We Have No Secrets

The most transparent district judge seized upon a point made by another transparent judge, Richard Posner.

The American people know more about the CIA than the federal judiciary.

I suspect that’s partially true because the CIA is full of spies, and spies are cool.  Judges, not so much.  How many judges drive Aston Martins, for example? Yes, that’s MI5 rather than the CIA, but that only means Brit spies are cooler than American spies, and as everyone knows, the Brits make far cooler cars than we do. Would Clancy have Jack Ryan drive a Ford Fiesta?  But I digress.

Judge Richard Kopf applauds Judge Posner’s call for judicial transparency:

Here is my quick take. Posner is exactly right. We run the federal judiciary as a secret society. It is not. The federal judiciary is a public body that should be open and as transparent as the work of the courts permit. For example, I strongly believe that now is the time to video all federal judicial proceedings–everyone and in every court. We have the digital technology today to make these recordings available on a daily basis through CM/ECF. It could be done at low-cost, and it would open the federal judiciary to review by the public about the daily struggles, strengths and weakness of our federal courts. People throughout the world could see in near real-time what really goes on. In my view, what really goes on is largely triumphal. In any case, the people have a right to know.

Yeah, well, that’s true, but unavailing.  Having video available of every proceeding would create the appearance of transparency, but would do little to further transparency.  The reason is fairly self-evident. Legal proceedings are tedious and boring.  For every fascinating story that takes five minutes to tell, there are 50 hours of proceedings.  Who has that much popcorn?

There may be a handful of rather extraordinary people who will hunker down and watch pedestrian proceedings. You can identify them from the metallic sheen of their hats. But most people, regular people, have lives that preclude them from spending every waking moment watching the call of a court calendar.  Their viewing time is limited to funny, interesting and cute kittehs. Watching federal judges doesn’t make the cut.

It’s a tree falling in the forest and no one there to hear it issue. If these videos existed but no one watched them, would that mean there was transparency?

I’m all for limited transparency.  Despite the fact that I agree wholeheartedly that the working of the federal courtroom should be an open book, there remains a part of me that says it must retain some element of dignity.  Familiarity breeds contempt, and there is already too much contempt for the least dangerous branch.  That’s not good for business.

But real dignity is needed, not the feigned “yer honor” crap and the faux laugh at lame jokes.  Real dignity is earned, a concept foreign to the young and people in robes, who contend that the robe alone commands respect.  To a point, sure, because you can toss me in the slammer, but is that really all the respect you want?  I doubt it.

If there should be transparency, and I agree there should with the proviso that dignity remain intact, then it ought to be real.  I have a somewhat different view of what judicial transparency should look like.  Take a ruling after a suppression hearing. Instead of the typical “denied” wrapped up in layers of well-worn judicial malarkey, how about this:

I deny the defendant’s motion to suppress because I always find agents credible unless there is conclusive proof that they are lying through their teeth, and then I still find the agents credible 80% of the time anyway, because I like the agents much better than defendants and I think the defendant’s guilty anyway, so I don’t want him to get away with it just because they violated his constitutional rights.

Now that’s transparency.  Or when the prosecution gets caught dirty, lying to the court and defense about some source of evidence or failure to disclose.

While it’s absolutely certain that the assistant lied to everyone in this room, knowing full well the truth and his obligations under law, I will not find that he lied because that would do his career grievous harm and he’s just a kid, and a well-intended one even if a liar, and I like him well enough, so I instead find it in the interest of justice, not to mention the kid’s career, to pretend it never happened, attribute it to an unintentional mistake, sweep it under the judicial rug and give the government a Mulligan.

As a judge, you know that I can’t call “bullshit” when you do this. You know that this only encourages more lies, deceit, manipulation and abuse, but you just won’t call it what it is because the kid’s a nice enough guy and you really don’t want to ruin him. Ruining the defendant, on the other hand, doesn’t trouble you at all, because, well, he’s the defendant and he deserves it.

When government prosecutors break the law, it’s entirely different than when defendants break the law. Even if defendants didn’t break the law.  Of course, if a federal judge caught me lying to his face, you can bet your sweet ass I would be walking out of the courtroom in cuffs.

For any judge who believes the public has a right to know what really goes on with the Secret Society of the Federal Judiciary, you have it in your power now, this very instant, to be transparent. Stop hiding behind facile jargon and start using a little plain talk, real rulings, that say what you’re doing.  Now that’s transparency.

Plus, it would make for a video people might actually want to watch.

17 thoughts on “We Have No Secrets

  1. william doriss

    Judicial Transparency,… What a concept!?!
    Wish I’d thought of it first. I still maintain, “That judge is best who judges least.”
    Some of us have been advocating “cameras in the courtroom” for years. And then along
    came the OJ trial and Court TV. In Amerika, we have the best judicial system
    the world has ever known, and don’t you forget that. (In which case, no need
    for cameras, advanced technology notwithstanding.)
    ALL RISE! It’s Chow Time, ladies.

  2. DDJ

    Best piece you’ve written in the short time I’ve been reading your posts.

    Of course it’ll never happen but, none the less, Good on Ya.

  3. Richard G. Kopf


    When I can, I try to write, or say from the bench (more frequently), the truth. The truth is, as I see it mainly good not bad. But, you are perfectly correct to say that there is plenty of bad too.

    As for my video recording push, here is something I think you overlooked. I have written in a Canadian law journal and elsewhere that televising all court proceedings would allow legal scholars to really tear into what goes on each day in our federal courts. The dignity of the court (such as it is) can be preserved through fixed cameras run by the courts. What is truly important is that we get scholars into the daily life of the federal courts, and “a digital audio/video” record of each suppression hearing, trial or sentencing hearing would provide scholars (and critics such as yourself) a priceless data base for both qualitative and empirical research. That would be priceless for those who see the life of the law as experience and not logic.

    All the best.


    1. SHG Post author

      I remember well my suppression hearing before Judge Mukasey just before he left the bench. I argued that we were fully aware that we were going into a pissing match we couldn’t win, but that someone had to call bullshit and my client was willing to be that someone. I will never forget the look of disgust at the position I put him in. Then he did the dance and it disappeared.

      As for the video push, I wonder if you ever saw an episode of Star Trek called “The Squire of Gothos“:

      MCCOY: You should taste his food. Straw would taste better than his meat, and water a hundred times better than his brandy. Nothing has any taste at all.
      SPOCK: It may be unappetizing, Doctor, but it is very logical.
      MCCOY: There’s that magic word again. Does your logic find this fascinating, Mister Spock?
      SPOCK: Fascinating is a word I use for the unexpected. In this case, I should think interesting would suffice.
      KIRK: You don’t find this unexpected, Mister Spock?
      SPOCK: That his food has no taste, his wine no flavour? No. It simply means that Trelane knows all of the Earth forms, but none of the substance.

      From afar, you can see it, but you can’t taste it. It’s form without substance.

  4. bookmoth

    “For every fascinating story that takes five minutes to tell, there are 50 hours of proceedings.”

    Would the video be worth something to law students, who will be participating in said proceedings, who are trying to learn and understand these proceedings that they will doing themselves when they graduate, to hear them instead of simply reading transcripts?

    1. SHG Post author

      They don’t read transcripts. Law students learn from selected caselaw. Would watching proceedings help? I’m sure it would, though it’s still just a small piece of what goes into the practice of law. They could accomplish the same from taking a walk from the schoolhouse to the courthouse, with the added virtue of being able to ask a lawyer or two the more important question, “why did you do/say that?”

  5. George B

    > How many judges drive Aston Martins, for example? Yes, that’s MI5 rather than the CIA,
    > but that only means Brit spies are cooler than American spies,

    For shame…. You should know 007 {& Q, of course} worked for MI6, not the Security Service. They got along about as well as Hoover’s EffBeeEye and Langley did. In one of the novel, someone suggest Bond should travel to Northern Ireland, and his response was roughly “Five would rather kill me than an IRA member…”

    1. SHG Post author

      Dammit. I couldn’t remember if it was 5 or 6, so I flipped a coin instead of Googling. My bad (and Friggin’ Brits).

  6. John Neff

    I just checked to see if “corn cam” was still on the web and it is not. My guess is that “Federal Court Cam” if it is every created would not last as long as “corn cam”.

      1. william doriss

        BarleyCorn, John–a frequent and eloquent visitor here–is even more interesting, especially to those of us of a Timothy Leary frame of mind.
        If you catch my drift? Judge Kopf returned. Welcome back. Now BarleyCorn is MIA.

        1. SHG Post author

          Yes, I catch your drift. Barleycorn will be back. I may have hurt his feelings yesterday, but I’m sure he’ll get over it.

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