Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
Young sniper suspect Lee Boyd Malvo has enough going against him these days without having to worry about cameras televising his Virginia trial to a nation still bitter about last fall's shooting spree. That's essentially why Fairfax County Circuit Court Judge Jane Marum Roush will almost certainly deny a cameras-in-court request made Thursday by several media organizations, including my beloved CBS.
It's true, as the media consortium argues, that the "right of a 'public trial' belongs not only to the accused, but to the public as well." But it's also true that no one at Court TV will be going to death row if things don't go well for the defense at the capital trial now scheduled to begin on November 10th.
The balancing test that all judges must consider when evaluating a request to televise a trial simply doesn't balance out in favor of courtroom cameras in this case. In fact, since Malvo's attorneys object to the notion of a televised trial, I'm not sure it's even a particularly close call.
Even without cameras, it's going to be difficult to give the juvenile defendant a fair trial before an impartial jury. The sniper shootings probably have generated more publicity than any other crimes since the Oklahoma City bombing in 1995.
What's more, the shootings took place near the epicenter of governmental power and were covered by the nation's media elite, many of whom lived in communities directly affected by attacks. And, once Malvo goes to trial, the people who will be asked to judge him dispassionately as the "conscience of the community" are the very same people who were both terrified (thinking they'd be the next random target) and/or inconvenienced (mostly by those traffic dragnets) last September and October during the shooting spree.
Indeed, the very randomness and expanse of the "crime" scene-much of Virginia and Maryland, for starters-creates a "personalized" attachment to the case for both the trial's main actors (the lawyers, witnesses and jurors) and its bit players (the reporters and the general public).
This is a foundational problem for Malvo that makes it all the more vital for the court to protect him from any non-organic emotional overheating. Standing alone, this volatile pre-trial atmosphere ought to be worrisome enough to convince Judge Roush that televising the trial may make sense in ordinary cases but is a terrible idea in this case.
But there are other reasons why the deck is stacked against Malvo to the extent that televising his trial might push the whole case into Leopold-and-Loeb territory. First, Malvo faces capital murder charges in a jurisdiction specifically handpicked to ensure the best chance that he will be executed if he's convicted. Prosecutors have been very candid about why they chose Virginia and what they expect Malvo's jurors to do. Second, law enforcement officials have been improperly leaking information about the case against him in order to further influence potential jurors before the evidence starts coming in.
Third, there have no been additional sniper attacks since Malvo and his alleged cohort John Allen Muhammed were arrested -- a point that will surely come up at trial if it is still applicable. And, fourth, even if Malvo somehow gets a favorable result in this upcoming trial, he faces the possibility of at least six more murder trials, any one of which can result in either a life sentence or his execution. And it's this probability of successive trials -- first Virginia, then Maryland, then maybe Alabama and the District of Columbia -- that gives the defense it's best argument against cameras.
Whatever a televised Malvo trial would do to the participants in that trial, allowing Americans to watch the trial from the comfort of their homes surely would make it a lot harder to get an impartial jury for the next Malvo trial, or the Malvo trial after that. Indeed, it is the very hopelessness of Malvo's legal future that gives his present attorneys an argument against cameras that most defendants don't have.
The folks who want cameras in the courtroom ultimately will have to convince Judge Roush that there will be no direct prejudice to Malvo in her courtroom but also that there will be no increased potential for prejudice in someone else's courtroom during a subsequent Malvo trial. I think that's an impossible hurdle for the news organizations to overcome.
Some trials ought to be televised and news organizations ought to push whenever and wherever they can for more access to courtrooms. But some trials are simply too tightly wound, too hyper-charged to digest the additional element of televised coverage. Besides, people who want to appreciate the "public" nature of the Malvo trial will still have plenty of opportunities. The courtroom doors will be open to the general public.
Media types like myself will hang on every word and report what we see and hear. There will be daily transcripts available online. In short, no one who wants to know what's happening inside Judge Roush's courtroom will be left lacking for information.
By Andrew Cohen
Copyright 2003 CBS. All rights reserved.