Judge Laments Lack of Video for Trial

     SAN FRANCISCO (CN) – A federal judge Wednesday said he was dismayed by a state prosecutor’s decision not to broadcast the trial of a photojournalist’s false arrest lawsuit against the California Highway Patrol.
     “I think this reflects poorly on the state,” U.S. District Judge James Donato said after the California Attorney General’s Office rejected an offer to broadcast the trial online.
     Stephen Eberhard sued the California Highway Patrol, the Department of Transportation and officials and officers in both agencies after he was arrested in July 2013 as he covered a protest against a highway project in the Northern California town of Willits. Eberhard agreed to dismiss Caltrans as a defendant in January.
     During a pretrial conference Wednesday, Judge Donato said he’s “been itching for an opportunity to have a televised trial” as part of the Northern California U.S. District Court’s Cameras in the Courtroom pilot program.
     Despite Donato’s assurances that the video would be edited, not live, and that both parties could block objected footage from being broadcast, state attorney Harry Gower III refused to consent, saying Eberhard and his supporters could edit and manipulate the footage.
     “The plaintiff and his associates have demonstrated they would make poor use of this,” Gower said.
     He said that a photo Eberhard took of one defendant, CHP Officer Teddy Babcock, was plastered on disparaging T-shirts.
     Donato said that that story did not change his perspective and that he remains “terribly disappointed” with the state’s decision. But he said he cannot televise the trial without consent from both parties.
     After the hearing, Eberhard said he had nothing to do with the person who printed his photo on T-shirts. Eberhard’s attorney, Duffy Carolan, had no objections to broadcasting the proceedings.
     Preparing for Trial
     The trial begins on Feb. 22. Each side will be limited to nine hours of testimony, with 30-minute opening statements and 45-minute closing statements, Donato said.
     Nine jurors will be selected down from a pool of 35 to 40. They will be asked to decide whether CHP officers arrested and intimidated Eberhard to retaliate against him for covering the protests and to dissuade him from continuing to cover the issue.
     Eberhard says officers simply wrote citations and released protesters at the construction site, but they arrested him to chill his First Amendment rights.
     Donato rejected Eberhard’s motion to exclude testimony from the state’s expert witness on proper police arrest procedures and protocols, but forbade the expert from weighing in on the specifics surrounding Eberhard’s arrest.
     Donato also denied the state’s motion to exclude testimony on Eberhard’s pain and suffering from the arrest, finding those details would inform the jury on the issue of damages.
     To calculate damages, Donato said, Eberhard must present specific, non-abstract, compensable losses that can be analyzed in dollars, such as lost wages, lack of employment or medical bills.
     The judge said the alleged chilling effect on Eberhard’s newsgathering was too abstract to support a claim for damages, but if Eberhard lost work as a result of the arrest, that could be valued in terms of dollars.
     After partially surviving two motions to dismiss and one motion for summary judgment , only a handful of Eberhard’s original claims against the CHP and three named officers will go to trial.
     Jurors will be asked to decide whether the alleged intimidation, assault and arrest violated Eberhard’s his First Amendment rights; whether it had retaliatory intent , in violation of state and federal civil rights laws; and whether he deserves damages for the state’s conduct.
     The Willits Bypass Project is nearly done. It is meant to ease congestion in the small town, which during rush hours can cause nearly hour-long traffic backups.
     The project also is the focus of another federal lawsuit , from Native Americans tribes who say the state failed to protect sacred artifacts and resources when building the new $300-million stretch of highway.

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