The trial of The State of Alaska v. Steven Downs began in secret.
The Fairbanks trial was held in person, but no one from the public or the press was allowed in the courtroom for any part of the trial due to COVID restrictions and limited seating. Instead, a livestream was set up for interested parties to watch the proceedings.
But, when jury selection began on Jan. 11 the court did not livestream “voir dire,” which is the process of questioning potential jurors and ultimately selecting a jury. Instead, that day and the following day, jury selection was held behind closed doors to “protect juror privacy,” according to the court.
This was a pure First Amendment violation, and a striking departure from how trials are convened in Alaska and elsewhere in this country.
The United States Supreme Court settled the question of whether voir dire is part of a public trial in 1984, noting in Press-Enterprise Co. v. Superior Court of California that the presumptive openness of the jury selection process was carried over from England to colonial America, and was “common practice in America when the Constitution was adopted.”
Maintaining public access to jury selection, the Law Court held, vindicates “the concerns of the victims and the community in knowing that offenders are being brought to account for their criminal conduct by jurors fairly and openly selected.”
That first day’s secretive start marked three weeks’ worth of interrupted public access that ultimately drove the Sun Journal and a tiny band of other media partners to battle for the right to access.
On Jan. 11, once a jury was selected, the court announced “public” proceedings would begin at 8:30 the following morning, accessible by livestream.
And, they did.
However, the next day — a Thursday — when Sun Journal Staff Writer Christopher Williams logged on to the livestream at 8:30 a.m. Alaska Standard Time, the screen read “offline.” He reached out to the court clerk multiple times, and at 9:19 a.m. received a message that the trial had been postponed until the following Tuesday because of a COVID exposure.
There was no notice to the media or to the public about that postponement.
In that same span of days, the court announced that it would take discretionary breaks while evidence was being presented “that, in order to preserve the privacy and dignity of the alleged victim, will not be shared with the public,” and that the court would not announce when the livestream restarts. Instead, the public was told “you will need to refresh the page to get back into the courtroom.”
Judith Meyer Andree Kehn/Sun Journal
If the trial were held in an open courtroom, none of that would have happened. People in the courtroom could have seen and heard all.
But, in Alaska the livestream was set to go dark without notice, slamming closed the virtual door to a public proceeding, and the only way to know when that door was reopened was to refresh a computer screen again, and again, and again, and again.
And, the court ordered, there were to be no screenshots taken of the livestream for any reason, which ran contrary to the court’s own administrative order for camera access and media coverage.
That order banning screenshots was rescinded within hours after the press pushed back, since photos are permitted in Alaska courts, but the court’s procedure to go “off camera” without notice remained.
The Sun Journal reached out to Michelle Theriault Boots, who is a reporter with the Anchorage Daily News, to gauge whether this was standard operating procedure in Alaska, and she said it was not.
So, the Sun Journal contacted Fairbanks attorney John McKay, and together we assembled a coalition of media partners to challenge the court’s trial procedures on First Amendment grounds.
The Sun Journal was joined by WMTW and WCSH in Maine, and by KUAC public TV in Alaska, KTUU-TV, KTVF11, the Anchorage Daily News and the Fairbanks Daily News-Miner.
The first thing we did was determine that neither the prosecutor nor the defense team had filed motions seeking restrictions on public access, but the prosecution was concerned about broadcasting or otherwise disseminating “the most graphic or intimate photos of the victim taken at the crime scene or at her autopsy.”
That was a fair concern, but no member of the media covering this trial would have published such images, and the court made no effort to set up a system of halting video while keeping the audio streaming to permit continuing public access to the proceedings.
The second thing we did was draft a letter to the Judge Thomas Temple outlining our objections, which were:
— The court’s decision to deny access to portions of the trial involving certain testimony concerning the murder victim; and
— The court’s procedure to turn off cameras without notice while court was still in session, with no information provided to the public about whether the court is on a lunch break, or whether the court is in session and conducting proceedings that the press and public are not being allowed to observe, or whether the court is not actually in session at all for the entire day due to COVID protocols.
And, then the trial began in earnest.
Video and audio streaming dropped off without warning, sometimes multiple times a day for great blocks of time.
When the defense team was cross-examining a state trooper who had been part of the sexual assault and murder investigation, video and audio dropped off for more than 15 minutes as the proceedings continued.
Video and audio were often launched well after the first witness had been sworn in, and the livestream cut off midday and again before proceedings ended for the day.
On Jan. 24, the audio dropped off just as Downs’ roommate was testifying about him having two guns while a student was in the dorm, came back on for about seven minutes, and dropped off again. Williams peppered the clerk with notes asking for access, and was repeatedly told the court was having “technical” issues.
The court was aware when the livestream cut out because technicians were watching the stream and notifying clerks when it went dark. Even so, the judge continued the trial knowing the public was locked out.
Several times witnesses were sworn in before the audio was launched, leaving the public and the press wondering who the witness was, and in one case the entire direct questioning and the beginning of cross-examination of a witness was done without a live feed.
To be fair, this was the first time the Alaska Court System had used a livestream platform for a jury trial, and the technology was balky.
The judge never responded to the media coalition’s letter, but eventually the court did figure out how to turn off the video while keeping audio live during autopsy testimony, and issues with the audio and video feeds gradually cleared up by the time closing arguments were made, but that would not have happened without the full and vigorous fight of the media calling for a public process.
Court clerks and the area court administrator were very responsive in letting the media know when the jury left the building for the day while it was deliberating, and also when the jury returned with its verdict, which was a welcome relief from the constant push for information.
This country’s bedrock concept — protected by the First Amendment — that we hold fully open public proceedings in criminal trials, was sorely strained in Alaska.
This trial could serve as an example for the Pine Tree State.
In Maine, while photos, audio and video recording are allowed during openings, closings and verdict, the rest of the trial is closed to recording or photographing, including all testimony, effectively excluding members of the public who cannot be physically present in the courtroom — even though technology exists to livestream it all.
Consider the trials of defendants in the George Floyd and Ahmaud Arbery killings that were aired on national television, better informing the nation of our legal and justice systems. These trials were of tremendous national interest, but even the simplest of all local trials must operate under the same constitutional adherence to public access.
In this age of advanced technical capabilities, in the era of Zoom, it’s time we used that technology to better inform the public about what happens in Maine’s courtrooms. After all, we do it for city council meetings, school board meetings and other public venues.
And, when we do, let’s make sure the technology is stable. Without that, public access is deficient.
Judith Meyer is executive editor of the Sun Journal, the Kennebec Journal and the Morning Sentinel.
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