SAN MARCOS — Following a hung jury, the Hays County District Attorney’s Office has dropped aggravated sexual assault of a child charges amid concerns of the livestreaming of the trial proceedings by 483rd District Court Judge Tanner Neidhardt. On Monday, July 1, Assistant District Attorney Daniel Sakaida and defense attorney Victorea Brown presented in Judge Neidhardt’s court for the trial of James Doughty, 36, who was charged with four counts of aggravated sexual assault of a child, as well as four superseding counts of indecency with a child by sexual contact. Immediately before trial, the defendant attempted to enter a plea of guilty to a lesser charge of attempted injury to a child, a state jail felony — but requested to reduce it to a class A misdemeanor — pursuant to an agreement with the state, which sought to avoid having to call the alleged victim to testify, according to Hays County District Attorney Kelly Higgins. The court rejected that plea bargain agreement and proceeded to trial. Unbeknownst to the parties, the court had, prior to trial, placed three cameras in the courtroom and subsequently began to livestream the proceedings. Although in Texas, it is legal to record a conversation if one party to the conversation consents to recording, in cases of aggravated sexual assault of a child, the legislature has made it imperative that the identities of child victims be protected. In this case, Judge Neidhardt would be the consenting party, but according to Higgins, the judge was absent from the room when the prosecutors left to discuss which panelists they would strike from the jury panel in a “fundamentally protected conversation.” The defense, however, remained in the courtroom with the belief that their conversation was private. “No person consenting to, or even aware of, the recording participated in that conversation, although bailiffs may have been present in the courtroom and may have consented to the recording,” said Higgins. “During jury selection, a number of prospective jurors were summoned to the bench to disclose personal information related to eligibility or ability to serve,” said Higgins. “These conversations at the bench included medical excuses and other sensitive personal information. These panelists were called to the bench by name and their conversations with the court were livestreamed.” According to Higgins, courts generally may permit cameras into the courtrooms for public proceedings; however, despite there being no requirement, the parties are usually informed of the presence of the cameras. Even in cases where cameras are permitted, not all aspects of trial are subject to being recorded by cameras, such as bench conferences, juror excuses and privileged conversations between counsel and client, explained Higgins, who claimed that bench conferences — when lawyers approached the bench to discuss private aspects of the case — were livestreamed. “The cameras involved in this matter were secreted and installed prior to trial without the knowledge of the parties and all of these exceptions had actually occurred on camera prior to our discovery of and objection to the livestream,” Higgins said. A passing comment from a different court was the first indication his office had that something was being livestreamed, said Higgins. Another assistant district attorney began to investigate and found the livestream in progress on YouTube. According to court transcripts, prior to opening statements, ADA Sakaida and Assistant District Attorney Allison Buess approached the bench. “It was brought to my attention [that] you are livestreaming on YouTube and there’s a juvenile victim in this case,” said Buess. “They’re going to be referring to her by her legal [name] — under the pseudonym statute, identifying information for the parties, which are not public record. So, I’m very concerned we are continuing to livestream.” After some back and forth about which statute applied, Judge Neidhardt said Article 58.253 of the Code of Criminal Procedure allows the use of a pseudonym in all legal proceedings, to which Buess replied that this is correct because the name could be redacted through the court reported, but it cannot be removed from a permanent livestream. Following the state’s objection, Judge Neidhardt said, “Shut it down.” Although Higgins stated that “a significant portion of the trial had already been livestreamed,” the American Bar Association states that a trial does not begin until the party with the burden of proof makes its opening statement. Opening statements began later in the day, with testimony continuing on July 2 and closing arguments on July 3. The jury could not agree a verdict in the case and a mistrial was declared by the court on July 3 for counts five through eight of Doughty’s charges, which were aggravated sexual assault of a child. Those counts were then subsequently dismissed by the prosecutor’s office, citing that they could not prove the defendant’s guilt beyond a reasonable doubt. Counts one through four, indecency with a child by sexual contact, were deemed not guilty by the jury. “This office objected to the livestream, citing statutory protections for child victims. This office then filed a motion to cease the livestream and remove the video from the internet,” the district attorney said. According to court documents, the motion to remove online recording was filed at 5:28 p.m. on July 1, but the order was neither accepted or denied. “At the time of the discovery of the livestream, the next witness to be called to testify was the child alleged to be the victim,” said Higgins. “The quick intervention of the ADAs involved precluded any chance that the victim’s identity would be disclosed by the livestream.” “It is unclear why the court would decide not to inform the parties of the livestream,” the DA concluded. Ethically, judges are not allowed to comment publicly on cases, but, officially, Hays County has no comment.
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