No, you can’t record and re-broadcast the livestream of that sensational murder trial, Denver judge rules

By Jeffrey A. Roberts
CFOIC Executive Director

With the livestreaming of some criminal trials during the COVID-19 pandemic, should journalists be permitted to record and share the court proceedings they see on their laptops?

Denver District Court Judge Edward Bronfin answered that question last week in the case of Robert Feldman, who is accused of killing his wife Stacy in 2015.

“No one,” Bronfin ordered on Sept. 15, “may record any portion of the trial by audio or audiovisual means.”


Feldman’s trial, since delayed until March 2021, marked the first time any news organization had asked to record a Denver criminal trial streamed via WebEx, the videoconference platform used by the courts during the pandemic.

Requests for expanded media coverage — permission to place a pool camera in a courtroom — are governed by a Colorado Supreme Court rule that sets standards and conditions for authorizing cameras and audio recording equipment. Judges must consider whether the presence of a camera would 1) likely interfere with the defendant’s right to a fair trial; 2) “unduly detract from the solemnity, decorum and dignity of the court”; or 3) create “adverse effects” greater than those caused by “traditional” media coverage.

The rule addresses “any photography or audio recording of proceedings” but does not specifically mention livestreaming by the court.

On Sept. 9, Bronfin denied expanded media coverage requests made by 9NEWS and Dateline NBC, citing seating restrictions in the courtroom put in place because of the coronavirus. The addition of two reporters and a videographer would “substantially reduce the Court’s ability to accommodate family members who wish to attend the trial in person,” he wrote, also noting that the trial would be available to the public on WebEx. Bronfin cautioned the news organizations that recording the videoconference is barred by a joint Second Judicial District court order on the use of electronic devices in court facilities.

The judge’s order prompted a letter the next day from NBC News attorney Beth Lobel, who argued that the Second Judicial District joint order “applies to recording inside the courthouse, not a WebEx presentation on a computer in a reporter’s home or private office far from the courthouse.”

“NBC News understands the practical difficulties that the Court faces in conducting a trial during the pandemic and the Court’s prohibiting our videographer from being present inside the Courthouse because the safety requirements would not allow space for them,” Lobel wrote. But recording the livestream “would not pose any health risk and would in no way impact the Court’s ability to conduct the trial” and would “best serve the public interest.”

“Rather than have a second-hand account by our reporters of what occurred, the public could see first hand what happened at the trial. This would afford the public the most accurate account of the proceedings, provide the greatest understanding of the trial and foster public confidence in the judicial system,” Lobel contended.

Her letter prompted a motion from Feldman’s attorneys, who asked the judge to restrict video access to the trial proceedings to only those people who appear in person in a “specifically designated” room in the Lindsey-Flanigan Courthouse. They also wanted Lobel, a senior vice president for NBCUniversal News Group in New York, held in contempt because she is not licensed to practice law in Colorado.

Bronfin denied the request for a contempt citation against Lobel and issued a supplemental order clarifying his reasons for ordering 9NEWS and Dateline NBC not to record the livestream. His new order also included Court TV.

Bronfin noted that a criminally charged defendant has a right to a public trial under both the U.S. and Colorado constitutions, and he declared that the news organizations’ request to record and re-broadcast portions of the livestream is essentially a request for expanded media coverage, “just in a different format.”

“While anyone who signs on to the WebEx link is welcome to observe the trial or other court proceedings, the use of the WebEx as a patched-together ‘solution’ necessitated by the intersection of a worldwide public health crises and the easy availability of video streaming is not an open invitation for any and all to record and redistribute parts or all of a trial or other court proceeding on television, YouTube, Facebook, Instagram, Twitter, Court TV, or by other means,” the judge wrote.

The Feldman case “already has generated enormous publicity during the past two years both locally and nationally,” Bronfin added. The additional publicity generated by allowing the use of livestream recordings, he wrote, could jeopardize Feldman’s right to a fair trial if family members and friends of a juror saw the coverage and attempted to discuss the case with the juror. It could also potentially harm the children of Stacy Feldman, one of whom may be called to testify.

“For a school bully to obtain and post clips of the testimony of one of the children, or the Defendant (should he testify), on social media could have devastating results. Given the particular facts and circumstances of this case, this is a particular concern of the Court.”

On Mar. 1, 2015, Robert Feldman called 911 and reported that he’d found Stacy Feldman collapsed in the shower with the water running. He was arrested in 2018 after a doctor who reviewed the autopsy report concluded Stacy Feldman was a victim of strangulation or suffocation.

Bronfin denied Feldman’s motion to restrict access to the trial only to a room at the courthouse with a live feed. The court lacks the equipment and space to fulfill the request, he wrote, and the WebEx livestream ensures “an open, public trial, consistent with the public health requirements of the pandemic.”

If technically possible, he added, his admonition against recording the livestream will be posted on the bottom of the screen for anyone who watches the trial on WebEx.

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