OF HARRIS COUNTY, Relator

v.

THE HONORABLE TED POE, JUDGE, 228^th DISTRICT COURT

OF HARRIS COUNTY, Respondent

ORIGINAL MANDAMUS PROCEEDING

FROM HARRIS COUNTY

In a well-intentioned, understandable, principled effort to prevent a genuine disaster in our State's criminal jury system, the majority has regrettably created law where there is none. I must reluctantly dissent.

Cedric Harrison is charged with the capital murder of Felix Sabio. The State is seeking the death penalty. On November 11, three days before jury selection was set to begin, Co-Production filed a motion requesting permission to record and broadcast the entire capital murder trial, including the jury's deliberations. Harrison consented to the filming, but the District Attorney objected. Judge Poe granted the request and ordered the trial filmed.

The District Attorney then filed a petition for writ of mandamus in this Court, seeking to prevent Judge Poe from authorizing the taping. We granted a stay of the criminal trial proceedings and filed and set this case for submission.

It goes without saying that Judge Poe's order is shocking. The thought of recording and later televising a jury's deliberations is appalling. As the amici point out, we are guided in our criminal justice system by "the cardinal principle that the deliberations of the jury shall remain private and secret in every case." ⁽¹⁾ Indeed, "[f]reedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world." ⁽²⁾ Additionally, "full and frank discussion in the jury room, jurors' willingness to return an unpopular verdict, and the community's trust in a system that relies on the decisions of laypeople would all be undermined by a barrage of postverdict scrutiny of juror conduct." ⁽³⁾ Even we have recognized that "[t]he deliberations of a jury are required to be kept secret." ⁽⁴⁾

In his concurring opinion, Judge Price implies that because Judge Poe had pure motives, and because his order does not violate the law, the order therefore cannot be shocking. Nothing could be further from the truth. Indeed, the most shocking of actions are often justified as having originated from the purest of motives. And as former Supreme Court Justice Potter Stewart said, "there is a big difference between what you have a right to do and what is right to do." Just because the order did not violate any law does not make it any less shocking.

Co-Production points out that other courts have recorded and later televised jury deliberations, including a Milwaukee criminal trial and several Arizona criminal trials. ⁽⁵⁾ But it has never been done when one of the parties objects, as here. And it has certainly never been done in a capital murder trial in which the State seeks the death penalty. The stakes are higher today than ever before.

The District Attorney argues that Judge Poe's order violates Art. 36.22 and Rule 606(b) of the Rules of Evidence. He claims these two provisions create a "zone of privacy" around jury deliberations. Judge Poe responds that the District Attorney has failed to satisfy the requirements of mandamus relief because he fails to establish that a ministerial duty has been violated. He further argues that other courts nationwide have videotaped jury deliberations, to no detriment to the justice system.

Mandamus is an extraordinary remedy to be invoked sparingly. ⁽⁶⁾ Its issuance is never a matter of right but rests in the sound discretion of the Court. ⁽⁷⁾ To obtain mandamus relief from this Court, a relator must show: (1) a clear right to relief, as when the judicial conduct in question violates a ministerial duty; and (2) no adequate remedy at law to redress the alleged harm. ⁽⁸⁾ The District Attorney has no right to appeal Judge Poe's order before deliberations begin, ⁽⁹⁾ so he establishes that he has no adequate remedy at law. The issue in this case is whether Judge Poe's order violates a ministerial duty.

An act is ministerial if it does not involve the exercise of any discretion. ⁽¹⁰⁾ If there is any discretion or judicial determination attendant to the act, it is not ministerial, nor is it a ministerial act if the trial court must weigh conflicting claims or collateral matters which require legal resolution. ⁽¹¹⁾ The law must spell out the duty to be performed with such certainty that nothing is left to the exercise of discretion or judgment. ⁽¹²⁾ Even a trial court's ruling on a pure question of law is not subject to writ review if that law is unsettled or uncertain. ⁽¹³⁾ We have also described the ministerial act requirement as a requirement that the relator have a clear right to the relief sought. ⁽¹⁴⁾ The relief sought must be clear and indisputable such that its merits are beyond dispute. ⁽¹⁵⁾ The act must be positively commanded and so plainly prescribed under the law as to be free from doubt. ⁽¹⁶⁾

Article 36.22 provides as follows:

No person shall be permitted to be with a jury while it is deliberating. No person shall be permitted to converse with a juror about the case on trial except in the presence and by the permission of the court.

The statute was enacted in 1965 when our entire Code of Criminal Procedure was rewritten and codified. The predecessor to Art. 36.22 was Art. 671, enacted in 1925. That statute provided as follows:

No person shall be permitted to be with a jury while they are deliberating upon a case, nor be permitted to converse with a juror after he has been impaneled, except in the presence and by the permission of the court, or except in a case of misdemeanor where the jury have been permitted by the court to separate. No person shall be permitted to converse with the juror about the case on trial.

The question in this case is whether allowing a camera in the jury room to record the jury while it is deliberating violates the statute's proscription against a "person" being with the jury. The majority concludes that "each of the millions of viewers of the videotape is a person" and that "the playing of the videotape (live or not) permits these persons to 'be with the jury while it is deliberating'." ⁽¹⁷⁾ But this is simply not the case. While each viewer is indeed a person, the viewers will not be with the jury while the jury is deliberating. Instead, the viewers will be viewing the jury long after the jury has deliberated.

In her concurring opinion, Judge Cochran surmises that the cameraman, if no one else, will be "with" the jury while it is deliberating. She bases this assumption on her viewing of the video of another jury's deliberations and her supposition that "presumably" ⁽¹⁸⁾ the same thing will occur here. But nothing in the record before us indicates that in this case there will be a live cameraman viewing the jury as it deliberates. Indeed, at oral argument Co-Productions' counsel assured this Court that the camera would not be manned. Finding a violation of Art. 36.22 requires an assumption of facts not in the record and directly contradicted at oral argument.

The District Attorney's reliance on Evidence Rule 606(b) is equally unfounded. Rules of evidence do not come into play until trial proceedings begin. Judge Poe's order cannot possibly violate a rule of evidence when the trial has not yet begun. Moreover, Rule 606(b) prohibits a juror from testifying regarding deliberations. Television is not trial testimony, so nothing about Judge Poe's order violates the rule.

The majority states that "videotaping the jury deliberations with an unattended camera does introduce an 'outside influence and pressure' on the jury while it is deliberating." ⁽¹⁹⁾ I wholeheartedly agree. But that is not the question before us. The question is not whether videotaping the jury's deliberations is a good idea. It is a terrible idea. The issue, however, is only whether videotaping the jury constitutes a "clear" violation of Art. 36.22.

The majority states that "mandamus can lie to compel compliance with even an ambiguous statute." ⁽²⁰⁾ I disagree. Mandamus is only available when there is a "clear right to the relief sought." ⁽²¹⁾ Ambiguous is the opposite of clear. If a statute is ambiguous, there should be no entitlement to mandamus relief on a claim that a judge violates that statute.

Regardless, in this case the majority does not find Art. 36.22 ambiguous. Instead, it finds that the plain language of the statute "clearly and indisputably prohibits the videotaping of jury deliberations." ⁽²²⁾ The majority and I must be reading two different statutes. While I agree that videotaping jury deliberations ought to be prohibited by law, I find nothing in the plain language of Art. 36.22 which mentions televising, videotaping, or recording of any kind. The statute just does not encompass this activity. Indeed, how could it? When the predecessor statute was enacted in 1925, television was the stuff of science fiction.

My heart is with the majority, but my mind cannot agree. As much as I would like to grant the District Attorney mandamus relief and prevent Co-Production from recording the jury's deliberations, I find no "clear and indisputable" ⁽²³⁾ duty for Judge Poe to vacate his order.

The ramifications of my position are not as extreme as they may appear to be. As the majority notes, there is legislation pending at this moment to prohibit recording jury deliberations. Senate Bill 164 was filed January 6^th and referred to the Senate's Jurisprudence Committee on January 30^th. An identical House Bill 466 was filed January 21^st. Both bills seek to add an Art. 36.215 to the Code which would prohibit a person from using "any device to produce or make an audio, visual, or audio-visual broadcast, recording, or photograph of a jury while the jury is deliberating." Both bills, as currently written, apply only to trials "commenced on or after September 1, 2003."

But if my position were to prevail, either bill could be amended to apply retroactively to any trial currently pending, as long as jury deliberations have not yet begun. A retroactive application would not offend the ex post facto clause since the subject pertains to a procedural issue rather than a substantive right. ⁽²⁴⁾ Additionally, either bill could be rushed through the legislative process, signed quickly into law, and given an immediate effective date, rather than the delayed date of September 1, 2003. If this were to occur, the new statute could affect this very case. So denying mandamus relief to the District Attorney would not necessarily result in the recording of the jury deliberations in this case. The legislature and the Governor could prevent it.

Additionally, if my opinion were to prevail and the legislature did not act promptly to prohibit the trial court's action in this case, it would not mean the end of confidential jury deliberations. This would be one case, an aberration which would, at most, result in the airing on television of a single jury's most secret deliberations. I would hate to see it happen. But it would be an isolated case, an action that would never be repeated in Texas, assuming the new legislation passes.

I respectfully dissent.

DATE DELIVERED: February 12, 2003

PUBLISH

1. United States v. Virginia Erection Co., 335 F.2d 868, 872 (4^th Cir. 1964).

2. Clark v. United States, 289 U.S. 1, 13 (1933).

3. Tanner v. United States, 483 U.S. 107, 120 (1987).

4. Alsup v. State, 118 Tex. Crim. 388, 39 S.W.2d 902, 903 (1931).

5. See William R. Bagley, Jr., Note, "Jury Room Secrecy: Has the Time Come to Unlock the Door?", 32 Suffolk L. Rev. 481, 485 (1999); Clifford Holt Ruprecht, Comment, "Are Verdicts, Too, Like Sausages?: Lifting the Cloak of Jury Secrecy," 146 U. Pa. L. Rev. 217, 224 (1997).

6. State ex rel. Holmes v. Honorable Court of Appeals for Third Dist., 885 S.W.2d 389, 392 (Tex. Crim. App. 1994).

7. Smith v. Gohmert, 962 S.W.2d 590, 592 (Tex. Crim. App. 1998).

8. State ex rel. Rodriguez v. Marquez, 4 S.W.3d 227, 228 (Tex. Crim. App. 1999).

9. See Art. 44.01.

10. State ex rel. Hill v. Court of Appeals for Fifth Dist., 67 S.W.3d 177, 180 (Tex. Crim. App. 2001).

11. Id.

12. Id. at 180-81.

13. Id. at 181.

14. State ex rel. Hill v. Court of Appeals for Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001).

15. Id. at 927-28.

16. Id. at 928.

17. Ante, slip op. at 11.

18. Ante, slip op. at 3-4 n.2 (Cochran, J., concurring).

19. Id.

20. Id. at 10.

21. Hill, 34 S.W.3d at 927.

22. Ante, slip op. at 13.

23. Hill, 34 S.W.3d at 927-28.

24. Ibarra v. State, 11 S.W.3d 189, 192 (Tex. Crim. App. 1999) (retroactive laws provision of Texas Constitution operates only to prohibit the application of statutes which disturb vested, substantive rights; laws altering procedure do not fall within prohibition).