DA challenges judge's live stream of court

Editor’s Note: The defendant in this case was not found guilty of the alleged crimes, so the Daily Record has decided not to use the defendant’s name in this story.

Daniel Sakaida, Hays County assistant criminal district attorney, filed a Motion to Remove Online Recording on July 1 in response to court proceedings that were live streamed on YouTube by 483rd Judicial District Judge Tanner Neidhardt. The motion cited three violations, and requested that the court cease all recording and remove “the currently published and publicly available recording of all trial proceedings” from that day. The stated reason for the motion alleged that certain conversations in the courtroom that should remain private were recorded on the video without the participant’s knowledge, juror’s private information may be disclosed and a child victim’s name would have been revealed had the recording continued; the judge, while disagreeing in court with the legal reasons stated on the motion to remove the recording, ended the recording prior to the trial beginning.

The Daily Record spoke to multiple local attorneys who were not involved in the case on background only, meaning the provided information could be used but not attributed. All of them individually agreed that the judge has the right to live stream the courtroom; however, there were ethical concerns that all parties were not notified that the live stream was occurring beforehand. Additionally, some noted that live streaming the courtroom, which was done across the state during the COVID-19 pandemic, is different from recording the proceedings to be viewed later. None of the attorneys the Daily Record spoke to were sure, without further detail, if those issues were simply not following suggested best practices or if they were actual violations of law.

“Some Texas courts have livestreamed their proceedings for years,” Neidhardt said in a statement. “A statewide agency has provided the programming to do it for years. Now I am taking Hays [County] into the future too. Our Constitution says, ‘All courts shall be open’ (Art. 1, Sec. 13). Let the people see what our Judges, DAs, and attorneys are doing, we demand. But what good is that right if you cannot leave work, or leave class at TXST, or leave the kids to go to the courthouse? That’s why I am trying something new for Hays– livestreaming what we do.”

According to the Defense Attorney for the case, Victorea Brown, the alleged offense of Aggravated Sexual Assault of a Child occurred in 2016. The alleged abuser was not indicted by a Grand Jury until 2022. He was indicted on four counts of Aggravated Sexual Assault of a Child, which are first-degree felonies, as well as four counts of Indecency with a Child, which are second-degree felonies.

Brown said the victim took the stand but was not able to provide testimony. The District Attorney’s office offered a plea deal for Attempted Injury to a Child as a state jail felony with county jail time as punishment. The defendant had been in jail for almost two years, since January of 2023, and the plea deal essentially offered the equivalent of time served.

According to the Texas Penal Code, Sec. 22.04. Injury to a Child, Elderly Individual or Disabled Individual, a person commits an offense if he intentionally, knowingly, recklessly or with criminal negligence, by act or intentionally, knowingly or recklessly by omission, causes to a child, elderly individual or disabled individual: serious bodily injury, serious mental deficiency, impairment or injury or bodily injury. Texas Penal Code states that Attempted can be tacked on to a charge if a person attempts to commit an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.

Brown said Neidhardt rejected the plea deal before the trial started stating that the facts did not support the plea and the trial proceeded to jury selection. She added that at the end of the trial Neidhardt instructed the jury not to consider the Indecency with a Child by Sexual Contact charges because he said there was no evidence to support them. The jurors considered the Aggravated Sexual Assault of a Child Charge, and they could not agree. She said jurors later told the court that they were 10-2 in favor of not guilty.

Brown said that after selecting a jury, the lawyers for both parties learned that the proceedings up to that point had been live streamed on YouTube.

Hays County District Attorney Kelly Higgins said prior to trial, the court had arranged three cameras in the courtroom.

“The parties were not informed of the court’s intention to livestream the trial, or of the existence of the cameras. The court initiated the livestream without informing the parties of the livestream,” Higgins said. “During trial, a passing remark from a different court was the first indication this office had that a livestream might be happening. An Assistant District Attorney quickly began to investigate and discovered the livestream in progress on Youtube. This discovery went around the office very quickly, and additional ADAs went to the courtroom in response. 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. A significant portion of the trial had already been livestreamed, along with the defendant’s rejected plea of guilty before trial, which had been available to be viewed by members of the jury panel prior to jury selection. It appears that the video was discontinued, but that it has not been removed from the internet.”

Brown said portions of the pretrial and jury selection process were livestreamed, but the trial was not. She noted that the plea of guilty was to the lesser charge of Attempted Indecency with a Child by Sexual Contact as part of the plea deal that was rejected. Brown said she noticed cameras around Judge Neidhardt, but she “thought it was to help the court reporter.”

The Assistant Criminal District Attorney submitted a Motion to Remove Online Recording stating that the recording of the trial violated the Texas Constitution Article 1, Section 30 - Rights of Crime Victims, the Texas Code of Criminal Procedure 35.29 Personal Information About Jurors and Texas Code of Criminal Procedure 58.105 Disclosure of Certain Child Victim Information.

Texas Constitution Article 1, Section 30 - Rights of Crime Victims states that a crime victim has the following rights: the right to be treated with fairness and with respect for the victim's dignity and privacy throughout the criminal justice process, and the right to be reasonably protected from the accused throughout the criminal justice process.

Texas Code of Criminal Procedure 35.29. Personal Information About Jurors states that information collected by the court or by a prosecuting attorney during the jury selection process about a person who serves as a juror, including the juror's home address, home telephone number, social security number, driver's license number and other personal information, is confidential and may not be disclosed by the court, the prosecuting attorney, the defense counsel or any court personnel.

Higgins said prospective jurors were summoned to the bench to disclose personal information related to ability or eligibility to serve during jury selection, and he also mentioned an attorney/ client privileged conversation that Brown also expressed concern over the possibility of it being heard on the live stream.

“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,” Higgins said. “An important part of jury selection is the exercise of strikes. The parties, in private, discuss and select which panelists they will strike from the jury panel in a fundamentally protected conversation. Prosecutors withdrew to another room for this part of trial, but the defense remained in the courtroom in the belief that their privileged conversation was private, since the judge had left the bench and retired to chambers. However, the video and audio were still streaming during their conversation. 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. Nevertheless, any such Bailiff was not in any way participating in that Constitutionally protected conversation between defense counsel and defendant. Bench conferences, in which the lawyers approach the bench to discuss aspects of the trial privately, were live streamed.”

According to the Texas State Law Library, “Texas is considered a ‘one-party consent’ state. This means that unless at least one of the parties to a conversation consents, both Texas and federal wiretapping laws make it a crime to record an audio conversation, either in person or over the phone, if the parties have a ‘reasonable expectation of privacy.’” Once Brown was aware of the recording, she said she requested a mistrial, because there was a chance a conversation between her and her client that should have been private was caught on camera. Brown said Neidhardt asked the jury if any of them had seen the livestream and none had. She said Neidhardt then listened to the recording and said that the conversation Brown was concerned about being recorded could not be discerned from the video; Neidhardt denied the request for a mistrial.

Brown was concerned that a private conversation between her and a client was recorded.

“Once we were able to delve into the issue, we realized it was inadvertently picked up on a microphone,” Brown said. “You could hear our voices, and I could tell it was me talking, but you couldn’t tell what we were saying. I was just offended at the fact there was a microphone that could pick it up, but you couldn’t hear anything. That is why the judge denied my motion for mistrial.”

Texas Code of Criminal Procedure 58.105 Disclosure of Certain Child Victim Information states, except as required or permitted by other law or by court order, a public servant or other person who has access to or obtains the name, address, telephone number or other identifying information of a victim younger than 17 years of age may not release or disclose the identifying information to any person who is not assisting in the investigation, prosecution or defense of the case.

Higgins said that in cases of Aggravated Sexual Assault of a Child, “particular sensitivities have been addressed by the legislature and codified into law. The legislature has made it imperative that the identities of such child victims be protected. 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. The quick intervention of the ADAs involved precluded any chance that the victim’s identity would be disclosed by the livestream.”

Brown said when prosecutors asked the judge to stop the recording and remove the video from YouTube, Neidhardt disagreed with the laws cited, which had to do with concealing the identity of a minor, as a reason to do so. Neidhardt stated that the prosecutors should already be protecting the identity of the minor using tactics in court such as a pseudonym, and if the identity was being protected appropriately, it wouldn’t be revealed on the live stream. However, Neidhardt stopped the recording nonetheless to make sure the child’s identity was protected.

“[Neidhardt] told us he had no intention of showing the victim’s testimony,” Brown said.

As for the question of whether or not recording of court proceedings is allowed, Higgins said that it is, and that the recording itself is not what he finds issue with in this matter.

“Generally, courts may permit cameras into their courtrooms for public proceedings. This is in fact fairly common, as is informing the parties that there will be cameras in the courtroom. Courtrooms are public forums, and proceedings are public events. This is essential to secure a fair and impartial justice system,” Higgins said. “However, not all aspects of [the] trial are subject to being recorded by cameras. It remains within the discretion of the court whether to permit cameras to record proceedings. When they do, we see ‘pool cameras,’ which are visible to everyone in the courtroom and provide video and audio to press organizations. Pool cameras do not record bench conferences, juror excuses or privileged conversations between counsel and client. 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.”

Brown agreed that it is legal for a judge to live stream court proceedings with certain conditions, but “it wasn’t formally announced.” She wasn’t sure if general disclosure of the recording was required.

According to the Texas Judicial Branch website, in order to facilitate court activities, the Office of Court Administration is providing Judges the ability to stream and host court proceedings via Zoom and YouTube. Under the Open Courts Provision of the Texas Constitution, it requires that all courts maintain public access.

Neidhardt affirmed that he believes live streaming court proceedings gives greater access to the public and is worth pushing through “these bumps.”

“Since it’s new–a change–some may deride it at first. I know that. They may attack me personally. There will be growing pains. After all, no one in Hays has tried it before,” Neidhardt said. “We’ll continue to protect child victims. We’ll get through these bumps. Because, ultimately, I believe in your right to access the courts–and now, I’m going to make that right actually mean something.”

Brown said she felt that the District Attorney’s office had inferred in some comments in the press that the live stream had an impact on the trial, which she disagreed with. When the District Attorney’s office filed to dismiss the case, it stated that the case could not be proved beyond a reasonable doubt. The paperwork for dismissing the trial did not mention the live stream.

“[The dismissal] had nothing to do with live streaming. We just had a regular trial after the live stream drama,” Brown said. “They are turning this into a political situation. [The District Attorney] inferred this had an impact on a trial, but it didn’t.”

While she agreed that the process of live streaming a trial could have been done in a manner that would alleviate many of these concerns, she was still supportive of the general intent.

“I’m really upset they are making a mountain out of a molehill,” Brown said. “I think the judge is trying to do what is right to show the people the inside of the courts. There is a learning curve, and we’re all learning it together.”

More information on the recording of court proceedings can be found at this link txcourts. gov/programs-services/electronic- hearings-zoom.