Earl Warren: Number 256, Billie Sol Estes, petitioner versus Texas. Mr. Cofer.
John D. Cofer: May it please Your Honor and members of the Court. The Estes case is a case which has given rise to consideration for this Court a very important question. The few times I've been before this Court, I always feel humbled. If Plutarch said, great men must be born in famous cities and maybe enough lawyers must have famous clients and so my claim gentlemen is possibly my famous client. Mr. Estes was indicted in the state court on a three-count indictment and he was convicted of swindling. The effect of the charge was that he had induced a farmer to sign a note and he was paid, the farmer was 10% of what proceeded from the note would realize for signing that and that Mr. Estes by misrepresentations that secured possession of that instrument which was property on the facts it was not a particularly strong case as presented in courts. The important thing and the thing that this Court is interested in and has limited its review is this matter of photography and TV in the courtroom and the standards as expressed by Canon 35 and the standards which have been recognized in the federal courts in Rule 53. The briefs of the state present the natural question. Well they took his picture in the courtroom, so what? Why make a federal case out of it and when I say that I use it in a slang meaning that the dictionary of slang says hold the emphasis that judiciary code says invasion of a federal right makes a federal case. When counsel read in the paper that it was contemplated that this case would be televised, counsel didn't feel that they could bring their client into the courtroom to answer the charges against him. They asked permission of the Court to appear without their counsel to protest the TV. Certainly, it would --
William J. Brennan, Jr.: The preliminary hearing (Voice Overlap)
John D. Cofer: I beg your pardon.
William J. Brennan, Jr.: This was at the preliminary hearing?
John D. Cofer: This was when the case was called for trial.
William J. Brennan, Jr.: Well do I understand though that on this record, something happened for two days in September --
John D. Cofer: Yes.
William J. Brennan, Jr.: -- and there was a continuance until October?
John D. Cofer: Yes, yes sir. The case was called to trial and the case was continued. What I had reference to Your Honor was that when he -- his case has said the defendant is under bond, he has to appear in court. This defendant was unwilling to appear in court because of the television vans in front of the courthouse because he was to be publicized to the world as a man who stole $20 million. Defendant's due process should include it seems to me the right of the defendant to appear in court and answer to the charges and that those things that interfere with and in the opinion of his counsel would injure him in his appearance, raise serious questions of invasion of the defendant's rights. We must remember that a defendant is presumed to be innocent and he may not Your Honors be treated as if he were guilty. He doesn't become a public character whose picture can be broadcast to the world. He stands just as the ordinary citizen, the right to sit in his home and not have photographers come and take his picture. The right to go to business and not to have them come in his office, the right as an innocent man to appear in court and not have his suit that he wears, his shoes that he wears publicized to the entire world and those things which bear no reasonable relation to the determination of his innocence or his guilt are not a legitimate part of the judicial process.
Hugo L. Black: Do you have a description?
John D. Cofer: I beg your pardon?
Hugo L. Black: Have you given a description [Inaudible]
John D. Cofer: Yes Your Honor, I was going to get that, yes sir. At the first trial, of course it was room travesty, there were some 10 or 12 cameras that were mounted on high tables and pictures show in the record of just exactly what the courtroom scene was.
Speaker: [Inaudible]
John D. Cofer: That was a hearing on the motion for continuance and the hearings of certain motions to quash and certain legal problems. That lasted for two days. Every bit of that was televised. It was rebroadcast on the tape which is part of the record on a two-hour broadcast and sponsored by soft drinks, soap and things of that kind.
Speaker: Was it before the jury?
John D. Cofer: I beg your pardon sir?
Speaker: Was it before the jury?
John D. Cofer: No the jury had been -- certain jurors had been called but those jurors were excused and the panel was not selected out of those jurors. The jurors who actually served as I remembered --
Earl Warren: There's a jury panel at the time this occurred, that you just told us about?
John D. Cofer: Yes sir, yes sir.
Earl Warren: It was impaneled?
John D. Cofer: No, not the jury was paneled. There was a jury paneled there, if we had gone to trial it would have been impaneled but we didn't' go to trial.
William J. Brennan, Jr.: [Inaudible]
John D. Cofer: That's right.
William J. Brennan, Jr.: [Inaudible]
John D. Cofer: That's right.
William J. Brennan, Jr.: To protect the jurors.
John D. Cofer: Yes but they were excused. Other panel -- another panel was drawn a month later.
Tom C. Clark: Why were they excused?
John D. Cofer: I beg your pardon sir?
Tom C. Clark: Why were they excused?
John D. Cofer: Well it's a practice in Texas that for each -- when a case is called a panel is called, and then if the cases don't go to trial that week, that panel is excused and a new panel is called for succeeding weeks.
Tom C. Clark: That had nothing to do with the --
John D. Cofer: No, it had nothing to do. They weren't excused for prejudice or anything of that kind.
Tom C. Clark: Yes.
Speaker: So if I get it correctly the venire that is, the second venire from which the trial jury was chosen, it was not in the courtroom at the time of this preliminary television.
John D. Cofer: That is true, a number of them have seen the proceedings on television Your Honor, the two-hour broadcast and some of them had actually seen it live and televised. Those that had -- sir, of course from the standpoint (Voice Overlap) of prejudice in this case which I'm not sure is part of what the Court had granted. Nine jurors in this case said they had an opinion as to the guilt of the defendant, but they said they could put it aside, nine who actually served but they said they could put it aside and call [Inaudible]
Tom C. Clark: [Inaudible] and the TV?
John D. Cofer: I beg your pardon sir?
Tom C. Clark: They had an opinion aside from the TV?
John D. Cofer: That's right. Well (Voice Overlap) based on TV, it's based on newspaper publicity. It was based on all those things. On the Billie Sol Estes jokes, on the Ballads of Billie Sol, different things of the record reflects that these people had heard and had formed opinions of it.
Arthur J. Goldberg: Mr. Cofer can I -- would you correct me if I'm wrong. I'm trying to get the sequence of this in mind. Am I correct that the case was called for trial on September 24, 1962?
John D. Cofer: That's right.
Arthur J. Goldberg: And prior to calling the case for trial, the defendant through his lawyers, presented the motion that telecasting and broadcasting by radio and photographing the trial be not permitted?
John D. Cofer: That's correct sir.
Arthur J. Goldberg: And then there was a two-day period?
John D. Cofer: Hearing.
Arthur J. Goldberg: And those are the two days you're now referring to which were telecast and broadcast and there was present a venire there --
John D. Cofer: Yes sir.
Arthur J. Goldberg: -– which however was never utilized because the defense asked for a continuance.
John D. Cofer: That's right.
Arthur J. Goldberg: And because of the absence of certain witnesses?
John D. Cofer: That's right.
Arthur J. Goldberg: And the case after the two days, the case was reset for trial for October 22nd. Is that correct?
John D. Cofer: That's correct.
Arthur J. Goldberg: And what you have now described is the two days that took place where motions were being argued --
John D. Cofer: That's right.
Arthur J. Goldberg: And that was all televised and broadcast, the arguments of counsel, whatever took place.
John D. Cofer: That's right.
Arthur J. Goldberg: And now would you be able to tell us the sequence then what happened in October when the case was then called for trial?
John D. Cofer: Well prior to then -- to the October trial when the case was -- actually the trial the court issued release to press in which he defined the rules and the television was confined to a booth in the rear of the courtroom. It was a special built booth. The color of the plywood walls was approximately the color of the courtroom. There was a space about that, a foot-and-a-half wide, that some three to six cameras protruded. There were directional mics, there -- people with silent cameras were permitted to stay in the courtroom and if they took no flashlights were permitted to take the pictures during the trial. They actually didn't broadcast the testimony of the interrogation of the jurors and picking the venire or the witnesses, because it was -- an effort was honestly made that witnesses outside the courtroom wouldn't know what the witnesses in the courtroom and as all witnesses were under rule had testified to, then each night wide, well during the day and during the trial were these scenes broadcast and --
William J. Brennan, Jr.: [Inaudible] the fact that they didn't have a live telecast while a witness was on the stand.
John D. Cofer: Yes sir.
William J. Brennan, Jr.: But nevertheless was the witnesses' testimony being recorded from that booth in the rear of the courtroom that the model showed.
John D. Cofer: I believe the record shows it was but it wasn't being broadcast out.
William J. Brennan, Jr.: It wasn't live broadcast (Voice Overlap)
John D. Cofer: Yes sir.
Potter Stewart: But was the witness or was -- what was taken in the way of a tape of any witness testimony was that later broadcast?
John D. Cofer: Yes it was monitored and then broadcast out.
William J. Brennan, Jr.: At what, news programs and that sort of --
John D. Cofer: But not direct from the courtroom.
Hugo L. Black: By who?
John D. Cofer: Well, by the radio company, radio --
William J. Brennan, Jr.: Not by counsel.
John D. Cofer: No, there was -- oh no, not by counsel, no. Not by anybody who had taken an oath Your Honor and I might as well say that the press, this idea that their right to be present even in this Court and to take pictures. Suppose the press was required to hold up their right hand and say, “we swear that we will truthfully report the truth and the whole truth and nothing but the truth of this trial,” we would have hell to high heaven on the First Amendment of the Constitution and it's the lack of juridical legitimacy that makes the press irresponsible from the legal standpoint, that makes the TV irresponsible. They have no judicial function to perform because all of us are under oaths, the reporter is under oath. Everything a person has something to do puts an oath, but the First Amendment says, these people can report what occurs. The defendant is not entitled even to a fair reporting, not even an honest reporting of his case.
Potter Stewart: Well what you're saying now applies to journalist generally.
John D. Cofer: Oh, it applies to all of them.
Potter Stewart: In fact there is more to journalism than does to what happened here because here was at least a -- it couldn't be a -- an accurate portrayal of what actually went on and there was no room for misreporting here, wasn't it?
John D. Cofer: That's right. It didn't -- they have a model, here it is, right at the back of it. This typifies Your Honor, I saw it for the first time yesterday, it typifies TV because it idealizes the courtroom scene and TV attempts to do that. For example, I notice the counsel at the table representing the defendant. As it happened, all three of the counsels were decidedly bald. This gives them all three a very beautiful head of hair and I suppose that's TV's on the stateside here that well you should have a fine head of hair, at least they make a better image on television.
Earl Warren: I don't get your illusion to the bald-headedness in the --
John D. Cofer: I beg your pardon sir.
Earl Warren: I don't get your illusion to the bald-headedness and the hair, did they put hair on the --
John D. Cofer: No sir. In this model Your Honor, that is before the Court here.
Earl Warren: What does that has got to do with bald heads?
John D. Cofer: Well I just [Attempt to Laughter] my only point was that Your Honor and perhaps it was not particularly well taken, was that television has a tendency to idealize the courtroom. For example it has been suggested that it'd be a great thing that this Court could have its proceedings televised, but Your Honors couldn't wear black robes because it's notorious. That black creates a very poor image in television. You would have to wear blue robes.
Hugo L. Black: Your argument now that is all televisions would be held unconstitutional to have television in any court is that what you're saying -- telling me?
John D. Cofer: Your Honor I'm just slightly --
Hugo L. Black: Yes, I'm sorry. I don't understand the length of your argument. Are you arguing that if we would have television in this Court or that have television in any other courts that it's unconstitutional, the Constitution forbids it?
John D. Cofer: Your Honor I --
Hugo L. Black: You're going that far that's what I meant.
John D. Cofer: No sir. My point is that in a trial court, any procedure which doesn't by some reasonable relation to termination of a guilt or innocence of the accused is a matter which the defendant has the right to object to.
Hugo L. Black: You were saying and the defendant has a right --
John D. Cofer: That's right.
Hugo L. Black: -- to object and it would be unconstitutional to permit television over his objection?
John D. Cofer: That's my point exactly.
Hugo L. Black: That is your point.
John D. Cofer: Yes sir. I don't think that if he didn't object that is necessary, it could become fundamental error as in Rideau versus Louisiana. Why it was so -- such a terrible travesty on justice and your -- this Court granted it, but I don't say this is a Rideau case. I say that the defendant makes the objection. Now who has a right to make that decision? It is suggested by the state that we do it by experiment, that we go through a system of experiments and determine whether or not television actually causes prejudice. Gentlemen, Your Honors, in deciding what should be done in his client's case, the attorney for the defendant's opinion is supreme. It transcribes even the rights of the Court itself because he has a responsibility of determining whether this is going to damage his client's case and my clients Your Honor are not going to be if I can help it, the victims of an empirical decision on the use of television.
Potter Stewart: Mr. Cofer do you think a lawyer for a defendant in criminal case could keep a newspaperman out of the courtroom?
John D. Cofer: Oh no sir, no sir.
Potter Stewart: You just told us that his decision is paramount, paramount to everything else.
John D. Cofer: No sir. Your Honor --
Potter Stewart: Why not, if what you told us is --
John D. Cofer: Your Honor, I have some very definite ideas on that. I don't think the right of free speech and I will also address my margin to the senior justice, where the right of press is hard and right to a fair trial. I believe that the purpose of free speech and free press is to ensure a fair trial and it's as just as Professor Charles Black said, it's a question of the school of the particular right.
Potter Stewart: Well then (Voice Overlap) you do think that if a defendant's lawyer if he objected to keep the newspaper man out of the courtroom during a trial?
John D. Cofer: He can't prevent under the First Amendment the right of the people to know so that they can talk about the trial. The right to know is part of the right of free speech and the lawyer has no right to rule out the public and though the Constitution guarantees it and that I don't contend that the right to a public trial was not part of the general public's right to come in and watch the trial. The defendants criticize --
Potter Stewart: Well, I still don't -- I'm not sure that I understand the answer to your question if you've given it to me. You just -- you told us a few minutes ago that the decision of defense counsel is paramount to everything else in a criminal case. Now if defense counsel thought that it would help his client's cause to exclude all newspaper men from the trial, would that -- would his objection in your judgment prevail over everything else?
John D. Cofer: I don't think so Your Honor because I don't think that his objection would be based upon reasonable grounds and as we brief this question, the right to object, we say that defendant's right to object in this case is based upon certain reasonable grounds which we outline some seven of them and I think they must be reasonable grounds. Your Honor, it has been held that the defendant can demand a closed trial, but I am rather -- feel and I felt even before Singer versus United States has reason to say that that's not a right of the defendant to demand that he had a closed trial. I don't think of that, so I don't argue with that, but I do say that these techniques of reporting which in the opinion of the lawyer interferes with fair trial and what are these things? In the first place, it lowers the dignity of the courtroom, the use of the television. But after all, dignity doesn't -- there's nothing in the Constitution that says the Court has to be dignified, at least I don't remember it in one of the first ten Amendments or in the Fourteenth Amendment. There is nothing in that, that says you can't take pictures and not even ten times, I guess they knew about ten times from the Constitution, but what is it that makes this part of due process? The defendants say that they disagree with the statement that has been made by in an article by a member of this Court, that the limitation of a public trial, so as to prevent the highest and largest number of people to hear it and see it that if that position is taken, they disagree with the justice.
Speaker: Could I ask you a couple of factual questions?
John D. Cofer: Yes sir.
Speaker: Am I correct in understanding that the trial proper, the one that began in October, there's television boxes in the courtroom during the whole trial, is that right?
John D. Cofer: Yes sir (Voice Overlap)
Speaker: I understand that I just want to ask you a couple of questions and was operating during the whole trial?
John D. Cofer: Yes sir.
Speaker: And the complete videotape taken of the entire trial proceeding?
John D. Cofer: Yes sir, the record shows that.
Speaker: Alright. Now the second thing I wanted to ask you was that videotape was shown at least in part, did you say monitored by television companies after the trial, isn't it?
John D. Cofer: That's right.
Speaker: I beg your pardon?
John D. Cofer: That's right and it was sent out part of the time during the trial.
Speaker: Part of the time during the trial.
John D. Cofer: Yes sir.
Speaker: But there was no live broadcasting during the course of the trial?
John D. Cofer: If you mean by live voices going out over at the time from the witnesses themselves, it was not.
Speaker: Now –-
John D. Cofer: No sir. The problem here was that the lawyers had the feeling that this taking the pictures back there behind them was detracting them from the trial. Now the state has filed affidavits of every member of the juror in this case and we've made no objection that it didn't interfere with them in trying this case and I read those affidavits of interest. The -- well the significant thing about one of the affidavits was that they said that the thing that really interfered with the trial was Mr. Cofer, the attorney for the defendant continually objecting to what was going on and making them go out so that they couldn't see and hear but [Inaudible] the trial.
Earl Warren: Couldn't see and hear what?
John D. Cofer: I beg your pardon?
Earl Warren: They couldn't see and hear what?
John D. Cofer: What was going on at the trial because I would have the jury moved while I was making the objection so this juror sent this affidavit. Now it seems from that, that the television or something was so affecting counsel in the defense of his client, that he is making a very poor impression from the jury.
Earl Warren: Mr. Cofer, you -- you didn't answer Mr. Justice Clark's question. You said that the -- there was no live broadcast from the courtroom during this trial.
John D. Cofer: No words broadcast.
Earl Warren: Yes. Now Mr. Justice Clark asked you the question when was it broadcast and how?
John D. Cofer: Well at the preliminary hearing, it was fully brought --
Earl Warren: Nobody is talking about --
John D. Cofer: About the trial.
Earl Warren: About the trial, trial itself.
John D. Cofer: Alright, then it was -- the arguments were broadcast to the jury, except at the request of the defendant, the defendant's pictures were -- the lawyer's pictures were taken, but what they were saying was not broadcast. We objected to our argument being broadcast.
Tom C. Clark: Did all of them broadcast since the argument?
John D. Cofer: Was that all that was --
Tom C. Clark: All that was broadcast.
John D. Cofer: No the jury verdict as in the Rideau case was broadcast.
Tom C. Clark: Were the testimony of the witnesses broadcast?
John D. Cofer: The testimony of the witness themselves were not broadcast.
Tom C. Clark: All that was broadcast was the argument and the verdict.
John D. Cofer: The argument and the verdict and the selection of the jurors in the beginning, but not what the juror said.
William J. Brennan, Jr.: I thought you said the argument was not broadcast?
John D. Cofer: The argument was broadcast except the defendant's arguments were not.
William J. Brennan, Jr.: You mean the base argument was broadcast.
John D. Cofer: Was broadcast, yes sir.
William J. Brennan, Jr.: But nothing with the defendants [Inaudible] (Voice Overlap)
John D. Cofer: No, though it placed the defendant somewhat at disadvantage Your Honor, that only their backs and that the only way they could get in on the show was to turn around and look at the camera and which I endeavored very carefully not to do.
William J. Brennan, Jr.: Mr. Cofer may I get one thing clear?
John D. Cofer: Yes sir.
William J. Brennan, Jr.: Was or was not the whole of this trial filmed?
John D. Cofer: Yes sir.
William J. Brennan, Jr.: Was or was not a audio taken of the whole film, that is was sound taken of the whole of the trial?
John D. Cofer: I think the record shows that it was taken by radio, but not transmitted.
Byron R. White: But was the sound recorded so that on a delayed broadcast, the television --
John D. Cofer: May I confer with my counsel on that for a moment? It was recorded unavailable for rebroadcast --
Byron R. White: For a delayed broadcast or a rebroadcast for a news event at night, they could put on both the --
John D. Cofer: That's right.
Byron R. White: -– both the pictures and the sound.
John D. Cofer: And what was said.
Byron R. White: And did that?
John D. Cofer: The record doesn't disclose it sir.
Byron R. White: Well it does show that there were some spot news broadcast during the trial?
John D. Cofer: That's right.
Byron R. White: Did that include both pictures and sound?
John D. Cofer: Not during the actual progress of the trial.
Byron R. White: Oh I understand it wasn't simultaneously broadcast --
John D. Cofer: Yes sir but later did, yes, later did.
Byron R. White: Say that night after a day of trial they got a news item that they put on the photograph and the sound.
John D. Cofer: The record doesn't show that Your Honor and I wouldn't say -- personally, I didn't watch them. I got enough in the courtrooms so -- I didn't even speak from outside the record on that.
William J. Brennan, Jr.: May I ask this Mr. Cofer?
John D. Cofer: Yes sir.
William J. Brennan, Jr.: Is your constitutional claim of the denial of a fair trial, dependent of what went out on outside of the courtroom or the -- does it rest at least alternatively on the simple proposition that what happened in the courtroom itself prejudiced a fair trial.
John D. Cofer: Yes sir. My claim is not alternative. It's mainly that what went on in the courtroom interfered with the lawyers getting an adequate defense to their client.
William J. Brennan, Jr.: And is it entirely that that, what you told us went on in the courtroom, the filming from this thing in the back of the courtroom.
John D. Cofer: No sir. I say that the fact that it goes out calculates to prejudice the defendant's case outside the courtroom.
Hugo L. Black: But I understood you to say that the record does not show that any part of it was broadcast so that the public could hear and see it during the time of the trial. Is that right?
John D. Cofer: Yes sir, yes sir. Actually, nothing of what was said the pictures were broadcast, but nothing what was said.
Hugo L. Black: Pictures?
John D. Cofer: Yes sir. That is the -- not the very words but the picture was broadcast.
Earl Warren: In other words, everything but the sound?
John D. Cofer: That's right.
Earl Warren: Everything that went on at that trial with the exception of the sound was monitored and sent out from night to night as the trial proceeds. Is that correct?
John D. Cofer: That's correct, yes sir.
Byron R. White: Well I understand you told me that the sound was also monitored?
John D. Cofer: It was monitored so it could be sent out later.
Byron R. White: Yes, yes, the sound along with the picture.
John D. Cofer: Yes sir and just one radio station was permitted to take it but he had to make it available to all of them.
Arthur J. Goldberg: Mr. Cofer, I think we're getting all of this confused about the facts here. There's a bill of exceptions in the record --
John D. Cofer: Yes sir.
Arthur J. Goldberg: Which was induced in writing by you.
John D. Cofer: Yes sir.
Arthur J. Goldberg: Counsel for the defendant. It appears at page 18, 19, 20 and 21.
John D. Cofer: Yes sir and it has certain qualifications for the judge.
Arthur J. Goldberg: Yes. Now is this correct? This bill of exception says the following and I'll try to summarize it and you correct me if I'm wrong. That live telecasting and radio broadcasting were not permitted except for the argument of the state counsel. You objected to your argument being broadcast so that was not -- and except for the return of the verdict, that pictures were taken from the booth of the whole trial. That at the news releases of the evenings of the trial, not the whole trial, but pictures were shown without sound of witnesses testifying.
John D. Cofer: Yes sir.
Arthur J. Goldberg: Is that correct?
John D. Cofer: Yes sir.
Arthur J. Goldberg: And that photographs were permitted providing that they could be done without bonds.
John D. Cofer: That's right.
Arthur J. Goldberg: Is that correct?
John D. Cofer: That's right.
Arthur J. Goldberg: And this does not indicate, this bill of exceptions, that at any time during the trial, any sound by radio or television, any sound as distinguished from pictures, any sound by radio or television of the trial went on the air. There were however interviews by radio in a room off the courtroom which were used. Is that correct?
John D. Cofer: Yes sir.
Arthur J. Goldberg: Have I summarized fairly what --
John D. Cofer: That's correct Your Honor.
Arthur J. Goldberg: And that appears in the record and that is certified to as an accurate --
John D. Cofer: Now if I could say right, one that deter of something that was asked over here of my position. It's not my position that we have to sustain actual prejudice in this case Your Honor. I say that the possibility of prejudice is the thing that denies the defendant the fair trial.
Speaker: [Inaudible]
John D. Cofer: Your Honor, I will have to ask you to ask that question again.
Speaker: I want to know whether the witnesses who testified in the courtroom, knew that there -- what they were testifying to and how they looked was being recorded on videotape.
John D. Cofer: I don't think the record reflects that Your Honor except that they could see the --
Speaker: Was there special lighting in the courtroom?
John D. Cofer: No. It was taken from this booth in the booth without special lighting.
Speaker: Without special lighting.
John D. Cofer: Yes sir.
Earl Warren: Was it announced in the order beforehand that, that would be done?
John D. Cofer: Yes but not to the witnesses Your Honor.
Earl Warren: Didn't the public know -- didn't the public and everybody know about that and couldn't they see it in the courtroom?
John D. Cofer: Oh yes, they could see it and read it in paper.
Earl Warren: Alright. Now there's one other thing that I still don't understand from your answer to Mr. Justice Goldwine, Goldberg, excuse me.[Laughter]
Earl Warren: The matter is was the voice of the prosecuting attorney taken in his closing argument, broadcast to the public?
John D. Cofer: Yes sir. Yes sir it was.
Earl Warren: Alright.
John D. Cofer: And the only way --
Earl Warren: That's the part of the trial court.
John D. Cofer: Yes sir.
Earl Warren: But you said a little while ago that no part of the trial (Voice Overlap) was sound.
John D. Cofer: I did it inadvertently then Your Honor if I said that because they did take the argument.
Earl Warren: Yes.
John D. Cofer: And we had thought that the ruling was that they were not even going to take our picture and I wouldn't have known they took the picture if I hadn't seen it in the national magazine, the back of my head, but evidently they were taking the picture because I recognized.
William J. Brennan, Jr.: [Inaudible]
John D. Cofer: No.
William J. Brennan, Jr.: [Inaudible] go home at night.
John D. Cofer: No they were not permitted to go home at night. Now --
William J. Brennan, Jr.: [Inaudible] during the trial?
John D. Cofer: That's right. Now there again Your Honor, I want to bring Your Honors back to our position that it is not actual prejudice but if you're going to adopt a rule of procedure permitting television then you're going to have to say all juries must be impounded or they'll watch television. So are we going to adopt the rule in Texas and Colorado, the rule in Texas and Colorado and apply it to federal courts and to all the other 48 states of the union and say, you've got to lock your juries up because they might watch television. So it's not exactly lock. Your Honor, one of the things that affects the fairness of the trial is the attitude with which the lawyer approaches it. I know as early as 1951, Judge Arnold wrote an article in Atlantic Monthly in which he watched the Costello hearing and he said that public trial doesn't mean that the trail can be used as an instrument for publicity. That idea has been the idea of making a theater out of the courtroom, there were also things that deny a fair trial that you can't demonstrate to actual prejudice. For example, I spoke of robes, courts, as a matter of judicial rules, wear robes but suppose the judge doesn't wear the robe, can I say well he has denied a due process. The judge didn't wear a robe. The Court was open with a prayer. Suppose they don't open the courtroom with a prayer. Have I been denied due process? I don't think so, but those things which affect the defendant's idea and his counsel idea that this man's basic rights of innocence are being violated in that he is being published throughout the world as a guilty man and --
Potter Stewart: What made you say that?
John D. Cofer: I beg your pardon?
Potter Stewart: And what do you base that, that he was being published throughout the world as a guilty man?
John D. Cofer: Well because taken with the publicity on this, here is the man whose picture is being taken to who is accused of stealing this large amount of money.
Potter Stewart: Well this is true and whenever there's a picture of anybody who has been indicted?
John D. Cofer: Yes sir, but you can't take the man's picture even in the penitentiary itself Your Honor. When the man has been convicted, you can't go in and take his picture without his consent and publicize him to the world as villain --
Potter Stewart: Well, I just -- my question was direct --
John D. Cofer: And he can't be treated as a villain.
Potter Stewart: Why is this -- why does the televising of this trial make anybody think he was less entitled to the ordinary procedural safeguards of a defendant, that is the presumption and so on than the trial had not been televised, that's my question.
John D. Cofer: Your Honor, I say the basic right of human being to privacy denies the right to have himself advertised for any purpose to the public.
Potter Stewart: Well that would lead to the conclusion that the defendant if wanted to keep the newspaper men out of the trial, wouldn't it?
John D. Cofer: No, Your Honor, I don't think that follows, because conventional reporting, the newspapers come in, they take down what is said, they report it later, that doesn't have the same psychological barrier which you have in the use of TV which dramatizes the situation and which makes it impossible for the defendant and his counsel unless they are willing to descend to violation of Canons on which they believe.
Arthur J. Goldberg: Your argument -- you do simply do this Mr. Cofer if I understand it that your client did not get any trial, he was put on a show.
John D. Cofer: That's it exactly Your Honor.
Arthur J. Goldberg: Which is quite different from newspapers.
John D. Cofer: Yes sir. And --
Arthur J. Goldberg: Is that it? For entertainment or a performance but not in the trial?
John D. Cofer: And you take a lawyer who has to take the responsibility of -- well not televising my client, will it or will it not hurt my client. Well all said if he says to himself, I'll get my picture in the television and we'll try and see if it hurts my client. That's not the decision that a lawyer makes. A lawyer -- it's the appearance to ethics of his profession Your Honor that enables a lawyer to form a foundation upon which he can evaluate his service to his client and if he violates those ethics, that's accepted by the bar association to which he belongs, then he makes it impossible for himself to judge himself as competent counsel for his client. So he doesn't make an empirical decision. He makes an intuitive one. This is wrong. My fellow lawyers think it's wrong and I am not going to permit it, not on my client, let them experiment with somebody else's client if he's willing to be experimented with. Now that is a serious question. Now, I think that this isn't an interference with federalism. Justice Stewart said that sound federalism, I may not repeat it exactly, seeks to get uniformity and not conflict between the state and the federal systems. Judge Frankfurter said that this Court doesn't sit here to impose the federal rules on state courts and I recognize that. But here, we have a rule not Canon 35 but a standard of conduct in the courtroom which is accepted by 48 states and even in Texas and Colorado, is accepted in all but the trial courts. I say that true federalism is better served by a uniform rule such as the Court adopted in Gideon versus Wainwright rather than leaving to every case in Texas and Colorado, a determination by the Federal Court either this Court or another Federal Court whether or not there was really prejudice in that case. When you can prohibit the prejudice by providing a rule that will require Texas and Colorado to comply with the other 48 states. Then there is no other effective way of controlling television or preventing what has occurred so many times when courts have tried to control it by rule. Of course this Court has held you can't do it by contempt. Canon 28 of Texas says that the judges had gone together and agreed that they will fix certain rules for televising and that if anybody violates that rule or criticizes it in an editorial, then the judge shall fine that person for contempt. I don't think that violates antitrust law, but it at least is going [Attempt to Laughter] to be difficult to get this Court to sustain a contempt for a newspaperman that says, “Well, I don't like this rule that this judge has provided in his court about the television.” You can't do it by inter-media and Bar Association cooperation, because the media just doesn't think that they should be restrained from saying what they please. And they have the right under the First Amendment to say what they think and please. So, the only practical way of insuring a fair trial is a uniformity of rule which would prohibit television. Now on the question of whether it interferes with freedom of the press and freedom of speech, the Valente case, and Even cases held that the freedom of speech doesn't include the right to discover things and I don't entirely agree with that. I think that if you just have the right to talk but don't have the right to find out some it would be disgusting and [Inaudible]. And in the same way, the Sixth Amendment doesn't say that anybody but the defendants should be entitled a public trial, but that doesn't mean that the public can't come and watch the trial, but it doesn't mean that you've got to make it possible for the whole world to hear about it. And the distinguished Attorney General of Texas is eminent trial counsel, Assistant District Attorney General. I do not believe or take the position that public trial means make it possible for just as many people as possible to hear it. They indicate that in their brief, but they're speaking as advocates and in the archives in the history of our state both [Inaudible] on the records of contrary and they were speaking then for the archives and not as advocates. I don't like to talk about balancing because I have read so many cases and I'm not entirely in the court with the rules of balancing. I read Nickel John, I read Chaffy. I have read Sutherland's opinions and I read Justice Black's opinions and I believe that freedom of the press includes a right to discover and find out what to talk about, but I don't believe as this Court held in Cox versus Louisiana that this right of petition and this right to speak includes the right to interfere with the processes of the courts. And I think that in determining that if it's not a matter of just procedure, but it's a matter which may affect the fairness of the trial, that the attorney gets into possession that I have seen recently reported to by opinion of our Circuit and I don't pass on correctness of this position. It was decided by en banc in the Fifth Circuit that the attorney for the government could not be required against his conscience to sign indictment or prepare an indictment had been returned by grand jury. Then can a lawyer who is defending an accused be required to submit his client to having his picture taken and the danger that may occur as a result of the character of trial. I don't believe that freedom of the press means that it is to be made possible that the guilt and innocence of the accused is to be determined in the marketplace.
Potter Stewart: How was that made possible in this case?
John D. Cofer: I beg your pardon?
Potter Stewart: How was that made possible in this case?
John D. Cofer: By the fact that the people could see parts of this televised and reported by monitoring and didn't see at all and we're forming opinions about the guilt of this and regardless of that even if he'd been acquitted. The Court would say well there's bunch of rascals, it recently occurred in a recent – [Inaudible] let me illustrate.
Potter Stewart: Well, let me -- let me just pursue my question for a moment. You said that you implied that what happened here remitted the guilt of this man to be determined not by the jury but in the marketplace.
John D. Cofer: Yes sir.
Potter Stewart: And I wanted to apply that it wasn't made possible in this case. As I understand it, the jury was --
John D. Cofer: Yes sir.
Potter Stewart: -- the jury was sequestered in the case, were they not?
John D. Cofer: Yes sir. But before that jury was sequestered, all of those people who saw the first two days, not all of them but at large number of them saw the first day's broadcast. In that broadcast, they were told of the things this man was accused of. They were shown parts that somebody not sworn had monitored and picked out and put in this two-hour broadcast and they were passing on in advance, is this man is guilty. Just the press can do that Your Honor, but they have a right to do it, but you have the right to object to a thing so broadly done as it's done with TV. The educational purposes of television and even the press are incidental and the television is not equipped to do it fairly. It cost too much money. Probably only five or six cases a year are televised. They're not televised unless they are famous defendants. They can't spend have 15 men in attendance as the record shows they had here and spend $150,000 in the ordinary case. So, the television itself is not equipped to do what these people say we want to do and the lawyer knows that. It's recent, it's a matter of public knowledge and it's recent as this trial. There was a complete report of about how he misstated his liabilities to the government. They put it in full for two days of the testimony of the government. The defendant for the first time went on the trial and gave his case and told the newspapers didn't mention and Dallas didn't mention the case that day, they just ignored it. One of the paper over in Fort Worth said that this was the first time he'd be on the stand in the three cases and two of which he'd been convicted. The court was required to call in all the jurors, they were not sequestered in the Federal Court and ask each one of them, did you read this article about him not -- but they didn't tell what it was, but what they've said that he had not testified in any other case, his reference to his exercise of his constitutional rights. Of course, the jury said they hadn't read it. So the court sent the -- they didn't discharge the jury and the jury went out after the argument and acquitted Mr. Estes. But are we going to permit the television to broadcast as a trial they see so that the Court will have to come in and interrogate the jurors or lock them up, interrogate him as they did in our -- in the Kopitch case and the cases where the cases were reversed because the judge didn't interrogate the juror and asked them about what they heard or what they saw on television. So, the only practical means of enforcing this rule of fair trial and a standard of procedure is by extending it to Texas and Colorado and create a uniformity in the treatment of cases. Now, it's not going to be a great amount of infringement upon freedom of speech since the case is due to any other state except Texas and Colorado anyways. It's not going to infringe freedom of speech and say, “well now, you can't do it in Texas and you can't do it in Colorado.” That's not going to hurt freedom of speech and freedom of press. I think the part that is overlooked, the experiments suggested here by the defendant, the empirical approach, let the bench, bar and media try out some cases or so. Well, if they will just say let the defendant be a part of that and determine whether or not he wanted to be experimented on, then there would be no serious objections. It would violate my sense of propriety, but I'm not always sure that I'm right on my adherence to Canon 35. Your Honor, I'll proceed -- I will not proceed further now, but my associate will use the few minutes we have left in rebuttal.
Earl Warren: Alright. Thank you. Attorney General Carr.
Waggoner Carr: Mr. Chief Justice and associate justices. In the very beginning in this case including the filing of the briefs, there has been a great deal of misunderstanding as we see it as to the actual facts in this case. And if you will permit me, I would like to pick what time is necessary in the time that I have here to go into the facts in a chronological order so that I might be sure the Court understands everything that's happened. Now we're willing to be judged on the facts, but we certainly want the facts well known. May I pull one fact out of context here due to the questions placed from the bench today and make it clear to the Court that no part of the testimony of any witness was recorded, no part of it was ever recorded and that none of it was recorded for later playback during the trial, the broadcast people, the radio people voir dire if they so desire sit in the audience, take notes, go out and make comments on later broadcast. There was no broadcast taking place at that time nor was there any recording.
Byron R. White: Those contracts -- those contracts made by the television people [Inaudible]
Waggoner Carr: That's correct sir.
Hugo L. Black: Did they take a picture?
Waggoner Carr: Yes sir they took film without sound, periodically.
Hugo L. Black: What are they going to get?
Waggoner Carr: They would later use it if they wanted to and later broadcast or televise broadcast on regular televised news broadcast later.
William J. Brennan, Jr.: And Mr. Attorney General, would that include telecast of witnesses sitting in the witness stand?
Waggoner Carr: Yes sir, film without sound, but not regularly as was brought out here. Not consistently, not every minute, just if they so desire and as I'm going to explain to you all of these pictures were taken from the booth. I'll get to that in just a moment.
William J. Brennan, Jr.: May I ask you when you get to it if you will. How much the participants in the trial, witnesses, jurors, counsel, judge, knew of actually what was going on and the limitation you just mentioned namely that there was no actual recording of the testimony. How much do they know of with regards of this case in the trial?
Waggoner Carr: Well, I might say to you that of course the judge gave them the right to televise under his instructions that is to take film without sound is very specific. He ordered them to take all of the pictures during the trial on its merits from the booth but nowhere else and I'm going to bring this out in the argument I think. If not, I will certainly.
William O. Douglas: [Inaudible] on parts of the procedures other than the testimony of witnesses?
Waggoner Carr: No soundtracks, no sir.
William O. Douglas: Not on any phase of the case?
Waggoner Carr: Except the arguments of the state.
William O. Douglas: Well, that is an important subject.
Waggoner Carr: Yes sir.
William O. Douglas: The argument of the state was a soundtrack.
Waggoner Carr: Yes sir.
William O. Douglas: Was the – was withholding of the jury, was there a soundtrack when the jury came in?
Waggoner Carr: They didn't hold it Mr. Justice? They rendered their verdict. They brought the verdict to the Court.
William O. Douglas: But there's a soundtrack then, wasn't it?
Waggoner Carr: Yes sir, yes sir. That was live telecast.
Byron R. White: Was the instructions to the jury with soundtrack?
Waggoner Carr: No, sir.
Earl Warren: Was the argument of the -- of the prosecution broadcast live?
Waggoner Carr: The argument of the first state's attorney, there were two, was broadcast sound, but not video. They had the right to do it, but something went wrong. So no picture was transmitted, but sound was transmitted of the first on.
Earl Warren: Yes.
Waggoner Carr: On the second state's attorney argument that was telecast video and sound. Now the petitioners or the defendant's attorney's arguments were not broadcast or recorded by video or sound at their request. They objected the court on their objection.
Byron R. White: At the moment, however, there was a television picture going out in the public, namely the picture of the judge. While he was arguing, the television cameras were on and transmitting a picture to the public, a live broadcast was going on at that time without the sound.
Waggoner Carr: Mr. Justice -- Mr. Justice White, I'm not certain whether it was every minute or not. The record does show that they had the right to do it as long as they didn't take pictures of these two gentlemen.
Byron R. White: I thought the record showed that the sound, that the picture went out and then with it, a running summary by someone who is in the courtroom listening.
Waggoner Carr: I don't recall that it was in the record. I do recall a statement like that in one of the briefs. Yes sir.
Earl Warren: The petitioner and his counsel [Inaudible] excluded from the pictures taken during the argument --
Waggoner Carr: Yes sir.
Earl Warren: -- of the district attorney?
Waggoner Carr: Mr. Cofer and the two Mr. Cofer's --
Earl Warren: Yes.
Waggoner Carr: Yes sir.
Earl Warren: And the -- and the defendant himself was not photographed.
Waggoner Carr: That's correct sir.
Earl Warren: Was he ever photographed in the courtroom?
Waggoner Carr: He was -- he was photographed during, I imagine, during the film without sound. If they wanted to, they had the right to do it from the rear and of course you must distinguish between the trial on the merits and the pre-trial hearing which I want to distinguish which I will now deal with, if you don't mind.
William J. Brennan, Jr.: [Inaudible] here, could we? Is it part of the record?
Waggoner Carr: Yes sir, yes sir. I'm advised that it is. I wasn't quite sure. Yes sir, it is.
Byron R. White: What -- what part of the -- you mean all the videotapes is taken over the entire trial?
Waggoner Carr: There wasn't any videotape taken except the pretrial.
Byron R. White: But how about -- how about just the photographs of the trial proceeding without sound which they did take and which part of which were rebroadcast at some other time?
Waggoner Carr: I think that's here sir.
Byron R. White: It is.
Waggoner Carr: Yes I think that's before you.
Byron R. White: That must be quite a month old.
Waggoner Carr: Well, I think you -- I think from what the judge has told me, I would be subject to being disputed by Mr. Cofer who was going to close that there was very little of this during the actual trial itself.
William J. Brennan, Jr.: Well, just a mechanical question Mr. Attorney, how can we see that, that takes special equipment and then we have to go to --
Waggoner Carr: It was a film sir. It was a film without sound during the trial.
Arthur J. Goldberg: [Inaudible] regular pictures -- picture film or this was on video?
Waggoner Carr: The video? It's a video, yes.
Arthur J. Goldberg: Video?
Waggoner Carr: Yes sir, you have [Inaudible] with special equipment, that's correct sir.
William J. Brennan, Jr.: That means going to some broadcasting.
Waggoner Carr: Well sir, that is a mechanical problem that you have. I'll have to solve that if I can. I don't know how to do it.
William J. Brennan, Jr.: The parties have any suggestion?
Waggoner Carr: As to how you might see it?
William J. Brennan, Jr.: Yes.
Waggoner Carr: We can certainly counsel that those that have equipment and see what can be done, I would be very happy to do that. I'm not prepared to say so. I'm not interested. I'm advised that arrangements have been made for a close circuit showing to you if you desire to see this video.
William J. Brennan, Jr.: Where, here?
Waggoner Carr: Yes sir.
Speaker: [Inaudible]
Waggoner Carr: Sir, that's all I think, yes sir. Now sir, if I might say, a moment ago it was suggested that all of the facts are agreed upon. This is correct. In each case, the bill of exceptions would be presented by Mr. Cofer. They would be read and qualified by the Court and then in every instance, Mr. Cofer would agree to the qualifications of the Court. So what you have is an agreed statement of facts. I'm going to try to state these to you very quickly. You'll also find them in the opinion of the Court of Criminal Appeals, which is the highest court in Texas in criminal matters and a portion of this appears on page 136 and 137 of the record on file on this Court. Now, this case was set for trial in the beginning on September 24, 1962. On September the 24th and the next day, the 25th, a pretrial hearing was held by the trial court on two motions, two motions that were filed by the petitioner. One motion was that no telecast of the trial be permitted and the other motion was for continuance. At the conclusion of this hearing, the trial court overruled the petitioner's motion that the trial not be telecast and granted the motion for a continuance and reset the trial for October 22nd about a month later, 1962, due to the absence of certain defendant's witnesses. Now, the trial court permitted live telecast of the pretrial proceedings on these two motions. However, there was not any evidence nor was there any testimony offered on the merits of the case. The only testimony offered was in support of the defendant's motion to prevent telecasting, broadcasting by radio or press photography. There was no testimony offered on the motion for a continuance other than the mere calling of the witnesses' names and the filing of the motion. I would like to point out to this Court that practically all of the complaints heard from counsel or the petitioner and various of the amici curiae briefs are related to this pretrial hearing before the judge, which determined only those two matters of procedure and the preliminary matters did not in any manner include any evidence or even any statement by counsel as to the pertinent facts in the case since it was not to be tried at this particular time nor was any comment made as to the guilt or the innocence of the defendant. Now, I would like to specifically point out to this Court's attention that on page 63 of the record, you will find testimony by Mr. Hume Cofer, co-counsel for the petitioner, concerning the petitioner's objection to the presence of cameras in the courtroom. Mr. Cofer expressly admitted under oath at that time that this televised pretrial hearing gave no prospective juror any knowledge about the facts of this case nor any knowledge of any of the evidence. This was under oath by Mr. Cofer himself, page 63 of the record. The record bears out also that Judge Dunagan's statement, who was the trial judge, which appears on page 106 of the record filed herein that “prospective jurors and others in the Smith County or any other place did not learn anymore than they already knew and they didn't learn anymore from the TV and radio and they had learned from the press which was that the defendant had been brought to Smith County for trial, that the trial was called or the case was called rather, that the defendant had filed a motion to exclude cameras, that he had filed a motion for continuance and that the witnesses' names were recalled and the numbers were missing.”
Speaker: [Inaudible] Courtroom?
Waggoner Carr: He was there during the latter part, yes, not all the time, but they're part of the time. Now counsel for the petitioner does not claim these facts to be any different in the record than what I've stated to you right here. Now if you would allow me, I would like to read Judge Dunagan's statement appearing on page 34 of the record and I quote. “In the past, it has been the policy of this court to permit televising in the courtroom under the rules and the supervision of this court.” Heretofore, I have not encountered any difficulty with it. I was unable to observe any detraction from the witnesses or the attorneys in those cases” and then I continue to quote, “I had the privilege yesterday morning of sitting in my home and viewing the sermon by the First Baptist Church over in Dallas and certainly, it wasn't any circus in that church and I feel that if any television, is a proper instrument in the house of the Lord, it is not out of place in this courtroom if properly supervised.” And then in denying the petitioner's motion to exclude television, Judge Dunagan said this and I thought this would be of interest to the Court. “There has been one consideration that the court has given and it is that this is a small courtroom and there will be hundreds of people trying to get into this courtroom to witness this trial.”
Speaker: [Inaudible]
Waggoner Carr: Let's see sir, starting on page 34. I'm not sure what I'm quoting here is on page 34, but this whole thing started on 34.
Hugo L. Black: [Inaudible]
Waggoner Carr: And I'll begin over here. “There was one consideration that the court has given and it is that this is a small courtroom and there will be hundreds of people trying to get into this courtroom to witness this trial. I believe we would have less confusion if they would stay at home and stay out of the courtroom and look in on the trial with all of those people trying to crowd in and push into this courtroom that is another consideration I have given to it, meaning television.” Now prior to the merits of the case which began on the trial on the merits, the court case was continued until October 22nd. On the first day, October 22nd, again they went into these preliminary matters so they didn't get to any of the merits on the 22nd. But prior to the 22nd, there was booth constructed and placed in the rear of the courtroom which was painted the same or near the same color as the courtroom with a small opening across the top for the use of cameras. Now you have before you state's Exhibit 8 which is a part of the record here. This is a photograph of this booth as it actually existed. That depicts the physical appearance of the booth upon the convening of court at 9 am. on October 23rd, which condition continued and remained the same throughout the trial. Now this was the date and the time of day that the jury panel reported for duty and voir dire of the jury panel began. I would like if I might to direct the Court's attention to the model behind me, I'm not sure how good you can see it but you will have it before you from now on, that includes the camera booth that was constructed and we wanted to have this for you, because we thought it might be easier for you to see even just by the description of words. If I might --
Speaker: [Inaudible]
Waggoner Carr: Yes sir, right here. Now we have -- I don't know whether you can hear me sir, if you can't, I'll be glad to accept it, we have made this part here removable so that you might better see it. This is drawn on a direct scale of 3/4 of an inch to a foot. Now this is in our opinion, a very near replica and you have a certification for that effect by the people who made -- made it of the exact courtroom. This is the way the courtroom appeared at the time of the pretrial on September 24th and 25th before the booth was constructed. At that time, these two -- between the 24th and 25th of September and a month later when the trial actually started on its merits, two of these seats here were removed and placed upfront in the courtroom where they had plenty of room and this booth was constructed as you can see there and placed there the same color as the rest of the courtroom with a little aperture opening across the top, where the cameras could view the courtroom, but everything would be behind the wall of the petitioner. Now on the 23rd, the judge calls to be placed in this aperture a further closing of it, because he found that the cameras could operate there, all right, and still he could close off any activity that might be behind the wall of the booth so as to be sure or surer that nothing occurred that would prevent a fair trial. Now, if I might put this around just a little one other -- one other thing. You've heard a lot about microphones, this is an exact replica of the microphone. There were six microphones in that courtroom. There are 10 here in your courtroom. Three of those courtroom microphones are on the judges desks. Three were on the witnesses' desk or the witnesses' chair right before him. This is a modern courtroom as you can see, but it's much like the facilities you have here because two of these three microphones in each case, meaning two on the judges' desk and two on the witnesses' stand were the ordinary microphonic equipment of the courtroom itself. One microphone, this little one right here which I'm sure you can see from where you are, the little flat one, went to the keeping of the record by the clerk and this is where the testimony went to be recorded. The other microphone that was --
William J. Brennan, Jr.: [Inaudible]
Waggoner Carr: Yes sir, rather than by the court reporter, rather than to take it -- well I think maybe it's a duplication, maybe he takes it down in some cases, but he always backs up his accuracy by complete recording of every word. This is -- this is in every case. Then one of the regular microphones on the judges' desks and one of the two microphones that I've mentioned to you on the witnesses' stand is connected to five little broadcast outlets over here on the inside of the jury box, which was simply to enable a jury to better hear the judge and the witness.
William J. Brennan, Jr.: Now is that part on the [Inaudible]
Waggoner Carr: Yes sir.
William J. Brennan, Jr.: [Inaudible]
Waggoner Carr: No sir. This is a permanent part of that courtroom.
Earl Warren: It's a loud speaker --
Waggoner Carr: That's correct.
Earl Warren: -- that a Court has.
Waggoner Carr: No sir. It just goes right here, just loudspeaker system so that you can hear better. The other remaining microphone was the only microphone that was added in that courtroom for this trial. This microphone, the third microphone was a tool microphone which supplies the sound to the cameras back here. The only microphone they all -- they're all into the same microphone and when they were allowed to broadcast like during the argument, this is a microphone that picked up the sound wave both here at the witness stand or they turn them around somewhere.
Byron R. White: But the only reason why would you have one of the -- on the witness table, witness stand, witness part.
Waggoner Carr: Well, this was placed in there and the -- during the pretrial Mr. Justice, during the pretrial when they were recording this and it just never was taken out.
William J. Brennan, Jr.: Was it in fact live in the witnesses that testified here?
Waggoner Carr: No sir.
William J. Brennan, Jr.: That's what I --
Waggoner Carr: No sir.
William J. Brennan, Jr.: So it's closed off?
Waggoner Carr: Yes sir.
William J. Brennan, Jr.: So that none of the witnesses testified at least with that mic as recorded in the back?
Waggoner Carr: That's correct sir. The fact stands as I originally said as to what was transcribed or what was broadcast and what was not, but this, I'm just explaining here what the -- what they were for. When the radio people were broadcasting in the pretrial and in the arguments, they used the court microphone. This is only important insofar as you might know that as some newspaper articles wrote it, a great maze and forest of microphones that existed in the courtroom. This is the true picture.
William J. Brennan, Jr.: [Inaudible] the way I looked at those pictures, certainly that's not -- I think that would be true that it was made -- the microphones in that -- those two [Inaudible] wasn't it?M
Waggoner Carr: This was exactly what we had sir.
William J. Brennan, Jr.: Using photographs that looked a lot different on the 24th and 25th of September from the photographs taken on the October 22nd.
Waggoner Carr: I think -- I think if you will, I don't want to dispute your words. You might be accurate.
William J. Brennan, Jr.: No, no. I'm probably wrong, but I certainly saw there is a whole stack of these pictures there.
Waggoner Carr: Now, they have here some cameras, you might have that in your mind of a pretrial. They had cameras; they had another microphone over here, yes sir, you're exactly right. They had another microphone over here near the jury box.
Earl Warren: [Inaudible] location in one of the briefs from New York Times describing that I wonder if this is correct at all correct. It says, “A television motor van, big as an intercontinental bus, was parked outside the courtroom and the second-floor courtroom with a forest of equipment. Two television cameras had been set up inside the bar and four more cameras were aligned just outside the gates. The microphone stuck its progress [Inaudible] inside the jury box and now occupied by an overflow of reporters from the press table. Cables and wires snaking the floor [Inaudible]
Waggoner Carr: No sir. I have two comments to make Mr. Chief Justice.
Earl Warren: Yes.
Waggoner Carr: One is that this is the point we want to make that a picture is much more accurate than a description of a man who gives his opinion of whether it was a forest or snaking or whatever it might be. But regardless of what he said, he's talking about the pretrial on September 24th.
Earl Warren: Yes, that's right, 24th and 25th of September.
Waggoner Carr: Yes sir, yes.
Earl Warren: But you haven't -- you haven't told us what the scene was in that courtroom. You told us what it was at the time of the trial. I wonder if you're going to tell us what the scene was in that -- in the courtroom on those days --
Waggoner Carr: Well, I'm going to tell you.
Earl Warren: -- if it's orderly and if it's orderly and so forth.
Waggoner Carr: Yes sir. I'm going to refer it I think more accurately than my describing it is to refer you to the pictures that are in your record of the situation as it exactly existed on the 24th. You have plenty of these in your record sir --
Earl Warren: That's right.
Waggoner Carr: -- which are far more accurate and there was more confusion on that day than what I have described here. This is actually what took place in October when the merits of the case was tried.
Potter Stewart: The pictures are in the printed record are they?
Waggoner Carr: No sir, no sir.
Potter Stewart: I think I may require.
Waggoner Carr: You just have them and they're loose and so designated as state's exhibits are defendant's exhibits.
Potter Stewart: It's in the original record so I suppose they just wanted each picture -- one copy of each pictures.
Waggoner Carr: We can furnish you any number that you want.
Potter Stewart: I understand though I have them here.
Waggoner Carr: What we want to try to make on that first hearing is on September 24th and 25th is that no testimony was given at that time. Nobody learned anything about the facts of the case and it's been so certified to by Mr. Cofer. Now if I may hurry on. Live telecasting and radio broadcasting were not permitted during the trial itself prior to the arguments of state's counsel. The only telecasting was on film without sound and this was not a continuous camera operation, but pictures were taken at intervals during the debate to be used on regular newscast later in the day. The court did not permit any cameras other than those that were noiseless nor were floodlights and flash bulbs allowed to be used in the courtroom, just ordinary light. The cameras were used on a pooled basis. The court did not permit any telecasting or photographing in the hallways leading into the courtroom or even anywhere on the second floor of the courthouse where the courtroom is situated.
William J. Brennan, Jr.: How many cameras are actually included in this case?
Waggoner Carr: There are four sir.
William J. Brennan, Jr.: Four.
Waggoner Carr: Yes sir.
William J. Brennan, Jr.: Were they all -- were they working simultaneously? You mentioned they had a pooled basis operation --
Waggoner Carr: Well, here --
William J. Brennan, Jr.: Were all four working at the same time?
Waggoner Carr: Well sir, they would go on and off. You had -- I had one that was allowed for each one of the national line ABC, CBS and NBC, then you had one pool for all of the local TV stations, that's the way you arrive at the pool and -- and there was one --
William J. Brennan, Jr.: One live.
Waggoner Carr: Yes sir, one live and the rest of them during the other time.
Hugo L. Black: [Inaudible]
Waggoner Carr: Sir, your record goes into that quite a bit into this. There were regular ads on television during the day. This -- this telecast or videotape or live broadcast or live television was not sold on the basis that when you buy an ad and the bill is all that's in this case. These were regular ads that were sold before this even took place.
William O. Douglas: Did the revenue from this TV project in the state courthouse shared with the television companies and the government of Texas?
Waggoner Carr: Oh, no sir. There is – it operated just like a newspaper. Newspaper sales ads to stay in business and so did the TV station noted.
Byron R. White: You didn't tell the time [Inaudible] broadcast live?
Waggoner Carr: No sir, not for that specific purpose, if that's what you mean sir. Yes, right now, you will find in here and I prefer not to take my time. I will if it becomes important to you as to how many were -- how many ads were sold for two-hour duration. For example, you'll find that one time for an hour and a half on Tuesday morning that during the preliminaries there were no ads at all, otherwise they were just ordinary ads that were placed in the regular commercial business of television.
Earl Warren: These broadcasts replaced any regular programs?
Waggoner Carr: Yes sir. The -- the -- they had -- during the day when they were live broadcasting, of course, they would have to replace. During the preliminaries when they were live, during the rest of the time when it was film on sound as I recall, the record will show that, that was just a regular news broadcast.
Earl Warren: Mr. General, you've emphasized that during the hearing of the witnesses that there was no soundtrack, right?
Waggoner Carr: Yes sir.
Earl Warren: Would your case be any different from your standpoint if there had been a soundtrack?
Waggoner Carr: If there had been a soundtrack?
Earl Warren: If there had been a soundtrack?
Waggoner Carr: Well sir, Mr. Chief Justice, I don't know. We haven't -- we haven't gotten into that simply because they were not a part of this case.
Earl Warren: Well, some of it was a soundtrack. The argument of the prosecution was soundtrack and you used that and now suppose you have gone drawn so far that it had a soundtrack on the testimony. Would that infringe your case at all or do you --
Waggoner Carr: Well, if --
Earl Warren: -- contend that the courts have a right to do it whenever they want?
Waggoner Carr: It might sir. It might have in my opinion, might have changed things if the witnesses had been able to view what other witnesses had said on the stand, heard them testify, because the witnesses were under the rule which in our state means that they can't talk to anyone about what they testified to nor listen in on the other people's testimony. Now if we'd have that kind of situation, we've might have had something to worry about, but that's the reason and the court so states in here, this is the reason that he wouldn't allow the witnesses' testimony to be a soundtrack or televised live for this very reason.
Earl Warren: I see.
Waggoner Carr: May I say this also, and something here to end as quickly as possible that the appellant, I'm quoting now from the Court of Criminal Appeals in it's decision affirming the conviction of Mr. Estes and it states this. “The contention that appellant was denied full and adequate representation because of his counsel's belief in Canon 35 of the American Bar Association, barring photographs in the courtroom or broadcasting or telecasting court proceedings is not borne out by the record.” And then the court says this, “of the many cases coming to this court, we know of no case where the accused received better or more efficient representation than did the appellant in the present case and at this point, because of the allegations in the opposing briefs that the jurors hearing this case were subject to being influenced by television reports or by other such voice of juror's is already been brought out and under our code of criminal procedure, jury such as this are locked up and kept together and they are absolutely immune from seeing television, hearing radio reports or reading newspaper are particularly seen wise. There was no way for these jurors to get any information that might influence their verdict as a result of the television or broadcasting of these proceeding.”
Earl Warren: [Inaudible]
Waggoner Carr: Yes sir.
Earl Warren: Did you know how many times he had filed any procedures about the television [Inaudible]
Waggoner Carr: Mr. Chief Justice, I do not. I could have asked him but I didn't, just because it didn't come to mind but I know that he has several.
Earl Warren: [Inaudible]
Waggoner Carr: He's had several and he's not the only Court in our states that has done it. Of course in the State Bar of Texas amicus curiae brief, you will find one of our celebrated cases there, Waco at the Washburn case, the murder case was televised live where the cameras were played on the witnesses at all time, but this never did reach like this one has. Now sir, we have obtained affidavits from each of the jurors which affidavits are hereby tendered to the court. We'll leave them here for you to see. We thought this would be important since the allegations are being made in the different briefs that the -- that the jurors where could have been influenced by this or that. These sworn affidavits were placed in the hands of the counsel for petitioner on the date the respondent's brief was filed with this honorable Court. These affidavits reveal that the jurors were scarcely aware of the presence of the cameras on the courtroom during the actual trial, so well were the rules [Inaudible] yes sir.
Potter Stewart: (Voice Overlap) you told us that the members of jury were completely sequestered from the time the panel was selected?
Waggoner Carr: Yes sir.
Potter Stewart: Until after their verdict was returned and mechanically, how does that work in Austin? This is an Austin, Texas.
Waggoner Carr: No, this was entirely to the [Inaudible]
Potter Stewart: [Inaudible]
Waggoner Carr: Yes.
Potter Stewart: County seat [Inaudible]
Waggoner Carr: From the moment sir that the jury, a juror, a particular juror is selected from that very moment, he is put in the jury room to wait the selection of the entire jury from that moment on he is kept together with the other jurors under surveillance of bailiffs even when they eat.
Potter Stewart: Now what happens when they go out?
Waggoner Carr: They go in a body in the presence of bailiffs, when at night --
Potter Stewart: They get together? They go to a public place to eat in the presence and escorted by bailiffs?
Waggoner Carr: Yes sir. They could or they could -- it's where they saw it a long ago and where it's safe and where the Court will approve it.
Potter Stewart: Did they go in a group in a body?
Waggoner Carr: In a group -- yes sir, under our laws, they have to go in a group.
Potter Stewart: And with nobody else there except the officers of the court --
Waggoner Carr: That's correct sir.
Potter Stewart: -- to look after them?
Waggoner Carr: Yes sir.
Potter Stewart: And then what happens in the evening [Inaudible]
Waggoner Carr: We have a provision in our statutes where the men are separated from the women equal quarters for each but under the surveillance again.
Potter Stewart: In a local hotel or boarding house?
Waggoner Carr: No sir in the courtroom, in the courthouse.
Potter Stewart: There are, there are sleeping accommodations in the courthouse?
Waggoner Carr: Yes sir.
Potter Stewart: And --
Earl Warren: That in fact is in every felony case that protects it?
Waggoner Carr: Yes sir.
Earl Warren: It is. Are all your courthouses [Inaudible]
Waggoner Carr: All that I know of, yes sir, yes sir. They keep them right there.
Potter Stewart: How long did this trial last, how many days?
Waggoner Carr: It lasted from -- on its merits from October 23rd and I believe the verdict was brought in on November 7.
Potter Stewart: About two weeks?
Waggoner Carr: Yes sir.
Potter Stewart: How about weekends, what happened to the jury?
Waggoner Carr: They're kept there.
Potter Stewart: And you told us that no television was available in the -- in these --
Waggoner Carr: No television was available Mr. Justice except one time during the elections November 4th, I believe it was. Both Mr. Cofer and the court and the prosecutors agreed that a television set could be put in the juror's room and provided that the bailiff was there and would turn it off at the end of -- in case of any ads or any news reports or anything of that type puts it in. That was an agreed matter. We had one case where one of the jurors wanted to have his Bible there. He complains in these affidavits as you will see about the difficulty of getting his Bible because the judge was so intent on seeing that there were no notes or scribbled issues in there that might cause trouble there. He comments about this. He's very carefully supervised. They on occasion were given newspapers over the weekend for example as you speak but before that newspaper was put in there, the judge himself went over every bit of it and cut it out anything pertaining to the trial and he did that himself and one of the jurors remarks that there was hardly anything left but we were glad to get what we could [Laughter]
Potter Stewart: You say you've tendered these affidavits to the court. They're there in the table -- have we physically got any evidence that you know of (Voice Overlap)?
Waggoner Carr: We have as of today sir. We thought -- we didn't know exactly how to handle this to be frank with you and --.
Potter Stewart: I understand.
Waggoner Carr: We didn't want to do anything that the Court might object to by mail, so we thought today we would offer it and they are here and copies and sufficient copies for all.
Earl Warren: Is there any objection from counsel to filing all the affidavits?
Waggoner Carr: We don't know that.
Earl Warren: Very well [Inaudible]
Waggoner Carr: May I say this one statement and then I'll leave sir. We respectfully suggest that the answer to the problem that televising trials does not lie in barring all cameras from the courtroom and the final analysis and responsibility for assuring a fair trial remains with the presiding judge. It is his responsibility to keep the press under reasonable control to keep spectators under reasonable control and similarly, he should exercise a responsibility of keeping television under responsible control. The opposing counsel in his brief and in his argument have adopted and has adopted the imaginary reasoning if I might say so of that nursery book character Henny Penny who, when an acorn fell on her head from the tree above went around cockling to all the other hens in the barnyard that this guy was falling in, the end of the world had come. If I might say to you in our opinion all trees do not have acorns and all cameras are not misused. Thank you very much.
Earl Warren: Mr. Jaworski.
Leon Jaworski: Mr. Chief Justice, may it please the Court. I appear in this case at the request of and by appointment of the Attorney General of Texas. In so doing, I am advocating a position in this case which is in considerable conflict with that supported by the brethren of mine with whom I have labored in the vineyard of the American Bar Association. The Court is aware of course of the filing of an amicus curiae brief by the American Bar in this case and also the acknowledgment that petitioner has made in his brief of the assistance that was rendered by members interested in Canon 35 in the preparation of petitioner's brief. I do not for a moment question the earnestness of purpose or the sincerity of those very fine and eminent counsels who are contending in their brief as they are that Canon 35 should be accepted as a constitutional standard, but I do feel that the advocating of this principle has with it much danger and I think that it is unsound. Now because when the writ of certiorari was granted, it was granted on a point that has Canon 35 enmeshed in it being set in the point that Canon 35 should be adopted and accepted as a rule of trial procedure and that unless it is so done, there is denial due process of law I would like to review with the court very briefly the history of Canon 35. I think when we bear this history in mind we see that actually what it is, no more than the statement of ethical standards of conduct, merely a statement of the exemplary conduct should be followed by courts. But I think it's of particular significance that the very -- on the very last occasion that the American Bar Association dealt with Canon 35 at a time when it had its midwinter meeting in 1963. At that time, it very definitely announced its appraisal of Canon 35, an appraisal and a standing that we're willing to adopt. It is our view that at that time, this Canon was correctly elevated to the place where it belonged so far as it being a standard of conduct is concerned but we feel that the position now taken which is far different from that, that it becomes a constitutional standard of conduct is a mistake. Now may I direct the Court's attention to the wording of the resolution of the American Bar Association passed in 1963, the last time that this Association dealt for this Canon.
William J. Brennan, Jr.: Is this in your brief Mr. Jaworski?
Leon Jaworski: It is sir.
William J. Brennan, Jr.: I didn't follow it. Do you happen to know where?
Leon Jaworski: It is in the brief sir. It's at the beginning. Yes sir, it's on page 5 under summary of argument. The Canons of Professional Ethics and the Canons of Judicial Ethics as adopted by the American Bar Association, constitute the standards of policy recommended by the American Bar Association for the consideration and voluntary guidance of the rule making authorities of the states of United States and have a force of law only where voluntarily adopted and incorporated in state laws or as a rule of Court. We recommend that the rule-making authority of each state exercise the exclusive responsibility of adopting Canons of ethics in the interest of statewide uniformity and avoidance of confusion and pressures that have resulted in some jurisdictions where magistrates or judges have individually adopted rules concerning the conduct of their courts. Now this was a recommendation made by the committee that have been studying this matter and this recommendation was adopted by the House of Delegates and following the adoption of this resolution, the committee that had been dealing with Canon 35 was discharged and this is the last time that the American Bar Association officially dealt with this Canon. I would like to briefly comment on the history of Canon 35 even before this last action occurred because I think it's very significant in showing what its true purpose was. The very first of the Canon's of Judicial Ethics were adopted in 1924. At that time, there was no Canon 35, there were 34 Canons at that time. In 1937, Canon 35 was adopted for the first time it read differently at that time than it does now. It placed its emphasis upon matters that are far different from what is argued now. It placed its emphasis upon the dignity and the decorum in the courtroom. It placed emphasis upon the fact that photography and broadcasting and that's all it referred to at that time were degrading to the court, and that it placed its emphasis upon the statement that photography and broadcasting should not be permitted because of the misconceptions that might be left for the public. Now the Canon was then amended in 1952, and at that time, again there were these things stressed by the Canon. First, dignity and decorum, again degrading of the court, creating misconceptions in the minds of the public, but for the first time that was included televising and it was then said that these elements, these factors, the televising, photography and broadcasting are calculated to detract the witness in giving his testimony. The last amendment to Canon 35 was made at this time that I have mentioned to the Court a few minutes ago, in 1963. It was made after this case was tried in the Trial Court. And at that time, we find that the part of Canon 35, that related to the degrading of the court had been dropped and so after these many years of experience, after this many years of insisting that photographing and broadcasting were degrading to the court, the American Bar Association changed its mind and dropped that from the Canon, but in order to under guard it and because there was included a change an amendment, a further amendment which said that instead of calculated to distract the witness that it is calculated to distract that it is -- that it does distract witnesses, distract witnesses and participants but that was the last change that was made. Now again, if we go back to the preamble about Canons of Ethics as to what the entire purpose was, we see that the preamble states too in matter entirely consistent with what was said by the American Bar Association as late as 1963. We find that it says that the Association adopts the following Canons, the spirit of which it suggests as a proper guide and reminder for judges and is indicating what the people have a right to expect from them. Now there are a number of Canons. Canon 35 is before the Court but why should Canon 35 be singled out as one that sets forth constitutional standards and none of the other Canons. We have situations where there can be an abuse of Canon 35 that obviously affect in our thinking the constitutional rights of a defendant, but that can be true with respect to spectators. It can be true with respect to the press, it can be true with respect to television. Other Canons are in exactly the same situation and if a Canon 5 for instance which deals with impatience and intemperateness on the part of the court. Now that could seriously affect the fairness of the accused trial, but doesn't necessarily do so simply because a judge has made some intemperate remarks or has shown some impatience. Does it per se mean that because that Canon has been violated that there has been a denial of due process.
Potter Stewart: Of course Canon 35 isn't before us here at all. What is before us is that whether what happened to this trial has violated this petitioner's right to due process of law.
Leon Jaworski: We fully agree with.
Potter Stewart: I think that's the point you're making.
Leon Jaworski: That's the point I'm making exactly. The question of whether there has been any unfairness here is something that has to be looked at on a basis of its own factual situation and my comments to the Court are being made simply in response to what the petitioner has been arguing when he says, the mere fact that there has been a television camera in the courtroom and that's what it amounts to that there has been prejudice. And in making that sort of a contention what is actually happening here is that the principles that this Court has announced on a number of occasions are being swept aside because so far as I know, I haven't found a single case where this Court has ever said that it is going to be presumed that there was a denial of due process of law, that there is going to be a presumption that the defendant has been denied a fair trial. I know that this Court has said just the contrary in a number of cases.
Byron R. White: How do you deal with them?
Leon Jaworski: I beg your pardon sir?
Byron R. White: How do you deal with the [Inaudible] case?
Leon Jaworski: Well I'm familiar with that case. I don't think that if it says that the Court is going to presume that there has been unfairness, there had to be a showing in the record that there was some prejudice, that there were some unfairness and this Court for instance --
Hugo L. Black: What I wanted to know -- that was my point in my [Inaudible]
Leon Jaworski: Well I do remember that.
Hugo L. Black: [Inaudible]
Leon Jaworski: That's correct sir but you had in a record, they're a state of facts from which it appears that there had been an unfairness. Point that I'm making is that if you have simply a position where it is said that there has been here some prejudice simply because of television camera was introduced in the courtroom then you're going to have to say precisely the same thing simply because a television camera was in there for a short period of time taking perhaps no more than the oaths that were administered to the jurors where will a line be drawn.
Byron R. White: I take it your argument then would be exactly the same as the television here has not been limited to just pictures during the trial. The reason the court gave for excluding time had nothing to do with the fair trial except the informing other witnesses and I take it you would back up that -- that reason and if that is term, you would still be making the same argument?
Leon Jaworski: As far -- yes sir. I would be making precisely the same argument so long as there was some showing that there was some unfairness that resulted or some prejudice that resulted as a result of that.
Byron R. White: If you could do one, you could do the other?
Leon Jaworski: You certainly could.
Arthur J. Goldberg: Mr. Jaworski.
Leon Jaworski: Yes sir.
Arthur J. Goldberg: You regarded to me the fair trial guaranteed by our constitution, the defendants were put as they have been in Cuba in a public stadium and drive the court crowd of 20,000 people?
Leon Jaworski: I certainly would not Mr. Justice Goldberg but --
Arthur J. Goldberg: Yes. Now, what is the difference then between putting them before a television camera taking the last example put by my brother White and having the trial in front of several hundred thousand people?
Leon Jaworski: Because one was under the control of the court, and one was under the supervision of the court and the other one is not. Precisely the same argument that I'm making here I think would apply if you have a tremendously large courtroom, there's no regulation as to what the size of the courtroom maybe so long as the court can supervise and can properly control the conduct of what goes on.
Arthur J. Goldberg: It isn't the essence of the fair trial regardless about the dimensions of the courtroom, a trial before a judge in a courtroom?
Leon Jaworski: That's correct sir.
Arthur J. Goldberg: The Court -- this Court had said.
Leon Jaworski: That's correct, correct.
Arthur J. Goldberg: It seems quite recently. I would like to ask this. Why television is a public media of communication you've argued in your brief, why isn't every purpose of publicity and public access to what goes on in the courtroom serve or the television medium as well as any other by allowing the television reporters to cover a court trial, by being there, and then reporting on it as newspaper do?
Leon Jaworski: That's one way of doing it, but it doesn't necessarily follow that because it's done by the broadcasting of pictures from the courtroom that there has been an unfair trial. Again, the trial itself is a public event and the Court has said so. The Court has said that what transpires in the courtroom is public property. Now the only question is, one of degree and the question then comes of whether or not there has something happened in that courtroom and has denied the defendant a fair trial. Now that could occasion just as well and come about just as well by virtue of the spectators that are in the courtroom. It can – could come about just as well by virtue of the number of newspaper men that are in a courtroom. It could also come about by virtue of broadcasting and televising, but the mere fact that there is broad what transpires in the courtroom to a thousand people let's say instead of 50 people or 50,000 instead of a thousand, why should that as long as it is fairly portrayed mean that the defendant has been denied a fair trial.
William J. Brennan, Jr.: You would be making the same argument Mr. Jaworski there [Inaudible] if this jury had not been sequestered?
Leon Jaworski: The jury had not been sequestered, you would again have a problem that we don't have here. The problem there would have been Mr. Justice Brennan whether any of that information would have reached the jury. I do think you'd have a different problem, yes. But as it was pointed out to the Chief Justice, in answer to Mr. Chief Justice Warren's question, there actually was a complete segregation of this jury from all outside like --
William J. Brennan, Jr.: Well that does suggest then doesn't it to what Mr. Justice Stewart said. My problem here is not whether Canon 35 is a constitutionally ruled, it's whether in the circumstances these applied.
Leon Jaworski: I think that's right. I agree with that.
Earl Warren: Mr. Jaworski?
Leon Jaworski: Yes sir.
Earl Warren: What are some differences between the examples you've cite and the [Inaudible] courtroom press. You said that [Inaudible] might do that because they were in the courtroom, but here we have a situation of this kind and set out by the court itself that makes those things not only possible, but probable. Now doesn't that change the character that the Court could be responsible if someway [Inaudible] to this courtroom? The witness did thought that if the court knowingly set up the situation that is not known to be possible but was likely -- it wouldn't make a difference.
Leon Jaworski: I follow everything Mr. Chief Justice that you say except the conclusion that is implied in your question and if there is any unfairness of the trial per se by virtue of that. It could result to the unfairness, but it perhaps might not. The point I'm making is that it is true and may I illustrate it. For instance, suppose we have 20 members of the press who are there by permission of the court and you also have at present a number of spectators, in fact the courtroom for the spectators. You have one television camera that's obscured that takes only a few of the proceedings for instance the swearing in of witness or such as that. Now, let's remove the 20 members of the press and let's remove the spectators, but you still have that television camera the mere fact that the television camera is there, are we going to conclude from that that there has been an unfairness in the trial? Now all of these things were permitted by the court. You have less disorder Mr. Chief Justice.
Earl Warren: The other things are -- are inherent in the trial, in the courtroom because our system demands if the public to the extent or the defendant didn't have his friends in the general public to see the trial, to see that he is not being deprived of any of his rights but these others are super imposed upon it and are not going to protect the defendant, but for the commercialization of some newspaper. Is that a difference there?
Leon Jaworski: I can't see the difference Mr. Chief Justice as far as the question of due process, denial of due process is concerned. I can certainly see the difference from the standpoint of what might be called a dignified proceeding. I can see there is difference from what might be said to be the course because I can well see where a lot of confusion could result from it. I cannot see the difference when it gets down to applying the test that this Court has applied in several cases on the question of what constitutes a denial of due process alone. If we were to reach a conclusion, otherwise, we would have to say that there is no burden at all on the defendant any longer to show any kind of an invasion of, to hear the fairness of his trial but all he have to do is come in and say, well there has been a picture taken here. There's been some televising and that ends it. I'm entitled to a new trial. Now that would be a very extreme rule. It would be a rule far different from any that this Court has ever announced before and I think it's contrary to rules that the Court has announced.
Earl Warren: That was right in the constitutionality of it that it wouldn't be a absurd rule to turn this on, I think we have that rule [Inaudible]
Leon Jaworski: It may not be an absurd rule Your Honor but it would certainly be an invasion of what the right -- what the state has the right to do. This Court has said a number.
Earl Warren: I said that.
Leon Jaworski: Yes sir.
Earl Warren: This isn't a constitutional question decided. It wouldn't be observe that that is a rule of the federal court.
Leon Jaworski: Yes sir, that's correct.
Earl Warren: [Inaudible] the rules of the judicial process of the United States describe that and that just follows them.
Leon Jaworski: That's correct sir. We don't know whether the reason for it was that there was any feeling on anyone's part that it necessarily denied somebody a right of a fair trial though to have it.
Byron R. White: 48 states with the same rule, isn't it?
Leon Jaworski: Yes, all except Texas and Colorado have adopted. We're not talking about the Federal rule now, we're talking about a rule that the states have voluntarily adopted, but the American Bar again although it's meshed in this thing and we can't get away from it. It has always said that there should be something for the voluntary guidance of the states themselves and it certainly should not be considered as affecting the question of due process or the question of fairness of trial and if it had ever been found that that was so, we can be certain it would have been placed in Canon 35 but there is not the slightest reference to that effect.
Byron R. White: You're not making any suggestion here that the 48 states or the federal courts which excluded absolutely photographs in the courtroom is in anyway contrary to the Constitution?
Leon Jaworski: Oh and they've not. I'm not saying that Mr. Justice White. I am pointing out though that we don't need to conclude and I think it would be erroneous for us to conclude that the reason for that is based upon any denial of constitutional rights. They had -- they may have had other reasons for doing it. It may relate to the dignity to the coarseness in the courtroom and certainly --
Byron R. White: (Voice Overlap) the federal court will do it constitutionally or they'll be able to do it either way.
Leon Jaworski: Alright.
Potter Stewart: By the same token Mr. Jaworski.
Leon Jaworski: Yes.
Potter Stewart: Suppose you're not contending that at the level of dignity, decorum, judicial propriety, judicial ethics and wisdom that you're not contending that this will attack its rule, its practice if necessarily very good or wise, are you?
Leon Jaworski: No. I'm not because I don't think Mr. Justice Stewart that that is the test in this case. I don't think it's a matter of that is before the Court. I may have my brothers if I may answer a question just a little further and I would because certain things are annoyances to me, I would prefer that for instance there would be fewer spectators who would trouble me particularly when I'm representing an unpopular litigant or an unpopular cause. There are glares and their stares and their comments and so on. I'd like to get rid of them but I would be spawning a greater evil than the matter of getting rid of them because what I would be doing is bringing about opportunities for oppression.
William J. Brennan, Jr.: Like how do you think, you think if on this record you say that this violated the right for a fair trial, it would tantamount to make Canon 35.
Leon Jaworski: Mr. Justice Brennan that's another constitutional amendment. That's what it amounts to in my -- into my books. It elevates you to the --
William J. Brennan, Jr.: It elevates [Inaudible]
Leon Jaworski: It elevates into that statute. I thank the Court.
Earl Warren: Mr. Cofer.
Hume D. Cofer: May it please the Court. The defendant's case does not depend upon the proposition that the constitution prevents TV. The defendant's case depends upon proposition that the defendant has the right to object to a process which has no judicial function and which will probably prejudice it and to that where that process has no judicial function, he, the defendant ought to be entitled to have some say about whether or not it is utilized. Now there are two or three things that I must cover about the facts that I do want to cover. First, there was a question about when the defendant arrived in September, the defendant arrived early in the morning in the courtroom of September the 24th only 15 or 20 or 30 minutes after the proceedings began prior to the arrival of the defendant -- the defendant's counsel only stated their position. All of the testimony on the September the 24th and 25th was taken in the presence of the defendant. This is not the way the courtroom appeared in September. The way the courtroom appeared in September is shown by the photographs, 8/10 photographs, the shiny ones, which show the cameras in the microphones and that one microphone that's not shown and it's this one that was protruding across the edge of the jury box at this point, the directional microphone which was capable of picking up counsel and the defendant's conversations at this table, the record shows. The record shows that there was sound being taped in October. Both radio reporters testified on pages 99 and pages 101 of the record that at the October hearing, they were tape recording that portion of the October proceedings. The broadcast of that sound had been prohibited and the reporters testified that it was not being recorded for the purpose of rebroadcast but it was available for rebroadcast and that sound was being recorded in October by the radio facilities as shown on pages 99 and 101 of the record. Sir?
William J. Brennan, Jr.: That's in the record?
Hume D. Cofer: Yes sir on pages --
Byron R. White: Slightly contradicted to what the state said?
Hume D. Cofer: Let me explain that it's not a deliberate contradiction of this Your Honor.
William J. Brennan, Jr.: What page is that?
Hume D. Cofer: On pages 99 and 101, the two young radio reporters were called to the witness stand in October and testified that right at that time and on the October 5th, they were recording the sound. They said that they were not doing it for rebroadcast but they were recording sound and they had the facility there to do it and one testified on page 101 that, that would be available for rebroadcast. The court had directed in order that it may not be rebroadcast and there's nothing in the record to indicate that it was.
William J. Brennan, Jr.: What I don't understand Mr. Cofer, I thought the Attorney General said that that mic he pointed out on the witness box which would have recorded that the machine from the back in the courtroom had been made dead, had been cut off so that it wasn't possible for any recording.
Hume D. Cofer: The radio facilities were in this room, out this door right here Your Honor and they used one of the same microphones that the court recorder uses.
William J. Brennan, Jr.: What did they do, cut in on it or something?
Hume D. Cofer: They were just wired into the court recording microphone and they were tape recording in this room in the October proceedings which – one of which was being transmitted back to the radio station.
Byron R. White: Well now where does it appear or does it in the record that they were wired into that?
Hume D. Cofer: On page 99 and 101. A tape recorder and a microphone on page -- at the top -- near the top of page 99, top of page 101. It is -- we have an amplifier sound, amplifier microphone and it's being taped and I don't see the part about the microphone Your Honor being the same one is that used by the court reporter but it does appear another place.
William J. Brennan, Jr.: Well was it -- isn't it -- was this just below or you were using the same microphone that the other facility is using, the courtroom microphone? The courtroom microphone, that was --
Hume D. Cofer: That is the place I was referring to I [Inaudible] and the point is that -- in the Court's question that it was sound being recorded in October that was available but there's no record -- there's no evidence -- there's nothing in the record to show that (Voice Overlap)
Byron R. White: So in 101 it said at this moment, it is exceeding the trial through our studio where it is being taped?
Hume D. Cofer: Yes sir.
Hugo L. Black: But it goes on instead not being used.
Hume D. Cofer: Not being broadcast that it's available and there's no -- nothing in the record to show that the court's order in that regard was valid.
Hugo L. Black: [Inaudible] tape here.
Hume D. Cofer: The sound tapes are not Your Honor. The only tapes that are available are the video tape of the September hearing, both names in three roles, none of the October video tape --
Hugo L. Black: Which isn't material, why didn't you ask for the tape to be brought here that do show the [Inaudible]
Hume D. Cofer: Well I'm not sure that the -- the tapes themselves were material Your Honor, there's no evidence that they were just--
Hugo L. Black: [Inaudible] your point, some of these companies took the tapes showing to them. Why isn't it here?
Hume D. Cofer: Your Honor, I was -- it's not an important matter. There was a question from the Court about whether there was any sound and it occurred to me that I had an obligation to explain that there was this one recording incident. I believe that it is not important to the case. There were instead of the three cameras shown in the model, there are four cameras shown in the model. The testimony shows that there were five cameras shown in the model on page 65. That was on the opening days of the October hearing. The model does not show and they have not been mentioned, the press photographers who were not required to stay in the booth, they were permitted the full access to the room and so long as they stayed behind the jury box. And the press photographers, these pictures that's shown here, the two boys, the UPI and the AP with cameras ready to open were given to enter the room and were permitted to stand here and here or anywhere along the room to take pictures of the proceeding.
Hugo L. Black: What hearing was that?
Hume D. Cofer: The October trial.
Hugo L. Black: Well what do you -- the October trial?
Hume D. Cofer: Yes sir during the trial.
Hugo L. Black: You say that that was during the trial.
Hume D. Cofer: During the trial the evidence of testimony, yes sir.
Hugo L. Black: Were they used in the press?
Hume D. Cofer: Yes sir.
Hugo L. Black: I'm sure that our clipping showed in those large boxes of exhibits, all the newspapers during the trial and [Inaudible]
Hume D. Cofer: Yes sir, yes sir.
Potter Stewart: None of that is [Inaudible]
Hume D. Cofer: Excuse me. I have one exception to that. During the arguments, the photographers were required to go to the booth. The press photographers were required during the arguments to return to booth, that's the exception [Inaudible]
Potter Stewart: That's an exception to what I just heard. The press photographers are allowed in the courtroom and the --
Hume D. Cofer: Yes sir.
Potter Stewart: Is the interference or disruption that they may have caused -- is that -- that question is not at all covered by the limited grant of certiorari in this case.
Hume D. Cofer: Yes sir it is. Photography -- I believe that photography (Voice Overlap)
Potter Stewart: No. I just have petition before me. I didn't know where it was and if so, it would be understood. Here is what question two says.
Hume D. Cofer: Yes sir.
Potter Stewart: Whether the action of the trial court over petitioners continued objection, denied in due process of law and equal protection of the law under the Fourteenth Amendment of the Constitution of the United Sates in requiring petitioners to submit to live television of his trial and in refusing to adopt in this all out publicity case as the old trial procedure, Canon 35 of the Canon of Judicial Ethics of the American Bar Association and instead adopting and following over the defendant's objection, Canon 28 of the Canon of Judicial Ethics since approved by the Judicial Section of the integrated State Bar of Texas.
Hume D. Cofer: I believe that photography is fairly within the limit Your Honor. It calls that Canon 35 expressly refers to photographs.
Potter Stewart: I see.
Hume D. Cofer: Yes sir. I know there's (Voice Overlap)
Arthur J. Goldberg: Mr. Cofer may I ask you this.
Hume D. Cofer: Yes sir.
Arthur J. Goldberg: Does your argument come down to this that in the light of human experience in the a fair trial which must be a public trial in general and take place in the newspaperman and similar reporting goes on because this is something that human might have get an experience witnessing jurors, participants in the trial are accustomed to. But that when the additional element is added of a camera focused interview and a recording in either view for use of live or news broadcast and if that additional element still runs contrary to the concept of human behavior that it is bound to influence witnesses, jurors, adversely to a fair determination of the case.
Hume D. Cofer: We say that there's a probable prejudice with respect to jurors, with respect to witnesses, with respect to counsel, with respect in this case to other litigation of the defendant and that probable prejudice justifies the defendant's position that he's entitled to object based upon the standards of the unimagined that are accepted standards in 48 states and the federal courts [Inaudible]
Speaker: [Inaudible]
Hume D. Cofer: Yes sir all judges are elected. I believe that might be one exception to that retired judge has served for a few years without election. I see Your Honor that my lights are on. I ask alternatively to the Court to correct now one or two other statements of fact to follow memorandum concerning it and the memorandum would serve the purpose if the Court wishes to proceed. I would ask leave to file these statements referred to by my counsel's opening argument. This is particularly with the position in reference to public trial and I report in my argument and I -- they wrote it but I didn't [Inaudible] These two counsels argue the [Inaudible]