Public access to trials is an important value, but criminal trials do not exist for the purpose of entertaining the public or feeding culture war. They exist to provide due process of law. Nothing in a murder case is more important than a fair trial. The accused, facing serious punishment for a grave crime, needs that fairness. The public, demanding justice for a grave crime, deserves it. Anything in a courtroom that seeks to derail a fair trial can and should be forcibly restrained or kicked out of the courtroom. That is why judges yell at prosecutors and toss their evidence. It is why defendants who menace the witnesses or the jury sometimes end up bound, gagged, or taped to their chairs. And it is why media outlets who threaten a fair trial lose their right to be there.
Judge Bruce Schroeder, the veteran trial judge overseeing the Kyle Rittenhouse case, understands that; indeed, he has a long reputation as a judge who is unusually solicitous of the rights of criminal defendants. He has now banned MSNBC from his courtroom after a man claiming to be an NBC producer was arrested for following a bus full of jurors, apparently in order to photograph them. NBC News admitted that the man was with the network, but denied that he had taken photos.
Publicity of the identity of the jurors can be a well-known form of jury intimidation and jury tampering. As the Fourth Circuit explained last year in United States v. Johnson, involving the trial of members of a Baltimore street gang, even the perception that jurors were being photographed raises serious questions of tampering with the jury:
During the trial, the district court received multiple reports that members of the jury were concerned about their personal safety. Most notably, one juror reported that family members or friends of the defendants (the defendants’ associates) had used cellular telephones to take photographs of the jurors in a public area of the courthouse . . .
By focusing on the question whether photographs, in fact, had been taken, and in failing to consider whether the defendants’ associates had in any way intimidated the jurors by displaying their cell phones, the district court failed to consider the effect on the jurors of the perceived external contact. A third party’s threat or perceived attempt to take a photograph of a juror may be no less intimidating to that juror than the actual taking of such a photograph. Thus, the question whether a photograph was taken was not dispositive of the prejudice inquiry, as one or more jurors may have felt intimidated regardless. By limiting its inquiry to the actual existence of photographs, the district court left key substantive matters unresolved, namely, whether anyone had attempted or threatened to take photographs of the jurors, the identity of the alleged actors and their relationship to the case, and the impact of Juror #4’s statement on other members of the jury. (Emphasis added).
Johnson was an extreme case, given that the defendants were already on trial for murdering witnesses, but given the national publicity this trial has received, the vitriolic arguments over it, and MSNBC’s hostility to the entire process, it was entirely reasonable for Judge Schroeder to conclude that it was a threat to a fair trial to have NBC News tailing the jurors and creating, at a minimum, a perception that the jurors would have their identities splashed across national TV by a media outlet bent on directing anger at them. The national political media is not, as it sometimes styles itself, the only people with rights that need protecting.