The criminal justice system is about to try something new -- allowing a television crew to unobtrusively film and then publicly broadcast jury deliberations in a capital murder trial. And in the past week or so, the voices of institutional inertia have made plenty of arguments against this latest incursion into the privacy of the jury room. But none of their objections is strong enough to overcome the enormous contribution that taped and televised deliberations could make to the debate over one of the most contentious legal issues of our time: the style and substance of the death penalty in America.
We should be thankful, not worried, that average Americans may well be able to see from their living rooms what a capital jury goes through when faced with questions of life and death. And it's not just any old capital trial that has drawn the attention of PBS's "Frontline." It's the trial in adult court of a juvenile defendant, Cedric Ryan Harrison, 17. Jury selection began last Monday in Harris County, Tex., which has a reputation for condemning more people to death than just about any other locality in the world. And Texas, remember, is one of the few places that still permits the execution of juvenile offenders. If the Frontline folks were looking to broadcast a single trial that encapsulates the most contentious components of the fight over capital punishment in this country, they have chosen well.
Harrison agreed to allow the taping and waived his right to challenge whatever appellate issues may ultimately arise. One of his lawyers, Ricardo Rodriquez, told the Houston Chronicle that "if the state of Texas wants to attempt to execute a 17-year-old, I think the whole world should be watching to make sure everything is done correctly." Harrison's judge also has signed off on the plan. "I believe we have the best system there ever has been," state District Judge Ted Poe told the Chronicle. "We shouldn't be ashamed of how it works." Only the local prosecutor, District Attorney Chuck Rosenthal, is balking at the notion that jurors can be trusted to deliberate in good conscience while a tiny ceiling camera records their words and deeds. Rosenthal has succeeded for now in delaying the trial. The Texas Court of Criminal Appeals stopped the case last week and told Judge Poe to ease Rosenthal's concerns -- or else. I hope we never get to the "or else."
Greater public insight into the nuts and bolts of the jury's work would be vital for the death penalty debate. People would talk about the trial, which would be a good thing. They would see how practical and raw jury deliberations often are. Teachers would use the edited videotape as a learning tool in law schools and even in high schools. Prosecutors and defense attorneys would pour over the tapes and transcripts looking for clues about what to do in future capital cases. Journalists, political scientists and death penalty advocates and opponents all would find raw material for important theses.
That's why taping the Harrison jury is an idea worth pursuing. And it's also why arguments for keeping capital jury deliberations private have failed to convince me otherwise. Take, for example, the "parade of horribles" theme offered last week by go-slowers in the legal, political and journalistic communities. They argued that televising the Harrison jurors in action could not only harm the process but also affect the result. This sounds ominous, and perhaps one day someone will be able to prove that it is true. So far, however, the available evidence seems to the contrary.
Cameras, though still rare, have gingerly made their way into jury rooms without glaringly negative results; so much so, in fact, that the Harrison case represents a natural extension of an experiment that began years ago. The falling-sky argument was made when cameras were first introduced into courtrooms. Then it was made when they were allowed into civil jury rooms during deliberations. It was made when they were permitted into jury rooms during regular criminal trials. And it was made when cameras were allowed to film a deliberating jury in a non-capital murder trial in Arizona. The criminal justice system has not been brought to its knees by well-placed cameras filming well-intentioned jurors. So why should it be different in a capital murder case?
Then there is the argument that the trial's main actors could alter their strategies because of the presence of cameras in the jury room. Perhaps this will be the case. But prosecutors and defense attorneys strategize all the time over jurors to maximize advantages and minimize disadvantages. This is especially so in capital cases, where jurors already are subjected to extraordinary pre-trial vetting by judges and lawyers. They can be disqualified from service for their answers to any of the dozens of questions that are typical of jury selection in a capital case. One more question is not going to skew the jury pool any more than any other question. Nor does it work to argue that the Harrison case will necessarily open the floodgates to televised capital deliberations around the country. In the vast majority of cases, capital defendants either will not want their trials televised, or won't even have that option because of state or federal law.
Some opponents have said that Judge Poe is overstepping his role as a neutral arbiter between the state and the accused. But televising the Harrison jury wasn't Poe's idea; it was public television's idea. And it would have gone nowhere had Harrison not agreed. The judge still must figure out a way to try to mollify the prosecutor, Rosenthal, in a way that can be justified upon appeal. And once the judge does that, he still must ensure that the practical process of televising jurors doesn't run afoul of the Constitution. Judges are supposed to be neutral in dispensing justice to the accused and deference to the state but they aren't required to be passive when it comes to how trials are conducted in their courtrooms.
Perhaps the best argument against opening up capital juries to cameras is that the presence of the lens itself will stymie the candid give-and-take we expect and demand from deliberating jurors. There is no denying that this is a potential problem. But it is not unique to televising capital deliberations and if it has been a problem in non-capital trials we haven't heard about it. Jurors haven't complained; defendants haven't sued. Let's wait until there is evidence of a problem before we go about solving it to the detriment of our body of knowledge about the most important decision made in our justice system.
I've watched videotape of a jury deliberating in a relatively minor criminal case -- which CBS News broadcast several years ago -- and I was struck not by how fearful or self-conscious jurors were, but by how candid they seemed to be during their discussions. It seemed to me that they almost forgot about the camera lens. My perception jibes with what a lot of jurors say once they've finished videotaped deliberations.
We should embrace this experiment -- cautiously. Not because of what might, theoretically, go wrong. But because of how right it is to give people firsthand insight into what other people say and do when they are deciding whether someone ought to live or die.