On the last day of arguments in every argument week, the Supreme Court of Virginia hands down opinions in the cases argued during the prior session. Today was such a day, and the Court handed down several significant decisions. We recommend Steve Emmert’s Virginia Appeals blawg if you want a rundown of each of them. Here, we’ll cover the SCV’s important ruling in an appeal by broadcasters challenging a trial court’s exclusion of cameras from criminal proceedings.
In 2012, George Huguely was convicted of murdering his former girlfriend and a fellow UVA student, Yeardley Love. The case was high profile, and local media took an interest, requesting that the trial court (Charlottesville Circuit Court) allow it to record and broadcast first the trial, then the sentencing hearing.
The statute that governs cameras in the courtroom in criminal proceedings is Va. Code 19.2-266, which provides, in pertinent part:
In the trial of all criminal cases, whether the same be felony or misdemeanor cases, the court may, in its discretion, exclude from the trial any persons whose presence would impair the conduct of a fair trial, provided that the right of the accused to a public trial shall not be violated.
A court may solely in its discretion permit the taking of photographs in the courtroom during the progress of judicial proceedings and the broadcasting of judicial proceedings by radio or television and the use of electronic or photographic means for the perpetuation of the record or parts thereof in criminal and in civil cases, but only in accordance with the rules set forth hereunder.
1. The presiding judge shall at all times have authority to prohibit, interrupt or terminate electronic media and still photography coverage of public judicial proceedings. The presiding judge shall advise the parties of such coverage in advance of the proceedings and allow the parties to object thereto. For good cause shown, the presiding judge may prohibit coverage in any case and may restrict coverage as he deems appropriate to meet the ends of justice.
Both sides in this criminal case opposed cameras: “The Commonwealth argued that the cameras would have a detrimental impact on any witnesses testifying at the sentencing hearing. Huguely [the Defendant] also argued that having a camera in the courtroom and live coverage of the hearing would have a negative impact on the proceedings, and could influence the testimony of certain witnesses.”
The broadcasters argued primarily that there had to be “good cause” to exclude cameras and that the parties had failed to show such a reason. (The broadcasters advanced a constitutional right to broadcast too, but abandoned that argument on appeal.)
The trial court denied the request for cameras at both the trial and the sentencing hearing, “explain[ing] that it was concerned about the effect of cameras on the witnesses at the sentencing hearing and the effect of coverage on potential witnesses and jurors in a pending civil suit that Love’s family had filed against Huguely.”
Even leaving aside the deferential standard (see below), the Supreme Court of Virginia is not where you would expect broadcasters to prevail on a cameras in the courtroom request. After all, as we’ve highlighted before, the SCV, which does not have to worry about witnesses at all, not only prohibits cameras but keeps its own audio recordings secret and does not even allow for there to be a written transcript of its proceedings. Indeed, it strikes us as bordering on foolish for the broadcasters to have brought this appeal. If the broadcasters hoped for a ray of sunshine somewhere in this ruling, they didn’t get it.
The SCV first discusses the lack of clarity in the above statute. The SCV concludes that a trial court’s decision whether to permit cameras is a fully discretionary one – no “good cause” required. Only if a trial court first permits cameras must there be good cause to exclude them. And for those hoping to appeal, although the SCV does not take the most extreme reading of the statute (as not even allowing an appeal of a trial court’s cameras decision), the SCV’s ruling on the standard of decision in and of itself is devastating – abuse of discretion is a very lenient standard.
The SCV then turns to the trial court’s decision in this case and finds that it was ample. The Supreme Court of the United States noted in a recent case (Hollingsworth v. Perry, 130 S.Ct. 705 (2010)), that cameras can influence witnesses, as the trial court here worried, and the SCV says that’s a valid reason to exclude cameras.
But the SCV doesn’t stop there – the SCV also rules that there does not need to be any evidence supporting the trial court’s reason for barring cameras (in this case, anything to support its worry about witness influence). Indeed, the SCV goes so far as to say: “the trial court is not required to explain its reasons for denying a request.” That’s right – Virginia’s highest appellate court says that trial courts can forego even giving a reason for their decision to bar cameras. (This is not normally the case – for obvious reasons pertinent both to judicial legitimacy and to proper functioning of the judicial system, you usually don’t expect an appellate court to give blanket approval to trial courts to hide the ball on their reasoning.)
Our view is that the SCV’s ruling, while devoid of any obvious legal error, is extreme and plainly hostile to cameras in the courtroom. Make no mistake: judicial transparency and the public’s access to court proceedings take serious blows in this case. About the only consolation in the SCV’s ruling is that it gives media a big target to shoot at when trying to persuade legislators to create a more lenient rule governing courtroom access and reporting in the future.