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Jewish World Review Dec. 24, 2002 / 19 Teves, 5763

Jonathan Turley

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The 13th juror | In Texas, justice is about to go prime time. Unless reversed by an appellate court, state Judge Ted Poe of Houston has agreed to allow the PBS show "Frontline" to film jury deliberations in the capital case of 17-year-old accused murderer Cedric Harrison. Though there is little question that it will make for good TV, it will hardly make for good justice.

In the age of "reality" TV, it was inevitable that filming jury deliberations and executions would become an increasing goal for producers. If tens of millions of viewers are willing to sit through weeks of insipid deliberations of whether to vote dingbats off an island in "Survivor," consider the viewership for deliberations to vote a human off the planet in a capital murder case. The judge could deliver the final verdict with the jurors gathered in the tense moment of truth: "We have decided to put your torch out, Cedric -- pending appeal to either the Supreme Court or network management." Filming of trials began with the 1935 Lindbergh trial, but jury deliberations have been treated as sacrosanct and secret for hundreds of years. The jury room is considered a unique space, protected from the influences of the outside world.

As captured in the classic 1957 film "Twelve Angry Men," it is a realm that often leads to difficult discussions that can reveal as much about individual jurors as the defendant. It is raw, spontaneous and at times heated, but it has proved unparalleled in its ability to mete out justice fairly and blindly.

Poe is not the first to confuse public entertainment with public justice. PBS filmed jury deliberations in 1986 in Wisconsin and, in 1997, CBS persuaded an Arizona judge to allow it to film four criminal trials. Last week, the Colorado Supreme Court has authorized filming of jury deliberations. Now, with Texas, it is clear that, absent legislation or a ruling to the contrary, we could see this most-protected area of the criminal justice system fall to the insatiable demand of reality television.

The dangers to our justice system are obvious and great. Jurors who are aware that they are being filmed may be less likely to voice their true sentiments or, in the worse cases, their doubts. In some cases, jurors may harbor racist, anti-Semitic or other forms of bias that can only be dealt with if brought into the open.

In a high-profile case, frank deliberations are even less likely. Faced with a highly unpopular defendant, jurors may be unwilling to be publicly seen as defending the accused. In such cases, the only hope for an unpopular defendant is that the secrecy of the deliberations will allow jurors to transcend the pressure for retribution and demand proof beyond a reasonable doubt for conviction.

None of this means that television is inherently opposed to the interests of justice. The Constitution contemplates that trials are public, and the addition of television is a valuable extension of public access. It allows a greater number of citizens to monitor the conduct of the state in prosecuting citizens in their name and can deter abuse by the government. However, in jury deliberations such review becomes the enemy and not the protector of fair justice by exposing jurors to public ridicule or backlash.

There are obviously many people with a good-faith interest in how jury deliberations operate. However, there is a library of actual deliberations -- from limited filming in past cases -- for study. Any remaining interest in filming seems less virtuous than it is vicarious.

>From live Internet sites to the Osbourne family, we have come to relish the position of the unseen interloper. We have now turned to our justice system for new exciting outlets.

Given past rulings, it is clear that we cannot rely on judges to resist the temptation of producing a made-for-TV trial. It will depend on citizens to stop this practice. Perhaps it is the ultimate test of the citizen couch potato: We can get up and stop this practice or just sit back and watch our justice system join the Osbournes and "Fear Factor" in our collective cultural de-evolution.

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JWR contributor Jonathan Turley is a law professor at George Washington, Law School. . Comment by clicking here.

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© 2002, Jonathan Turley