The alleged “20th hijacker” in the Sept. 11, 2001, terrorist attacks is indicted.
The trials of two of the United States’ most notorious serial killers, who terrorized a region for weeks by shooting victims randomly with high-powered rifles, takes place in separate courtrooms.
One of the world’s most famous pop stars is arraigned by a grand jury on charges of molesting young boys.
What do these cases have in common?
The daily judicial proceedings of each criminal trial were or will be shielded from most Americans.
Television cameras continue to be banned in most American courtrooms — state and federal — despite the fact that each state has a law permitting cameras in the courtroom, usually at the judge’s discretion. Many believe the impact of television coverage of the O.J. Simpson murder trial immeasurably set back a move toward allowing cameras in court proceedings. Nevertheless, progress has been made in recent years, and there is much the media can do to ensure that progress continues.
But understanding how we arrived at camera usage in 2004 requires a look at the past.
The movement to obtain broadcast coverage of trials suffered its first substantial blow in 1965, when the U.S. Supreme Court in Billie Sol Estes v. Texas found that a criminal defendant was denied due process of law as a result of the television coverage of his trial.
Although the Supreme Court did not rule that television coverage was inherently unconstitutional. It objected to the “circus atmosphere” created by the numerous cameras, lights and other broadcast equipment at the trial.
However, as cameras became less obtrusive more states began to permit coverage. In the early 1980s, two monumental cases in favor of cameras in the courtroom appeared to propel the movement forward.
In 1980, the Supreme Court in Richmond Newspapers Inc. v. Virginia, rejected a trial judge’s decision to close a criminal trial to the public and media, held that a criminal courtroom is a public place in which the presence of the public and media historically has been thought to enhance the integrity and quality of the proceedings.
The next year in Chandler v. Florida, the Supreme Court finally considered whether television coverage of criminal trials violates defendants’ rights per se, even when it does not create a circus-like atmosphere, and found that it does not.
The Supreme Court ruled: “The risk of juror prejudice in some cases does not … warrant an absolute constitutional ban on all broadcast coverage.” The Supreme Court also affirmed the right of each state to permit electronic and still photographic coverage of criminal trials without the consent of the accused.
Subsequently, many states dropped bans on electronic media, while others began experimenting with the use of cameras in the courtroom.
“When we started Court TV back in 1991, about half the states allowed cameras in the courtroom, and by 1995 it went to about two-thirds,” said Fred Graham, chief anchor and managing editor of Court TV.
“The phenomenon of having cameras in the courtroom and gavel-to-gavel coverage was very successful. The public was very receptive, and the judicial officials felt it was positive.”
But a decade ago, former NFL running back O.J. Simpson was charged with murder in the slayings of his wife and her male friend, and the nation was permitted to view the trial from start to finish.
Presiding Judge Lance Ito was seen by some as unable to control the behavior of the prosecuting and defense attorneys. Lawyers on both sides were accused of grandstanding and playing to the cameras, both in the courtroom and outside on the steps during “impromptu” press conferences. The fallout from the Simpson trial was immediate and widespread. Among the casualties was the impetus to allow cameras into the nation’s courtrooms.
• In California, then-Gov. Pete Wilson launched an unsuccessful campaign to ban television coverage of trials in the state, citing a need “to preserve the integrity of the judicial process.”
• In Connecticut, a bill that would have expanded media access to allow coverage of executions did not pass.
• Individual judges also took action to bar the media from courtrooms. A Sonoma County, Calif., superior court judge, citing the “media saturation” of the O.J. Simpson trial, granted the requests of both sides and refused to permit live or still cameras during the trial of Richard Allen Davis. Davis was accused of the kidnapping and murder of Polly Klaas.
• Just three days after the Simpson verdict, Lyle Menendez’s attorney persuaded Los Angeles County Superior Court Judge Stanley M. Weisberg to change his mind and ban live coverage.
Momentum to obtain access for cameras in the federal courts also stalled.
In May 1990, U.S. Rep. Robert Kastenmeier, D-Wis., then chairman of the House Judiciary Committee’s subcommittee on the courts, had written to the Judicial Conference that “it is timely for the federal courts, at both the trial and appellate levels, to permit electronic and photographic news coverage in the courtroom.”
The next year a pilot program allowing cameras in the courts was conducted in civil and appellate courts. The federal pilot program lasted three years, and camera access was granted to about 200 proceedings. An extensive study conducted by the judiciary’s own research arm, the Federal Judicial Center, found that the reaction to the pilot programs was favorable.
However, rather than continuing the experiment, the Judicial Conference approved a nationwide ban on federal trial court camera coverage.
The Judicial Conference permitted cameras in circuit courts that chose to permit them, but so far, the 2nd and 9th Circuits are the only ones to do so.
Tony Mauro, Supreme Court correspondent for Legal Times and American Lawyer Media, covered the federal courts during this time and believed that things might have proceeded differently if not for the Simpson trial.
“The experiment in the early 1990s to allow cameras in a few appellate courts was pretty positive,” he said. “The Judicial Conference was debating whether to continue the experiment at the same time the O.J. trial was getting under way. (But) the members of the committee were so shell-shocked by the antics going on in that trial that they decided not to go forward.”
Though the worst fears of those who oppose cameras in courtrooms materialized during coverage of the Simpson trial, the experience at the same time strengthened the convictions of camera advocates.
“Cameras only showed the truth of what was really going on in the courtroom,” said Judge Ted Poe, a widely respected Texas criminal judge who has served on the bench for 22 years and who presided over more than 1,000 cases.
“Judge Ito lost control of the trial. All the cameras did was show that. Unfortunately, (today) people gauge the criminal justice system on that one trial.”
Cameras in Courtrooms: Both Sides Of The Debate
In 2002, Poe made history when he fought to allow producers of the PBS documentary series “Frontline” to cover jury deliberations in the capital murder trial of a 17-year-old.
Ultimately, the Texas Court of Criminal Appeals stymied Poe’s efforts, holding that the presence of a camera in the jury room “violates the cardinal principle that the deliberations of the jury shall remain private and secret in every case.”
But Poe continues to advocate the benefits of cameras to a wide array of court proceedings.
“(I) continue to believe that serving on a jury frightens most people,” he states on his Web site. “But if more people understood the process, possibly they would not try to avoid jury duty and be more willing to take the responsibility seriously.”
Educating the public and fostering government accountability are the most common defenses cited by camera advocates.
As U.S. District Court Judge Nancy Gertner of Massachusetts testified at a Senate hearing in September 2000: “At a time when polls suggest that the public is woefully misinformed about the justice system, more information, and relatively unmediated information, is better than less information.”
Supporters also say that an open system raises public confidence in the judicial system and can help maintain peace in an embittered community. After Amadou Diallo, an unarmed West African man living in the Bronx, N.Y., was gunned down by four police officers, New York Supreme Court Judge Joseph Teresi permitted Court TV to televise the proceedings of the ensuing trial of the four New York Police Department officers in order to enable the entire community to view the proceedings.
Many legal experts attributed the lack of anticipated rioting after the acquittals were announced to Teresi’s decision to allow television coverage.
“The Judge thought it was important for folks in the Bronx to see what was going on with the case since it had been moved to Albany,” said Kathleen Kirby, counsel to the Radio and Television News Directors Association. “Court TV broadcast the entire trial, and it was clear by the time the jury reached a verdict that the prosecutors had never made their case, which in turn, helped squelch any incentive to riot.”
However, judges such as Teresi and Poe are in the minority.
Far more often than they grant them, judges deny requests to permit cameras in the courtroom.
In the trial of Scott Peterson for the murder of his wife and unborn child, Judge Alfred Delucchi refused requests to allow cameras in the courtroom during the preliminary hearing or trial.
Delucchi cited the need to protect Peterson’s right to a fair trial and the privacy rights of witnesses and victims in the case.
Concern over the defendant’s right to a fair trial also led Virginia Circuit Judge Jane Marum Roush to prohibit cameras in her courtroom for the trial of Lee Malvo, one of the sniper suspects.
And in recent years, security issues have increasingly motivated judges to close proceedings to the broadcast media.
Such concerns were prominent in the debate over media coverage of the trial of Zacarias Moussaoui, the suspected “20th hijacker” in the September 11, 2001, terrorist attacks. Although the proceedings are in federal court — which currently bans cameras filming or televising any court proceeding — media organizations asked U.S. District Judge Leonie Brinkema to overturn the ban, stressing the extraordinary national and international public interest in the case.
Brinkema denied the media’s motions, citing “significant concerns about the security of trial participants and the integrity of the fact finding.”
Many opponents of cameras in courtrooms also argue cameras are disruptive to the judicial process, a concern that has changed but not necessarily lessened with advances in technology.
Though cameras have become less intrusive, the Internet has broadened the audience for trial coverage and heightened concerns that parties, lawyers or witnesses will play to the cameras.
As Brinkema noted: “(Worldwide) broadcasting of these proceedings, either by television, radio or the Internet, would be an open invitation to any trial participant to engage in showmanship or make a public spectacle for the world to see and hear.”
However, for others, technology offers the opportunity to truly provide public access to court proceedings.
Until July 2004, Wise County, Va., Circuit Court maintained a webcast of all of its court proceedings. The court has since switched to cable, which brings video of its court proceedings to 100,000 to 150,000 viewers.
“We believe in open government as a principle that applies to all three branches of government,” said Clerk of Court Jack Kennedy. “The judicial branch is far too often clouded in a fog of obscurity. Our principles of open government demand that we provide access to our constituents.”
Positive Signs For The Future?
The judicial system, from the top down, appears to be starting to embrace this concept.
In Bush v. Gore in December 2000, the Supreme Court for the first time allowed audio recordings of the oral arguments to be broadcast to the public on the same day.
Since then, the Supreme Court has allowed the speedy release of audiotapes in several high-profile cases, including:
•The landmark affirmative action cases in 2003
• Cases this year addressing the rights of prisoners in the U.S. Navy prison camp in Cuba
• The public’s right of access to information about closed-door meetings of Vice President Cheney’s energy coalition.
Advocates of camera access hope that the Supreme Court’s recent move is a beginning, not an end.
“Although having audio feeds of oral arguments in front of the Supreme Court was a good thing,” said Mauro. “The downside is that the Supreme Court may have done all it wants to do in terms of recognizing the 21st century and may not take another step toward technology until we enter the 22nd century.”
Meanwhile, the issue of cameras in state courts has gained momentum in legislatures and courtrooms throughout the country in recent years.
In July 2001, South Dakota became the 50th state to allow cameras in at least some of its courtrooms. The state Supreme Court announced that it would allow video and audio coverage of oral arguments during its sessions.
The success in South Dakota was largely a result of journalists’ efforts to educate judges.
“In South Dakota, the state supreme court justices met with one of our members and carefully planned a way they could experiment with cameras and determined that they are not disruptive in courtrooms,” said RTNDA President Barbara Cochran. “The same thing is happening in Indiana. When journalists can show a judge in one state how well cameras in the courtroom work in another state, they can be persuasive.”
Court TV’s Graham concurred that journalists can be effective in reaching out to hesitant judges.
“Something that we did was videotape our camera crews setting up in a courtroom and narrated the tape explaining what the process was and how nondisruptive the equipment is,” he said. “We send these tapes to judges who are considering whether to allow cameras in their courtroom.
“Since Billie Sole Estes v. Texas, no verdict has been overturned because of cameras in the courtroom. It’s that kind of argument we can make.”
Continuing education programs also can provide an opportunity for reporters to meet with judges and discuss the benefits and solve the problems related to camera coverage of trials.
The National Judicial College in Reno, Nev., has a program with its National Center for Courts and the Media that offers training to state trial justices as well courtroom staff such as public affairs officers. In the program, judges learn about First Amendment issues from reporters and gain insight in striking a proper balance between protection of the public’s First Amendment rights and individuals’ Sixth Amendment right to a fair trial.
The program for courtroom personnel offers instruction on how to deal with the media in high-profile cases.
This summer, the National Judicial College provided its first training for journalists assigned to cover trials.
In August, it trained 50 to 55 journalists to cover the courts, said Gary Hengstetler, the Director of the National Center for Courts and the Media. “The biggest criticism that we hear from judges about journalists is that they don’t understand the general procedures of a courtroom, let alone the subtle, but important nuances of a trial,” Hengstetler said.
Ellia Thompson is a 2004 Pulliam/Kilgore First Amendment Intern.