NO. 74,515



OF HARRIS COUNTY, Relator, Appellant




Cochran, J., filed a concurring opinion.


I join the majority opinion. I write separately to provide additional explanation for my decision.


First, what, precisely, is the procedure at issue here? Judge Poe has granted Mead Street Films ("Frontline") the exclusive rights to videotape (including audio) the jury deliberations in this capital murder trial. According to Frontline's Request for Permission to Record and Broadcast Proceedings in this case:

The Co-Production will record proceedings in the courtroom using traditional camera equipment and sound recording equipment including stationary and wireless microphones standard in broadcast television. Care will be taken to ensure that all courtroom filming is unobtrusive. Jury deliberations will be recorded using remote operated cameras and sound recording equipment to minimize distractions to the jurors. The placement and number of all cameras and microphones will be determined in consultation with the court. (emphasis added) (1)

Frontline requested, and was granted, the exclusive right to later broadcast this footage, as well as exclusive access to the video and audio material. Frontline also apparently has the right to exercise sole control over the editing process and will turn the entire capital murder trial proceedings into a "documentary special [which] will be two to three hours in length to give sufficient time and space to bring depth and understanding to this complex and challenging topic."

Included in the exhibits submitted to this Court by Judge Poe ("Respondent") and Frontline is a copy of PBS's prior televised program, entitled "Inside the Jury Room," which includes video and audio footage of jury deliberations from a 1986 Milwaukee criminal trial. I have viewed that videotape. It is instructive. (2) It is apparent that several different, remote-controlled cameras were used and the cameraman outside the courtroom focused one of those cameras for close-up shots of the particular juror speaking, moved the camera for close-ups of the next speaker, and then jumped from juror to juror as conversations developed across the room. (3) The cameraman, though literally outside the jury room, was contemporaneously aware of every word spoken, every gesture made, and every person speaking as he simultaneously recorded it. Thus, the eyes and ears of one person are in the jury room during the jury deliberations and, under Frontline's proposal, millions of eyes and ears will be in the jury room in the months and years after those deliberations. (4)

Frontline uses its prior program (as well as equivalent experiments in several other jurisdictions) as precedent for its present position that videotaping jury deliberations is permissible. Were it not, the argument goes, surely these other courts would not have allowed it. (5) This argument carries no weight, however, because on those prior occasions, all of the parties consented to the filming. Because no party objected, the issue was never contested on appeal. I am unable to find any reference anywhere to any case in any jurisdiction in which a trial judge allowed a television crew to film jury deliberations when one of the parties objected to that process. In this case, the District Attorney of Harris County has vehemently objected to this project. He is joined by amicus briefs from the Texas District and County Attorneys' Association, the El Paso District Attorney, and the Bexar County District Attorney. In this case, we are concerned only with the filming of jury deliberations when one of the parties to the litigation objects to the procedure.


Second, does Judge Poe's order violate a Texas law? Yes, it violates a specific statute as well as centuries of common law as developed, interpreted, and applied in American courts.

Article 36.22 of the Code of Criminal Procedure reads:

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.

While he is recording the jury deliberations, the Frontline cameraman would be "with" the jurors. Thus, Judge Poe's order, granting Frontline the right to videotape the jury deliberations, violates article 36.22. The cameraman outside the jury room filming the deliberations occurring inside the room is exactly like a silent reporter sitting behind a screen inside that room. One is literally inside the room, while the other is figuratively inside the room. Both are privy to every word of every juror. But the cameraman also sees and records every gesture and act as well.

A camera that is in the jury room with a person at the other end of it is the equivalent of that person being in the room. The camera simply extends the viewer's physical senses of sight and hearing, just as a periscope allows the submarine commander who is literally 20 feet under the water to visually inspect the ocean surface above him. Twenty-first century technology enables viewers to be figuratively present on the moon, in space capsules, exploring the sunken Titanic, and in other people's bedrooms.

Respondent argues that the statute does not really mean what it says, but rather that the statute only forbids outsiders from communicating with jurors in an attempt to influence them. He states in his post-submission brief:

It must be remembered that Article 36.22 is intended to prevent outside influences from affecting deliberations, and, ultimately, the verdict. Thus, so long as outside influences are eliminated, and other applicable laws are followed, jury deliberations could be conducted in an open courtroom, a jury room without a door, a restaurant, or any other location without presenting an issue ripe for mandamus.

Under this theory, counties could install large one-way mirrors, as is done in police interrogation rooms, so that the parties, attorneys, judges, and the general public might peer in on the jury as it deliberates in its jury room. As long as the viewers do not knock on the glass or talk to the jurors, all is well. But if jury deliberations are open to the public, then Frontline cannot have exclusive access to this jury deliberation room. It has the same right of access as does the public, no more and no less. (6)

The cameraman and these other viewers are not "with" the jurors in every sense of the word, just as millions of television viewers were not literally "on the moon" with Neil Armstrong. Thus, the majority correctly examines the history and purpose of article 36.22 to determine if there is any justification for Relator's position that the cameraman (and ultimately millions of television viewers) is not "with" the jury during its deliberations if his eyes and ears are present, but his mouth is not.

At oral argument, Respondent's counsel agreed, when asked whether jury deliberations are "secret" or "public," that they are secret. He is correct. Indeed, innumerable American and English judges, academics, and writers have extolled the mystical functioning of secret jury deliberations. (7) Virtually without exception, American courts agree that:

the presence of [another person] in the jury room violate[s] the cardinal principle that the deliberations of the jury shall remain private and secret in every case. The presence of any person other than the jurors to which the case has been submitted for decision impinges upon that privacy and secrecy. (8)

As more strongly expressed:

no one should be with a jury while it is engaged in its deliberations. The jury system is founded upon the proposition that interested jurors will hear the evidence in open court, and upon that evidence and that alone, deliberate among themselves until a verdict is reached. To permit various persons ... to be with the jury in its deliberations is to open the door to grave abuse and strike directly at the heart of the system. (9)

The State of Texas, of course, agrees that "[t]he deliberations of a jury are required to be kept secret." (10)

Respondent argues that: 1)although jury deliberations are secret, article 36.22 does not explicitly prohibit filming and televising these secret deliberations; and that 2) there is only one purpose in keeping those deliberations secret- to prevent any outsiders from influencing the jurors. But because filming the deliberations is not an outside influence, respondent argues, his order does not violate the statute.

Respondent, in his brief to this Court, argues that "there is no controlling authority that clearly prohibits the videotaping of jury deliberations." This is not surprising. When the forerunner to article 36.22 was enacted in 1925 and when the current article 36.22 was enacted in 1965, videotaping jury deliberations with remote controlled cameras and microphones was not technologically possible. The issue had simply never arisen before this case. Now that it has arisen, the Legislature is acting to make explicit what is implicit in the statute. (11)

Furthermore, statutory law is not the only type of law that governs criminal proceedings. As article 1.27 explicitly states, "[i]f this Code fails to provide a rule of procedure in any particular state of case which may arise, the rules of the common law shall be applied and govern." (12) The deliberations of a petit jury, like those of a grand jury, have always been secret under the common law of the State of Texas. (13)

Respondent's order indisputably puts Frontline's eyes and ears into the jury deliberation room through modern miracles of technology. If "the Fourth Amendment protects people, not places" (14) article 36.22 protects jurors, not jury rooms. The Supreme Court has held that modern technology, when it acts as the substitute for the eyes, ears, or noses of those who could not otherwise lawfully intrude upon a citizen's private domain, may be the legal equivalent of a person. In Kyllo v. United States, (15) the Supreme Court held that "obtaining by sense-enhancing technology [a thermal imaging device] any information regarding the interior of the home that could not otherwise have been obtained without physical 'intrusion into a constitutionally protected area'... constitutes a search- at least where (as here) the technology in question is not in general public use." (16) Justice Scalia noted that this test "assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted." (17) Similarly, barring remote-controlled cameras from videotaping secret jury deliberations assures preservation of that degree of privacy for jurors that existed when article 36.22 was first enacted.

"The secrecy of deliberations is the cornerstone of the modern Anglo-American jury system." (18) Respondent contends, however, that there is only one purpose to be served by the secrecy of juror deliberations- protecting the jurors from outside influence and coercion. I disagree. Maintaining the secrecy of jury deliberations has traditionally been supported by five distinct rationales:

1. preventing tampering with the jury by outside influences; (19)

2. protecting the jury from post-verdict harassment; (20)

3. protecting the finality of jury verdicts; (21)

4. protecting robust freedom of debate during deliberations; (22) and

5. promoting community trust in the jury. (23)


Although the Frontline cameraman would not be able to tamper with the jury by orally influencing their debate, all of the four other purposes of maintaining jury secrecy would be affected, in varying degrees, by the Frontline videotaping and broadcasting.

According to one commentator, our common-law policies of the sanctity and secrecy of jury deliberations

are seriously threatened by interviewing jurors after a trial. In recent years, the seriousness of this threat has grown by several magnitudes. Newspapers and radio programs have quoted jurors extensively, jurors have appeared singly or in groups on television, and some have written articles and even books about their experiences. Reporters have telephoned jurors at home to arrange postverdict interviews. Hung juries have been questioned on the reasons for their inability to reach a verdict. Even sequestered jurors have been pursued by the media and have had questions shouted at them.

Popular culture is now grossly at odds with the jury's history and function. Potential jurors are being taught that their deliberations will not be secret at all. They can expect to be interviewed. They will be asked for their reasons and those of their fellow jurors for convicting, acquitting, or being unable to agree. And when they return an unpopular verdict, the postverdict "inquisition" by the media can easily take on the quality of attaint at common law, figuratively punishing jurors for doing their duty.

All this seems to have been happening in good faith, accompanied perhaps by a tinge of self-righteousness. To the media, the jury appears to be just another institution about which the public has a "right to know." (24)


Respondent argues that the educational value of this project is "self-evident," and that "[p]ublic confidence is furthered by a policy of openness in criminal trials and proceedings." I wholeheartedly agree with that general proposition. "A trial is a public event. What transpires in the court room is public property." (25) But the jury deliberation room is not the courtroom. Respondent also argues that "[w]hile the tradition of open access has heretofore been limited to courtroom proceedings in criminal cases, there is no reason to cut off access to the jury room door." As discussed above, there are many reasons for cutting off access at the jury room door. Those reasons have served the Anglo-American system of justice well for many centuries. It is not the place of this Court to overturn those centuries of law absent specific and explicit legislative directives. If the Texas Legislature should decide to throw open the door of the jury deliberation room, it may do so. Until then, the door stays closed under article 36.22 and American common law.

Frontline argues that its program will be entirely educational and informative, and not a sensational "Survivor-type reality show" as suggested by Relator. (26) Perhaps so, but I agree with those two Maine justices who, when asked whether to permit filming of jury deliberations, concluded that "[t]he public would be better served by a documentary that emphasized, rather than intruded upon, the confidentiality of juror deliberations and the protection afforded the public from any abuses of that process." (27)


The final issue is whether the district attorney is entitled to relief by mandamus. As Judge Keasler correctly notes, the mere fact that an order might be "terrible," "shocking," or "appalling," (28) is not sufficient to have it rescinded via mandamus. Our mandamus jurisdiction is very limited. Mandamus is available only if the relator can demonstrate that: 1) he has no other adequate remedy at law; (29) and 2) under the relevant law and facts, the respondent "clearly abused" his discretion or the act sought to be compelled is "purely ministerial." (30)

The relief sought under either phraseology must be "clear and indisputable" such that its merits are "beyond dispute." (31) Further,

a "ministerial" act is one which is accomplished without the exercise of discretion or judgment. If there is any discretion or judicial determination attendant to the act, it is not ministerial in nature. Nor is a ministerial act implicated if the trial court must weigh conflicting claims or collateral matters which require legal resolution. (32)

Thus, for example, in Banales, we held that a trial judge did not have a ministerial duty to refrain from imposing certain specific conditions of probation on the defendant; he had the right to exercise judicial discretion in making that decision, wrong though it might be. (33) In Hill, we held that a trial judge did not have a ministerial duty to declare a "bail-pending-appeal" statute unconstitutional; he had the duty to exercise judicial discretion, regardless of whether he made the "correct" legal decision. (34) In Gray, we held that the trial judge did not have a ministerial duty to rule in a certain way on a plea of double jeopardy; he was exercising judicial discretion, even if incorrectly, in making his ruling. (35) In all of these instances, mandamus relief was not available to compel a particular outcome because deciding that outcome involved a discretionary judicial act. (36) In all of those situations, the trial judge had a limited right to be wrong as long as there were at least legally viable options available.

The difference between those cases and the present one, however, is that in each of those cases, the act was a "discretionary judicial" one, directly related to the substantive or procedural rights of the parties. That is not true in the present situation.

Does Respondent's order in this case serve the substantive or procedural interests of either of the parties or of the fair administration of justice? The purpose of a criminal trial is to determine the guilt or innocence of a single individual; it is not for the benefit of television viewers or the media. They, like all members of the public, have a stake in seeing that trials are conducted fairly and reach accurate resolutions, but they are not the tail that wags the dog.

Here, the parties were preparing for a capital murder trial when a third party, unconnected to the criminal proceeding, entered the fray and asked for exclusive rights to film and broadcast the entire jury trial, including jury deliberations. (37) At first, the defense opposed Frontline's request, but eventually the defendant acquiesced and he, his mother, and his defense counsel signed a written consent to the procedure. In the process, he explicitly waived any post-verdict complaint he might have concerning the content of the videotape depicting the jury deliberations. (38) Thus, the defendant ostensibly "has no dog in this hunt." He has not filed any brief or taken any position in this mandamus proceeding. The capital murder defendant is not the real party in interest; Frontline is. But how does a television company have the right to a discretionary judicial ruling on exclusive access to those jury deliberations from which the public is excluded? (39) If the public were entitled to be in the jury deliberation room, then the press generally would have an equal right of access to the proceedings, but if the public is excluded, the press has no standing to assert a special or exclusive right of entry. Nor does it have any right to a "discretionary judicial ruling" on that "exclusive access" request because videotaping secret jury deliberations would not play "a significant positive role in the functioning of the judicial process." (40)

Frontline's request is outside the realm of the type of "discretionary judicial ruling" contemplated in our mandamus jurisprudence. Suppose that the defendant and the jurors, as well as the State, had objected to Frontline's request. Would the respondent still not be subject to mandamus to rescind that order? If mandamus would lie then, why would it not when only one of the parties, the State, objects? Surely the State, as well as the defendant in a criminal trial, has a cognizable interest in a fair trial, fair jurors, and in the secrecy of the jury deliberations. If "the public has a right to know," as Respondent asserts, then it matters not whether all of the parties and all of the jurors object to the procedure. Conversely, if the public does not have a right to know, then the objection of any one of the parties or jurors suffices to close the door tightly.

The State posed the issue well: Suppose a trial judge ordered the jurors to disguise themselves in ski masks and speak Pig Latin during their deliberations. Would that order constitute a "discretionary judicial ruling" that is immune from mandamus relief? Of course not, Respondent stated: "[s]uch an order would certainly constitute an abuse of discretion because it is so arbitrary and unreasonable." Yes, but why is it arbitrary and unreasonable? Because that order has nothing to do with a "discretionary judicial decision." It does not contribute to the merits of the particular judicial proceeding. It does not, in any way, contribute to the fair and orderly administration of the criminal case on trial. It is unrelated to the accuracy of the truthseeking mission of the particular trial. While a trial judge "may exercise broad discretion in controlling the courtroom," as asserted by Respondent, his first duty is to ensure a fair trial to both the defendant and the State. (41) Respondent's ruling has nothing to do with protecting the rights of the accused or the interests of the State in the fair adjudication of this particular case. An act which is theoretically discretionary "may nonetheless be 'ministerial' in application if the facts and circumstances of a given case lead to but one rational course of action." (42)

While "to tape or not to tape," is a question that requires an answer, it is not a "discretionary judicial decision" requested by any party to the litigation or authorized by law. (43) Where is the source of the judicial authority to grant a particular member of the media exclusive access and rights to videotape secret jury deliberations in the face of a party's objection? Respondent points to no such source. The rights and interests of the parties and jurors in a criminal proceeding to the fair determination of the legal issues and the orderly administration of justice take precedence over the rights of non-litigant members of the media to special access to non-public proceedings. (44)

Therefore, I conclude that a trial judge lacks judicial authority (45) to enter an order granting rights to a third-party nonlitigant to videotape secret jury deliberations in a criminal trial over the objection of any party or of any juror. This law is not unsettled. (46) It is, and should remain, as firm as the Rock of Gibraltar. Although this specific scenario is a case of first impression in this state and apparently in any American jurisdiction, Respondent has not provided us with any case from any jurisdiction which has ever held otherwise, while the precedent upholding the secrecy of jury deliberations is legion. Respondent had a ministerial duty to deny Frontline's request when it was opposed by a party to this lawsuit.

Thus, I agree with the majority that Relator, the District Attorney of Harris County, is entitled to relief on mandamus.


FILED: February 12, 2003


1. Frontline repeats, in its brief to this Court that: "the filming of jury deliberations will take place by unobtrusively placed, remotely operated cameras." Brief of Real Parties in Interest Mead Street Films, Inc. And WGBH Educational Foundation p. 5.

2. George V. Higgins, a Stanford M.A., lawyer, mystery writer, and television commentator, wrote that the 1986 PBS documentary of these jury deliberations exemplified the "Hawthorne Effect." Higgins, Television: Truth, but Not the Whole Truth, Wall St. J., Apr. 14, 1986, at 26. According to Higgins, the "Hawthorne Effect" occurs when "people who are aware that they are being observed alter their behavior (in this case, adopting vast eloquence and extreme circumspection) to meet what they imagine to be the expectations of the observers." Id. The "Hawthorne Effect" has also been explained as:

Initial improvement in a process of production caused by the obtrusive observation of that process. The effect was first noticed in the Hawthorne plant of Western Electric. Production increased not as a consequence of actual changes in working conditions introduced by the plant's management but because management demonstrated interest in such improvements.

Principia Cybernetica Web at

In their statement of nonconcurrence to a CBS project to videotape jury deliberations in a civil trial, two Maine Supreme Court justices noted the same problem:

To film a trial and the jury deliberations that follow when all of the participants, judge, litigants, lawyers, and jurors have consented to the process cannot replicate a trial without the electronic intrusions. Selection of only those jurors who do not mind thinking out loud before millions of observers, or those who will serve but in silence, by its nature will distort the jury's deliberative process. In such circumstances, the presence of the cameras that seek to record how a jury reaches its decision will distort the very deliberative process the cameras purport to record. By the process of measurement the object of measurement will be changed and any conclusions reached on the basis of such measurement made indefensible. What is represented to be the jury process will not be the jury process.

Administrative Order, Docket No. SJC-228, 1996 Me. LEXIS 32 (Feb. 5, 1996) (Glassman & Rudman, JJ., statement in nonconcurrence).

In this case, for example, at least thirteen prospective jurors were peremptorily excused because they admitted that videotaping and later broadcasting the jury deliberations might affect their ability to decide the case fairly. These jurors were eliminated for reasons wholly unconnected to their ability to follow the law or to fairly consider the evidence.

3. In the CBS Protocol submitted to the Maine Supreme Court when it sought permission to film jury deliberations in that state, CBS set out its procedure for jury room videotaping:

There would be two hidden remote-controlled cameras in the jury room, so as to avoid photographers standing in the room. We prefer to use the standard-size cameras as opposed to the cigar-size because of superior maneuverability and picture quality. These cameras would feed pictures to a separate room, so that their presence would be virtually undetectable.

1. It will probably be necessary to construct a "blind" for the remote-controlled cameras in the jury room- e.g., a one-way mirror or a cabinet. ...

2. Inside the jury room, we would place small microphones strategically so as to cover the sounds in the room, but we would not be asking any juror to wear a wireless microphone.

Administrative Order, Docket No. SJC-228, 1996 Me. LEXIS 32 (Feb. 5, 1996). Frontline's production protocol has not been submitted as an exhibit to this court, but presumably it is at least similar to that of CBS.

4. Respondent, Judge Poe, notes that the jury deliberations will not be televised "live." Rather, the videotapes would be sealed and held by the court until the jury's verdict and any post-trial motions are complete.

5. Respondent notes that in both Arizona and Colorado, where CBS and ABC sought to film, "the highest court of each state had given permission to the media to tape jury deliberations." That has not occurred in Texas.

Prior to CBS's unsuccessful attempts to film jury deliberations in a Maine civil proceeding, the trial court asked for guidance from that state's Supreme Court, which then issued an order permitting such videotaping under a specified protocol, including the consent of all parties as well as that of the individual jurors. Two of the seven justices filed a statement in nonconcurrence, stating, inter alia, that:

It is suggested that the proposed television documentary in invading the confidentiality of jury deliberations is to inform the public of the jury process. The purpose of the judicial system in protecting the confidentiality of jury deliberations is a centuries-old recognition that justice is best served by the fostering of a free, open and candid debate in reaching a decision. Such free debate can only occur when the jurors are assured of a complete confidentiality. The need for the public to know does not encompass the furnishing of a workshop to the public for sociological, psychological or psychiatric evaluation of the jurors or of the deliberative process.

Administrative Order, Docket No. SJC-228, 1996 Me. LEXIS 32 (Feb. 5, 1996) (Glassman & Rudman, JJ, statement of nonconcurrence).

6. See, e.g., Saxbe v. Washington, 417 U.S. 843, 849-50 (1974) (prison regulation limiting press access to prisoners did "not place the press in any less advantageous position than the public generally"); Pell v. Procunier, 417 U.S. 817, 834 (1974) ("newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public"); United States v. Harrelson, 713 F.2d 1114, 1116-18 (5th Cir. 1983) (noting that even after trial, jurors "are entitled to privacy and to protection against harassment" and stating that "the First Amendment right to gather news is neither absolute nor does it provide journalists with special privileges denied other citizens" such as the "particulars of jury deliberation").

7. Under our Anglo-American system, we take twelve ordinary people, put them in a jury room, close the door, and-according to one's beliefs-either the Holy Ghost or Socratic wisdom descends upon them. When the door opens, the truth emerges. Thereafter, we do not allow the parties or the public to impeach that verdict with evidence of what occurred between the jurors in the sanctity of that jury deliberation room. See United States v. Olano, 507 U.S. 725, 737 (1993) ("the deliberations of the jury shall remain private and secret"); Tanner v. United States, 483 U.S. 107, 120-21 (1987) ("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"); Clark v. United States, 289 U.S. 1, 13 (1933) ("freedom 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"); McDonald v. Pless, 238 U.S. 264, 267-68 (1915) (if evidence concerning jury deliberations and possible misconduct could be used to impeach a verdict, "the result would be to make what was intended to be a private deliberation, the constant subject of public investigation - to the destruction of all frankness and freedom of discussion and conference"); United States v. Thomas, 116 F.3d 606, 619 (2d Cir. 1997) ("[t]he jury as we know it is supposed to reach its decisions in the mystery and security of secrecy; objections to the secrecy of jury deliberations are nothing less than objections to the jury system itself"); United States v. Antar, 38 F.3d 1348, 1367 (3d Cir. 1994) (Rosenn, J., concurring) ("[w]e must bear in mind that the confidentiality of the thought processes of jurors, their privileged exchange of views, and the freedom to be candid in their deliberations are the soul of the jury system"); In re Globe Newspaper Co., 920 F.2d 88, 94 (1st Cir. 1990) ("a special historical and essential value applies to the secrecy of jury deliberations which is not applicable to other trial and pre-trial proceedings"); United States v. Watson, 669 F.2d 1374, 1391 (11th Cir. 1982) ("[j]ury deliberations are kept private and secret to ensure that the verdict . . . is not affected by outside influences or matters extrinsic to evidence presented at trial"); Babson v. United States, 330 F.2d 662, 665-66 (9th Cir. 1964) ("[a] juror must be insulated against influences and protected against pressures that would tend to fetter him in the free exercise of his own judgment. To this end the law requires that all deliberations by a jury must be conducted in the utmost privacy"); People v. Bouton, 405 N.E.2d 699, 703 (N.Y. 1980) ("[t]he strong public policy favoring the absolute confidentiality of jury deliberations is not lightly to be disregarded"); People v. Oliver, 241 Cal. Rptr. 804, 806 (Ct. App. 1987) ("[e]qually implicit in this constitutional guaranty is the right to have the jury's deliberations conducted privately and in secret, free from all outside intrusions, and extraneous influences or intimidations"); S. Rep. No. 93-1277, p. 13-14 (1974) (Senate Judiciary Committee Report to Fed. R. Evid. 606) ("common fairness requires that absolute privacy be preserved for jurors to engage in the full and free debate necessary to the attainment of just verdicts. Jurors will not be able to function effectively if their deliberations are to be

scrutinized in post-trial litigation. In the interest of protecting the jury system and the citizens who make it work, rule 606 should not permit any inquiry into the internal deliberations of the jurors"); 1 William Holdsworth, A History of English Law 317 (7th ed. 1956) (stating that any inquiry into the work of the jury would be as "impious" as questioning the judgments of God); Abraham Abramovsky & Jonathan I. Edelstein, Cameras in the Jury Room: An Unnecessary and Dangerous Precedent, 28 Ariz. St. L.J. 865, 885 (Fall 1996) ("[b]y centuries old tradition, jury deliberations in the American legal system are secret. This doctrine, which maintains that the confidentiality of jury deliberations insures impartiality and freedom from outside influence, has been acknowledged repeatedly by federal and state courts"); Abraham S. Goldstein, Jury Secrecy and the Media: The Problem of Postverdict Interviews, 1993 U. Ill. L. Rev. 295, 295 ("[j]urors must deliberate in secret so that they may communicate freely with one another, secure in the knowledge that what they say will not be passed along to others"); Benjamin S. DuVal, Jr., The Occasions of Secrecy, 47 U. Pitt. L. Rev. 579, 646 (1986) ("[t]he secrecy of the jury room, like that of the Supreme Court conference, is designed to promote the free and candid interchange of views"); William R. Cornich, The Jury 258 (1968) (stating that the inscrutability of the jury verdict, and the secrecy through which it is maintained, "is bound to last as long as the jury system itself. Once the inscrutability principle has gone, the time has come to set up another kind of tribunal").

8. United States v. Virginia Erection Corp., 335 F.2d 868, 872 (4th Cir. 1964).

9. Little v. United States, 73 F.2d 861, 864 (10th Cir. 1934); see also Johnson v. Duckworth, 650 F.2d 122, 125 (7th Cir. 1981) (noting that "to stifle free debate in the jury room would hinder significantly the jury's ability to reach a 'common sense judgment," and that "if an intrusion into the jury's privacy has, or is likely to have, the effect of stifling such debate, the defendant's right to trial by jury may well have been violated").

10. Alsup v. State, 118 Tex. Crim. 388, 390, 39 S.W.2d 902, 903 (1931); see also Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 367 (Tex. 2000) (stating that "[t]o discharge their duties effectively, jurors must be able to discuss the evidence and issues without fear that their deliberations will later be held up to public scrutiny"); Fernandez v. State, 135 Tex.Crim. 12, 19-20, 116 S.W.2d 1067, 1071 (1938) ("it would be a dangerous and exceedingly pernicious practice for the courts to permit the sanctity of the jury room to be invaded, and the jurors to be interrogated as to the arguments used in their deliberations ... It would open the door to a searching inquiry in relation to every act and word which transpired in the jury room, and would subject each individual juror to be placed upon trial before the court to answer for the soundness and propriety of the opinions expressed by him in the jury room")(quoting Jack v. State, 20 Tex.App. 656, 661 (Tex.Crim.App. 1886).

Respondent argues that

there is no required secrecy or confidentiality of deliberations for petit juries under [Rule 606] or any other rule, as there is for grand jury proceedings pursuant to article 20.02 of the Code of Criminal Procedure. The Texas Legislature certainly knows how to impose secrecy upon jury deliberations, and yet chose not to do so with respect to petit jurors.

It is possible, however, to argue the reverse. The secrecy of jury deliberations is so well established in American common-law jurisprudence that the Legislature never thought it necessary to state the obvious in a statute.

11. As Judge Keasler notes, at least two bills are currently pending in the Texas Legislature to explicitly prohibit the filming of jury deliberations. Already the Electronic Media Rules for the District Courts of Harris County in Houston civil proceedings explicitly prohibit "[e]lectronic media coverage of proceedings held in chambers, proceedings closed to the public, jury selection, and jury deliberations." See at, Rule 4.1.

12. Tex. Code Crim. Proc. art. 1.27.

13. See Stern v. State ex rel. Ansel, 869 S.W.2d 614 (Tex. App. - Houston [14th Dist.] 1994, writ denied) (upholding removal of district attorney for distributing secret grand jury testimony to media). In Stern, the district attorney argued, in a removal lawsuit, that he did not violate any "law" in the State of Texas, because no statute expressly prohibited his conduct of handing out copies of grand jury testimony to the public. Id. at 619. The court of appeals held that the district attorney violated the common law purpose behind article 20.02 which, at that time, stated only that grand jury members and bailiffs are prohibited from divulging anything that transpired before the grand jury. Id. The court of appeals gave the grand jury secrecy statutes "the reasonable and liberal construction which will result in the accomplishment of the purposes for which they were enacted." Id at 620. There is no reason to think that the statutes concerning the secrecy of petit jury deliberations should be interpreted or applied in a less reasonable manner to achieve their purposes. Nor should it be doubted that if a district attorney can be removed from his duly-elected office for divulging the secret proceedings of a grand jury, a judge may be commanded to rescind an order permitting a television cameraman from videotaping the secret proceedings of a petit jury.

14. Katz v. United States, 389 U.S. 347, 351 (1967).

15. 533 U.S. 27 (2001).

16. Id. at 34. Even the dissent in Kyllo would use, as its test: Does the technology offer the "functional equivalent of access to a private place"? Id. at 48-49 (Stevens, J., dissenting, joined by Rehnquist, C.J., O'Connor & Kennedy, JJ.). In this case, the remote controlled camera is the functional equivalent of Being There.

17. Id. at 34.

18. United States v. Thomas, 116 F.3d 606, 618 (2d Cir. 1997).

19. See, e.g., Tanner v. United States, 483 U.S. 107, 117-23 (1987) (reviewing history of secrecy of jury deliberation and concluding that Federal Rule of Evidence 606(b) prohibits any post-verdict proof of the internal operations of jury deliberations); Stein v. New York, 346 U.S. 156, 178 (1953) (Justice Robert Jackson noting that courts have not "favored any public or private post-trial inquisition of jurors as to how they reasoned, lest it operate to intimidate, beset and harass them"); Mattox v. United States, 146 U.S. 140, 148-149 (1892) (allowing post-trial inquiry into jury deliberations encourages jury tampering); Fed. R. Evid. 606(b) advisory committee note ("[t]he mental operations and emotional reactions of jurors in arriving at a given result would, if allowed as a subject of inquiry, place every verdict at the mercy of jurors and invite tampering and harassment"). Protecting present jurors from their own willingness to be scrutinized by millions of television viewers also protects future jurors who might well avoid service to escape being placed in such a dilemma.

20. See, e.g., McDonald v. Pless, 238 U.S. 264, 267-68 (1915) (noting that permitting jurors to attack their jury deliberations post-trial encourages juror harassment by the defeated party "to the destruction of all frankness and freedom of discussion and conference"); Robinson Elec. Sup. Co. v. Cadillac Cable Corp., 706 S.W.2d 130, 132 (Tex. App. - Houston [14th Dist.] 1986, writ ref'd n.r.e.) (stating that Texas Rule of Evidence 606(b) is designed to insulate the jury deliberation process from review, promote full discussion during deliberations, and reduce juror harassment).

21. See, e.g., McDonald v. Pless, 238 U.S. at 267-68 ("[l]et it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalididate the finding"); United States v. Moten, 582 F.2d 654, 664 (2d Cir. 1978) (stating that unlimited attack on juror deliberations and verdicts, were it allowed, would undermine public interest in finality and cast judges as "Penelopes, forever engaged in unravelling the webs they wove").

22. As Justice Cardozo stated, "by immemorial tradition," "the arguments and votes of jurors ... are secret, protected from disclosure unless the privilege is waived. ... Freedom 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.'" Clark v. United States, 289 U.S. 1, 13 (1933); United States v. Thomas, 116 F.3d 606, 618 (2d Cir. 1997) (stating that

"'[j]uror privacy is a prerequisite of free debate, without which the decisionmaking process would be crippled'"); In re Globe Newspaper Co., 920 F.2d 88, 94 (1st Cir. 1990) ("It is undisputed that the secrecy of jury deliberations fosters free, open and candid debate in reaching a decision").

23. See, e.g., John H. Wigmore, A Program for the Trial of Jury Trial, 12 J. Am. Jud. Soc'y 166, 170 (1929) ("[t]he jury, in the privacy of its retirement, adjusts the general rule of law to the justice of the particular case.... The jury, and the secrecy of the jury room, are the indispensable elements in popular justice"); United States v. Thomas, 116 F.3d at 618 ("disclosure of the substance of jury deliberations may undermine public confidence in the jury system"). As the Second Circuit explained in Thomas:

In cases that generate much attention or passion in the community, or that involve allegedly dangerous persons or organizations, the mere suggestion that the views of jurors may be conveyed to the parties and the public, even after the trial is over, understandably may cause anxiety and fear in jurors, and distort the process by which a verdict is reached; actually making such information available to the public might invite the retribution that jurors would rightly fear.

The jury system incorporated in our Constitution by the Framers was not intended to satisfy yearnings for perfect knowledge of how a verdict is reached, nor to provide assurances to the public of the primacy of logic in human affairs. Nor was it subordinated to a "right to know" found in the First Amendment. The jury as we know it is supposed to reach its decisions in the mystery and security of secrecy ...

Id at 619 (emphasis in original). If jury deliberations become public property, "previously anonymous jurors, reaching a group decision based on 'community values' and lay perspectives, will feel they must justify it in the court of public opinion." Abraham S. Goldstein, Jury Secrecy and the Media: The Problem of Postverdict Interviews, 1993 U. Ill. L. Rev. 295, 314.

24. Goldstein, supra note 22 at 296-97 (footnotes omitted).

25. Craig v. Harney, 331 U.S. 367, 374 (1947).

26. I applaud the lofty goals and good intentions of both Respondent and Frontline, but that respect cannot alter the law or its application to this case.

27. Administrative Order, No. SJC-228, 1996 Me. LEXIS 32, at 5 (Me. Feb. 5, 1996) (Glassman & Rudman, JJ, statement in nonconcurrence).

28. See post at 2 & 7 (Keasler, J., dissenting).

29. Everyone agrees that Relator does not have an adequate remedy at law.

30. See Banales v. Court of Appeals for the Thirteenth Judicial District, ___ S.W.3d ___, ___ (Tex. Crim. App. May 22, 2002) (not yet reported); State ex rel. Hill v. Court of Appeals for the Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001); State ex rel. Curry v. Gray, 726 S.W.2d 125, 128 (Tex. Crim. App.1987) (opinion on reh'g).

31. State ex rel. Wade v. Mays, 689 S.W.2d 893, 897 (Tex. Crim. App.1985).

32. State ex rel. Curry v. Gray, 726 S.W.2d at 128 (cite omitted).

33. ___ S.W.3d ___, ___.

34. 34 S.W.3d at 928.

35. 726 S.W.2d at 128.

36. Hill, 34 S.W.3d at 927 n.3.

37. Would any of us hesitate for a moment had the request been made by Aunt Tillie to sit quietly in the corner of jury deliberation room (or maybe hide in the janitor's closet peeping out of a hole), promising not to say a word, because she wanted the educational experience of seeing how jurors in a capital murder case debate these crucial issues? By what authority would any trial judge have to grant that request over the objection of a party? One laughs, but she is on her way. If Frontline is entitled to puts its eyes and ears into the jury room, why not Aunt Tillie?

38. The defendant did not, however, waive any right to complain that the recording of jury deliberations might deprive him of a fair trial or of impartial jurors, or that his attorneys provided ineffective assistance of counsel by consenting to the invasion of the jury deliberation room. However, at this point, we need not address the facial validity of those claims.

39. For example, suppose that Frontline had made its request for exclusive access and videotaping of the oral arguments to the United States Supreme Court. Surely no one would contend that Frontline was entitled to a "discretionary judicial ruling" from the Supreme Court on that request. That is an administrative decision, not a discretionary judicial ruling.

40. Press-Enterprise Co. v. Superior Court of Cal., County of Riverside, 478 U.S. 1, 11 (1986). In Press-Enterprise, the Supreme Court considered the exclusion of the public and press from a preliminary hearing in a criminal case and the denial of requests for transcripts of the proceedings. In setting out and weighing the factors courts should consider, the Court stated the following:

In cases dealing with the claim of a First Amendment right of access to criminal proceedings, our decisions have emphasized two complementary considerations. First, because a "tradition of accessibility implies the favorable judgment of experience," we have considered whether the place and process have historically been open to the press and general public.
. . . .
Second, in this setting the Court has traditionally considered whether public access plays a significant positive role in the functioning of the particular process in question. . . .

. . . If the particular proceeding in question passes these tests of experience and logic, a qualified First Amendment right of public access attaches. . . . "The presumption may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest."

Id. At 8-9 (internal citations omitted). Under this analysis, Frontline's request clearly does not meet the Supreme Court's constitutional threshold.

41. Tex. Code Crim. Proc. art. 2.03(b) ("[i]t is the duty of the trial court ... to so conduct [itself] as to insure a fair trial for both the state and the defendant ... and at the same time afford the public the benefits of a free press"); see Randle v. State, 826 S.W.2d 943, 946 (Tex. Crim. App.1992) (stating that while the court has broad discretion in controlling the trial conduct of counsel, parties and witnesses, it also has an independent duty to ensure a fair trial).

42. Buntion v. Harmon, 827 S.W.2d 945, 947 n. 2 (Tex. Crim. App. 1992) (emphasis in original).

43. See State v. Patrick, 86 S.W.3d 592, 595-97 (Tex. Crim. App. 2002) (mandamus proper when trial court acted beyond statutory authorization; noting that "'implicitly authorized' acts must be in furtherance of some other action for which there is an explicit grant of jurisdiction"; because requirements of post-conviction DNA statute were not met, trial court did not have jurisdiction to order testing not Chapter 64 did not authorize).

44. Cf. United States v. Thomas, 116 F.3d 606 (2d Cir. 1997). In Thomas, the Second Circuit held that "[w]here the duty and authority to prevent defiant disregard of the law or evidence comes into conflict with the principle of secret jury deliberations, we are compelled to err in favor of the lesser of two evils protecting the secrecy of jury deliberations at the expense of possibly allowing irresponsible juror activity." Id. at 623. If protecting the sanctity of jury deliberations is more important than discovering the flagrant misconduct of those jurors, one cannot doubt that the secrecy of jury deliberations trumps any interest of a non-litigant member of the media to invade that jury room- even with the purest of motives- when opposed by any party or juror.

45. See Patrick, 86 S.W.3d at 594.

46. See, e.g., State ex rel. Healey v. McMeans, 884 S.W.2d 772, 774-75 (Tex. Crim. App.1994) (mandamus appropriate when relator demonstrated that respondent had a ministerial duty to vacate orders granting motions to quash "because the recognition of a 'newsman's privilege' is clearly contrary to well-settled law"; "[t]rial judges do not enjoy the freedom to ignore the law").