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Virginia high court to weigh cameras in courtrooms

The Supreme Court of Virginia has agreed to look at whether judges have an unfettered right to reject news cameras in their courtrooms, or whether they need a good reason to block access.

The issue comes in the appeal arising from the emotion-laden trial of George Huguely V, the University of Virginia student convicted last year of second-degree murder in the death of his ex-girlfriend.

The case highlights what appear to be two conflicting standards contained in the statute allowing cameras in Virginia trial courts. In one provision, the law says a court may permit cameras “solely in its discretion.” In another, the law seems to require a “good cause” to prohibit cameras.

Confusion about the proper standard has produced “starkly inconsistent approaches” among Virginia trial courts, according to a friend of the court brief filed by the Virginia Association of Broadcasters.

“A compelling need exists for this Court to harmonize the conflicting standards in the statute,” wrote Lynchburg lawyer John E. Falcone for the VAB.

The Huguely case put a national spotlight on student drinking and campus domestic assault, but there were no cameras at either the trial or the sentencing.

Charlottesville Circuit Judge Edward L. Hogshire last July denied a television station’s request for camera coverage of the hearing where Huguely was sentenced to 23 years in prison for the murder of Yeardley Love.

After two weeks of testimony earlier last year, a Charlottesville jury convicted the former UVa lacrosse player of killing Love after a day of heavy drinking. He had kicked through her bedroom door, wrestled with her and left her bleeding in her bed.

The jury decided Huguely acted without intent to kill and recommended a 26-year sentence.

As the sentencing hearing approached, Charlottesville television station WVIR-TV asked Hogshire if he would allow a television camera in the courtroom. The Daily Progress also requested to have a still camera at the hearing.

The television station said the hearing would be of great interest to the public, and the station agreed to abide by all the requirements of the applicable statute, Virginia Code § 19.2-266.

The statute says a court may “solely in its discretion” permit photographs and broadcasts by radio and television in judicial proceedings. Later, however, the statute states that a judge may prohibit coverage in any case “[f]or good cause shown.”

“The statute was essentially a compromise when it was passed,” VAB lawyer Falcone said in an interview. “The language in the statute appears to be internally inconsistent,” he said.

Virginia’s first cameras-in-the-courtroom statute was passed in 1987, providing for camera “experiments” in six courts. The General Assembly expanded the statute in 1992 to cover all trial courts.

Both the Huguely prosecution and defense opposed the requests for courtroom cameras.

With a pending motion to set aside the verdict and a likely appeal, the defense argued the added publicity might be prejudicial at a later proceeding. Commonwealth’s Attorney Warner D. “Dave” Chapman said he was concerned the cameras might intimidate witnesses, according to an account in The Daily Progress.

Considering the widespread interest in the trial, Hogshire reportedly expressed concern that witnesses would be hesitant. “We’re looking at worldwide coverage of everything that goes on,” he was quoted as saying.

Hogshire said allowing cameras would set a “dangerous” precedent, according to The Hook, a Charlottesville alternative weekly.
The judge flatly prohibited both television and still cameras.

Calling it a case of first impression in an area with a lack of uniformity, Charlottesville lawyer Gregory S. Duncan petitioned for an appeal on behalf of the owner of WVIR-TV. Falcone filed a friend of the court brief on behalf of the broadcasters.

Citing the record, Duncan said Hogshire believed the camera decision was “totally within the discretion of the court.” Based on that belief, “the lower court just did as it pleased,” he argued in his petition for appeal.

Duncan emphasized that neither the state nor the defendant presented any evidence. The judge, Duncan said, relied on his own speculation and the speculation of the lawyers about the potential effect of a camera on a possible civil trial.

Duncan acknowledged that neither the U.S. Supreme Court nor the Virginia Supreme Court has held that a broadcaster has a constitutional right to use cameras in a court to gather and report the news. The justification for denial of full constitutional protection for the TV camera no longer exists, however, Duncan argued.

TV cameras are no longer bulky and noisy intrusions in a courtroom, and they have proven not to impair the decorum of the court, Duncan said.

Mike Cavender, executive director of the Radio Television Digital News Association, agreed, saying high definition cameras nowadays can fit in the palm of one’s hand. “They are far less obtrusive,” he said.

In its brief supporting the bid for an appeal, the VAB said judges have taken sharply different approaches to the statute, “with some courts arbitrarily denying camera access with no evidentiary foundation, as in the present case.”

In an interview Falcone said some judges deny access by saying, in effect, “I just don’t like it. I’m not going to do it.”

“It is totally inconsistent, what we’re seeing from the judges around the state,” Falcone said.

On April 12, before a brief in opposition was filed or argument on the petition was scheduled, the Supreme Court granted a writ on Duncan’s four assignments of error, including claims that the trial court erred in not applying the “good cause shown” standard, in denying the station’s camera request without good cause, in relying on speculation to deny the request, and in holding that the station’s right to report news via electronic media enjoyed no state or federal constitutional protection.

Chapman – the Charlottesville commonwealth’s attorney – will oppose the appeal on behalf of the state, according to the court’s record and information from the attorney general’s office. Chapman did not immediately return a call for comment.
Duncan also did not comment for the record outside of his petition because of the pending appeal.

Other prosecutors have opposed courtroom cameras. Arguing against camera coverage of the DC Sniper trial in 2002, Prince William County Commonwealth’s Attorney Paul B. Ebert said he had his mind changed with the previous televised Lorena Bobbitt trial. “Witnesses, for lack of a better word, tend to ham it up,” he said at the time.

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