|Chandler v. Florida
[ Burger ]
[ Stewart ]
[ White ]
Chandler v. Florida
APPEAL FROM THE SUPREME COURT OF FLORIDA
JUSTICE STEWART concurring in the result.
Although concurring in the judgment, I cannot join the opinion of the Court, because I do not think the convictions in this case can be affirmed without overruling Estes v. Texas, 381 U.S. 532.
I believe now, as I believed in dissent then, that Estes announced a per se rule that the Fourteenth Amendment "prohibits all television cameras from a state courtroom whenever a criminal trial is in progress." Id. at 614; see also id. at 615 (WHITE, J., dissenting). Accordingly, rather than join what seems to me a wholly unsuccessful effort to distinguish that decision, I would now flatly overrule it.
While much was made in the various opinions in Estes of the technological improvements that might some day render television coverage of criminal trials less obtrusive, the restrictions on television in the Estes trial were not significantly different from those in the trial of these appellants. The opinion of the Court in Estes set out the limitations placed on cameras during that trial:
A booth had been constructed at the back of the courtroom which was painted to blend with the permanent structure of the room. It had an aperture to allow the lens of the cameras an unrestricted view of the courtroom. All television cameras and newsreel photographers were restricted to the area of the booth when shooting film or telecasting.
[L]ive telecasting was prohibited during a great portion of the actual trial. Only the opening and closing arguments of the State, the return of the jury's verdict [p584] and its receipt by the trial judge were carried live with sound. Although the order allowed videotapes of the entire proceeding without sound, the cameras operated only intermittently, recording various portions of the trial for broadcast on regularly scheduled newscasts later in the day and evening. At the request of the petitioner, the trial judge prohibited coverage of any kind, still or television, of the defense counsel during their summations to the jury.
Id. at 537 (footnote omitted).
In his concurring opinion, Justice Harlan also remarked upon the physical setting:
Some preliminary observations are in order: all would agree, I am sure, that, at its worst, television is capable of distorting the trial process so as to deprive it of fundamental fairness. Cables, kleig lights, interviews with the principal participants, commentary on their performances, "commercials" at frequent intervals, special wearing apparel and makeup for the trial participants -- certainly such things would not conduce to the sound administration of justice by any acceptable standard. But that is not the case before us. We must judge television as we find it in this trial -- relatively unobtrusive, with the cameras contained in a booth at the back of the courtroom.
Id. at 588 (emphasis added).
The constitutional violation perceived by the Estes Court did not, therefore, stem from physical disruption that might one day disappear with technological advances in television equipment. The violation inhered, rather, in the hypothesis that the mere presence of cameras and recording devices might have an effect on the trial participants prejudicial to the accused. [n1] See id. at 542-550 (opinion of the Court). [p585] And Justice Harlan sounded a note in his concurring opinion that is the central theme of the appellants here:
Courtroom television introduces into the conduct of a criminal trial the element of professional "showmanship," an extraneous influence whose subtle capacities for serious mischief in a case of this sort will not be underestimated by any lawyer experienced in the elusive imponderables of the trial arena.
Id. at 591.
It can accurately be asserted that television technology has advanced in the past 15 years, and that Americans are now much more familiar with that medium of communication. It does not follow, however, that the "subtle capacities for serious mischief" are today diminished, or that the "imponderables of the trial arena" are now less elusive.
The Court necessarily [n2] relies on the concurring opinion of Justice Harlan in its attempt to distinguish this case from Estes. It begins by noting that Justice Harlan limited his opinion "to a notorious criminal trial such as [the one in Estes]. . . ." Ante at 571 (emphasis of the Court). But the Court disregards Justice Harlan's concession that such a limitation may not be meaningful. [n3] Justice Harlan admitted [p586] that
it nay appear that no workable distinction can be drawn based on the type of case involved, or that the possibilities for prejudice [in a "run of the mill" case], though less severe, are nonetheless of constitutional proportions.
381 U.S. at 590. Finally, Justice Harlan stated unambiguously that he was "by no means prepared to say that the constitutional issue should ultimately turn upon the nature of the particular case involved." Ibid. [n4]
The Court in Estes found the admittedly unobtrusive presence of television cameras in a criminal trial to be inherently prejudicial, and thus violative of due process of law. Today, the Court reaches precisely the opposite conclusion. I have no great trouble in agreeing with the Court today, but I would acknowledge our square departure from precedent.
1. Certain aspects of the Estes trial made that case an even easier one than this one in which to find no substantial threat to a fair trial. For example, the jurors in Estes were sequestered day and night, from the first day of the trial until it ended. The jurors in the present case were not sequestered at all. Aside from a court-monitored opportunity for the jurors to watch election returns, the Estes jurors were not permitted to watch television at any time during the trial. In contrast, the jurors in the present case were left free to watch the evening news programs -- and to look for a glimpse of themselves while watching replays of the prosecution's most critical evidence.
2. The Court today concedes that Justice Clark's opinion for the Court in Estes announced a per se rule; that the concurring opinion of Chief Justice Warren, joined by Justices Douglas and Goldberg, pointed to "the inherent prejudice of televised criminal trials"; and that the dissenting Justices objected to the announcement of a per se rule, ante at 570, 572.
3. The Court also seems to disregard its own description of the trial of the appellants, a description that suggests that the trial was a "notorious" one, at least in the local community. The Court's description notes that
several aspects of the case distinguish it from a routine burglary . . . [and,] [n]ot surprisingly, these novel factors attracted the attention of the media.
Ante at 567. Indeed, the Court's account confirms the wisdom of Justice Harlan's concession that a per se rule limited only to cases with high public interest may not be workable.
4. The fact is, of course, that a "run of the mill" trial -- of a civil suit to quiet title, or upon a "routine burglary" charge for example -- would hardly attract the cameras of public television. By the same token, the very televising of a trial serves to make that trial a "notorious" or "heavily publicized" one.