Saturday, May 31, 2014

Notes on yesterday's note-taking order: Ban or boon?

My phone dinged late yesterday afternoon because of this tweet from Sun-Times education reporter Lauren FitzPatrick:

Whoa! Cook County Chief Judge Timothy C. Evans had banned electronic note taking in the courts? Luddites like me who still use diary books (the diary's batteries never fail, although it is just as prone to data entry errors as its electronic counterparts) would not be impacted by such an order, but I could see where such an order, if true, would provoke full-blown angst among my more gadget-inclined colleagues.

I was in the middle of working my law job at the time, but when I could return to the story I found an email from Judge Evans' press aide Rose Mary Marasso, providing both a press release about Judge Evans' order and the order itself.

The above link will take you to the text of yesterday's order, but, in my reading, there are three operative points:
  1. Note-taking is permitted in court proceedings conducted in Cook County courtrooms;
  2. Taking notes in court proceedings is subject to the court’s General Administrative Order No 2013-05 - Cell Phones and Other Electronic Devices; and
  3. Individual judges and deputy sheriffs have the right and duty to keep order in their own courtrooms.
Technically, if you look at GAO 2013-05, the cell phone ban applies only to the Leighton Criminal Courthouse (which you may still think of as 26th & Cal). The earlier, wider cell phone ban, which included all Cook County courthouses except the Daley Center, was superseded by this order. Some readers will protest that there are still cell phone bans at the suburban Municipal District courthouses, but these are at the discretion of the presiding judges in those courthouses (and, given the criminal trials that take place in those buildings, exist for the same good reasons as the ban at 26th Street).

And, in any event, the current ban does (and, for that matter, the ban imposed by its predecessors did) not apply to reporters.

On the other hand, at least as I'm reading the rules, in-trial tweeting by reporters was neither permitted nor prohibited by the Chief Judge except in cases where a trial was permitted to be broadcast under the procedures adopted by the Illinois Supreme Court -- in which case "members of the news media may also use their electronic devices in the courtroom to communicate with news media colleagues, provided court is not in session."

But -- bottom line, as I see it -- courtroom cell phone use by lawyers and reporters alike was pretty much subject to the discretion of the individual courtroom judge prior to yesterday afternoon and remains so following the adoption of this order. Most judges in my experience take a fairly indulgent view of technology; in many courtrooms the problem is not so much getting the judge's permission (or quiet acquiescence) as it is getting a viable cellular signal.

There may be a back-story behind yesterday's order: Some judge somewhere may have threatened to take a reporter's devices. There could be a couple of judges who suspect that they are the subject of a reporter's attention, not the case or cases on the day's docket. These few, if there really are any, may see yesterday's order as a limitation. No one else should.

Or have I missed something?


Anonymous said...

Some judges allow the media to live tweet from the courtroom.


For live coverage of the #NATO3 trial follow @mtarm @ErinMeyer1 @kgosztola & @rummanahussain on Twitter

Jack Leyhane said...

Thanks, Anon.

Another reader posted a link to a May 16 Tribune op-ed by John Marshall Law Professor Samuel V. Jones on my Facebook page. The reader suggested that Professor Jones' experience in Judge Laura M. Sullivan's courtroom on May 8 may have been among the inspirations for Judge Evans' new order expressly permitting note taking. (Professor Jones' op-ed is hidden behind the Tribune's pay wall; it is also accessible on Lexis.) I'm putting up a follow-up post on this today.