Openness, order must coexist in court

Monday, January 31, 2000

For two centuries, the nine justices of the Supreme Court have represented the judicial branch of our government as the president of the United States delivered the annual State of the Union address. Dressed in their black robes, they sat on the front row in the House chamber, resolutely undemonstrative as the members of the executive and legislative branches paraded their partisanship.

But this year, the justices sent their regrets to the House sergeant at arms, explaining that “travel changes and minor illnesses” prevented them from attending. It is only the second time in history that all nine justices were absent, the previous time being in 1986 after the speech was postponed because of the space shuttle explosion.

The court’s absence was an odd breach of protocol for an institution so committed to ritual and tradition. The court certainly doesn’t suffer such breaches in its own domain.

The Supreme Court justices have strict and specific rules for the lawyers appearing before them, the press covering them, and the fortunate citizens who are granted the privilege of observing them in action. Those who manage to wangle “tickets” to arguments are advised to “refrain from taking the following items into the Courtroom when Court is in session: cameras, radios, pagers, tape players, cell phones, tape recorders, other electronic equipment, hats, overcoats, magazines and books, briefcases and luggage.”

Further, they must surrender all writing instruments. “Notetaking is not permitted.”

In many ways, the mindset that produced such rules is reflected in courtrooms at all levels. In some ways, they make sense and contribute to the decorum and respect necessary in a place where the business of justice is conducted.

But the same mindset produces some rules and decisions that not only are unjust but unsettling. Take for instance, the decision a few weeks ago by a federal judicial conference committee that the financial-disclosure reports of the nation’s 1,600 federal judges would not be released to a requester because the reports would be posted on the Internet.

That decision flew in the face of the law, current practice, fairness and good sense.

It is not just financial-disclosure records that judges are shutting off from the people, however. Across the nation, in courts at all levels, judges are denying access to courtrooms, proceedings and records in real and regular ways.

Many of these actions violate First Amendment rights and principles. Judges seal court records away from public scrutiny. They issue gag orders for prosecutors, lawyers, police and witnesses. They grant anonymity to jurors and witnesses. They allow the press to be compromised by approving subpoenas for their notes and photographs. They send journalists to jail for declining to reveal confidential sources.

None of these First Amendment affronts and barriers to access are more pernicious than the ban on cameras in the courtroom. The Supreme Court, of course, is the most adamant about prohibiting cameras, even though an experiment in the federal courts demonstrated that television cameras do not get in the way of justice. In fact, cameras offer an effective way to help the public to understand, monitor and support our system of justice.

But the Supreme Court didn’t even start tape recording its proceedings until 1955, and then would allow access to the tapes only to scholars and researchers who promised not to copy or broadcast them. After nearly four decades, that policy was relaxed in 1993 after Peter Irons copied 23 tapes and sold them as a six-cassette package called “May It Please the Court.”

Now, thanks to political scientist Jerry Goldman, there is a CD-ROM with 70 hours of audio of historic arguments before the Supreme Court and more than 800 hours of oral arguments on an Internet Web site.

Despite these notable concessions to technology making the court more accessible, the Supreme Court remains unbending about the ban on cameras. The same applies for the federal courts.

It is a slightly different story in the states. Only Mississippi, South Dakota and the District of Columbia ban cameras outright in their trial and appellate courts. The rest allow some access, but cameras can be banned for a long list of reasons.

The bottom line is that cameras can be and routinely are banned from the nation’s courtrooms at all levels. That is despite the fact that many, if not most, judges have had positive experiences with camera coverage of their proceedings.

The O.J. Simpson trial, however, put a chill on what had been a warming attitude toward cameras in the court. That is particularly true in Los Angeles, where judges for the past four years have not allowed cameras. For example, trial judge James Ideman just denied a request by Court TV and CNN to televise the February trial of Symbionese Liberation Army fugitive Sara Jane Olson, despite the fact that the defense team supported the networks’ motion.

There is an occasional bright spot in this dismal picture.

Last week, New York state judge Joseph C. Teresi ruled that a 1952 law banning cameras in New York courtrooms violated both the state and federal constitutions. Justice Teresi ruled that there was a presumptive First Amendment right of the media to televise court proceedings. It is thought to be the first such ruling in the nation.

The judge was ruling on a motion by Court TV to cover the highly publicized trial of four New York City police officers accused of killing an unarmed man in a hail of bullets. “The quest for justice in any case must be accomplished under the eyes of the public,” Teresi wrote, adding that broadcast of the trial “will further the interests of justice, enhance public understanding of the judicial system and maintain a high level of public confidence in the judiciary.”

The ruling was a welcome one for advocates of more access to the courts, but it came with a lot of qualifications. It does not bind other state judges. It allows only Court TV to serve as a pool for other networks wishing to cover the trial. It relied heavily on the fact that the televising was justified by the moving of the trial 150 miles from where the crime occurred. And although there will be no appeal of this decision, the ruling could fall if an appellate court with jurisdiction over Justice Teresi’s court decided the 1952 law was constitutional.

The courts have been the people’s great bulwark against attempts to limit or subsume basic rights. Time and again, they have restrained the power of government, the machinations of politicians, and the vagaries of public opinion. That is why they must remain independent and allowed maximum control of the proceedings before them.

But they must find ways to make the judicial process more accessible, not less. They must recognize that all of the control in the world won’t amount to much if the people lose confidence in the justice system. That confidence relies on the perception as well as the reality that judges invite and encourage, rather than disdain and fear, public scrutiny.

Paul McMasters may be contacted at