Deseret Morning News Salt Lake lawyer Brian Barnard, a longtime supporter of the First Amendment and press freedom, has sent a letter to the Utah Judicial Council calling for a ban on cameras in the courtroom.

The letter was prompted by a photograph published April 5 in the Deseret Morning News. It was taken by photographer Scott G. Winterton in the St. George courtroom where a felony rape case has been brought against Warren Jeffs, president of the Fundamentalist LDS Church. The photo shows Jeffs' lawyer, Walter Bugden, taking a document from Jeffs, one that Jeffs had tried unsuccessfully to give to the judge himself.

The photo was enlarged, scrutinized by experts and its contents reported by Deseret Morning News reporter Ben Winslow. One line that is visible reads: "I have not been a Prophet and am not the Prophet."

He said he is concerned not only with the possibility of violating attorney-client privilege with modern technology, but perhaps more importantly, violating privacy rights.

"I've been in courtrooms exchanging notes with clients that I do not want public," Barnard said. "There may be documents I want to refer to, not necessarily something from a client, it could be my strategy notes. Apparently if I write too big and somebody has a real good camera, they can see it - and that's troublesome."

Barnard said he wants the Judicial Council to address the issue in a substantive way so that what happened in the Jeffs case never occurs again.

Asking for a total ban on cameras in court is intended to spur discussion that he thinks is important and necessary, and he assumes the council will come up with a more moderate approach that balances the rights of the First Amendment and journalists in courtrooms with the rights of defendants and their attorneys.

"The public has a presumptive right to observe the functioning of our criminal justice system. That right is of constitutional magnitude and helps ensure both accountability and public trust in the judicial process," Reymann said.

Reymann notes that Utah's rule does not allow cameras in the courtroom in every situation, but leaves the decision to each judge. (In addition, judges can impose restrictions on what photographers can shoot and often forbid photos of jurors, victims, witnesses, etc.).

And he said that particular photograph was not privileged communication, but something Jeffs unsuccessfully tried to give to the judge and make public, and whose contents were verified by many other sources.

"The Deseret Morning News has never used digital photography enhancement to snoop on privileged communications in court, and would never do so. Its decision to enhance the document that Mr. Jeffs tried to give the judge was based on the fact that the document was not privileged, was of critical public interest, and was part of a public court proceeding," Reymann said.

"The mere fact that technology could possibly be abused has never been a justification to abandon that technology altogether, or to revert to an antiquated system of press coverage that would undermine the public's right to fully observe the judicial process," Reymann said.

Nancy Volmer, spokeswoman for the Administrative Office of the Courts, said the issue was raised with the Judicial Council's management committee, which directed State Court Administrator Daniel Becker to send a letter to Utah media attorneys and reporters.

It advises lawyers to discuss the matter with their media clients and reminds them that still photography is permitted at a judge's discretion. The letter recommends that media attorneys "stress the importance of refraining from further actions that could jeopardize still photography in the courtroom."

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