“I think there’s something sick about making entertainment out of other people’s legal problems,”
-Associate Justice Antonin Scalia, 2005.
With the sort of regularity that would make a geriatric blush, the question of cameras in the courtroom returned when 9th Circuit Chief Judge Alex Kozinski announced that it was time to give it a try. Any suspicion that Judge Kozinski has learned a lesson from ill-advised images is over. The game is on.
Norm Pattis at his aptly-named blog rips the suggestion.
With the sort of regularity that would make a geriatric blush, the question of cameras in the courtroom returned when 9th Circuit Chief Judge Alex Kozinski announced that it was time to give it a try. Any suspicion that Judge Kozinski has learned a lesson from ill-advised images is over. The game is on.
Norm Pattis at his aptly-named blog rips the suggestion.
Alex Kozinski, the chief judge of the United States Court of Appeals for the Ninth Circuit, has announced that his circuit will “experiment” with cameras in Court. He wants “to help us find the right balance between the public’s right to access to the courts and the parties’ right to a fair and dignified proceeding.”
The public’s right to access,in one permutation or another, forms the basis for the argument that legal proceedings should be subject to cameras. It’s a vague concept, but one that sounds pretty good and certainly comports with populist sensibilities. We would hate to have secret court proceedings, where the peering eyes of the public are forbidden and decisions are made behind closed doors. But that’s the far end of the spectrum from television cameras in the courtroom.
Court TV was supposed to edify us all about what went on in the courts. What we ended up with was ’round-the-clock shlock. Producers looked around for trials with sex appeal. Cameras were placed in these courtrooms, and then editors clipped the “sexier” moments for broadcast. To add color, lawyers were recruited as talking heads to “interpret” the significance of what was shown on the screen. The result was hardly edification; indeed, all we succeeded in doing was creating a few new talking heads, who copped just the right attitude on screen: Nancy Grace gracelessly rages about crime; Catherine Crier decries the role of lawyers. And the public, that vast entity of folks with some inchoate right to know, knows about as much as it knew before the klieg light’s flashed — zip.\
Seeing isn’t understanding. The folks with the cameras aren’t interested in illuminating the fascinating area of law. They sell commercial time for a profit. That’s fine, as it’s the nature of their business, but we can’t forget this when they wrap themselves up in arguments that they want cameras in the courtroom for the good of mankind.
On the other hand, there are a number of very hard, very real reasons to not permit the legal proceedings to be made into television fodder. I’ve spelled them out before. Yet Judge Kozinski says times have changed.
On the other hand, there are a number of very hard, very real reasons to not permit the legal proceedings to be made into television fodder. I’ve spelled them out before. Yet Judge Kozinski says times have changed.
But as Judge Kozinski said in an interview, “a lot has happened since then.” He cited advances in technology, the rise of Internet video transmission and greater experience of successful use of video in state courts and at the federal appeals level. “We thought it was time to take another look,” he said.The only change noted is advancement in technology, that old dog again. While that would alter the obtrusiveness of the physical cameras, that was the least of the problems. This was never a technology issue, but a human one. And it is disconcerting for the Chief Judge of the 9th Circuit to say that they will drop the experiment if it impairs justice. It’s quite difficult to assess the impairment of justice, or the degree of impairment, and what does he plan to do for the litigants whose justice was impaired?
Judge Kozinski emphasized that the new initiative was still an experiment, and that it would be dropped “if it in any way impairs the fair administration of justice.” But he also noted that he did not expect to see problems.
“It’s a little bit of an uphill battle” to get courts to adopt technology, he said, adding: “We all have to be much more tech savvy than we really ever were, or particularly wanted to be. It’s just the nature of life in the 21st century.”
There are no new arguments in favor of cameras in the courtroom. Judge Kozinski offers nothing in support of his “times have changed” position. Maybe it’s just a love of new technology that leads him down this road, the sense that it’s inevitable and might as well start with him. Judicial entropy.
There will be no illumination for the public. There can’t be, when they are only shown snippets of trials, the dramatic or salacious, and left to some glib talking heads to “explain” it. The truth is that trials are largely a bore, tedious to watch and often senseless until the end. Court TV found this out when it folded it’s tent and became Tru TV.
Norm agrees with Justice Scalia. So do I. But then, we’re just criminal defense lawyers. Why would we care about fair trials?
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Is a judge of an appeals court competent to decide whether cameras should be allowed in a trial court?
You will need to define “competent”.
I meant competence in the sense of having first hand experience of how trial proceedings operate in the real world. A District Court judge would be competent to decide whether a cameras should be allowed in a trial.
I think that sort of competence not only requires time on a trial bench, but experience as a trial lawyer (and not for the government) to understand fully the ramifications. I know that Judge Kozinski sat on the US Court of Federal Claims for 3 years before going to the 9th Circuit, but I don’t know whether he has the experience to realize the significance and consequence of his decision. On the other hand, he’s a very smart guy.
You make a very powerful case against allowing cameras in a criminal trial but Judge Kozinski is deciding whether cameras should be allowed in civil trial. Are you arguing that cameras should not be allowed in civil trials?
While the nature and degree of harm will differ, the problems are otherwise very similar. And while lawyers and judges may not consider civil work to be as serious as criminal, the litigants no doubt consider their trials very important. I don’t know whether Judge Kozinski respects that sufficiently.
What is your position on cameras in appellate cases.
There is substantially less opportunity for harm by televising appellate arguments, due to the limited and fixed participants. There is still the potential for posturing, or failing to take publicly controversial (but legally proper) positions, but it’s far less than at trial.