WALB-TV, INC. v. Gibson

501 S.E.2d 821, 269 Ga. 564, 26 Media L. Rep. (BNA) 2390, 98 Fulton County D. Rep. 2381, 1998 Ga. LEXIS 737

• Court: Supreme Court of Georgia
• Decided: July 6, 1998
• Docket: S98A0066
• Status: Published

Opinions

Hines, Justice.

This is an appeal from a television station’s request for electronic media access to court proceedings. Karen Michelle Eckman and William Jack Lematty are charged with murdering two victims. The State is not seeking the death penalty against Eckman, but is against Lematty. The defendants are to be tried separately, Eckman first.¹ WALB-TV filed a request to install audio and video recording equipment in the courtroom for both trials, with a videotape camera on a tripod and microphones at the witness stand and counsel tables, intending to record trial proceedings and then broadcast excerpts from the recordings during scheduled news reports. The State responded that the testimony at the two trials would be substantially the same, that broadcast of testimony in the first trial would corrupt the potential jury pool for the second trial, that due process rights of both defendants would be violated by the “heightened notoriety attendant on broadcast testimony,” and that microphones placed at counsel tables would capture privileged conversations. After a hearing at which WALB-TV expressed a willingness to forego placing microphones at the counsel tables, the court denied the request and WALB-TV appeals.²

1. OCGA § 15-1-10.1 sets forth standards courts are to consider in determining whether to grant requests to televise, videotape, or film judicial proceedings. These factors include the consent of the parties, the impact on the administration of the court, the impact on due process, and whether the access would “detract from the ends of justice.” The court conducted a hearing on WALB-TVs request at which these factors were addressed. In denying the request, the court cited the negative impact on the due process rights of the defendants and the potential distraction posed by the video camera. The court did not exclude all media representatives from the proceedings, only the requested video and audio recording equipment. No other press access to court proceedings was affected.

Contrary to WALB-TV’s contention, the court’s decision is not governed by the principle that a movant for complete closure of the proceedings must demonstrate by “clear and convincing proof” that closure is necessary to prevent a “clear and present danger” to the right to a fair trial, or other such right. See Ga. Television Co. v. State, 257 Ga. 764, 765 (2) (363 SE2d 528) (1988). Compare R. W. Page Corp. v. Lumpkin, 249 Ga. 576, 579 (4) (292 SE2d 815) (1982). Rather, whether electronic media coverage will be allowed in the courtroom is a question for the trial court’s discretion. OCGA § 15-1-10.1 (e); Ga. Television Co., supra; Multimedia WMAZ v. State, 256 Ga. 698, 700 (2) (353 SE2d 173) (1987).

WALB-TV argues that, under this Court’s decision in Multimedia, electronic media may be excluded only when the court makes certain specific findings, and that this order does not include such findings. However, Multimedia was decided before the 1996 passage of OCGA § 15-1-10.1, when a court’s consideration of a request for electronic media coverage was governed solely by a previous version of USCR 22. Under USCR 22, such coverage would be allowed unless the court made specific findings that the coverage would either not be within the requirements of due process or would detract from the dignity and decorum of the court. OCGA § 15-1-10.1 now sets forth factors to be considered other than those grounded in USCR 22 as cited in Multimedia. USCR 22 was amended to include section (P), which states that “[a] request for installation and use of electronic recording, transmission, videotaping or motion picture or still photography of any judicial proceeding shall be evaluated pursuant to the standards set forth in OCGA § 15-1-10.1.” This amendment was effective May 15, 1997; WALB-TV’s request was filed July 18, 1997. Therefore WALB-TV’s request is governed by the new version of USCR 22 and the standards set forth in OCGA § 15-1-10.1, rather than only those standards present in USCR 22 when Multimedia was decided.

Nor is it the case that the court failed to make specific findings. It expressly found that the proposed camera coverage would jeopardize the defendants’ due process rights. During the hearing, the court inquired about the amount of coverage the court proceedings might receive in the area, and stated that the court was concerned about the impact of the proposed coverage on the jurors in the Lematty trial if the requested coverage was permitted for the Eckman trial. These findings were sufficient to support the denial of coverage in the Eckman trial. See Ga. Television Co., supra at 765 (1). Such a ruling is within the court’s discretion under the circumstances here, in which testimony at one trial will be similar to that introduced at a later trial, and could create a tainted jury pool for the second trial.

2. The same cannot be said, however, for the exclusion of the requested coverage from Lematty’s trial. The court stated two reasons for denying the request; due process concerns and the distraction posed by the camera’s presence. The court’s findings do not provide any basis for finding that Lematty’s due process rights would be jeopardized by the proposed coverage during his own trial, nor is one apparent from the record. During coverage of testimony in Lematty’s trial, his jury would already be seated and the concern produced by televising testimony in Eckman’s earlier trial would not exist. Although there may be some circumstances in which a defendant’s due process rights would be jeopardized by televising testimony at his trial, there was no factual basis in the record for finding that Lematty’s rights would be so jeopardized if a video camera were present during his trial.

Nor is there any factual basis for the court’s denying the Lematty coverage because the camera could pose a distraction to those participating in the proceedings. While the dignity and administration of the court are certainly proper considerations when evaluating a request for coverage, as OCGA § 15-1-10.1 recognizes, the only evidence presented on the issue of distraction was that the camera would be stationary and silent.³ Thus, it must be concluded that the court abused its discretion in excluding the camera as a potential distraction. Accordingly, the court’s ruling that the proposed coverage be excluded from the Eckman trial is affirmed, but the ruling excluding the proposed coverage from the Lematty trial is reversed.

Judgment affirmed in part and reversed in part.

All the Justices concur, except Sears, Hunstein, Carley and Thompson, JJ, who concur in part and dissent in part.

1 Inquiry with the clerk of the trial court reveals that Eckman has already been tried. However, we will consider the appeal as it relates to Eckman’s trial because the underlying issue is capable of repetition yet evading review. See Multimedia WMAZ v. State, 256 Ga. 698, 700 (2) (353 SE2d 173) (1987).

2 WALB-TV asserts appeal is properly in this Court by virtue of USCR 21.5, which states: “Upon notice to all parties of record and after hearing, an order limiting access [to court records] may be reviewed and amended by the court entering such order or by the Supreme Court at any time on its own motion or upon the motion of any person for good cause.” We need not determine whether USCR 21.5 applies only to access of the court’s physical files or how it relates to the statement of this Court’s jurisdiction in Ga. Const, of 1983, Art. VI, Sec. VI, Pars. II & III. See USCR 1. The order at issue was entered in the context of a murder prosecution and the court below ruled that the defendants’ constitutional rights would be affected by the requested access. Thus, this appeal is properly before this Court pursuant to Ga. Const, of 1983, Art. VI, Sec. VI, Par. Ill (8).

3 Although testimony showed that the tape in the camera would need to be changed periodically, this was stated to be a quick and quiet procedure. Further, the court was clear that its concern was not that the changing of the tape would be a distraction, but that the camera’s mere presence would be a distraction.