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August 8, 2010

Lawyers’ Smart Phones Left at Courtroom Door Quiver with Volume of Calls

Moses may have had his burning bush, but at least one judge has a buzzing bush, according to Jonathan Turley, who moderated a discussion of “Trying High-Profile Cases in a 24/7 ‘New Media’ World” during the _’s 2010 Annual Meeting in San Francisco.

The bush is the temporary resting place for lawyers’ cell phones and PDAs, the place where they must stash their gadgetry as they enter the courtroom, and Turley said it visibly quivers along with the buzzing as calls go unanswered while lawyers litigate.

Judges joined renowned trial lawyer David Boies and Ron Sylvester of the Wichita Eagle, the first journalist known to have “tweeted” from court, to point out other impacts of technology on major trials.

Introducing the program, Judge Delissa A. Ridgway of the United States Court of International Trade, cited the decline of traditional news media coinciding with the rise of “citizen journalism,” and asked “Can trial by Twitter be far behind?”

U.S. District Judge Reggie B. Walton of the District of Columbia told of insisting potential jurors agree to forsake their smart phones and Internet use while hearing trials, and of resistance from some who maintain they cannot carry on without them.  U.S. District Judge Barbara M. G. Lynn of Dallas added that she requires jurors in her court to swear a second oath, with the newly added one including limitations on such practices as electronic research.

The panelists agreed the rise in cable television and even more rapid rise in social media have increased public access to information about the courts, at the same time they have created new issues judges must address.  But at least some said public interest has always been there, with newer and easier distribution mechanisms making it easier to satisfy the interest.

“Most Americans know more about Charlie Manson than about James Madison,” said Jonathan Turley, program moderator, and we “now have trials that are part of the every day diet of most Americans.”

Sylvester agreed that Twitter and Facebook have taken historic “trials on the public square” to a new level, making the public square infinitely bigger.  Boies, one of two co‑counsel on the California Proposition 8 case decided Aug. 4, noted that 90,000 people had accessed the website posting of the ruling overturning restrictions on marriage equality, reading the opinion, viewing exhibits and listening to tape recordings.

Though Walton said he seeks to accommodate media interests, he can do so only so long as it does not compromise the rights of litigants.  “Inevitably, there is going to be a level of conflict,” he said, launching the panel into a discussion of cameras in the court.

Turley noted that discussion has been on-going since the 1935 trial of Bruno Richard Hauptmann in the Lindbergh baby kidnapping case.

Technology can affect information introduced in a trial itself, suggested U.S. District Court Judge Gene E. K. Pratter of Philadelphia.  She referenced a website that exposes informants and law enforcement officers, saying judges, prosecutors and the defense bar must come to grips with how to protect “cooperators” once they’ve been “fingered.”

Walton raised a different issue—the ease with which critics can uncover and post personal information about a judges’ background, such as academic records.

The program was sponsored by the ABA’s Judicial Division.