When will the public get to see federal justice served?
Despite congressional support for opening federal courtrooms to broadcast cameras and microphones (11/11/05 TVBR #222), the legislation faces an uncertain future and there are indications that the folks who run the federal court system - - the justices of the US Supreme Court - - remain opposed to the whole idea. Attorney Mark Allen, who also happens to be President & CEO of the Washington State Association of Broadcasters, says the justices' opposition is based on arguments which don't hold water. Read his commentary.
Cameras in the Courtroom
The tensions between three of our most cherished constitutional rights, the right to freedom of the press, the right to a fair trial and the right to a public trial, are real and should be accorded the respect and importance that preserving each of them deserves. However, it is not a given that they cannot co-exist in relative harmony. In state after state, judges, attorneys and journalists have worked together diligently to ensure that media coverage of trials can take place with a minimal impact on either the right to a fair trial or the right to a free press.
Broadcast and print journalists cover hundreds, perhaps thousands, of trials every year without so much as a ripple on the pond of constitutional rights. Cameras, both still and video, as well as audio recording devices, are permitted in nearly every state; in many states, for decades. Washington was the second state in the country to permit cameras in the courtroom nearly 30 years ago.
Over that time, the common objections, many of which were reiterated by Justices O'Connor, Kennedy and Breyer in their highly publicized remarks to an American Bar Association event on November 11, 2005, have been completely debunked.
Originally, cameras were prohibited from the courtroom because it was felt that photography and broadcasting detracted from the "essential dignity" of the proceedings. Surprisingly, when that reasoning was adopted by the American Bar Association in 1937, there was nary a whisper of concern about a defendant's constitutional right to a fair trial. It was only later, after the Billy Sol Estes and Sam Sheppard cases that the now tattered arguments about the potential impact on a defendant, defense counsel, witnesses, jurors and added administrative responsibilities of the judge were raised.
The 1974 experiment authorized by the Washington Supreme Court provides a good example of how these concerns have no factual basis. Each witness in this negligent homicide trial was interviewed on film by the presiding judge at the conclusion of the day's court session, each being asked whether the camera in the courtroom (in those days a bulky film camera) had any effect in the witness' testimony. None of the many witnesses indicated that it did. Unforeseen was an early witness recalled to the stand later in the trial, which raised the concern that a mis-trial might be necessary because that witness had already been interviewed and informed about the presence of the television camera. In that witness' second filmed interview, he was asked again about the effect of the camera on his testimony and his response was that he didn't even know the camera was there, even though he had been interviewed about it previously.
In citing the O. J. Simpson case, the Supreme Court justices have ignored another high profile case handled here in Washington: The Green River Killer trial. More than 15 months before the case was to go to trial, the presiding judge began holding meetings with media representatives, reporters, producers, print reporters and photographers and others from both local and national news organizations. The judge was determined to have camera coverage of the trial, but at the same time he was also determined to avoid the problems that befell Judge Ito in the Simpson case. While his ground rules were strict, they were also fair and practical and he crafted them in consultation with the various media organizations. Although the defendant eventually pled guilty, there were many hearings, including the acceptance of the plea, that were covered extensively by both broadcast and print media without problems. The lengthy plea proceeding was broadcast live, by some stations in its entirety.
The Federal Judicial Conference authorized a pilot project from 1991 to 1994 in a select number of federal trial courts throughout the country, including the Federal District Court for the Western District of Washington. The Washington State Association of Broadcasters, our state's newspaper associations, other journalist organizations and media attorneys participated extensively in designing the project in this District with the full support and encouragement of the District's federal trial judges, who have long been strongly supportive of cameras in the courtroom.
At the conclusion of the pilot project, the Federal Judicial Center, which conducted the pilot project on behalf of the Judicial Conference, recommended that cameras be allowed in federal courtrooms on a permanent basis. The staff report concluded that cameras had minimal impact on the court proceedings and their participants. However, the Judicial Conference turned a deaf ear to its own research department and terminated the pilot project and forbade cameras in the federal trial courts, relying on the tired notions of the effects that cameras might have on witnesses and jurors. Though Justice O'Connor cited the O. J. Simpson case during the November 11th ABA event, in fact, the Judicial Conference's decision occurred in the aftermath of only the initial burst of coverage of the Simpson pre-trial hearing.
In 1999, Phillip Anderson, then the President of the American Bar Association, endorsed cameras in the courtroom saying, "I think we should open the courtrooms in America to television cameras, gavel to gavel, so the people of this country can see the every high level of justice that's dispensed every working day in every courthouse in this land. I cannot think of a better civics lesson than for the people of America to be able to see and hear every argument before the Supreme Court of the United States."
While the membership of the Judicial Conference includes federal judges from all levels, it is the wishes of the Supreme Court Justices that drive the Conference's policy decisions, at least on the issue of cameras in the courtroom. So, the Justices still hold the trump card, despite the overwhelming evidence that cameras no only do not cause the problems about which the Justices are concerned, but that they can have a very positive effect on the public's knowledge about and perception of the judicial process.
Current legislation, which would bring federal courtrooms into the Twentieth Century echoes similar efforts over the past dozen years or more. However, even if it is enacted, the Supreme Court still has one last ace up its sleeve: Separation of powers. The Court cannot self-authorize cases over which it has jurisdiction, but it may take the view that it determines its own destiny within the walls of every federal courthouse. Cameras in the courtroom legislation may be seen by the Court as an intrusion by Congress into the Court's sovereign realm, which would give the Court an excuse to strike down any Congressional action authorizing cameras in federal courtrooms.
The introduction to the section on cameras in the federal courts in Court TV's 1995 publication "Facts and Opinions About Cameras in the Courtroom" says it best: "Affirmative action. Microsoft. Waco. Whitewater. The NBA anti-trust case. Abortion. School prayer. These are all major legal and social issues that affect us and that are being played out in our courts today. They are prime subjects of journalism at its best. But they cannot be shown on television [when they are litigated in the federal courts]."
Public policy makers clamor for broadcasters to be more engaged in providing civic education and creating an informed public. Some Members of Congress have been dedicated to giving broadcasters the tools they need to provide the public with direct access to the judicial system. This is an idea whose time has come (truth be told, it arrived a long time ago in nearly every state).
Mark Allen, Esq.
President & CEO
Washington State Association of Broadcasters
Olympia, WA
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