The prosecution of Charles Severance, who was indicted in Alexandria on charges related to three fatal shootings, has renewed the debate over cameras in the courtroom. The judge has signaled that television cameras will likely be allowed, identifying them as “no more disruptive than that clock up on the wall.”
I served as counsel in the last televised case in Fairfax County, that of Julio Blanco Garcia, which was presided over by the same judge, Circuit Court Judge Jane Marum Roush. Our case was only the second instance of television cameras being allowed in a Fairfax jury trial.
Opponents of cameras in the courtroom claim that the technology alters the testimony of some witnesses, unduly intimidates others and engenders a theatrical entertainment spectacle. The charge is that cameras provide little benefit while making the likelihood of a fair trial less certain. Proponents of cameras contend their presence renders the proceedings more transparent and serves to educate the public about the judicial process.
The Blanco Garcia case is held out as a model in favor of cameras because all involved seemingly behaved no differently than they would in a trial devoid of video recordation. Cameras undoubtedly are a double-edged sword for defendants. On the one hand, they protect the defendant from misbehavior by judges. In my more than 25 years of practice, I have encountered a minuscule but pernicious minority of judges in a few jurisdictions, not including Fairfax County, who have displayed a hostile demeanor to defendants and their counsel. That demeanor can be indirectly communicated to jurors. Cameras can assist legislative oversight in validating complaints about judges who may not be able to preside impartially at trial.
Cameras in the courtroom do have the adverse potential for disruption, which must be checked. Television coverage in the Blanco Garcia case was not without problems. Despite judicial prohibitions, the face of a juror was briefly shown on television, and a relative of the victim who had been promised her testimony would not appear on television was recorded. Both instances were unintentional. From the defense’s perspective, the mere presence of cameras deterred the appearance of a material witness. It also made it difficult for friends and family of the defendant to appear at trial lest they be misidentified as complicit with the defendant and face consequences in their personal lives — ridicule or loss of employment, friends and clientele.
Unless the proceedings are being conducted by a judge known to be predisposed against defendants, I cannot foresee how televising the proceedings would be of any benefit to defendants. On a personal level, however, I see merit in the position of both sides of the argument. In the Blanco Garcia case, I considered the camera as no more distracting than a 13th juror. While all trials are, to some extent, theater, as Roush predicted, my defense colleague Alberto Salvado, the prosecution and I did not engage in any more theatrics than usual. Yet a televised trial does demand additional effort from counsel because, unlike the 12 sworn jurors, the roving eye of the 13th juror remains in the courtroom at all times.
Perhaps it is time for a new set of legislative rules in Virginia for televising proceedings that would largely address the concerns of all stakeholders.
Cameras should be allowed to focus only on testifying witnesses, counsel and the judge. They should not be allowed to pan and show the reaction of audience members or to invade the space of trial counsel by zooming in on exhibits or computer displays on counsel table. Cameras should be turned off when the jury is not present in the courtroom so that inadmissible video evidence is not available to a deliberating jury. Civilian witnesses should be allowed to attempt to opt out from being recorded by video, and the media should have the burden of persuasion to the contrary upon showing the absence of negative personal consequences to such witnesses. The relatives and friends of the victim and of the defendant are not on trial and should be able to lead their lives unhindered by their images being displayed in perpetuity and to their detriment. The judge should retain discretion to prevent the televising of the defendant’s testimony when shown it could negatively affect the fairness of the proceedings. Pretrial proceedings should never be televised to reduce the chance of tainting the jury pool.
With a set of predictable and thoughtful rules for television coverage, maybe cameras in the courtroom can become “no more disruptive than that clock up on the wall.”
The writer is former co-chair of the Fairfax County Bar Criminal Practice Section and co-founder of the VADefenses Criminal Listserv for criminal defense attorneys in Virginia.