Camera ban unnecessary
 
Opinion
Provo Daily Herald
 
The defense attorney for Warren Jeffs doesn't want cameras in the courtroom where the polygamist leader is being tried.

Wally Bugden has asked 5th District Judge James L. Shumate to ban cameras after a Deseret Morning News photographer took a picture of the backside of a note that Jeffs tried to pass to the judge. The picture was digitally enhanced and reversed to reveal a most interesting statement: Jeffs wrote: "I have not been a Prophet and am not the Prophet."

Jeffs, leader of the Fundamentalist Church of Jesus Christ of Latter Day Saints, is facing charges of being an accomplice to rape for his role in the marriage of a 14-year-old girl to her 19-year-old cousin. Prosecutors allege that the girl was forced into the marriage.

Bugden, the attorney, said the picture violated his client's right to privacy, as well as attorney-client privilege. Therefore, he wants photography banned from one of the highest-profile criminal trials in Utah.

The request is an overreaction and we hope Shumate rejects it.

Had the note been in a sealed envelope addressed to the judge, or had a reporter or photographer used some surreptitious means to reveal its contents, Bugden might have an argument. But that was not the case.

What we have here is a set of extremely unusual circumstances that are unlikely ever to converge again.

Jeffs' was holding the paper in his hand in open court when the photographer shot the picture. It was in plain view, available for anyone in the room to see. The photograph was enlarged, which is no different from taking the picture of the "Hope of America" human flag and blowing it up to reveal one of the individual kids who formed it.

No attorney-client privilege was violated. The fact that Jeffs intended to give his note directly to the judge and not to his attorney voids that claim. The fact that Shumate did not accept the note does not change the fact that no privilege was being invoked.

Even if the note were privileged, removing the camera is the wrong response because the odds of a photographer repeating that feat are astronomical. The writing just the right density; the paper just the right thickness and held at just the right angle for the light to reveal the writing; the photographer at just the right place with the right camera settings at the right time to capture the fleeting moment. And the message just happened to be a bombshell.

Such a convergence of variables is virtually impossible to duplicate. It's a fairly safe bet that Bugden has since advised his client not to hold up important papers in court.

Utah's photojournalists are sensitive to the need for decorum in courtrooms, and to the right of the accused to a fair trial. They follow judges' orders on photography as a condition of being present.

Should cameras be banned because a photographer unintentionally got a once-in-a-lifetime shot? No. That would be like banning anyone who can read lips on the off chance they may accidentally intercept communications at the defense table or from a hushed exchange with a judge.

The law of probabilities will ensure that this won't happen again, even if photographers were trying to duplicate the feat. Throwing cameras out of the courtroom would only deprive the public of information it should know.

Bugden would do well to worry more about how he plans to defend Jeffs than on whether a journalist can repeat the photographic version of a hole-in-one on a par-5.
 
heraldextra.com
Originally published Thursday, May 10, 2007
 
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