That's one of the main questions Judge Carlos Samour has to consider in deciding whether to allow a video camera and a still camera at Holmes's trial, which is set to begin December 8. At a hearing Monday, attorneys for the TV and print media argued in favor of allowing so-called expanded media coverage of the trial. But state prosecutors and Holmes's attorneys see it as a bad idea that will cause more problems.
"It's just going to make things worse," said Kristen Nelson, one of Holmes's attorneys.Samour grew feisty at Monday's hearing, challenging both prosecutors and defense attorneys to explain to him how televising witnesses' testimony would indeed be worse than traditional media coverage, in which witnesses would be photographed and videoed walking into the courtroom and their testimony written up online and in print.
The trial, Samour emphasized, is going to receive a lot of media coverage no matter what. Holmes is accused of murdering twelve people and injuring seventy more by opening fire in an Aurora movie theater in July 2012. He has pleaded not guilty by reason of insanity and could face the death penalty if convicted. All of those factors make for a high-profile case that the media -- and the public -- will be interested in.
"This is what's coming, whether I allow expanded media coverage or not," Samour said, referring to the publicity that the trial is bound to receive. The question he must consider, he explained, is "what does expanded media coverage do that makes it worse?"
Prosecutor Lisa Teesch-Maguire attempted to answer that question by submitting evidence from Google and YouTube. She said it shows that witnesses who testify at televised trials are subject to more harassment than those who testify at non-televised trials. As an example, she pointed to Rachel Jeantel, Trayvon Martin's friend and a star witness in the televised trial of Martin's accused killer, George Zimmerman. Both Jeantel's demeanor and appearance were criticized by people who watched her testimony.Those videos will live online forever, Teesch-Maguire argued. She said many of the witnesses in the Holmes case are nervous about testifying, and the fact that their testimony will be recorded and posted online -- where commenters are free to say whatever they like, whenever they like -- makes them more apprehensive.
Nelson, Holmes's attorney, also argued there are several things that make this case different from other Colorado trials where cameras have been allowed in the courtroom. For one, she said, this is a death penalty case, and allowing it to be broadcast would be "virtually unprecedented." Even the media lawyers admitted that they're unaware of any other Colorado death penalty cases that have been televised.
Plus, Nelson added, the trial is expected to last as many as eight months. The jury will not be sequestered, and she argued that televising the trial will make it harder for jurors to follow the judge's instructions to avoid media coverage during the case.But Samour said that's going to be a challenge regardless. He also pointed out that the courtroom is already equipped with a ceiling-mounted camera that records the proceedings for closed-circuit and security purposes. In addition, the TV stations that want to record the trial brought a camera to Monday's hearing as a demonstration. The camera was not turned on, but if it was on, Samour said, "no one could argue" that it was taking away from the "solemnity" of the proceeding.
Samour seemed to take particular offense at the suggestion that the Holmes case has been or would become a "circus," a word used to describe many high-profile trials. "It's easy to throw that word around," he said, "but these proceedings have not been a circus at all."
Diego Hunt, who is representing KUSA and several other television stations, said the camera operators would abide by any rules or restrictions that Samour imposes, including a tape delay. He argued that allowing the public to view the trial firsthand -- to see the demeanor of the witnesses and the judge -- is better than having that information filtered through reporters in the courtroom. News stories about the trial are journalists' "interpretation" of what's happening during the trial, he argued.
"It is important for the public to be able to see the proceedings," Hunt said.
Samour said he expects to issue a written ruling next week.