I II I IN THE DISTRICT COURT OF CLEVELAND COUNTY STATE OF OKLAHOMA STATE OF OKLAHOMA, ex 1131., MIKE HUNTER, ATTORNEY GENERAL OF OKLAHOMA, Plaintiff, vs. (I) PURDUE PHARMA (2) PURDUE PHARMA, (3) THE PURDUE FREDERICK (4) TEVA PHARMACEUTICALS USA, (5) OEPHALON, (6) JOHNSON (7) JANSSEN PHARMACEUTICALS, (8) PHARMACEUTICALS, INC, n/kfa IANSSEN (9) IANSSEN PHARMACEUTICA, INC, n/Ida JANSSEN PHARMACEUTICALS, (10) ALLERGAN, PLC, ma ACTAVIS PLC, f/kfa ACTAVIS, INC, f/kfa WATSON PHARMACEUTICALS, (11) WATSON LABORATORIES, (12) ACTAVIS and (13) ACTAVIS PHARMA, INC, ffkfa WATSON PHARMA, INC, Defendants. Case NO. CJ-2017-816 Judge Thad Balkman TO BE HEARD BEFORE THE HONORABLE JUDGE THAD BALKMAN STATE OF CLEVELANO FILEQ MAR 14 2019 In the Of?ce Of the Court Clerk MARILYN WILLIAMS RENEWED OBJECTION AND MOTION TO EXCLUDE CAMERAS FROM TRIAL AND MEMORANDUM OF LAW IN As the United States Supreme Court observed, ?[t]he temptation offered by television to play to the public audience might often have a direct effect not only upon the lawyers, but the judge, the jury and the witnesses.? Estes v. State of Tex., 381 US. 532, 549 (1965). That temptation is likely to overwhelm the participants here, which will result in a show trial intended to play to a court of public opinion, not a court of law. A televised trial in this matter will be fundamentally unfair. It will deny Purdue due process. It will interfere with the jobs of the jurors, the witnesses, and the lawyers. It will make an already long trial schedule even longer. It will encourage theatrics, and impede the search for truth. Purdue therefore renews and formalizes its objection to video transmission and recording in this matter. Purdue acknowledges the Court already ruled on this request last August.1 The Court attempted to address the Defendants? legitimate concerns by appointing a special master to craft an order limiting cameras in the courtroom. But even the most ?innocuous? or ?unobtrusive? camera set-up cannot change the fact that cameras in the courtroom fundamentally alter the dynamics at trial. And since that time, though, the baseless rhetoric of the State?s lawyers has only increased at every deposition and every hearing. Numerous times, the State has taken to the press or twitter, using inflammatory, prejudicial, and misleading language in an apparent effort to in?uence these proceedings, to exert pressure on the Defendants.2 If this is the way the State conducts itself now, what will happen when there are television cameras rolling for months? 1 At the Court?s request, Defendants submitted a letter (dated May 9, 2018) to the Court with their position on whether television cameras should be allowed in the courtroom to broadcast the trial. That letter, which objected to cameras during trial, is incorporated herein by reference and attached as Exhibit A. 2 On February 14, for example, Attorney General Hunter issued a press release that disclosed previously con?dential documents and stated, ?[t]he company?s actions are absolutely appalling. ..Although there was strong suspicion Purdue was engaging in these deceitful acts, seeing it in black and white is unnerving.? Aside from the fact that this statement may violate Rule 3.6 of the Oklahoma Rules of Professional Conduct with respect to trial publicity, Attorney 2 In response to Purdue?s renewed motion, the State will no doubt argue that the Defendants want to avoid press and public scrutiny of this trial. This is false. To be clear: Purdue has no obfection to press coverage of this trial. Purdue and the other Defendants asked to try this case in the largest courtroom in Cleveland County, Oklahoma??a courtroom big enough to accommodate the parties and interested members of the press. There is no doubt the case will draw media scrutiny. All Purdue asks is the opportunity to prove these points in calm, digni?ed proceedings in a court of law. On the other side of the aisle, the State wants a media circus in order to distract from the lack of evidence to support its case. The Court should not provide that stage. Purdue urges the Court to reconsider its decision to allow Video-cameras in the courtroom. ARGUMENT The last several months of this litigation have been anything but calm and digni?ed. Cameras in the courtroom will only heighten the emotion and the temptation to play to the cameras rather than focus on the task at hand. Allowing cameras in the courtroom would deny the Defendants due process, by compromising the jury?s ability to judge the Defendants fairly, impartially, and based solely upon the evidence introduced at the trial rather than extraneous factors. The presence of cameras in the courtroom, unlike the press, is not a normal occurrence. When cameras are present, that fact is plain to the jurors, no matter how unobtrusive the equipment. This raises the danger that some jurors will look upon the trial as unusual and consequently believe that a particular verdict is expected of them. Indeed, the Supreme Court recognized that broadcasting a trial has a impact on jurors, noting that ?it is not only possible but highly probable that [televising a trial] will have a direct bearing on [a juror?s] General Hunter?s conduct is a preview of what to expect from the State when the cameras are rolling at trial. vote.? Estes, 381 US. at 545. Speci?cally, ?televised jurors cannot help but feel the pressures of knowing that friends and neighbors have their eyes upon them.? Id. Likewise, the fact that a trial is being broadcast may impress on the jury ?the notorious character? of the proceeding. Id. at 536-37. Indeed, ?[?rom the moment the trial judge announces that a case will be televised it becomes a cause celebre.? Id. at 545. In the face of this intense spotlight, it is not reasonable to assume that jurors will resist the temptation to watch the news or log on to see how the trial day?s events were reported?even with the Court admonishing them not to do so. Cameras also in?uence witnesses, making effective presentation of evidence signi?cantly more dif?cult and ?imped[ing] the search for trut Estes, 381 US. at 546-47. A person changes their behavior, even in public, with the knowledge that she or he is being ?lmed. See id. at 547 (A witness?s knowledge that testimony may be viewed by a ?vast audience? causes an ?incalculable? impact); Hollingsworth v. Perry, 558 US. 193, 195 (2010) (per curiam) (?There are qualitative differences between making public appearances regarding an issue and having one?s testimony broadcast throughout the country?). Cameras may also prevent a witness from offering a complete presentation of testimony for fear that a widespread broadcast would be embarrassing. Speci?cally, witnesses may be reluctant to give testimony that offends prevailing public sentiment. The presence of cameras could also have the more subtle effect of making some witnesses more nervous, which jurors could interpret as a lack of credibility, even though their nervousness was attributable to the camera and not to untruthful testimony. Nancy S. Marder, The Conundrum of Cameras in the Courtroom, 44 Ariz. St. L.J. 1489, 1513 (2012) (citing Cameras in the Courtroom: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 83 (Statement of Hon. Jan E. Dubois, ., U.S. District Court for the Eastern District of (expressing concern that 64% of the participating judges found that cameras made witnesses more nervous)). Other witnesses (or lawyers) may allow their theatrical ?air to come to the fore and ?ham it up? for the television viewers. See Estes, 381 US. at 547 (?Embarrassment may impede the search for the truth, as may a natural tendency toward ?Some may be demoralized and frightened, some cocky and given to overstatement; memories may falter, as with anyone speaking publicly, and accuracy of statements may be severely undermined.? Id. The potential for exposure to a vast audience on the internet and television may cause a witness to focus more on his ?role? in the broadcast than his role in the trial. See United States v. Kerley, 753 F.2d 617, 622 (7th Cir. 1985). CONCLUSION If cameras are allowed in the courtroom, the risk of fundamental unfairness and prejudice is simply too great. There would be no way to ensure a fair and impartial jury. There would be no way to protect the witnesses from the undue in?uence of the cameras. And the likelihood of outrageous conduct warranting a mistrial would increase. Purdue therefore asks the Court to ban all cameras from the courtroom during the pendency of these proceedings. Date: March 14, 2019 Respectfully submitted, Sanford c. Coats, OBA No. 18268 Joshua D. Burns, OBA No. 32967 CROWE DUNLEVY, P.C. Braniff Building 324 N. Robinson Ave, Ste. 100 Oklahoma City, OK 73102 Tel: (405) 235-7700 Fax: (405) 272-5269 sandy.coats@crowedunlevy.com ioshua.burns@crowedunlevv.corn Of Counsel: Sheila Birnbaum Mark S. Cheffo Hayden A. Coleman Paul A. LaFata Benjamin McAnaney Erik Snapp Jonathan S. Tarn DECHERT, LLP Three Bryant Park 1095 Avenue of the Americas New York, New York 10036 Tel: (212) 698-3500 Fax: (212) 698-3599 sheilabimbaum?ldechertcom hayden.coleman@dechert.com paul.1afata@dechert.com; giksnann@dechert.com ionathan.tam@dechert.com Eric Wolf Pinker John Thomas Cox Pinker Cox Hurst, LLP 2100 Ross Avenue, Suite 2700 Dallas, TX 75201 Counsel for Purdue Pharma L. P., Purdue Pharma Inc., and The Purdue Frederick Company Inc. CERTIFICATE OF MAILING This is to certify on March 14, 2019, a true and correct copy of the above and foregoing has been served via e-mail to the following: WHITTEN BURRAGE Michael Butrage Reggie Whitten 512 N. Broadway Avenue, Suite 300 Oklahoma City, OK 73102 mburrage@whittenburragelaw.com rwhitten@whittenburragelaw.com Counsel for Plaintz'?t'he State of Oklahoma NIX, PATTERSON ROACH, LLP Bradley E. Beckworth Jeffrey J. Angelovich Lloyd ?Trey? Nolan Duck, 111 Andrew Pate Lisa Baldwin Nathan B. Hall 512 N. Broadway Ave., Suite 200 Oklahoma City, OK 73102 bbeckworth@nixlaw.com iangelovich@npraustin.com tduck@nixlaw.com dpate@nixlaw.com lbaldwin@nixlaw.com nhall@nixlaw.com Counsel for Plaintg'?the State of Oklahoma ODOM, SPARKS JONES PLLC Benjamin H. Odom John H. Sparks Michael W. Ridgeway David L. Kinney HiPoint Of?ce Building 2500 McGee Drive Ste. 140 Oklahoma City, OK 73072 odomb@odomsparks.com sparksi@odomsoarks.com ridgewavm@odomsparks.com kinnevd@odomsparks.com OKLAHOMA OFFICE OF THE ATTORNEY GENERAL Mike Hunter Abby Dillsaver Ethan A. Shaner 313 NE let St Oklahoma City, OK 73105 abbv.dillsavezr@oag.ok.20v ethan.shaner@oag.ok. gov Counsel for Plaintiff the State of Oklahoma GLENN COFFEE ASSOCIATES, PLLC Glenn Coffee 915 N. Robinson Ave. Oklahoma City, OK 73102 gcof?fee??glenncoffeecom Counsel for Plaimi? the State of Oklahoma FOLIART, HUFF, OTTAWAY BOTTOM Larry D. Ottaway Amy Sherry Fischer 201 Robert S. Kerr Avenue, 12th Floor Oklahoma City, OK 73102 Attorneys for Defendants Johnson Johnson, Janssen Pharmaceuticals, Inc, Janssen Pharmaceutica, Inc. n/k/a Janssen Pharmaceuticals, Inc, and Ortho-McNez'l- Janssen Pharmaceuticals, Inc. n/k/a/Janssen Counsel for Defendants Janssen Pharmaceuticals, Inc., Johnson Johnson, Janssen Pharmaceutica, Inc. n/k/a/ Janssen Pharmaceuticals, Inc, and Ortho-McNeil- Janssen Pharmaceuticals, Inc. n/k/a/ Janssen Pharmaceuticals, Inc and Ortho-McNeil- Janssen Pharmaceuticals, Inc. n/k/a/ Janssen Pharmaceuticals, Inc. MYERS LLP Stephen D. Brody David K. Roberts 1625 Street NW washington, DC 20006 drobert32@omm.com Counsel for Defendants Janssen Pharmaceuticals, Inc, Johnson Johnson, Janssen Pharmaceutica, Inc. n/k/a/ Janssen Pharmaceuticals, Inc, and Ortho-McNeil- Janssen Pharmaceuticals, Inc. n/k/a/ Janssen Pharmaceuticals, Inc and Ortho-McNeil- Janssen Pharmaceuticals, Inc. n/k/a/ Janssen Pharmaceuticals, Inc. DECHERT, LLP Sheila Bimbaum Mark S. Cheffo Hayden A. Coleman Paul A. LaFata Jonathan S. Tam Erik Snapp Three Bryant Park 1095 Avenue of the Americas New York, New York 10036 sheila.birnbaum@dechert.com mark.cheffo@dechert.com hayden.coleman@dechert.com Daul.lafata@dechert.com ionathan.tam@dechert.com erik.snapp@dechert.com Counsel for Purdue Pharma L.P., Purdue Pharma Inc. and The Purdue Frederick Company Inc. Pharmaceuticals, Inc and Ortho-McNeil- Janssen Pharmaceuticals, Inc. n/lt/a/Janssen Pharmaceuticals, Inc. MYERS LLP Charles C. Li?and Jennifer D. CardelL?ls 400 S. Hope Street Los Angeles, CA 90071 icardel.us@omm.com Counsel for Defendants Janssen Pharmaceuticals, Inc., Johnson Johnson, Janssen Pharmaceutica, Inc. n/k/a/ Janssen Pharmaceuticals, Inc, and Ortho-McNeil- Janssen Pharmaceuticals, Inc. n/k/a/ Janssen Pharmaceuticals, Inc. LYNN PINKER COX HURST, LLP Eric Wolf Pinker John Thomas Cox Pinker Cox Hurst, LLP 2100 Ross Avenue, Suite 2700 Dallas, TX 75201 tcox 1 ml] .com. Counsel for Purdue Pharma L.P., Purdue Pharma Inc. and The Purdue Frederick Company Inc. GABLEGOTWALS Robert G. McCampbell Nicholas V. Merkley Ashley E. Quinn One Leadership Square, 15th l. 211 North Robinson Oklahoma City, OK 73102-7255 RMcCampbell@Gablelaw.com NMerklev@Gablelaw.com AQuim?Gablelawcom Attorneys for Defendants Cephalon, Inc, Teva Pharmaceuticals USA, Inc, Watson Laboratories, Inc., Actavis LLC, and Actavis Pharma, Inc. ?it/a/ Watson Pharma, Inc. MORGAN, LEWIS BOCKIUS LLP Brian M. Ercole 200 S. Biscayne Blvd., Suite 5300 Miami, FL 33131 brian.ercole@morganlewis.com Attorneys for Defendants Cephalon, Ina, Teva Pharmaceuticals USA, Inc., Watson Laboratories, Inc, Actavis LLC, and Actavz's Pharma, Inc. f/Io?a/ Watson Pharma, Inc. MORGAN, LEWIS BOCKIUS LLP Steven A. Reed Harvey Bartle IV Rebecca Hillyer Lindsey T. Mills 1701 Market Street Philadelphia, PA 19103-2921 steven.reed@morganlewis.com harvevbartle@mor2anlewis.com rebeccahillyer@morganlewis.com lindseymills@m0rganlewis.com Attorneys for Defendants Cephalon, Ina, Teva Pharmaceuticals USA, Inc, Watson Laboratories, Inc, Actavz's LLC, and Actavis Pharma, Inc. f/k/a/ Watson Pharma, Inc. (D CROWE 8x DUNLEVY ATTORNEYS AND COUNSELORS AT LAW Sanford C. Coats Direct Tel: [405) 235-7790 sandy.coals@crowedunlew.com Direct Fax: [405} 272-5269 May 9, 2018 VIA HAND DELIVERY Hon. Thad Balkman District Judge Cleveland COunty Courthouse 200 S. Peters Norman, OK 73069 Re: Oklahoma ex rel. Hunter v. Purdue Pharma, LP, N0. (Okla. Dist. Response to Letter by The Oklahoma Publishing 00. Dear Judge Balkman: I write on behalf of Defendants Purdue Pharma, L.P., Purdue Pharma, Inc. The Purdue Frederick Company, Inc. Teva Pharmaceuticals USA, Inc.; Cephalon, Inc; Johnson 8: Johnson, Inc; Janssen Pharmaceuticals, Inc; Ortho-McNeil-Janssen Pharmaceuticals, Inc., and Janssen Pharmaceutics, Inc. Watson Laboratories, Inc.; Actavis and Actavis Pharma, Inc., ?kfa Watson Pharma, Inc. This letter is in response to Your Honor?s request to respond to a May 7, 2018 letter by The Oklahoma Publishing Co. to allow its television cameras in the courtroom to broadcast the trial in this matter. Defendants respectfully submit that the Court should defer decision on this request until a time closer to trial, so that the Court may have the opportunity to fully consider all evidentiary issues, including those related to the presentation of testimony and other evidence involving con?dential health information. If, however, the Court considers this issue ripe for consideration, then Defendants respectfully oppose the request by The Oklahoma Publishing Co. As an initial matter, whether cameras may be permitted at trial is a premature question. The trial in this matter is scheduled over a year from now on May 28, 2019, and the Court has not yet had an Opportunity to consider several evidentiary issues that will affect this decision principally those related to testimony about EXHIBIT A A PEGFESSEOHAL OKLAHOMA - Braniff Building 324 N. Robinson Ave. Ste. 100 Oklahoma CW. OK 73102 T: 405-235-7700 F3 40523195551 TULSA 500 Kennedy Building 321 5. Boston Ave. - Tulsa, OK 74103 - T: 918.592.9800 a F: 918.592.9801 DALLAS Spaces Mci?nney Avenue - 1919 McKinney Ave, Ste. 100 - Dales, TX 75201 -T: 214.606.5922 - F: 214.392.2801 crowedunierysam Hon. Thad Balkman May 9, 2018 Page 2 and documents containing ?Con?dential Protected Health Information? under the protective order pursuant to the federal Health Insurance Portability and Accountability Act (HIPAA). (See Apr. 11, 2018 Agreed Quali?ed Protective Order for Protected Health Information.) The Order states that the parties and the Court need to resolve ?[t]he procedures for use of designated con?dential documents during the trial.? (Id. 6.) The Order prohibits ?disclosure of designated Con?dential Protected Health Information in open Court? absent prior ?consideration by the Court.? (102.) Given the nature of the claims in this matter and the likelihood that testimony and documents will be introduced at trial regarding speci?c patients? Con?dential Protected Health Information, the Court will need to determine the procedures for presenting this evidence and protecting it from unnecessary disclosure. This Court is not presently in a position to make those determinations at this stage of discovery and will not likely be able to fully hear the issues until after pretrial proceedings have concluded. Further, no prejudice will inure to The Oklahoma Publishing Co. if this Court defers until its decision pending consideration of the evidence to be introduced at trial. Accordingly, the request by The Oklahoma Publishing Co. is premature and should be deferred until after pretrial proceedings in this matter are completed. If the Court considers the issue ripe for resolution now, then Defendants respectfully oppose the request. Members of the public will be able to come to the courthouse during the trial and observe the trial from the gallery. But the presence of cameras?no matter how unobtrusive or limited in number?#will detract from the fundamental objective of a trial: the pursuit of truth. The use of television cameras ?cannot be said to materially contribute to [the] objective of a fair tria Nichols a. District Court, 2000 OK CR 12 6 (Okla. Crim. App. 2000), citing Estes v. Texas, 381 U.S. 532, 544 (1965). Cameras in the courtroom during trial inject an ?irrelevant factor? into court proceedings and distort the integrity of the judicial process. See Nichols, 2000 OK, at 1W 6, 8. This risk is magni?ed when the Plaintiff is an elected of?cial, for whom video may be used to promote political or electoral ambitions. Broadcasting this trial across the internet and airwaves presents a needless but serious risk of undermining Defendants? right. to be tried by a fair and impartial jury. Sensationalizing a trial through a media broadcast may ?cause actual unfairness? in ways ?so subtle as to defy detection? and that are beyond ?control by the judge.? Nichols, 2000 OK OR, at 1] 6. Speci?cally, Defendants are concerned about the effect of cameras on jurors, witnesses, and the parties? ability to secure a fair trial. A multi-year study by the Federal Judicial Center into the effect of cameras in state and federal courtrooms found that ?the intimidating effect of cameras on some witnesses and jurors [is] cause for concern? and resulted in the ongoing ban on cameras in most federal court proceedings. See Hollingsworth v. Hon. Thad Balkman May 9, 2018 Page 3 Perry, 558 U.S. 183, 193 (2010) (staying the broadcast of a bench trial). ?While some of the dangers? from a televised trial ?are present as well in newspaper coverage of any important trial, the circumstances and extraneous in?uences intruding upon the solemn decorum of court procedure in the televised trial are far more serious than in cases involving only newspaper coverage.? Estes v. Texas, 381 US. at 548. First, jurors will be unduly in?uenced by the presence of cameras in the courtroom, even if a limited number of cameras are unobtrusively stationed in court. The knowledge that an event is being broadcast inevitably changes its character, as the US Supreme Court summarized in Estes: [W]e know that distractions are not caused solely by the physical presence of the camera and its telltale red lights. It is the awareness of the fact of telecasting that is felt by the juror throughout the trial. We are all self-conscious and uneasy when being televised. Human nature being what it is, not only will a juror?s eyes be ?xed on the camera, but also his mind will be preoccupied with the telecasting rather than with the testimony. Estes, 381 US. at 546. ?Where pretrial publicity of all kinds has created intense public feeling which is aggravated by the telecasting or picturing of the trial the televised jurors cannot help but feel the pressures of knowing that friends and neighbors have their eyes upon them.? Id. at 545. This outside in?uence may sway jurors to support the prevailing opinion of the case presented in the media?not by the evidence presented in court. Id. In addition to the distraction posed by cameras, the fact that a trial is being broadcast may also impress on the jury ?the notorious character? of the proceeding or defendants. Estes, 381 US. at 536-37. The Supreme Court recognized that broadcasting a trial has a impact on jurors, noting that ?it is not only possible but highly probable that [televising a trial] will have a direct bearing on [a juror?s] vote.? Id. at 545. Research after Estes into the impact of cameras in the courtroom supports this View. See, J. Marvelley, Lights, Camera, Mistrial: Con?icting Federal Court Local Rules Con?icting Theories on. the Aggregate Effect of Cameras on Courtroom Proceedings, 16 Su?olk J. Trial 87. App. Advoc. 80, 48 (2011) (?If the jury is aware of the public?s disposition in a case, the jury may then try to decide in accordance with public opinion?). Second, cameras should not be permitted in the courtroom because their presence will impact witnesses. A witness?s knowledge that testimony may be viewed by a ?vast audience? causes an ?incalculable? impact. Estes, 381 US. at 547. A person Hon. Thad Balkman May 9, 2018 Page 4 changes their behavior, even in public, with the knowledge that they are being ?lmed. ?Some may be demoralized and frightened, some cocky and given to overstatement; memories may falter, as with anyone speaking publicly, and accuracy of statement may be severely undermined. Embarrassment may impede the search for the truth, as may a natural tendency toward overdramatization.? Id. The potential for exposure to a vast audience on the internet and television may cause a witness to focus more on his ?role? in the broadcast than his role in the trial. See United States v. Kerley, 753 F.2d 617, 622 (7th Cir. 1985). Any impact on the witness?s testimony necessarily ?impede[s] the search for truth.? Estes, 381 US. at 546-47. The witnesses in this case should be focused only on their role in the fact- ?nding process, not how their demeanor or choice of words will appear in a subsequent news or online broadcast. It is likely that video of this trial will be disseminated not just on a newscast but on the internet. This undermines the privacy interests of both jurors and witnesses, who could have video of themselves permanently broadcast over the internet. Both jurors and witnesses perform a public service by appearing in court and should not lose control over the nature and breadth of their own ?internet presence? by responding to a demand to appear in court. Finally, the presence of cameras in the courtroom will impact the parties to this litigation. The broadcast of courtroom proceedings, including pretrial proceedings, will make it more dif?cult for the parties to select a fair and unbiased jury, including for the reasons noted above. The problem of jury selection will be compounded if there is ever need for a new trial. Even if the trial goes to a verdict by the ?rst jury impaneled in this case, the broadcast may impact subsequent proceedings in the case. Together, these risks outweigh the marginal bene?t of permitting the journalists covering this trial to use their cameras in court. The law entrusts the jury, not the media, with the responsibility of assessing the credibility of evidence. The State asserts in its May 7, 2018 letter that ?a trial is a public event.? While true, it is immaterial to the question at hand. Under Oklahoma law, ?[t]he requirement of a public trial is satis?ed by the opportunity of members of the public and the press to attend the trial and to report what they have observed.? Nichols, 2000 OK OR, at 11 7; accord Nixon v. Warner Commc?ns, Inc, 435 US. 589, 610 (1978). Contrary to the State?s View (as well as that of The Oklahoma Publication 00.) that cameras are necessary to report on the trial proceedings (Ltr. at 1), the U.S. Supreme Court rejected that argument and held that ?there is no constitutional right? to have the testimony of a live witness ?recorded and broadcast.? Nixon, 435 U.S. at 609. Hon. Thad Balkman May 9, 2018 Page 5 The Oklahoma Publishing Co. claims that their cameras would be ?quiet and unobtrusive.? (Ltr. at 2.) That is immaterial. ?Even in an era of lightweight, silent, unobtrusive television cameras, there is a sense that the knowledge of being televised might cause the judge, jurors or witnesses to be distracted whether by embarrassment, self-consciousness, anxiety or desire to ?star.? It is not unreasonable, whatever may be the precise facts in any particular trial, for the courts to prefer that the ?actors? concentrate on their roles in the trial rather than on their roles on television.? Kerley, 753 F.2d at 622. The cases cited by the State are also off point. Craig 0. Harney, 331 US. 367 (1947) did not address the use of cameras or other recording devices in court. Nor did Richmond Newspapers, Inc. v. Virginia, 448 US. 555 (1980), which involved the closure of a trial to the public and removal of journalists from the courtroom. The State and The Oklahoma Publishing Co. rely on Lyles v. State, 1958 OK CR 79, 330 P.2d 734 (Okla. Cr. App. 1958), but that court did not grapple with the effects of cameras on the judicial process. Video coverage of the Lyles trial was limited to a ?ve-minute recess when the court was not in session and before the jury was selected. Id. at 788. After Lyles was decided in 1958, research and judicial decisions in Oklahoma and around the country have concluded that cameras negatively impact the judicial process. See, Nichols, 2000 OK CR, at 9-10 (holding that televising a trial can violate due process); Hoilingsworth, 558 U.S. at 193 (denying a request to broadcast a civil bench trial); United States Hastings, 695 F.2d 1278, 1284 (11th Cir. 1983) (denying media organizations? application for order permitting them to use electronic audiovisual equipment during trial due to the adverse impact on jurors, witnesses, and other trial participants). The public?s right to observe a trial should never outweigh the key function of the jurors at the center of the fact??nding process. The risk of prejudice to a fair proceeding is too great to justify the presence of cameras in the courtroom. Defendants reapectfully submit that The Oklahoma Publishing Co?s request to bring television cameras in the courtroom to broadcast the trial of this matter be denied. 3' anford C. Coats For the Firm Hon. Thad Balkman May 9, 2018 Page 6 bcc: All counsel of record (via e-mail)