College of Law, 1201 E. Speedway, Tucson

As the organizers say, Loftus’s presentation is “part of ‘The Mind & The Law’ Lecture Series sponsored by the UA’s College of Science, the School of Mind, Brain, and Behavior’s Cognitive Science Program and the James E. Rogers College of Law.”

More information on the series is available here.

Former Montana Supreme Court Justice James Nelson will speak in Tempe, Ariz., on Wednesday October 22 on the topic of Citizens United and the influence of money in judicial elections.

Former Montana Supreme Court Justice James Nelson will speak in Tempe, Ariz., on Wednesday October 22, on the topic of Citizens United and the influence of money in judicial elections.

The guest speaker at a Wednesday Tempe event will be a retired jurist who is expected to offer frank commentary about the corrosive role of campaign money in judicial elections.

Former Montana Supreme Court Justice James Nelson will offer remarks about the Citizens United ruling—and especially the impact of money on the election of judges—at a mixer hosted by the Arizona Advocacy Network.

As the AAN says, “Learn how to keep Arizona’s judicial system protected from political attacks. Increasingly special interests groups and big money are targeting the courts for their own gain.”

Former Justice Nelson is just as likely to offer a rousing dialogue on a variety of issues. His judicial contributions have sometimes been controversial, outspoken and noteworthy. (You can read more about Justice Nelson here and here.)

The October 22 event, co-hosted by the ASU Indian Legal Program, takes place at the Old Main on the ASU campus, 400 E. Taylor Mall, Tempe (parking is available in the Fulton Center parking garage across University Ave.).

The event is free, but RSVP is required. Register here.

logo-AJS American Judicature Society 100yearA brief and sad item today: The American Judicature Society is closing its doors.

Kind of inside-baseball-ish, I know. But the AJS had a laser-focus mission to safeguard fair and impartial courts. The decision to dissolve comes at a time when courts are under greater attacks than ever before. Here’s hoping others step into the breach.

Among many other things, the AJS publishes the esteemed Judicature. You can read the current issue here.

Here is part of a news release. You can continue reading it here.

“On September 26, 2014, the Board of Directors of the American Judicature Society (AJS) approved a plan to dissolve the Society and wind up its affairs.”

“AJS was the original ‘fair courts’ citizen organization and, for 101 years, has worked nationally to protect the integrity of the American justice system through research, publications, education and advocacy for judicial selection reform. Among its notable accomplishments are the development of the ‘Missouri Plan’ for judicial selection, the creation of state judicial conduct commissions and judicial nominating committees and publication of its award winning peer-reviewed journal, Judicature.”

“More recently, other entities have joined the American Judicature Society’s mission to ensure that the nation’s justice system is fair, impartial, and effective. In the coming weeks, AJS will reach out to these entities in an effort to ensure the continued operation of its Center for Judicial Ethics and Judicature, which serves as a forum regarding all aspects of the administration of justice and its improvement.”

Hermans House movie poster

Herman’s House film poster

Last week, a remarkable film was awarded an Emmy. Herman’s House is a documentary I’ve mentioned and reviewed before, and it examines the use of solitary confinement and incarceration in a compelling way. The award news—plus a free screening—is reason enough to point you toward it.

My review was way back in 2012; you can read it here.

The Emmy, given to PBS’ POV Documentaries for Herman’s House, is described here. This is an excerpt from the press release:

“The POV (Point of View) film Herman’s House won the 2014 News & Documentary Emmy Award for Outstanding Arts and Culture Programming, it was announced on Sept. 30 by the National Academy of Television Arts & Sciences. Herman’s House aired on PBS in 2013 as part of POV, American television’s longest-running independent documentary series. The 35th Annual News & Documentary Emmy Awards were presented at a ceremony in New York City. PBS won a total of 11 awards, more than any other broadcaster.”

The award is bittersweet, for the film’s namesake, Herman Wallace, passed away a year ago.

You can watch a portion of the Emmy Award ceremony here, as the film’s producers accept (click on “Playlist” and select Outstanding Arts and Culture Programming).

Haven’t yet seen this award-winning film? It is screening—free—through October 15 here.

Arizona Justice Robert Brutinel

Justice Robert Brutinel

A panel discussion on Friday, October 17, will cover recent changes to the Arizona rules controlling use of mobile devices in courtrooms. Sponsored by the First Amendment Coalition of Arizona, it will feature Justice Robert Brutinel, who chaired the 2013 committee whose recommendations led to the changes.

Those changes specifically were made to Supreme Court Rule 122.1 (use of mobile devices in courtrooms) and Rule 122 (video, audio and still photography in courtrooms).

As the Coalition describes the free event, “Learn what is permissible use of smartphones, tablets or laptops in Arizona state courtrooms and what is not, as well as the latest regarding use of cameras and recorders in court.”

The discussion will be held at the ASU Cronkite School of Journalism in downtown Phoenix.

The RSVP page (and more information) can be found here.

The local chapter of the Society of Professional Journalists is a member organization I’m proud to call home. And that chapter is a charter member of the First Amendment Coalition. I hope you come out to join journalists, lawyers, law students and others as we hear about this important and evolving topic.

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