A judge has granted documentary filmmakers full access to an upcoming capital murder trial — including the traditionally secret jury deliberations — and prosecutors are mounting an effort to stop it.
Legal experts believe it would be the first time deliberations were included in a video documentary of a trial that could lead to a death sentence.
State District Judge Ted Poe issued an order Nov. 11 allowing PBS' public affairs series, "FRONTLINE," to film the trial from start to finish.
Harris County District Attorney Chuck Rosenthal has asked Poe to reconsider. If he doesn't, Rosenthal has already filed a petition with the Texas Court of Criminal Appeals.
"We don't try these cases for the spectacle or for people's entertainment," Rosenthal said. "I think that filming jurors is really a bad idea because it puts pressure on the jurors to vote in a way the public might expect."
The prosecutor isn't happy about the prospect of a camera in the jury room because it's an unknown and he probably figures that an unknown is going to cut against him, said CBSNews.com Legal Analyst Andrew Cohen. But the case is being tried in Harris County, where jurors condemn more people to death than in any other single county in the country so it's a tough argument for him to sustain.
Poe has scheduled a hearing for Monday, the same day individual questioning of about 55 potential jurors is set to begin.
Defense lawyers for 17-year-old Cedric Harrison say their client not only agreed to let the cameras in, he encouraged it. "He felt that it could only benefit him," Ricardo Rodriguez said.
Harrison is accused of fatally shooting Felix Sabio II, 35, on June 2 outside Sabio's apartment. He was arrested after a chase ended with a fiery car crash.
Everyone is on board except the prosecutor, says Cohen, and if the cameras do record the proceedings from start to finish it will be a fascinating and rare glimpse into the most secret part of the criminal justice process. And however the jurors ultimately come out in their deliberations their work will be evaluated for decades by prosecutors and defense attorneys alike.
At first, Rodriguez said he was unsure of whether a remote camera installed in the ceiling of the jury room would help or hurt his client, but decided to support the idea after talking with other defense attorneys and psychologists.
"I believe I made the right decision because look at how the state of Texas has responded to all this," Rodriguez said. "I think for once the whole world is going to watch what goes on in a Texas courtroom, where the state seeks the death penalty quite frequently."
The concern is that the jury will deliberate differently knowing that the camera is there, says Cohen, and it's the same argument, really, that has been used to keep cameras out of federal courtrooms and the United States Supreme Court. But there really isn't any hard evidence that proves that jurors will mug for the camera and there is obviously great public interest in what regular people do inside that room when faced with such monumental decisions.
"This has groundbreaking potential only because someone is challenging it," South Texas College of Law professor T. Gerald Treece said. "It is very unusual to have deliberations videotaped when someone objects."
Treece said keeping deliberations secret has been more of a custom than a law in Texas. "The more the public's right of access increases, the better we all are," he said.
Attorney Chip Babcock, who will represent Poe in the petition before the Texas Court of Criminal Appeals, says the judge has put safeguards in place, such as making sure the videotape of jury's deliberations remains in the court's custody until after the verdict, to ensure "everyone involved has a fair trial."
"The judge felt that it was important to allow this project to go forward," said Babcock, to whom Poe referred calls.
And what are viewers likely to see eventually?
"There have been cameras in jury rooms before during deliberations but not in a capital case where jurors may have to make a life or death decision," said Cohen. "The jury tapes I have seen from other cases show jurors taking their jobs very seriously — almost forgetting that the camera is there — but they also show an awful lot of horse-trading inside that room."