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.

ADL awards header 2013

Today, I’m pleased to report about a great lawyer (and fellow) who is about to be honored. It only adds to the news that this occurs during Pro Bono Week, for which this attorney could be equally recognized.

The lawyer is David Bodney, the talented partner at Steptoe’s Phoenix office. And the organization honoring him is the Anti-Defamation League, which has recognized David as a leader for many years.

David Bodney

David Bodney

This Thursday evening (Oct. 24), the Arizona Region of the Anti-Defamation League will bestow on Bodney its Torch of Liberty Award. He has much leadership experience with the ADL, including service on the National Legal Affairs and Civil Rights Committees and National Commission. In addition, the ADL announced that Bodney “recently co-authored ADL’s amicus brief in the U.S. Supreme Court challenge to Arizona’s SB 1070.”

As the ADL describes the award:

“The Anti-Defamation League’s Torch of Liberty Award was established over 40 years ago to recognize individuals who have exhibited extraordinary humanitarian concerns and whose everyday actions exemplify the principles on which the ADL was founded—diversity, civil harmony, social justice and respect for human dignity.”

ADL logoMore detail about David and the award are here.

And tickets are available for sale here.

I had anticipated going, but a family conflict prevents that. So I’m hoping one of you gadabouts will send me a note (arizona.attorney@azbar.org) to report how the evening went. Photos? Always welcome.

Gov. Jan Brewer as she unveils the Tenth Amendment monolith at the Arizona Bill of Rights dedication ceremony, Dec. 15, 2012 (photo: Arizona Attorney, Tim Eigo)

Gov. Jan Brewer as she unveils the Tenth Amendment monolith at the Arizona Bill of Rights dedication ceremony, Dec. 15, 2012 (photo: Arizona Attorney, Tim Eigo)

 On this Change of Venue Friday, I invite you to look at some photos (below) from last Saturday’s Bill of Rights Monument dedication in Phoenix. (I’ve covered this quite a bit; see here for more background.)

And here is an Arizona Republic story on the dedication day.

Congratulations again to Chris Bliss, who spearheaded this effort on behalf of his organization.

More photos are on the Arizona Attorney Magazine Facebook page.

Have a great weekend.

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David Bodney

Please do not write to me to provide alternative names to my following statement: David Bodney is one of the nicest guys in town.

I was going to write “one of the nicest lawyers,” but that would be understating it.

Of course, I don’t know everyone, and there may well be a few folks around who are nicer than David, the managing partner of Steptoe & Johnson’s Phoenix office. But he’d give them a run for their money.

Besides his commitment to the community (which you can read about below), David’s work also makes him an unflinching advocate of the press—which I really like, for a variety of reasons. As someone who writes for a living, I like knowing that lawyers such as Bodney guard the First Amendment. And as a citizen and news-consumer, I like knowing that the Fifth Estate is permitted to do its important work, often with the help of media attorneys.

On my wall: My favorite Steve Benson cartoon

That’s what makes David’s selection for a prestigious award so perfect. On Friday, when he is handed the Valle del Sol’s 2011 Peacemaker Award, he will be moving into hallowed ranks. But that’s a berth he’s earned, and richly deserves.

(I also am pleased to see that Dennis Burke will be recognized with an award. The United States Attorney for the District of Arizona until his sudden resignation last week, he also is a very nice guy—and he was a terrific partner on the Editorial Board of Arizona Attorney Magazine. I don’t know if Dennis will be able to attend Friday’s lunch; if I were in his shoes, I’d be vacationing somewhere on the Mediterranean right about now. But special recognition, he deserves.)

I must add that Valle del Sol is a great organization, and they get added props for their Playbill design for Friday’s luncheon. Let the show begin!

I will be unable to attend on Friday, but if you see David, thank him for his work—and be sure to embarrass him by remarking what a nice guy he is!

The complete release follows. Congratulations again, David.

David Bodney to Receive Valle del Sol’s 2011 APS Peacemaker Award

(August 31, 2011, Phoenix) — Steptoe & Johnson LLP is pleased to announce that partner David Bodney will receive the 2011 APS Peacemaker Award from Valle del Sol on September 9 at the organization’s annual Profiles of Success luncheon at the Phoenix Convention Center.

“David is a community leader who significantly impacts the lives of many in a positive way by promoting peace and well-being,” said Carlos Galindo-Elvira, Valle del Sol’s Vice President of Philanthropic & Community Relations. “David’s long track record of working with organizations like the Anti-Defamation League, American Jewish Committee, Children’s Action Alliance, and Endowment Board of ASU’s Walter Cronkite School of Journalism and Telecommunication highlights the merit of this recognition.”

Valle del Sol is one of Arizona’s leading nonprofit organizations whose mission is “inspiring positive change by investing in human services, strengthening self-sufficiency for families, and building the next generation of Latino leaders.”

Mr. Bodney has successfully defended print, broadcast and electronic media in defamation, privacy and related lawsuits in numerous federal and state courts for more than 25 years. He is the managing partner of Steptoe’s Phoenix office and serves as an adjunct faculty at Arizona State University’s Sandra Day O’Connor College of Law and the Walter Cronkite School of Journalism and Telecommunication, where he teaches media law. Mr. Bodney is a member of the National Commission of the Anti-Defamation League, American Jewish Committee Board of Directors—Arizona Region, the past Chairman of the Board of the Children’s Action Alliance and past President of the Board of the Arizona Center for Law in the Public Interest. He also serves on the Endowment Board of ASU’s Walter Cronkite School of Journalism and Telecommunication.

More information on the Profiles of Success event is here.

About Steptoe

Steptoe & Johnson LLP is an international law firm widely recognized for vigorous representation of clients before governmental agencies, successful advocacy in complex litigation and arbitration, and creative and practical advice in guiding business transactions. The firm has more than 500 lawyers and other professionals in offices in Beijing, Brussels, Century City, Chicago, London, Los Angeles, New York, Phoenix and Washington. For more information, click here.