Jim Halsey Co., Inc. v. Bonar

David Newbern, Justice, dissenting. Rehearing should be granted. I was uncomfortable form the outset with the approach taken by our decision on the point of courtroom television. The essence of our opinion was that it was not reversible error to allow television photography in the courtroom after a timely objection but that it should never again be allowed. While I can appreciate an opinion which warns we may someday change a rule, I cannot appreciate an opinion saying we may someday enforce a rule.

The petition for rehearing made me wish I had dissented to the opinion. The petition correctly points out that a lawyer ought not be required to object more than once to a clear prospective violation of a rule, especially when the rule says a timely objection is all that is required. I am troubled by the fact that the colloquy between counsel and the court which was the entire basis of the appellant’s argument on this point was not abstracted. However, as the objection and the court’s ruling are recounted in the arguments in both parties’ briefs, as well as in our opinion, I will not be dissuaded by that lapse from expressing my concern.

According to the briefs of both parties, counsel for the appellant objected on the morning the trial began to having the trial televised. Rather than keep the trial from being televised, the judge invited counsel to object again if the cameras became distracting.

The original modification of Canon 3(A)(7) of the Code of Judicial Conduct permitted broadcasting and photographing certain court proceedings upon written consent of all participating attorneys, parties and witnesses. Re: Petition of Arkansas Bar Association, 271 Ark. 358 , 609 S.W.2d 28 (1980). The Canon was modified again to permit these activities unless there is "an objection timely made by a party or attorney. ...” The sole reason given for this modification was that it was "too burdensome to the trial court and to the interested people to require written consent.” Re: Modification of the Code of Judicial Conduct Relating to Broadcasting 6- Photographing Court Proceedings, 275 Ark. 495 , 628 S.W.2d 573 (1982). As this change was made solely to solve the administrative problem mentioned, it did nothing to alter the spirit of the previous per curiam order on the subject which was very protective of trial participants while attempting also to secure the rights and needs of the press and the public.

The majority seems satisfied with the fact that our opinion gives a warning to trial judges that we will not permit them to admit television cameras over objection in the future. How many times must we give that warning? In Ford v. State, 276 Ark. 98 , 633 S.W.2d 3 (1982), a criminal case, we said,

Canon 3(A)(7) of the Code of Judicial Conduct prevents cameras in the courtroom without the consent of the accused.. . . Our rule has been somewhat relaxed since the date of this trial. The rule was not placed into effect to be ignored by the courts.

A willful disobedience of this Canon would, no doubt, be dealt with in an appropriate manner which could go so far as to cause a retrial of the case or result in other action by this court. ( 276 Ark. at 111-112 ; 663 S.W.2d at 11)

We went to the trouble of expressing our feelings that strongly in a case in which no objection was made until the trial was over except for the sentencing phase. We should be much more concerned here where the objection was indeed timely, but all we do is issue another warning.

The supplemental opinion of the majority points out that the case has been tried and a result reached which we should not overturn because the “time and expense for all parties and the court system” would be unjustified. The appellant’s position is ignored in this assessment. If we refused to reverse because of those considerations, the need for this court would vanish.

In our original opinion we said the appellant’s counsel had acquiesced in the ruling of the court. The next sentence said “[i]n this instance the error was rendered harmless.” In the supplemental opinion the majority seems to be saying the appellant must demonstrate “prejudice.” The shift in rationale is subtle but needs to be dealt with.

A litigant denied a public trial need show no prejudice for reversal. Sirratt v. State, 240 Ark. 47 , 398 S.W.2d 63 (1966). See also Taylor v. State, 284 Ark. 103 , 679 S. W.2d 797 (1984). Neither should a litigant who has objected to cameras in the courtroom have to show prejudice. Counsel, having made an objection, should not be put in the position of having constantly to observe for distractions caused to jurors, witnesses and the court by the presence of television cameras. Counsel should be allowed to devote his or her entire effort to the presentation of the client’s case. The record here showed that jurors watched news reports of the trial. We cannot know what prejudice may have been caused. The point is that the rule requires automatic exclusion upon objection so that counsel will not later be placed in the position of finding and urging “prejudice” which is so obviously elusive in this context.

In KARK-TV Channel 4, Inc. v. Lofton, 277 Ark. 228 , 640 S.W.2d 798 (1982), we expressed the balance struck by the U.S. Supreme Court, an followed by us, between the protection of litigants and the judicial system vis a vis the protection of the rights of the press and public to information generated by trials. I believe the path has been well charted, and I do not believe we should vary from it. If we do, it should be by consciously taking a new direction and not through the odious process of erosion which will result from violations, warnings and then more violations and more warnings.

I respectfully dissent from the refusal to grant rehearing. I would grant rehearing and remand for a new trial.

Dudley and Purtle, JJ., join in this dissent.