[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
SUNSHINE IN THE COURTROOM ACT OF 2007
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
ON
H.R. 2128
__________
SEPTEMBER 27, 2007
__________
Serial No. 110-160
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Joseph Gibson, Minority Chief Counsel
C O N T E N T S
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SEPTEMBER 27, 2007
Page
THE BILL
H.R. 2128, the ``Sunshine in the Courtrom Act of 2007''.......... 3
OPENING STATEMENTS
The Honorable William D. Delahunt, a Representative in Congress
from the State of Massachusetts, and Member, Committee on the
Judiciary...................................................... 1
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Ranking Member, Committee on the Judiciary. 8
The Honorable Steve Chabot, a Representative in Congress from the
State of Ohio, and Member, Committee on the Judiciary.......... 9
WITNESSES
The Honorable Ted Poe, a Representative in Congress from the
State of Texas
Oral Testimony................................................. 11
Prepared Statement............................................. 13
The Honorable John R. Tunheim, Judge, U.S. District Court for the
District of Minnesota, on behalf of the Judicial Conference of
the United States
Oral Testimony................................................. 15
Prepared Statement............................................. 18
The Honorable Nancy Gertner, Judge, U.S. District Court for the
District of Massachusetts
Oral Testimony................................................. 38
Prepared Statement............................................. 40
Mr. John C. Richter, U.S. Attorney, Western District of Oklahoma
Oral Testimony................................................. 44
Prepared Statement............................................. 46
Ms. Susan M. Swain, President and Co-Chief Operating Officer, C-
SPAN
Oral Testimony................................................. 80
Prepared Statement............................................. 82
Ms. Barbara Cochran, President, Radio-Television News Directors
Association
Oral Testimony................................................. 95
Prepared Statement............................................. 96
Mr. Fred Graham, Senior Editor, Court TV
Oral Testimony................................................. 99
Prepared Statement............................................. 100
Material Submitted for the Hearing Record
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Chairman, Committee on the Judiciary........................... 131
SUNSHINE IN THE COURTROOM ACT OF 2007
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THURSDAY, SEPTEMBER 27, 2007
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 1:13 p.m., in
room 2141, Rayburn House Office Building, the Honorable William
D. Delahunt (acting Chair) presiding.
Present: Representatives Delahunt, Sutton, Davis, Smith,
Coble, Gallegly, Chabot, Keller, Issa, Forbes, King, Franks,
Gohmert, and Jordan.
Staff present: Diana Oo, Majority Counsel; Michael Volkov,
Minority Counsel; and Matt Morgan, Majority Staff Assistant.
Mr. Delahunt. [Presiding.] The Committee will come to
order.
And without objection, the Chair is authorized to declare a
recess.
Since 1946, photographing and broadcasting of Federal
District Court criminal and civil proceedings have been
prohibited by a directive of the Judicial Conference. Federal
appellate courts, in contrast, have been authorized by the
conference to use their discretion in determining whether to
allow electronic media coverage of appellate arguments.
Currently, only the 2nd and 9th Circuit Courts of Appeals
permit cameras in their courtroom. In recent years, however,
there has been growing public interest in having all Federal
judicial proceedings televised, which may reflect a greater
general desire for transparency as well as heightened interest
in certain well-publicized cases.
Today's hearing provides an opportunity for us to consider
H.R. 2128, the ``Sunshine in the Courtroom Act of 2007,'' which
would allow the presiding Federal District Court or appellate
court judge to permit electronic media coverage of court
proceedings.
I would like to acknowledge my friend, Steve Chabot, for
his leadership on this issue--and he has joined us on the
dais--and for closely working with myself and others to get us
to this point.
It is my hope that this hearing will shed some sunlight on
the following issues.
First, would this measure help promote greater
understanding of the judicial process by the public by making
it more transparent? It is vital to our democracy that the
public understand the critical role that our Federal judicial
system plays in our system of open Government with respect to
protecting the rights of all citizens. Greater transparency
also helps enhance the public's trust and confidence in the
judicial process. As Judge Louis Brandeis once said, ``Sunshine
is the best disinfectant.''
Second, would the measure grant access to Federal judicial
proceedings in a way that promotes fairness? Many believe that
the constitutional right to a fair trial requires that all
court proceedings be open to the public, including the press.
They cite, for example, the Supreme Court's ruling in Richmond
Newspapers v. Virginia, which held, ``The right to attend
criminal trials is implicit in the guarantees of the First
Amendment.'' Similar statements could be made with respect to
civil trials.
Third, would the measure undermine due process and privacy
rights of participants in Federal judicial proceedings by
opening them to intrusive electronic media? We should be
appropriately careful that media coverage of these proceedings
not impair the fundamental right of a citizen to a fair and
impartial trial.
The prospect of public disclosure of all personal
information may have a material effect on our individual's
willingness to testify or place an individual at risk of being
a target for retribution or intimidation. Likewise, the safety
and security of our judges, law-enforcement officers, and other
participants in the judicial process should not be jeopardized.
Accordingly, we should take all proper precautions to ensure
that the privacy of all participants in the judicial process is
appropriately protected.
I look forward to having an informative and illuminating
discussion on the advantages and disadvantages of electronic
media coverage of our court proceedings.
[The bill, H.R. 2128, follows:]
Mr. Delahunt. I would now recognize the Ranking minority
Member of the full Committee for his opening statement, Mr.
Lamar Smith.
Before I do, and for those of you who are frequently in
attendance at these hearings, I am not Chairman John Conyers.
With that, Mr. Smith?
Mr. Smith. All right. Thank you, Mr. Chairman.
First of all, it is nice to have my friend from
Massachusetts serving as Chairman of the hearing today, and I
ought to point out he is serving as Chairman of a hearing in
which we have had the largest number of witnesses that we have
had all year long, I believe. So you all are setting some kind
of a record here today.
I also, Mr. Chairman, want to thank all my colleagues on
this side of the podium for their conscientious attendance
today, and, Mr. Chairman, we will do our best to restrain
ourselves from offering any motions that would in any way delay
the hearing today. But I do appreciate the good attendance on
this side.
Mr. Chairman, I appreciate having today's hearing to
examine the issue that you have mentioned. Legislation to
authorize television cameras in the Supreme Court, Appellate
Courts and District Courts do raise many questions. For
example, does placing cameras in Federal courtrooms trivialize
and commercialize what is a serious and often personally
stressful time?
The Judicial Conference cites the potential harm to the
judicial system after studying this subject for years in a
variety of contexts. By and large, they feel cameras in the
courtroom are incompatible with the administration of justice.
Some judges are concerned about protecting each citizen's
right in a fair and impartial legal setting. They do not want
to sacrifice this duty on the altar of media curiosity. They
argue that the right to justice in a courtroom, especially at
trial, distinguishes the use of cameras in a judicial setting
from their use in legislative, administrative and ceremonial
proceedings.
So how could a television camera compromise a fair trial?
Some lawyers and judges are no less likely to play to the
cameras than some Members of Congress. Of course, I do not have
anybody specifically in mind. Others, like witnesses, might be
intimidated by the camera. Either outcome--grandstanding or
intimidation--could diminish the ability of a court to seek the
truth and administer justice.
There are also significant safety concerns. Judges,
prosecutors, court reporters, courtroom deputies, jurors,
witnesses and even law clerks could be identified during
televised broadcasts. These men and women could easily become
targets for attempts to influence the outcome of the trial or
the object of retribution for an unpopular ruling.
The public has a right to know what is said and what
happens in courtrooms, and, for more than 200 years, the media
has provided the public with in-depth coverage of judicial
events. A zone of privacy should be considered out of respect
not only for the plaintiffs and defendants, but also for the
dignity and decorum of the courtroom itself.
I know the intent of the supporters of this legislation is
to create greater transparency in the Federal judiciary. Their
motives are worthy, particularly the motives of my colleague,
Steve Chabot, on the Committee here and my colleague from
Texas, Ted Poe. Nevertheless, this legislation, in my judgment,
does have the potential to weaken our court system by denying
litigants and the public fair trials and just outcomes.
Mr. Chairman, I look forward to hearing from all of today's
witnesses, and I will yield back the balance of my time.
Mr. Delahunt. I thank the gentleman for yielding.
And I would call upon my colleague, the primary sponsor of
this legislation with whom I have worked for several years now,
the gentleman from Ohio, Mr. Chabot.
Mr. Chabot. Thank you very much, Mr. Chairman, and I want
to commend you for the wisdom contained in your opening
statement. I thought it was well thought out, well reasoned,
well delivered and agreed with you in toto.
Mr. Delahunt. I thought it was pretty good myself, Steve.
[Laughter.]
Mr. Chabot. And I would like to thank the distinguished
Chairman and the Ranking Member for agreeing to hold this
hearing, and this is one of the very few things that I think
the Ranking Member of this Committee and I just do not see eye
to eye on, but most things we do. This is just one we differ
on.
I would also like to thank Mr. Delahunt, as I said, for his
support and leadership on this bill. We have worked together on
this for more years than I would like to admit at this point in
time, but, eventually, we will get there. Whether it will be
this Congress or not remains to be seen, but there is no
question in my mind that ultimately cameras will be permitted
within the Federal courts all the way up to the U.S. Supreme
Court, as far as I am concerned, and should be, and I know
Congressman Poe, former Judge Poe, will be speaking about that
here shortly.
During the markup of H.R. 660, the Court Security
Improvement Act of 2007, concern was expressed about the lack
of process that this particular bill, the Sunshine in the
Courtroom Act of 2007, had received during this particular
Congress. Although this bill has either been introduced or
offered as an amendment at least since the 105th Congress,
which is, you know, 10, 11 years ago, I think holding this
hearing today is important, and I will make my remarks
relatively brief here.
As I have said on each of the other occasions, hardworking,
taxpaying citizens have the right to see their Government at
work. The bill that we are examining today, H.R. 2128, would
extend this policy to the Federal courts by giving Federal
appellate and district court judges the discretion--and let me
repeat that--the discretion--to allow media coverage of
courtroom proceedings.
It does not make the judges do it. It says they have the
discretion, if they deem it to be appropriate. And some,
obviously, still oppose that, but I want to emphasize this does
not force the cameras in the courtroom. The judge has
discretion over that.
At the same time, this bill incorporates the necessary
safeguards to ensure that due process rights are preserved.
That request by nonparty witnesses to disguise their features
and voices are granted--I believe that was Mr. Nadler that
suggested that, and we agreed with him and complied with that--
and that televising of any juror is prohibited.
In addition, the discretion provided to Federal judges
under this amendment expires at the end of 3 years--and I do
not recall the Member that suggested that. It might have been
Mr. Coble, but it was somebody that suggested 3 years, so we
incorporated that as well--allowing us to revisit, to make any
changes, if necessary.
So, if any of the horrors that some folks think could occur
if we put cameras in the Federal courtrooms occur, we can
always go back and undo the damage that we have done. Now I do
not think there is going to be a bit of damage, but,
nonetheless, there is that safeguard in case of the slight
chance that something goes wrong.
And, again, let's remember in the House and the Senate,
none of us was on television, and we are just as pompous on TV
or off TV. I do not think it has made a bit of difference. I
think my colleague here mentioned the Senate, but I have to say
the House Members are----
Mr. Issa. That is an----
Mr. Chabot. I guess they do.
But there is no doubt that trials are public events. In
Craig v. Harney, the Supreme Court held that, ``A trial is a
public event. What transpires in the courtroom is public
property.''
Although the Judicial Conference guidelines currently
prohibit cameras in Federal district courts, every State allows
for some form of cameras in the courtroom. They do not in the
District of Columbia, but every State, all 50, do.
I believe that it is good public policy for Congress to
facilitate through media access to the courts the ability of
citizens to exercise their freedom of speech, freedom of press
and their right to petition the Government for redress of
grievances, the very rights acknowledged by the Supreme Court
in Harney.
Lifetime tenure for unelected officials conveys a
tremendous amount of power. Why shouldn't our constituents be
allowed to observe the conduct of Federal judges and their
proceedings from their homes or from work? Why should citizens
be forced to rely on the news media to interpret and filter the
proceedings when cameras would allow citizens to watch and
interpret for themselves?
As a co-equal branch of the Federal Government, the Federal
judiciary has a responsibility to those who appear before it
and to the public. The judiciary is not above the other two
branches, nor should it be treated that way. The citizens of
this Nation have the right to see how our Federal courts
conduct business.
I look forward to hearing from our witnesses today, and I,
again, want to thank both the Chairman and the Ranking Members
for giving us the opportunity.
And I yield back the balance of my time.
Mr. Delahunt. Thank you, Mr. Chabot.
And without objection, other Members' opening statements
will be included in the record.
We have a distinguished group of witnesses before us today.
Our first witness is Congressman Ted Poe who is a second-
term Republican from Southeast Texas, Second Congressional
District. As an Assistant District Attorney for 8 years, he
tried hundreds of cases, including capital cases, and never
lost a jury trial.
Well done, Congressman Poe.
Later as a judge, he garnered national media attention for
his ``poetic justice'' in sentencing criminals. His innovative
punishments included ordering thieves to carry signs in front
of the stores from which they stole.
I understand that the congressman has a busy schedule
today. For those of you that are unaware, he also is a
congressional delegate to the United Nations, which is a very
demanding responsibility and task. So what I am going to do is
to recognize Congressman Poe now to make his statement, and it
is my understanding that after he concludes his statement, he
will ask to be excused.
Congressman Poe?
TESTIMONY OF THE HONORABLE TED POE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. Poe. Thank you, Mr. Chairman.
And as the other United Nations delegate from Congress, I
appreciate the opportunity to address this panel.
Americans have the right to a public trial. The right dates
back to the founding of this Nation, and it is based on our
values of fairness and impartiality.
The more open and public a trial is, the more likely
justice will occur. I believe this theory. That is why we do
not have the secret Star Chamber in the United States. The
right to a public trial is reserved for a defendant, but the
public sees it as their right to be informed as well. Cameras
enhance the concept of fairness and openness in a courtroom.
Any American can walk into a courtroom to observe the
proceeding, but if the person does not physically fit inside
the courtroom, that person is denied the ability to see and
observe the same proceeding. That does not make sense. Placing
a camera in the courtroom would allow the trial to be more
public just like a trial is supposed to be.
While Federal court hearings are open to the public, not
everyone can attend a court hearing. This is certainly true of
appellate and Supreme Court hearings. Because of the impact of
the United States Supreme Court's rulings on all Americans,
those proceedings especially should be filmed.
Probably of all court proceedings, the Supreme Court
proceedings are the most misunderstood by the public, and the
Supreme Court should make that decision whether to be filmed or
not in their discretion. It is time to allow cameras in our
Federal courts, of course, at the discretion of those Federal
judges.
I personally know how important it is to make a courtroom
and the proceedings and trials accessible by camera to the
public because I did it. For 22 years, I served as a State
felony court judge in Houston, Texas.
I heard over 25,000 felony cases and presided over a
thousand jury trials. I was one of the first judges in Texas to
allow cameras in the courtroom. I tried violent cases, murder
cases, corruption cases, undercover drug cases and numerous
gang cases.
I had certain rules in place when the camera filmed in my
courtroom, and the media followed the rules, including Court
TV, who is here today. Court TV successfully aired an entire
capital murder trial in my courtroom. My rules were simple: No
filming of sexual assault victims or children, never the jury
or certain other witnesses, such as informants. The unobtrusive
camera filmed what the jury saw and what the jury heard.
After the trial, jurors even commented and liked the camera
inside the courtroom because they wanted the public to know
what they heard instead of waiting to hear a 30-second sound
bite from a newscaster who may or may not have the facts
correct.
Those who oppose cameras in the courtroom argue that
lawyers play to the camera. No, lawyers do not play to the
camera. Lawyers play to the jury, and they always have done so,
with or without a camera in the courtroom. I know I played to
the jury for 8 years as a prosecutor.
I am not an academic, but I have spent 30 years in the
courtroom as a trial prosecutor and a trial judge, and I tried
and heard the most serious of all crime. Sometimes those who
oppose cameras in the courtroom argue that it infringes on the
defendant's right.
When I was Assistant District Attorney, I spent my career
trying criminal cases, and based on my experiences, I actually
feel the cameras in the courtroom benefit a defendant. A public
trial ensures fairness. That is the purpose of a public trial.
It ensures professionalism by the lawyers and the judge, and a
camera in the courtroom protects the defendant's right to a
public trial.
Some members of the bar and judges may not want the public
to see what is going on inside the courtroom because they do
not want the public to know what they do in the courtroom.
Candidly, maybe those people should not be doing what they are
doing if they do not want the public to see it.
A camera reveals the action of all participants, and if a
judge feels that filming a terrorist prosecution or some other
prosecution involving classified information that assists our
enemies or terrorists, the judge can always prohibit the
filming of that trial.
If the judge fears that any trial participant's safety is
at jeopardy or the identity of an undercover agent or security
personnel will be revealed by filming a proceeding, the judge
can act to disguise that testimony or refuse filming for that
trial. I had the same situation when I had undercover agents,
such as the DEA, and informants testify in my courtroom. It is
discretionary on how the judges handle filming in the
courtroom.
The public has a right to watch courtroom proceedings and
trials in person. Americans should not be deprived of this
right to know just because they cannot physically sit inside
the courtroom and hear those proceedings.
Mr. Chairman, I think we have the best justice system in
the world. We should not hide it. Many times citizens wonder
why certain things happen in courts and why the results turned
out like they did. Openness, transparency and cameras will help
educate and inform the public that still continues to be
enthralled with the American court system.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Poe follows:]
Prepared Statement of the Honorable Ted Poe, a Representative in
Congress from the State of Texas
Americans have a right to a public trial. This right dates back to
the founding of this nation and it is based on our values of fairness
and impartiality. The more open and public a trial is, the more likely
justice will occur. That's why we don't have the secret STAR Chamber in
America. Cameras enhance this concept of fairness and openness. This is
a right reserved for defendants, but the public sees it as their right
to be informed.
Any American can walk into a courtroom and observe the proceeding.
But if a person does not physically sit inside the courtroom, that
person is denied the ability to see and observe the proceeding. This
does not make sense.
Placing a camera in the courtroom would allow a trial to be public,
just like a trial is supposed to be, for those who cannot actually sit
inside of the courtroom to witness the proceedings. Because of the
impact that the United States Supreme Court's rulings have on all
Americans, those proceedings especially should be filmed. While federal
court hearings are open to the public, not everyone can actually attend
a court hearing. This is certainly true of appellate and Supreme Court
hearings. It is time to allow cameras in our federal courts, at the
discretion of the federal judges.
I personally know how important it is to make courtroom proceedings
and trials accessible by camera to the public because I did it. For 22
years, I served as a Harris County Felony Court Judge in Texas. I heard
over 25,000 cases and presided over 1,000 jury trials. I was one of the
first judges in Texas to allow cameras in my courtroom. We generally
used one camera--out of view to the jury--and it was a shared feed for
all other news sources, including documentaries and law schools.
The camera that I had in my courtroom was just like the one inside
this room. No one here notices the camera--the cameras today are small
and unobtrusive. It does not interfere with this Committee's
proceedings. It does not make the Members pander to the camera. But the
camera allows the public to witness the proceedings when they are not
able to sit inside the room.
I had certain rules in place when a camera filmed my courtroom. The
media always followed the rules that I ordered, including Court TV, who
is here today. Court TV successfully aired an entire capital murder
trial in my courtroom. My rules were simple--no filming of sexual
assault victims, children, the jury, or certain other witnesses. The
camera filmed what the jury saw and heard.
After trials were completed, the jurors and criminal parties were
asked their thoughts on the camera inside the courtroom. There was
almost total universal approval of the camera. It made the trial fair.
Juries especially liked the camera inside the courtroom because they
wanted the public to know what they heard instead of waiting to hear a
30 second sound-byte from a newscaster, who may or may not have gotten
the facts straight.
Those who oppose cameras in the courtroom argue that lawyers will
play to a camera. No, lawyers don't play to a camera. Lawyers play to
the jury and they have always done so with or without a camera in the
courtroom. I know I played to the jury in my 8 years as a prosecutor.
Those who oppose cameras in the courtroom may also argue that it
will infringe on a defendant's rights. Before my 22 years on the bench,
I was an assistant district attorney. I spent my career in criminal
law. Based on my experiences, I know that cameras in the courtroom
benefit a defendant. A public trial ensures fairness. It ensures
professionalism by the attorneys and by the judge. A camera in a
courtroom protects a defendant's right to a public trial.
Some members of the bar and judges may not want the public to see
what is going on inside the courtroom because they don't want the
public to know what they do in the courtroom. Candidly, maybe these
people shouldn't be doing what they are doing if they don't want the
public to know. A camera reveals the action of all participants in a
trial.
The public has a right to watch courtroom proceedings and trials
in-person. Americans should not be deprived of this right just because
they cannot physically sit inside of the courtroom during the
proceedings.
We have the best justice system in the world. We should not hide
it. Many times citizens wonder why certain things happen in courts and
why the results turned out the way they did. Openness, transparency,
and cameras will help educate and inform a public that still continues
to be enthralled with the American court system. And that's just the
way it is.
Mr. Delahunt. Thank you, Congressman Poe.
And let me acknowledge that your testimony was compelling,
and I am sure it will go a long way to influence Members of
this Committee, particularly your fellow Texans. [Laughter.]
I presume that you have other business to attend to, so----
Mr. Poe. That is correct, Mr. Chairman.
Mr. Delahunt. If you wish to depart, now would be an
appropriate time.
Mr. Poe. Thank you.
Mr. Delahunt. Speaking on behalf of the Judicial Conference
of the United States is Judge John Tunheim. He has been on the
District Court for the District of Minnesota since 1995.
He is also the chair of the Judicial Conference Committee
on Court Administration and Case Management. He previously
served as Chief Deputy Attorney General of Minnesota and, prior
to that, as the State's Solicitor General. Previously, he
worked in private practice.
Welcome, Judge Tunheim.
Next, we have Judge Nancy Gertner who serves on the U.S.
District Court for the District of Massachusetts following a
20-year career as a criminal defense lawyer and civil rights
activist. The Massachusetts Lawyers Weekly has listed her as
one of the most influential lawyers in the past 25 years, and I
can corroborate that ranking.
She has been a star during her practice as a prominent
criminal defense lawyer as well as a judge on the Federal
District Court. She commands respect from every member of the
bar in Massachusetts. She has written widely on a number of
legal issues, including constitutional law, criminal law and
reproductive rights. Her book, ``The Law of Juries,'' was
published in 1997. She has taught sentencing at Yale Law School
since 1998.
Welcome, Judge Gertner.
Next, speaking on behalf of the U.S. Department of Justice,
we have John Richter, the U.S. Attorney for the Western
District of Oklahoma. Mr. Richter leads a team of nearly 40 in
civil and criminal cases in areas ranging from narcotics
trafficking to child pornography.
Previously, he served as the Acting Assistant Attorney
General for the Criminal Division of the Department of Justice
and, prior to that, as a commissioner on the U.S. Sentencing
Commission.
Welcome, Mr. Richter.
Next is Susan Swain, president and co-chief operating
officer of C-SPAN, the Nation's eighth largest cable television
network. Along with helping to run the network, she has been an
on-air interviewer for C-SPAN for 20 years.
It is nice to see you in person, Ms. Swain.
She is also a regular moderator of Washington Journal, the
Nation's famous morning call-in and interview program and one
is that is avidly watched by all Members of Congress to find
out what is happening. She has also been involved in the
creation of C-SPAN's history series, helped launch Book TV in
the Washington Journal and overseas content on C-SPAN Radio.
Welcome, Ms. Swain.
Our next witness is Barbara Cochran, president of the
Radio-Television News Directors Association and Foundation.
Previously, she was the Washington bureau chief to CBS News
and, prior to that, executive producer of NBC's Meet the Press.
She is a leading advocate for issues facing electronic
journalists, fighting for cameras and microphones in State and
Federal courtrooms, protecting journalists' access in post-9/11
America in opposing Government secrecy. She is a frequent
speaker on topics such as first amendment rights, the Freedom
of Information Act, and cameras and microphones in the
courtroom.
Welcome, Ms. Cochran.
Finally, but certainly not last, we have Fred Graham, an
anchor at Court TV since it was launched in 1991. He served as
chief anchor and managing editor as well as the head of its
editorial board. He has received numerous awards for his
reporting, including the George Foster Peabody Award.
Over the past 45 years, he has been a practicing attorney,
legal writer for The New York Times, and law correspondent for
CBS News. He also served as special assistant to Secretary of
Labor Willard Wirtz and, prior to that, was chief counsel of
the Senate Judiciary Subcommittee on Constitutional Amendments.
Welcome, Mr. Graham.
Without objection, your written statements will be made a
part of the record in their entirety. We would ask each of you
to summarize your testimony in 5 minutes or less. To help you
keep time, there is a timing light at your table. When 1 minute
remains, the light will switch from green to yellow, and then
to red when 5 minutes are up.
We will begin with you, Judge Tunheim.
TESTIMONY OF THE HONORABLE JOHN R. TUNHEIM, JUDGE, U.S.
DISTRICT COURT FOR THE DISTRICT OF MINNESOTA, ON BEHALF OF THE
JUDICIAL CONFERENCE OF THE UNITED STATES
Judge Tunheim. Thank you, Mr. Chairman, Ranking Minority
Member Smith, and Members of the Committee.
My name is John Tunheim. I am a United States District
Court judge in Minneapolis in the District of Minnesota, and
for the past 2 years, I have served as chair of the Judicial
Conference Committee on Court Administration and Case
Management. I have been a Member of the committee since 2001.
The committee has one of the broadest jurisdictions of any
Conference Committee and includes making recommendations to the
conference on topics involving court administration.
I am very grateful to have the opportunity to appear before
you today to present the position of the United States Judicial
Conference on the issue of cameras in the courtrooms and
specifically its position on the Sunshine in the Courtroom Act
of 2007.
I should also stress that the Judicial Conference does not
speak for the Supreme Court and, therefore, I will have no
comment on the bill's application to that court.
The Judicial Conference strongly opposes H.R. 2128 because
it would permit the use of cameras in the Federal trial courts
in all cases civil, and criminal. The Conference also opposes
the bill's provisions permitting each appellate court panel to
decide whether to allow cameras, believing instead that the
existing conference policy which requires the decision to be
made by the whole court of appeals to be appropriate.
The Conference does not take this position because it is
against increased publicity for the Federal courts. In fact,
the Federal judiciary is probably the most publicly accessible
Government institution. Nearly every filing, trial, appellate
argument, decision and opinion is available and open to the
public, and, over the past decade, the Judicial Conference has
dramatically expanded that openness by making its entire filing
system electronically available to the public through the
Internet. This major initiative has put the Federal judiciary
at the forefront of electronic innovation.
In addition, the Federal trial courts effectively utilize
videoconferencing, modern electronic evidence presentation
systems, and, recently, we have embarked on a pilot study
making digital audio recordings of hearings available on the
Internet. Many of the courts of appeals make available audio
recordings of all oral arguments.
A good example is the arrangements that were made earlier
this year in the criminal case against Scooter Libby in the
District Court for the District of Columbia. A separate media
room was created in which reporters and bloggers had access to
both real-time video from the courtroom and the Internet.
The Conference's position regarding cameras in the district
courts is based on thoughtful and real concerns regarding the
impact that the camera's presence could have on trial
proceedings, and, more specifically, the Conference is very
concerned that this legislation has the potential to
substantially undermine the fundamental right of citizens to a
fair trial.
Appearing on television could lead some trial participants
to act more dramatically, to pontificate about their personal
views, to promote commercial interests to a national audience,
or to increase their courtroom actions so as to lengthen their
appearance on camera. The use of cameras in the trial courts
could also raise privacy concerns and produce intimidating
effects on litigants, witnesses and jurors, many of whom have
no direct connection to the proceeding.
The concern about the impact on witnesses is at the heart
of the Judicial Conference's opposition to the bill. Despite
the fact that the bill gives the trial court judge discretion
over permitting cameras, an inclusion which the Conference
appreciates, it is impossible to determine in advance how
witnesses will react to the presence of cameras.
Testifying in Federal court is difficult. It can be
embarrassing and tough. Adding television to the burden of
testifying could have a profound effect on a witness. Indeed,
in the 1994 Federal Judicial Center study, a majority of judges
reported that witnesses were more nervous in the presence of
cameras. Many reported witnesses being intimidated or
distracted by the cameras.
Will witnesses act differently if they know a television
audience is listening and watching? Will witnesses say things
differently? Even changes in the demeanor of a witness can
severely impact their credibility with the jury.
Our concern is that cameras in the courtroom will interfere
with the judiciary's primary mission, which is to administer
fair and impartial justice to individual litigants in
individual cases. Also, the Conference is very concerned that
possible camera coverage could become a negotiating tactic in
pretrial settlement discussions or cause a party to choose not
to exercise their right to have a trial.
I also want to differentiate between the televising of
trial court proceedings and televising congressional hearings
or sessions. The Federal trial takes place to determine
individual's rights and to administer justice. Livelihoods,
property and even personal liberty are among the crucial
matters at stake, and the right to have those matters decided
in a fair and impartial trial is the basis of the distinction
from the use of cameras in legislative, administrative or
ceremonial proceedings.
The paramount question in determining whether cameras
should be used in Federal courts should not be whether more
openness would be enjoyed by the public and media. Virtually
all court proceedings are public and open today with the
limited exception of juvenile and some national security-
related matters. The better question is whether the presence of
the camera has the potential to deprive citizens of their
ability to have a claim or right fairly resolved in a United
States District Court.
Although the legislation gives the presiding judge
discretion to deny the use of cameras, the potential for
compromising a citizen's right to a fair trial may not be
evident until a televised trial is underway. The court would
likely never know the extent to which the potential or actual
use of cameras had chilled the search for truth.
Mr. Delahunt. Judge, could you wrap up, please?
Judge Tunheim. Okay. In closing, I would like to quote from
Mr. Justice Clark in the case of Estes v. Texas who I think
said it very well, ``The impact upon a witness of the knowledge
that he is being viewed by a vast audience is simply
incalculable.''
Because cameras in the trial courts could profoundly and
negatively impact the dynamics of the trial process, the
Judicial Conference strongly opposes any legislation that would
allow the use of cameras in the United States District Courts.
Thank you.
[The prepared statement of Judge Tunheim follows:]
Prepared Statement of the Honorable John R. Tunheim
Mr. Delahunt. Thank you, Judge Tunheim.
Judge Gertner?
TESTIMONY OF THE HONORABLE NANCY GERTNER, JUDGE, U.S. DISTRICT
COURT FOR THE DISTRICT OF MASSACHUSETTS
Judge Gertner. Thank you very much, Mr. Delahunt, and thank
you, Ranking Member Smith and Members of the Committee. I want
to thank you for giving me an opportunity to speak before you.
I am in favor of this bill, and I am a lone judicial voice in
favor of the bill.
As I describe in my testimony, which I would like to
supplement after this is over, I think that the issue is not
whether there should be cameras in the courtroom, but how they
should implemented. In other words, I think we are past the
discussion of whether, and we are now into a discussion of how.
I come to this issue both as a judge and, as Representative
Delahunt said, as a former litigator. I was a trial lawyer for
22 years and participated in State court trials which were
televised.
I have been a judge for 13 years and, during that period of
time, I have presided over numerous trials which have attracted
enormous publicity, most recently Limone v. United States,
which involved serious accusations of FBI misconduct and, when
I announced my decision in open court, the room was filled with
spectators. We provided an overflow courtroom with a video
feed, and I wish that we had been able to provide a larger
audience.
My testimony is based on two prongs. The first is almost
conceptual, what ``public'' means in the 21st century, which I
think is a different thing than it meant at the time of the
Supreme Court decisions on this issue, and also the experience
in the State courts which has proved that in a setting which is
far more difficult than the setting of the Federal courts,
cameras have not had the predicted impact.
Let me start with what ``public'' means. ``Public'' today
means television, Internet, means information through screens,
means 24/7 coverage of proceedings, and we are essentially
there, all but with cameras. That is to say we have 24/7
coverage of proceedings. We have transcripts which the press
has ready access to, and, in fact, I have frequently seen the
judge with a streaming transcript on the screen.
In my courtroom, it is an electronic courtroom. The lawyers
can e-mail one another from the courtroom to their offices.
There is, in fact, work going on now about a private video feed
from the lawyers to their own offices. In other words, we have
equipped our courtrooms to deal with the technological age.
The portrait of cameras that, again, is implicit in this
discussion is of an obtrusive device, and I think that that is
no longer the case.
In addition, ``public'' today to those of a certain age
group means getting information through screens. There is a
huge response, substantial information suggesting that young
people do not read newspapers. They only get their information
through screens, and when we do not provide our information in
that way, it makes a substantial difference.
Again, the debate has been characterized by the awful
cases, by O.J. Simpson, by Lorena Bobbitt. There have been
certainly times I have been watching the television and
grimaced. It is not clear to me that I would not have been
grimacing if I were in that courtroom as well in a high-profile
case.
I think that the antidote to those cases is to be in the
courtroom of Judge Young when he sentenced Richard Reid, the
shoe bomber, or the courtroom of Judge Wolf, when he uncovered
misconduct in the FBI, or Judge Mazzoni during the course of
the proceedings on the cleanup of Boston Harbor.
In the second prong of my testimony is the State courts.
The State courts deal with murder and rape and child
molestation, and they have managed to have coverage for nearly
20 years without any of the anticipated concerns. I deeply
appreciate the concerns of the other witnesses, but I think
again that is a question of how and not whether.
The concern, for example, about witnesses who are
sequestered, going home and watching television and seeing the
testimony of their predecessors--well, we actually trust the
public when we tell them not to read about the case that they
will not read about the case.
But, again, we know how to control this technology. We
could delay the broadcast of proceedings, could obscure faces.
There are a number of techniques one can use, and that is what
we should examine because it is a new age.
Finally, I want to say just I think it is a new age in
another respect. Twenty-four/seven news coverage of proceedings
and the anti-judge tirades one frequently sees in late-night
programs, I think, requires cameras in the courtroom now as an
antidote to that.
I believe that we are at a point where judges in one sense
have to prove their legitimacy, have to demonstrate their
legitimacy. It is no longer assumed by the public, and I would
rather prove that legitimacy in my own voice with my own face
and my own words than have my words described by a late-night
TV anchor.
Finally, the strength of this bill is that it does not
mandate cameras. It does not insist on them. It does not even
encourage them. It allows judges to exercise their discretion
to permit cameras in appropriate cases, subject to fair
limitations. I for one would like to try.
Thank you.
[The prepared statement of Judge Gertner follows:]
Prepared Statement of the Honorable Nancy Gertner
Mr. Delahunt. Thank you, Judge Gertner.
Mr. Richter?
TESTIMONY OF JOHN C. RICHTER, U.S. ATTORNEY,
WESTERN DISTRICT OF OKLAHOMA
Mr. Richter. Thank you, Mr. Chairman, Ranking Member Smith,
Members of the Committee.
Again, my name is John Richter. I presently serve as the
United States Attorney for the Western District of Oklahoma.
It is my privilege today to speak to you on behalf of the
Department of Justice to express our strong opposition to and
deep concerns about H.R. 2128.
In pursuing cases, it is the duty of each and every United
States Attorney to see that justice is done. In examining the
implications of this bill, therefore, I look at whether it will
add to or detract from the cause of justice.
The Department of Justice joins with the Judicial
Conference, many Federal judges and many defenders in
expressing our concerns about this bill.
In my prepared remarks, I have identified the many
potential harms that will flow from placing cameras in Federal
courtrooms. As the Supreme Court has indicated, giving the
media a degree of access beyond that available to the public
will adversely impact witnesses, victims, jurors, judges and
other trial participants and, in so doing, negatively affect
our ability to maximize the truth-seeking function of our
justice system.
Likewise, because of the exponential increase in the
dissemination of images that will necessarily flow from placing
cameras in the courtroom, the risk of harm to judges and other
trial participants will increase. Judges, defendants and
witnesses face increased risks as it is. We do not need to add
to that risk.
In exchange for these harms, proponents of cameras in
Federal courtrooms assert that there will be two benefits.
First, they argue that by broadcasting the proceedings, the
media, as a surrogate for the public, can act as a check by
shining the sun on the judicial branch.
Second, they argue that expanding the manner in which the
press can cover court proceedings will be educationally
valuable to Americans. However, when actually examined, neither
of these arguments carries much weight when compared to
ensuring that justice is done.
First, it is hard to see how the media really needs a
greater means of coverage in order to monitor and check the
judiciary. After all, the sun is already shining brightly.
Without this bill, the print and broadcast media still have the
exact same degree of access to Federal court proceedings as the
general public.
These trials are not secret. The bright lights of the
camera are on the steps of the courthouse every day, and
journalists are already in the courtroom ferrying information
immediately to cameras and from there to the viewing public.
Second, the idea that cameras and broadcasts will increase
the educational aspects of reporting while carrying superficial
appeal, in fact, breaks down upon examination. In comparing
television and newspaper coverage, a Harvard academic study
showed that media coverage without the presence of cameras in
the court covered more facts about the case, the actual
judicial process, the substance of the defense and the larger
societal impact of the case than the coverage with the cameras.
The coverage with cameras in court raised few larger
societal issues. Instead, the cameras' coverage focused
primarily on the dramatic and the graphic aspects of the trial,
the emotions of the witnesses and the trials as a strategic
game between two sides, rather than a proceeding for the
purpose of ascertaining the truth and seeking justice.
And why is that? Because if past is prologue, some in the
media will see trials as a soap opera, as just another
opportunity to sensationalize, and gain ratings. Of course,
many media outlets covering trials may behave responsibly. We
must remember, however, that once we allow the feed from the
courtroom, no one will be able to control its use or
dissemination to only the most responsible.
For some, the Federal court proceedings will not be about
education. Instead, the coverage will be focused on
sensationalization and entertainment, but, Mr. Chairman,
justice is not about entertainment. It is not about making
money on programming.
It is about seeking the truth. It is our Nation's best
attempt at justice in a dignified process, a process that will
not be improved, but only potentially hurt by cameras and
broadcasts from inside the courtroom. It is for these and the
reasons set forth in my prepared remarks that we conclude as
follows:
The potential harms this legislation will have on the cause
of justice greatly outweigh the benefits, if any, to be gained
by the measure. The Department of Justice, therefore, strongly
opposes H.R. 2128.
I would be pleased to answer any questions you or your
fellow Committee Members may have.
Thank you.
[The prepared statement of Mr. Richter follows:]
Prepared Statement of John C. Richter
Mr. Delahunt. Thank you, Mr. Richter.
Ms. Swain?
TESTIMONY OF SUSAN M. SWAIN, PRESIDENT AND
CO-CHIEF OPERATING OFFICER, C-SPAN
Ms. Swain. Thank you, Mr. Chairman, Mr. Smith and Members
of the Committee, for inviting C-SPAN here today to testify
about an issue that is very near and dear to our network,
cameras in the Federal courts.
C-SPAN actually welcomes very strongly the bill's intention
of making the courts more accessible to television coverage. As
the Members of this Committee are very aware, our network has a
long history of advocating greater openness in Federal
Government, and we believe that the Federal courts should be as
open to cameras as are the House and the Senate.
I travel the country a great deal for my job, and it is
interesting how often the question is asked, ``When will
cameras be allowed in the Federal courts?'' It is very
disappointing to explain to people that 16 years after the
Judicial Conference first began experimenting with television
coverage, no additional circuits beyond the two in that first
test, the 2nd in New York and the 9th in San Francisco, have
moved to allow camera coverage of their proceedings.
Two things have happened during those 16 years: As the
judge has indicated, video has come to dominate the
communications flow in our society; and the 2nd and 9th
Circuits now have long histories of successful interaction with
C-SPAN and other television news organizations.
Let me tell you a little bit about what the experience is
like being a news organization trying to operate in what has
become, we think, a patchwork quilt of policies regarding media
access in the 13 Federal courts.
While the 2nd and 9th consider requests for cameras, most
other circuits make audiotapes of their proceedings, and even
then, access to those audiotapes ranges from no public
release--in other words, the tapes are for the judge's use
only--to circuits, which, as noted, post them on their Web
site. And there is one circuit, the 5th in New Orleans, which
still relies on written transcripts.
The status quo is really hard for someone outside the
system to understand, and let me give you an example from the
past year to explain why.
In the past 9 months, two circuits, the 2nd and the 3rd in
Philadelphia, both heard cases about broadcast indecency
standards. Because of the current public debate over television
decency, C-SPAN petitioned both courts for permission to
televise the sessions: the second, which has the camera policy;
the third, which does not.
The 2nd Circuit not only permitted us to bring in cameras,
but further agreed to our request to televise last December's
argument in Fox vs. FCC live. By contrast, the 3rd Circuit
court case, CBS v. FCC, is probably much better known to the
public because it stems from the 2004 Super Bowl telecast,
Janet Jackson's so-called ``wardrobe malfunction incident.''
We asked the 3rd Circuit to consider an exception to its no
TV policy and permit us to televise this argument. In the end,
we received a letter from the clerk denying our request on the
grounds that the 3rd Circuit has no television policy, and
there we are.
The 3rd Circuit is one of those courts which audiotapes
proceedings, so we asked for permission for same-day access to
the audiotapes, which the court granted. We figured that our
best resource was to televise the audio of the oral argument by
adding graphics and pictures of the judges and attorneys. So
this is where we end up, same-day televised audio with pictures
bringing us far enough down the road that one has to ask, ``Why
not simply permit the cameras?''
Audio with pictures is exactly where we are with the
Supreme Court oral arguments. And, although we are very pleased
with Chief Justice Roberts, who has continued Chief Rehnquist's
practice of considering requests for expedited release of the
audio of high-court arguments, our batting average in the
Supreme Court is good, but we wish it were better. So far, we
have asked the Roberts court for audio in 12 different cases,
and the chief justice has agreed to seven of our requests.
Mr. Chairman and Members of this Committee, it has now been
30 years since C-SPAN argued, and the Congress agreed, that in
this very vast country, television cameras are a practical
extension of the press and public galleries in the Capitol
building, and we believe that the same basic argument holds
true for the Federal court.
An open judicial system is fundamental to our democracy.
Federal judges, after all, are public employees doing the
public's business in public buildings. We believe, as the
authors of this legislation do, that the public has a right to
witness the work of their Federal courts and that considering
the great size of this country and the reliance on television
as the means of communication, it is really the only viable way
for this to happen.
Mr. Chairman, let me close by reiterating C-SPAN's interest
in and commitment to greater coverage of the Federal courts on
our networks, our plan to do it entirely gavel to gavel, and
complete coverage of the Supreme Court should television access
be expanded there as well.
Thank you for letting us present our opinion today.
[The prepared statement of Ms. Swain follows:]
Prepared Statement of Susan M. Swain
ATTACHMENTS
Mr. Delahunt. Thank you, Ms Swain.
Ms. Cochran?
TESTIMONY OF BARBARA COCHRAN, PRESIDENT,
RADIO-TELEVISION NEWS DIRECTORS ASSOCIATION
Ms. Cochran. Mr. Chairman, Ranking Member Smith and Members
of the Committee, thank you for inviting me to appear today on
behalf of the 3,000 electronic journalists who are members of
RTNDA.
The Sunshine in the Courtroom Act of 2007 is an important
step toward removing the cloak of secrecy surrounding our
judicial system. In our view, the time has come to enact this
legislation as speedily as possible. Cameras are now routinely
present in State courtrooms and have been for more than a
quarter of a century. Indeed, all 50 States permit television
and radio coverage at some level and 43 States allow such
coverage of trials. If cameras can work at the State level,
they can work at the Federal level, too.
The U.S. Supreme Court has upheld the first amendment right
of the public to attend trials. The news media are present as
surrogates for the public. In the 21st century, there is no
compelling reason to continue to exclude electronic media from
Federal courts. Such a discriminatory ban is inconsistent with
an open judicial process and is a disservice to the public.
A courtroom is a public forum where the presence of
citizens or the news media as their surrogates historically has
enhanced the integrity and quality of the judiciary. Only the
electronic media can truly convey with accuracy what goes on
inside a Federal courtroom by enabling the public to observe
the demeanor, tone, credibility and even the competency and
veracity of the participants in a proceeding.
Electronic coverage of Federal court proceedings would
serve an important purpose for this body as well. The actions
of the executive branch and the legislature are extensively
portrayed in the electronic media, but under our current
system, neither the legislature nor the executive branch has
ready access to the daily workings of the Federal judiciary.
Without regular audio visual coverage of court proceedings, two
co-equal branches' oversight of the judiciary is limited to
fleeting glimpses offered in confirmation hearings.
Americans are left knowing more about the jurisprudence of
Judge Judy than of Justices Roberts and Alito. Jurors,
prosecutors, lawyers, witnesses and judges at the State and
Federal levels have overwhelmingly reported that the
unobtrusive camera has not adversely impacted trials or
appellate proceedings. The pilot program in the early 1990's
was a resounding success and resulted in a recommendation that
cameras be allowed in all Federal courts.
Comprehensive studies conducted in 28 States show the
significant social and educational benefits of televised
coverage of courts. Most conclude that a silent, unobtrusive
courtroom camera provides the public with more and better
information about the functioning of courts. RTNDA knows of no
case in which the presence of a courtroom camera was found to
have any affect whatsoever on the ultimate result.
Simultaneous audiovisual coverage of judicial proceedings
also improves the accuracy of reporting by all media. Such
coverage affords instant access and verification of quotes to
reporters who work in print as well as electronic media. In
contrast to the Harvard study we just heard about, a New York
study found, ``Reporting on court proceedings, both by
newspaper and broadcast reporters, frequently is more accurate
and comprehensive when cameras are present.''
The 2000 presidential election case illustrates the public
benefits of audiovisual coverage of judicial proceedings. When
the case reached the Supreme Court, the court set historic
precedent by quickly releasing an audio recording of the oral
arguments. Both television and radio stations broadcast the
tapes in their entirety. By acting with more transparency, the
high court laid the groundwork for a common understanding and
acceptance necessary for closure to the electoral contest of
2000.
Federal courts have not taken the initiative to permit
electronic coverage of their proceedings. Therefore, RTNDA
respectfully submits that the time has come for Congress to
legislate.
RTNDA's members have covered court proceedings in every
State, and their experience has demonstrated that cameras do
not interfere with the administration of justice or infringe
the rights of defendants or witnesses. Cameras in the
courtrooms work. They create a public record. They get the
story right.
In permitting audiovisual coverage in Federal courts at
every level, including the Supreme Court, you will provide the
world with unlimited seating to observe the workings of justice
in the United States.
Thank you, Mr. Chairman, for the opportunity to testify on
behalf of the Radio-Television News Directors Association
before your Committee today.
[The prepared statement of Ms. Cochran:]
Prepared Statement of Barbara Cochran
Mr. Chairman and Members of the Committee, I am Barbara Cochran,
President of the Radio-Television News Directors Association. Thank you
for inviting me to appear today on behalf of the 3,000 electronic
journalists, educators, students and executives who comprise RTNDA, the
world's largest professional organization devoted exclusively to
electronic journalism.
At the Committee's request, I will address proposed legislation to
allow media coverage of federal court proceedings. As you know, under
present law, radio and television coverage of federal criminal and
civil proceedings at both the trial and appellate levels is effectively
banned. The Sunshine in the Courtroom Act of 2007 represents an
important step toward removing the cloak of secrecy surrounding our
judicial system by giving all federal judges the discretion to allow
cameras in their courts under a three-year pilot program.
Americans base their opinions and perceptions of our judicial
system on a variety of sources. We are influenced by popular culture:
the four major broadcast networks currently air at least ten different
hour-long prime-time programs dealing with courts or the criminal
justice system. Three of the eight shows are regularly set in or around
courtrooms. In addition, local broadcasters' daytime offerings
frequently include confrontational programs, such as Judge Judy, that
purport to approximate atmosphere of a civil courtroom.
Within this context, does it make sense that judicial nominees are
closely scrutinized in the Senate Judiciary Committee's confirmation
``hot seat,'' only to be obscured from view after they ascend to the
bench? RTNDA's members think not.
RTNDA's members are the people who have demonstrated that
television and radio coverage works at the state and local level, and
they can make it work on the federal level. RTNDA strongly believes
that permitting electronic coverage of federal judicial proceedings--
from federal district courts to the United States Supreme Court--is the
right thing to do as a matter of sound public policy. Moreover, RTNDA
believes that the decision to allow cameras in federal courtrooms is a
legislative prerogative. Passage of this legislation will send a
message to judges that giving the public access to courts through
televised proceedings is a right and an opportunity, not an
inconvenience.
RTNDA respectfully submits that there is no compelling reason to
stall the passage of this legislation. The First Amendment right of the
public to attend trials has been upheld by U.S. Supreme Court. The
presence of cameras in many state courtrooms is routine and well-
accepted. The anachronistic, blanket ban on electronic media coverage
of federal proceedings conflicts with the values of open judicial
proceedings and disserves the people.
Allowing electronic coverage of federal court proceedings serves an
important purpose for this body, as well. It allows the legislature to
criticize actions taken by the executive, and it affords the executive
an opportunity to prod reluctant lawmakers. But under our current
system, neither the legislature nor the executive have ready access to
the day-to-day workings of the federal judiciary. Without regular
audiovisual coverage of court proceedings, two co-equal branches'
oversight of the judiciary is constrained to fleeting glimpses offered
in confirmation hearings.
A courtroom is, by nature, a public forum where citizens have the
right to be present, and where their presence historically has been
thought to enhance the integrity and quality of what takes place.
The interests of our citizens are not fully served, in this day and
age, by opening federal courtrooms only to a limited number of
observers, including the press, who can publicize any irregularities
they note. In practice, what goes on inside a courtroom can only be
effectively reported if the court permits journalists to use the best
technology for doing so. There is no principled basis for allowing
print media and not electronic media to use the tools of their trade
inside federal courtrooms. Only the electronic media can serve the
function of allowing interested members of the public not privileged to
be in the courtroom to see and hear for themselves what occurs. As
Judge Nancy Gertner, who will testify before you today, aptly stated in
testimony before the Senate Judiciary Committees' Subcommittee on
Administrative Oversight and the Courts some seven years ago, ``public
proceedings in the twenty-first century necessarily mean televised
proceedings.''
Technological advances in recent decades have been extraordinary,
and the potential for disruption to judicial proceedings has been
minimized. The cameras available today are small, unobtrusive, and
designed to operate without additional light. Moreover, the electronic
media can be required to ``pool'' their coverage in order to limit the
equipment and personnel present in the courtroom, further minimizing
disruption.
It cannot seriously be disputed that audiovisual coverage, which
would allow for complete and direct observation of the demeanor, tone,
credibility, contentiousness, and perhaps even the competency and
veracity of the participants, is the best means through which to
advance the public's right to know as it pertains to the actions of the
federal judiciary. Public access to judicial proceedings should not and
need not be limited to reading second-hand accounts in newspapers, or
hearing them on radio or seeing them on television. By nature, the
electronic media is uniquely suited to ensure that the maximum number
of citizens have direct and unmediated access to important events.
The Committee should not be swayed by those who are quick to point
the finger at a few extreme examples of courtroom spectacles. Even
though television coverage of a handful of court proceedings has been
criticized as mere ``sensationalism,'' the Committee should remember
that the camera shows what happens; it is not a cause. The prohibition
on audiovisual coverage of federal judicial proceedings has resulted in
viewers witnessing those events that take place on the courthouse
steps, not those transpiring where it matters most--inside the
courtroom.
Jurors, prosecutors, lawyers, witnesses and judges on both the
state and federal levels have overwhelmingly reported for the last
decade or so that the unobtrusive camera has not had an adverse impact
on trials or appellate proceedings. The pilot cameras program conducted
by six federal districts and the Second and Ninth Circuit Courts of
Appeals between 1991 and 1993 was a resounding success, resulting in a
recommendation that cameras be allowed in all federal courts. This past
summer, five federal district courts entered a new pilot program to
make digital audio recordings of proceedings available online. Although
audio recordings are no substitute for live audiovisual broadcasts,
RTNDA is encouraged and sees this program as a step in the right
direction.
All 50 states now permit some manner of audiovisual coverage of
court proceedings. 43 states allow electronic coverage at the trial
level. The District of Columbia is the only jurisdiction that prohibits
trial and appellate coverage entirely, but even it has not remained
immune from technological advances and demands for greater
transparency. Last year, the District of Columbia Court of Appeals
opened its doors, virtually, and began offering live audio webcasts of
appellate oral arguments.
Comprehensive studies conducted in 28 states show that television
coverage of court proceedings has significant social and educational
benefits. Most conclude that a silent, unobtrusive in-court camera
provides the public with more and better information about, and insight
into, the functioning of the courts. Many have found that the presence
of cameras does not impede the fair administration of justice, does not
compromise the dignity of the court, and does not impair the orderly
conduct of judicial proceedings. In the hundreds of thousands of
judicial proceedings covered electronically across the country since
1981, to the best of RTNDA's knowledge there has not been a single case
where the presence of a courtroom camera has resulted in a verdict
being overturned, or where a camera was found to have any effect
whatsoever on the ultimate result.
It is also worth noting that simultaneous audiovisual coverage of
judicial proceedings improves the media's overall ability to accurately
report on them. Such coverage affords a greater pool of reporters
instantaneous access. In-court events, including quotations, can be
verified simply by playing back an audio or videotape. As one New York
study found, ``reporting on court proceedings, both by newspaper and
broadcast reporters, frequently is more accurate and comprehensive when
cameras are present.''
One compelling illustration of the public benefits resulting from
audiovisual coverage of judicial proceedings involves the presidential
election dispute in the fall of 2000. Given Florida state rules that
permit cameras in the courtroom, the nation was able to watch and
listen live as the Florida courts, including the state's Supreme Court,
heard arguments in President Bush's bid to throw out hand-counted
ballots that former Vice President Al Gore hoped would win him the
presidency.
In response to requests from numerous media organizations,
including RTNDA, to allow television coverage of the subsequent oral
arguments before the United States Supreme Court, the late Chief
Justice Rehnquist wrote, ``the Court recognizes the intense public
interest in the case and for that reason today has decided to release a
copy of the audiotape of the argument promptly after the conclusion of
the argument.'' Radio stations played the tapes in their entirety;
their television counterparts played long excerpts, supplemented with
photos and the familiar artists' sketches. Later, Chief Justice
Rehnquist told a CNN reporter that he was very pleased with the
reception that the playing of the court's audiotapes had gotten. People
who before the election couldn't have named one justice now could name
all nine. As divisive as the 2000 electoral contest was, the openness
of the courtrooms produced the common understanding and acceptance
necessary for political closure.
The Supreme Court has released audiotapes of other high profile
cases in recent years, thus permitting the public to hear oral argument
concerning such serious issues as United States courts' jurisdiction
over claims by foreign citizens held at the Guantanamo Naval Base and
whether the government may withhold constitutional protections from a
U.S. citizen detained as an ``enemy combatant.'' While the electronic
media has welcomed release of these select recordings, they are no
substitute for consistent, complete audiovisual coverage.
Significantly, in response to questions posed by members of this
Committee during his confirmation hearings, our new Chief Justice, John
Roberts, stated that he is open to the idea of televising Supreme Court
proceedings.
Indeed, because of the federal ban, American citizens have been
deprived of the benefits of first-hand coverage of significant issues
that have come before the United States federal district courts,
federal appellate courts, and the Supreme Court in recent years. For
example:
Whether the government can take possession of a
person's private property and transfer it to developers to
encourage economic development;
Whether executing juveniles constitutes cruel and
unusual punishment;
Whether the term ``Under God'' in the Pledge of
Allegiance is unconstitutional;
Whether a state university may consider race and
ethnicity in its admissions process;
Whether a student may be disciplined for carrying a
vaguely pro-drug banner at a public event near his school.
Whether parents have a constitutionally protected
right to prevent schools from providing information on sexual
topics to their children.
Whether an employee may be awarded back-pay for
twenty years difference between her salary and those of her
male counterparts.
In contrast, people throughout the world were able to turn on their
television sets (or their computers) to witness for themselves opening
proceedings in the trial of Saddam Hussein and seven of his associates
accused of crimes against humanity. The judges involved and the Iraqi
people apparently understood how critically important it was to make
this process truly public. Ironically, if the United States had
successfully argued to have the case come before one of our federal
courts, our laws would have prohibited broadcast of the trial.
For whatever reasons, federal courts have not, on their own motion,
taken steps to permit electronic coverage of their proceedings.
Therefore, RTNDA respectfully submits that the time has come for
Congress to legislate. As federal district Judge Leonie Brinkema wrote
in rejecting requests for televised coverage of the trial of alleged
terrorist Zacarias Moussaoui, whether or not to permit cameras in
federal courtrooms is a question of social and political policy best
left to the United States Congress. The legislation proposed by
Representatives Chabot, Delahunt, McCotter and Poe represents a careful
approach by giving federal judges at both the trial and appellate
levels the discretion to allow cameras in their courts under a three-
year pilot program. At its conclusion, Congress and federal judges
would be given an opportunity to review the program.
I should mention here that RTNDA believes that federal law
governing television coverage of the judicial branch should be grounded
in a presumption that such coverage will be allowed unless it can be
demonstrated that it would have a unique, adverse effect on the pursuit
of justice or prejudice the rights of the parties in any particular
case. Placing decisions as to whether or not to ``pull the plug'' on
electronic coverage in the hands of the parties would render the
legislation ineffective.
The public has a right to see how justice is carried out in our
nation. As the Supreme Court has stated, people in an open society do
not demand infallibility from their institutions, but it will be
difficult for them to accept what they are prohibited from observing.
Public scrutiny will help reform our legal system, dispel myth and
rumors that spread as a result of ignorance, and strengthen the ties
between citizens and their government. The courtroom camera not only
gets the story right, it creates a record of the proceedings and opens
a limited space to a broader audience. Experience shows that cameras in
the courtroom work and that they do not interfere with administration
or infringe on the rights of defendants or witnesses. RTNDA members
have covered hundreds if not thousands of state proceedings across the
country without incident and with complete respect for the integrity of
the judicial process.
In the same way the public's right to know has been significantly
enhanced by the presence of cameras in the House and then the Senate
over the past two decades, the proposed legislation that is the subject
of today's hearing has the potential to illuminate our federal
courtrooms, demystify an often intimidating legal system, and subject
the federal judicial process to an appropriate level of public
scrutiny. While both print and electronic media fulfill the important
role of acting as a surrogate for the public, only television has the
ability to provide the public with a close visual and aural
approximation of actually witnessing events without physical
attendance. It is time to provide unlimited seating to observe the
workings of justice everywhere in the United States by permitting
audiovisual coverage of federal judicial proceedings at all levels,
including those before the United States Supreme Court.
Thank you, Mr. Chairman, for the opportunity to testify on behalf
of RTNDA before your committee today.
Mr. Delahunt. Thank you, Ms. Cochran.
And now our last witness, Mr. Fred Graham.
TESTIMONY OF FRED GRAHAM, SENIOR EDITOR, COURT TV
Mr. Graham. Thank you, Mr. Chairman.
My name is Fred Graham. I am the Senior Editor of Court TV.
I want to start by commending the Chairman, Congressman
Delahunt, and Congressman Chabot--they were the original
sponsors of the precursor to this legislation, and they have
been very faithful in supporting us through this proposed
legislation ever since--and also the other Members of the
Committee.
After all, this Committee has twice approved earlier
versions of this testimony, and it is clear to you all that
Court TV does support the legislation. We hope the third time
will be a charm, that it will go through, again, this
Committee, but this time it will turn out to be in the end a
statute.
I filed my statement. I want to make two points, and the
first one is fortuitous because, as you know, lawyers love to
quote Oliver Wendell Holmes, and Oliver Wendell Holmes had a
principle that goes to the core of what we are talking about
today. He said, ``The life of the law is not logic. It has been
experience.''
And what he meant by that in this context is to go to the
heart of the bona fides of this issue, it is not helpful to
have a lawyer go through in his mind and lay out a parade of
horribles, of things that might happen or theoretically could
happen, because we have so much experience in what has happened
through cameras in courts.
Now we at Court TV have had a unique, I think in the world,
opportunity to obtain experience on this issue. Since we went
on the air 16 years ago, we have covered more than 900 trials
and judicial proceedings. Thirty thousand hours we have put on
the air of real trials being covered by cameras, and you cannot
imagine how frustrating it is when we have seen through the
course of 30,000 hours while we put on the air these trials
that the camera coverage does not have a harmful effect.
You can tell the psychology which is behind that lack of
harmful effect, and that is it is so clear when you see a trial
begin that is being televised that after the first 3 or 4
minutes, the participants just tune out the fact that there is
a camera there. They do not pay any attention to it. These
trials typically go 3 weeks, 6 weeks, and, after the first few
minutes, the camera means nothing.
So what we see is that the camera does not prevent the
trial that is being covered by the camera from being as
ordinary and as dignified as the trial next door where there is
no camera in effect.
Now my second point has to do with really befuddlement on
our part because we are, frankly, confused and uncertain as to
why it is that the Judicial Conference is so extreme in its
opposition to this bill.
As Judge Gertner pointed out, this does not require the
presence of cameras in any court. This only permits the judge
to exercise his or her discretion to decide if it should be
covered.
Now here is a group of judges who have the power to make
decisions over life or death. They can enjoin the President of
the United States. They can declare unconstitutional acts that
you, Members of Congress, have put into effect. And yet
basically the Judicial Conference seems to be saying they
cannot be trusted to have discretion to rule on this one point.
I must say that it is a matter of confusion to us. I would
be interested to hear some explanation of it. We feel that this
statute should become law. We hope that it will, and I will be
happy to try to answer any questions you may have.
[The prepared statement of Mr. Graham follows:]
Prepared Statement of Fred Graham
Chairman Conyers, Ranking Member Smith and Members of the
Committee, my name is Fred Graham. I joined Court TV as an anchor when
it first was launched in 1991. I served as the Chief Anchor and
Managing Editor of Court TV. In that capacity, I hosted Court TV's
morning trial coverage program Open Court. Recently, I assumed the new
role of Senior Editor and serve as the Chair of Court TV's editorial
board. I also continue to report on key legal news events from here in
Washington, D.C. Prior to joining Court TV, I was a legal writer for
The New York Times and law correspondent for CBS News. Very early in my
career, I was the Chief Counsel of the Senate Judiciary Subcommittee on
Constitutional Amendments under Chairman Estes Kefauver of Tennessee. I
earned my law degree at Vanderbilt University, where I was the Managing
Editor of the Vanderbilt Law Review and was elected to the Order of the
Coif.
Mr. Chairman, Court TV strongly supports H.R. 2128, the Sunshine in
the Courtroom Act of 2007. We believe that the First Amendment right of
the people of the United States to the freedom of speech, particularly
as it relates to their right to present their opinions on the affairs
of the Government, cannot be exercised meaningfully without the ability
of the public to obtain facts and information upon which to base their
judgments about important issues and events. As the United States
Supreme Court stated in Craig v. Harney (1974), ``A trial is a public
event.'' ``What transpires in the court room,'' the Court continued,
``is public property.''
Further, Mr. Chairman, Court TV believes that the First Amendment
right of the people of the United States to petition the Government to
redress grievances, particularly as it relates to the manner in which
the Government exercises its legislative, executive, and judicial
powers under the Constitution, cannot be exercised meaningfully without
the availability to the public of information about how the affairs of
the Government are being conducted. As the Supreme Court noted in
Richmond Newspapers, Inc. v. Commonwealth of Virginia (1980), ``People
in an open society do not demand infallibility from their institutions,
but it is difficult for them to accept what they are prohibited from
observing.''
H.R. 2128 would provide statutory authority for United States
District Judges to allow, at their discretion, televised coverage of
public trials. As the Supreme Court stated in In re Oliver (1948),
``Whatever other benefits the guarantee to an accused that his trial be
conducted in public may confer upon our society, the guarantee has
always been recognized as a safeguard against any attempt to employ our
courts as instruments of persecution.'' ``The knowledge that every
criminal trial is subject to contemporaneous review in the forum of
public opinion,'' the Court continued, ``is an effective restraint on
possible abuse of judicial power.''
Mr. Chairman, by allowing delayed audio broadcasts of the oral
arguments before the Supreme Court in last fall's partial-birth
abortion and affirmative action cases, Chief Justice John Roberts has
recognized the great public interest in nationwide access to important
judicial proceedings. Building on that principle, Representatives
Chabot and Delahunt have introduced H.R. 2128, their bipartisan
legislation to give Federal judges the discretion to allow the
televising of proceedings in their courtrooms. Senators Schumer and
Grassley have introduced companion legislation in the Senate. An
earlier version of H.R. 2128 passed the House Judiciary Committee as
part of H.R. 1751, the Secure Access to Justice and Court Protection
Act of 2005, in the 109th Congress.
H.R. 2128 would codify Chief Justice Roberts's inherent
discretionary authority to allow the televising of Supreme Court
proceedings. Presiding judges of panels of the Courts of Appeals and
District Court Judges would be given statutory authority to exercise
discretion in allowing televised coverage of proceedings in their
courtrooms. The bill gives the Judicial Conference the authority to
formulate and issue guidelines to which judges may refer in deciding
whether to allow the televising of particular cases. H.R. 2128 also
includes a three-year sunset provision.
Recognizing special concerns about televising trials in the
District Courts, H.R. 2128 provides strong safeguards. On the request
of any trial witness other than a party, a District Judge must order
the face and voice of the witness to be disguised or obscured in a
manner that renders the witness unrecognizable to the television
audience. The bill also prohibits the televising of jurors.
H.R. 2128 is fully consistent with the trend in the states. All 50
states allow cameras at some level of their judiciaries. Based on our
most recent review, 43 states permit cameras in their civil trial
courts. Of those, 39 states allow cameras in criminal trials. Thus, at
the state level, there is a growing consensus that cameras in the
courtrooms serve the public interest.
Mr. Chairman, Justice Oliver Wendell Holmes said, ``The life of the
law has not been logic, it's been experience.'' Since 1991, Court TV
has covered more than 900 trials and other judicial proceedings,
providing more than 30,000 hours of courtroom coverage. We have seen
over the years how the participants in these trials ``tune out'' the
camera and how the televised proceedings are conducted in the normal,
orderly way. We have always made a special effort to cover trials that
involve issues of great public interest and importance. We believe that
through our coverage of these trials, the members of the public who
have watched them have gained an enhanced respect for our judicial
system and a greater understanding of our laws.
The trials that Court TV has covered have involved many of the most
serious social, political, cultural and economic issues of our time. In
1992, for example, Court TV provided live coverage of a hearing before
the International Court of Justice in a case involving the 1988
terrorist bombing of Pan Am Flight 103, which killed 270 people, over
Lockerbie, Scotland. We also covered the criminal trials of Dr. Jack
Kevorkian, who was accused of violating state laws against assisted
suicide and euthanasia. In 2005, we covered the trial of the notorious
Columbus, Ohio, highway shooter Charles McCoy, who admitted to a string
of shootings, one of which killed a woman, but claimed innocence by
reason of insanity. Also in 2005, we covered the case of Mississippi v.
Killen, in which 80-year-old Edgar Killen stood trial for murder in the
deaths of three civil rights workers who were killed while registering
black voters in rural Mississippi.
We at Court TV believe that our trial coverage serves very
important public interests. At times, in fact, our trial coverage can
help diffuse highly charged, volatile situations in very controversial
cases. One of the best examples of this occurred in a case that
attracted considerable national attention, the 2000 trial of four New
York City police officers who were charged in the shooting death of an
unarmed man, Amadou Diallo.
Judge Joseph Teresi, the trial judge who was assigned to the case,
understood the importance and value of having the New York City public
watch the trial after venue was relocated to Albany. When the televised
trial resulted in the acquittal of the police officers, public
acceptance of the verdict was widely attributed to the fact that the
people of New York had been able to watch and listen to the proceedings
with their own eyes and ears. After the trial, then-New York City Mayor
Rudolph Giuliani commended the trial judge for opening the courtrooms
to cameras. As a result of televised coverage of the Diallo trial,
Mayor Giuliani commented, the public ``had the opportunity to listen
and to see and to observe all of the witnesses; to observe the judge
and the way in which he conducted the case; to sit by and listen to all
the analysis the jury went through; and, they can draw their own
judgment.'' ``And I believe that fact alone--the camera and the
television coverage of it,'' the Mayor continued, ``--has changed the
minds of a lot of people about what happened.''
Mr. Chairman, in the sixteen years that Court TV has been
televising more than 900 trials, no judgment in the United States has
been reversed because a television camera was in the courtroom. One has
to look back more than four decades, to a time when television was in
its infancy and cameras were still generally prohibited, to find a case
to the contrary. In Estes v. Texas (1965), by a bare 5-4 majority, the
Supreme Court reversed a criminal conviction based in part on a
determination that the televising of a pre-trial hearing and parts of
the trial had prejudiced the defendant. Four members of the Court,
responding to the argument that television technology and the public's
reliance on television news would continue to advance, stated that ``we
are not dealing here with future developments,'' nor with ``the
hypothesis of tomorrow,'' but with ``the facts as they are presented
today.'' Justice Harlan's concurring opinion struck a similar note.
Limiting his agreement with the majority to the facts of the case,
Justice Harlan observed that ``the day may come when television will
have become so commonplace an affair'' as to ``dissipate all reasonable
likelihood that its use in courtrooms may disparage the judicial
process.'' ``If and when that day arrives,'' he concluded, ``the
constitutional judgment called for now would of course be subject to
reexamination.''
Mr. Chairman, in this first decade of the 21st Century enters its
final years, the day of which Justice Harlan spoke surely has arrived.
When Estes was decided, audio visual technology was crude and other
recording devices frequently intruded upon the dignity and conduct of
courtroom proceedings with noisy cameras, bright klieg lights, snaking
cables, and numerous technicians scurrying about the courtroom.
Today, by contrast, broadcasters typically employ a single,
stationary camera, which produces no noise and requires no additional
lighting. The camera is placed away from the proceedings and, if
necessary, can be operated by remote control. Wiring is unobtrusive.
Microphones are small and are never operated in such a way as to record
private conversations between attorneys and clients. Those microphones,
in fact, are turned off during all parts of the proceedings that are
not part of the public record. Thus, the electronic media routinely
record trial court proceedings without disturbing their orderly, serene
conduct. Not only, to use Justice Harlan's words, is there no
``reasonable likelihood'' that the simple presence of a modern in-court
camera will ``disparage the judicial process,'' but also there can be
no question that television has ``become so commonplace an affair''
that the day that Justice Harlan foresaw has, in fact, now arrived.
In fact, in today's world many Americans receive most of their news
and information from television--so that if the judicial system is to
be known and understood by the great mass of American citizens, it must
communicate with them by way of television. Since years of experience
have demonstrated that television coverage of judicial proceedings does
no harm, it is in the public interest to open the judicial system to
television coverage to the greatest feasible extent.
Finally, Mr. Chairman, I want to comment on the continuing
opposition to this legislation by the Judicial Conference of the United
States. I find it ironic indeed that the Judicial Conference opposes
this bill. After all, H.R. 2128 does not require cameras in our
Nation's Federal courts. Rather, it merely grants discretion to
District Judges to decide, on a case-by-case basis, whether, and to
what extent, to allow televised coverage of judicial proceedings in
their courtrooms. Moreover, as I noted earlier, the bill explicitly
grants the authority to the Judicial Conference to ``promulgate
advisory guidelines to which a presiding judge, at the discretion of
that judge, may refer in making decisions with respect to . . .
televising [judicial proceedings].'' Thus, by opposing this bill, the
members of the Judicial Conference seem to be questioning their
judicial brethrens' ability exercise their discretion wisely and to
follow the advisory guidelines that the Conference itself would issue.
No one would dispute that U.S. District Judges in our Nation have
tremendous power. They may declare acts of the Congress
unconstitutional. They may issue injunctions against the President's
exercise of his executive power if they find that it is contrary to the
Constitution. They may sentence defendants convicted of capital crimes
to death or send convicted defendants to prison for the rest of their
lives. The notion that we can trust our Nation's Federal judges with
these awesome powers, but cannot trust them to exercise their
discretion wisely in deciding whether to allow televised coverage of
trials in their courtrooms is, to say the least, a strange one indeed.
Specifically, in his testimony on behalf of the Judicial Conference
before the Senate Judiciary Committee on nearly identical legislation
in 2005, Judge Diarmuid O'Scannlain asserted that ``camera coverage
would . . . have a notably adverse impact on trial court proceedings.''
``This, he continued, ``includes the impact the camera and its
attendant audience would have on the attorneys, jurors, witnesses, and
judges.'' Once again, Mr. Chairman, all that H.R. 2128 does is to grant
District Judges the discretion to decide, on a case-by-case basis,
whether to allow cameras. In doing so, Judges necessarily will take
into account whether cameras in any particular case would, in fact,
have an ``adverse impact'' on ``attorneys, jurors, witnesses and
judges.'' In fact, the discretion that is granted by the bill is so
broad that some Judges could decide that they do not believe that
cameras are ever appropriate and make such determinations in each and
every case before them.
Beyond that, as I noted earlier, H.R. 2128 provides that non-party
witnesses have an absolute right to have their faces and voices
obscured if they make that request of the Judge. In addition, as I also
pointed out, H.R. 2128 specifically prohibits the televising of members
of jurors. Thus, H.R. 2128 has built-in safeguards that address any
legitimate concerns about the effects of cameras on witnesses and
jurors. As for the Judicial Conference's concerns about the effects of
cameras on attorneys and judges, H.R. 2128 leaves it to the Judge to
evaluate any such effects and make the determination whether to allow
cameras in light of them.
Thank you, Mr. Chairman, for this opportunity to testify. I would
be happy to respond to any questions that you or the other members of
the Committee may have for me.
Mr. Delahunt. Well, thank you, Mr. Graham.
And I do share that befuddlement that you alluded to.
And I am going to go to the Ranking Member, Mr. Smith, at
this point in time, and I will save my own questions for
somewhere along the track.
Mr. Smith?
Mr. Smith. Thank you, Mr. Chairman.
Judge Tunheim and Mr. Richter, let's try to dispel some of
that befuddlement, if we can.
It seems to me inherently difficult to try to quantify the
adverse impact of cameras in the courtroom, particularly on
witnesses.
Judge Tunheim, I know the Judicial Conference has over the
course of several decades conducted any number of studies. Is
there any evidence in those studies of that adverse impact of
the cameras in the courtroom, particularly on witnesses?
And, Mr. Richter, going not to logic, but to experience, do
you have any experience in the courtroom that you would be able
to point to that would be examples of real life adverse impact
on courtroom activities?
And we will start with the judge the first.
Judge Tunheim. Thank you, Congressman Smith.
There is evidence in the most recent study done by the
Federal Judicial Center of this strong concern that cameras may
impact the testimony of witnesses. The study reported the views
of judges who had presided over trials which were televised,
and the results were that about 64 percent of participating
judges felt that at least to some extent cameras made witnesses
more nervous, 46 percent of the judges believed that at least
to some extent cameras made witnesses less willing to appear in
court, and we often have some difficulty getting witnesses to
testify, particularly if they are outside a judge's subpoena
power.
Mr. Smith. So you are going actually to the administration
of justice in America when you talk about those kinds of
examples.
Judge Tunheim. Absolutely. It is a difficult thing to
testify in Federal court, and anything which discourages people
from participating in trials as a witness is a cause for
concern.
And there is one other figure coming out of the FJC study,
and that was 41 percent of the judges felt that cameras
distracted witnesses.
So there clearly is evidence from the study that this
concern about witnesses is a legitimate one.
Mr. Smith. Okay. Thank you, Judge Tunheim.
Mr. Richter?
Mr. Richter. Thank you, Mr. Smith.
From a prosecutor's perspective, working with victims and
witnesses is a critical part of the truth-seeking function of a
case, both from the prosecutor and from defense counsel's
perspective, and it is their testimony during the course of a
trial that, of course, is some of the key facts that come into
evidence that make or break a case.
And so to follow on what Judge Tunheim has just stated, for
example, particularly in cases involving victims of violent
crime, domestic violence, for example, these are victims who,
obviously, are being called into court through no choice of
their own. They were victims of a very serious crime. They do
not want to be there. The circumstances are deeply personal,
they are deeply humiliating. It is tough, in most of these
cases, to bring the case in to begin with and to get them there
and to gain their cooperation to begin with.
For those who have worked with victims of domestic
violence, many of them recant. Many of them reconcile. It is
very difficult to come back and get them into the courtroom.
And so for those types of victims, it is incredibly difficult
to begin with, and adding on top of that then the pressure that
comes from knowing that your remarks are not only going to be
heard by the people in that courtroom, but they are going to be
heard and stamped indelibly on the Worldwide Web, we believe is
a significant factor that will weigh in a victim or in that
witness's testimony.
And to follow on the pilot project, the fact that judges
have observed the change in demeanor, the nervousness, what
juries have to judge is the credibility of a witness or
victim's testimony, and if they appear more nervous than, in
fact, they should have as a result of that camera, then justice
is not being done.
Mr. Smith. Okay. Thank you, Mr. Richter.
Maybe I can squeeze in one more question here. And you have
both given the statistical evidence as well as the real life
case examples, and I think that that is helpful to all this.
Why not allow district judges discretion to determine whether
or not they want cameras in the courtroom like we do sometimes
on the appellate level?
You will have to give a brief answer, if you will, Judge.
Judge Tunheim. Well, the Conference has studied this issue
carefully and believes that the concern about witnesses,
primarily the concern about security, the kind of pressure that
would be brought to bear on televising proceedings is
counterproductive, and it is just best that these proceedings
go forward without the television cameras present.
They are open proceedings. Anyone can come. The media is
present at most of our proceedings and can be present at any
one, and there is really no need to add to the concern that
presents for witnesses.
Mr. Smith. Thank you, Judge Tunheim.
Mr. Chairman, thank you.
Mr. Delahunt. Mr. Davis of Alabama, a former Federal
prosecutor himself, distinguished Member?
Mr. Davis. Thank you, Mr. Chairman, and thank you for
recognizing me.
I welcome the panel here today. I am a young man, so I have
not spent a lot of my time doing anything in life, but I spent
a little bit of time as a Federal prosecutor and as a law clerk
for a Federal judge, and I am certainly honored to see the
judges and U.S. Attorney here today.
Let me make some observations and perhaps invite response
from the panel today.
And, Judge Tunheim, let me start with your observations and
Mr. Richter's observations.
I certainly respect the observations that you make about
the possibility that witnesses could be made nervous or could
be constrained or affected in some way, but I wonder if the
question were asked of witnesses, ``Does the presence of the
defendant make you nervous?'' I bet a substantial number would
say it does.
I will bet if you asked witnesses, ``Does the presence of
an audience full of live people make you nervous?'' I will bet
they would say it does. I will bet if you asked witnesses who
were testifying pursuant to a plea agreement, ``Does the fact
that there is a plea agreement hanging over your head and a
prosecutor has to evaluate your performance make you nervous?''
I bet they would say it does.
I am willing to bet there are a number of factors that
witnesses would say constrain and deter their testimony, but,
you know what, we tolerate it because there are powerful
countervailing interests on the other side. We decide that
courtrooms should be made open to the public, so, therefore,
the fact that a live audience could make someone nervous, that
concern, is trumped by the desire to have open courtrooms, and
I can go on down the line. There is always a countervailing
public interest, and I wonder if this is not that kind of an
example.
Now I have no desire to see round-the-clock live coverage
of Federal court. It would put most people to sleep, as all of
us know who practice there, and that is not what we are talking
about, as Mr. Graham pointed out. We are talking about giving
the discretion to judges. And I have gotten to know a number of
Federal judges over the years. Frankly, most of the ones I know
would almost never grant it.
The only times they would grant it would be an unusual
case. I will give you an example: the Oklahoma City bombing
trial. I suspect that that judge would have allowed his
courtroom to be open and, frankly, I think the public would
have gained from seeing that very serious event transpire and
for us to have a living memory of it.
I do not think it is enough for that kind of an event to
simply be preserved by newspaper accounts or eyewitness
accounts. That is the kind of seminal event that I think our
country would benefit from seeing, and there will be other
events like that. I want to hear some response from the panel
on that point.
But the second point that I would make, though, before
that, is that it strikes me that the one branch of Government,
ladies and gentlemen, that the public knows the least about is
the judicial branch. They probably know all too much about us,
the legislative branch, because they see us arguing
repetitively at midnight. They see us making speeches to empty
chambers and going on and on as if somebody somewhere cared.
They get to hear us pontificate all the time.
The executive branch they know a fair amount because even
though there is a closed element to the executive branch--some
of us are not happy about that--there is still a very active
press out there that tries to tear those walls down, and
newspapers tell us a lot about what the executive branch, the
presidency do in this country.
It has always struck me that the most mysterious branch is
the judicial branch.
Mr. Graham, you know this probably from your many years.
For a lot of people, their image of what happens in a
courtroom is ``Law and Order,'' the TV show. A lot of people's
image of what happens in a courtroom, when I was growing up,
was ``L.A. Law,'' and when I first started trying cases as a
young assistant U.S. Attorney, juries would wonder why I could
not do a closing statement in 1 minute like they do on TV, and
they would wonder why my witnesses would not always break down
the way the ones on TV would.
And I wonder if we do not have a powerful interest in this
society in opening up the judiciary, giving more people a
chance to see it, not all of it, not all the time, but the
seminal events, the unique events: the Pentagon papers trial in
1971, Supreme Court arguments. I think there is a powerful
interest in our demystifying this enormously important branch
of Government, and I wonder if this bill would not take us a
step in that direction.
But I would like to hear some reaction to what I have said
from the panel.
Mr. Richter. Well, Mr. Davis, speaking on behalf of the
Department briefly to your first point, I think you do frame
the issue correctly that this is a question of whether it adds
to justice or detracts from justice. Your points as far as
other things that may make witnesses nervous are certainly
valid ones, but those all flow from things with which we have
no choice in the matter.
The difference here is we have a choice as to whether
cameras go in a courtroom or not, and so from the Department's
perspective, really the question is as to whether that will add
to the cause of justice or detract from the cause of justice.
We believe, in weighing the equities of this case, that it will
detract from the cause of justice.
Mr. Davis. Any different perspective, Judge Gertner?
Judge Gertner. Yes. I think you make a great point. I think
the question is: Are witnesses more nervous in high-profile
cases because of the presence of the camera or because the
cases are a high-profile case?
And I am not sure that one can disentangle one from the
other, whether having a courtroom sort of filled to the rafters
and with a courtroom sketch artist makes a particle of
difference from having the inconspicuous camera behind you on
the bench. I do not think that it makes a difference.
The studies that people are pointing to are studies from
1994. Between 1994 and now, there has been an explosion of
information, as I said, through screens, and I am not sure that
the public makes a difference, makes a distinction.
Also, with respect to the cases that Mr. Richter cited, we
care very much about child witnesses. We care very much about
domestic abuse victims. That is what is going on in State
court, not in Federal court, and it is in State court which
accommodations have been made without problems. When you think
about what we do in Federal court, we have the ability to
control the proceedings even more.
Mr. Davis. Mr. Chairman, would you allow some witness to
comment on my demystification point, if anybody wants to pick
that up?
Mr. Delahunt. Without objection.
Hearing none, we----
Mr. Graham. I do, Mr. Davis. I say bravo to everything you
said there.
But it does seem that many of the objections that we have
heard here and that you hear on this issue would be cured by
the structure of this bill. The bill gives discretion to these
judges, and these judges are used to making very complicated
decisions and they can make proper decisions on complicated
issues.
So, if there is a problem perhaps that because of the
nature of the case, these questions would come up, the judge
just says, ``Well, we will not televise this trial.'' You
hinted that you do not think a lot of judges will take you up
on taking advantage of the discretion. Well, we will have to
see, but it does mean that when these problems perhaps arise,
the answer is the judge would just say, ``We will not televise
this case.''
Judge Tunheim. Mr. Davis, if I might. Mr. Chairman,
Congressman Davis, very good points that you raise. One thing
that we are quite concerned about is the inability to determine
in advance where you are going to have problems with witnesses
testifying with cameras. As you know from your career as a
prosecutor, things do not go always as planned during a trial.
Mr. Davis. I thought that was just me that happened to.
Judge Tunheim. I think that happens to all of us on a
regular basis.
And trying to discern ahead of time what type of case would
be appropriate for television coverage and what would not be is
a very difficult chore.
Mr. Delahunt. The gentleman from North Carolina, Mr. Coble?
Mr. Coble. Mr. Chairman, by your own admission, you are not
Chairman Conyers, but I will stipulate that you have presided
very adeptly.
Mr. Delahunt. Well, I appreciate that particular kudo.
Coming from you----
Mr. Coble. For what that is worth.
Mr. Delahunt [continuing]. That is of real consequence.
Mr. Coble. Good to have you----
Mr. Delahunt. And I welcome the new Ranking Member to my
left, Mr. Chabot.
Mr. Coble. Good to have you all with us, and I will
probably be brief.
Your Honor, Judge Gertner, do you have any concern about
courtroom security if proceedings in your courtroom were
regularly televised?
Judge Gertner. I would have some concerns, but I am not
sure, again, that with the Internet that this makes a
difference. In other words, my picture and my words are on the
Internet. Every time I issue a decision, they, you know, trot
out the last picture of me, which is actually not bad if they
keep on going back in time. So I am not concerned in that
regard.
I think that my point is that we are already there in a
world in which information is on the Internet. We have to
account for and accommodate for that even in a closed
courtroom. I do not think this will materially add to those
concerns. That is all that my point was.
Mr. Coble. Judge Tunheim and Mr. Richter, I was going to
ask you all if your opposition would be assuaged if parties
were allowed to move the court to prohibit television, but with
the judge's discretion finally ultimately prevailing, I take it
that your opposition would not be assuaged from your response.
Judge Tunheim. Mr. Chairman, Representative Coble, you are
correct. An interesting experience here is in my home state of
Minnesota in which the State court does permit cameras in the
courtroom, but any party can veto that so that any side can
decide that they do not want to have cameras in and judges do
not have the discretion then.
Mr. Coble. Then that would prevail.
Judge Tunheim. And then that would prevail, which has
resulted in cameras never being in the courtroom because,
typically, if one side feels that they want cameras, the other
side would probably be suspicious and not want it.
Mr. Coble. Ms. Cochran, do you see any avenue whereby the
Federal courts could use this procedure to generate revenue?
Ms. Cochran. Well, I think the tradition has been that the
actions of Government are free to coverage by the news media,
so I am afraid I do not see any opportunity for that.
Mr. Coble. Ms. Swain, have photographs, recordings or
televised proceedings from the courtroom been litigated and
what has been the result if you know?
Ms. Swain. I actually do not know.
Mr. Coble. Does any of the panelists know?
Mr. Richter?
Mr. Richter. Let me see if I can address your question as I
understand it. The issue, of course, of exposure through
publicity is periodically litigated around the country, and
this is one of the issues that, I guess, concerns us and should
be of concern from the defense bar's perspective, and that is
that in order to show that publicity during the course of a
trial has prejudiced a defendant's rights, a defendant carries
a very high burden on appeal of showing that prejudice and,
oftentimes, many of the things that go along that may have, in
fact, prejudiced the outcome against the defendant are not
easily measurable.
So, ultimately, very few of those cases are ever overturned
on appeal as a result of publicity, and that is part of the
concern that I think many in the defense bar have voiced in the
past about legislation of this type.
Mr. Coble. Mr. Graham, I think I have time for one more
question. What would be, in your mind or your opinion, the
greatest challenge for Court TV to cover Federal court
proceedings?
Mr. Graham. Well, we have covered Federal court
proceedings, back during the experimental period, 1991 and the
3 years following that. We covered about two dozen. And would
you believe, Congressman, we covered a Federal antitrust case,
and people's eyeballs were clouding up all across the country.
Antitrust----
Mr. Coble. That does tend to induce sleep.
Mr. Graham. Antitrust lawyers practice being dull, and let
me tell you that this was a dull process, and we did not have a
lot of people that stuck with us for the several weeks that
that trial lasted.
So, yes, we have covered Federal cases. The experiment did
not permit us to cover criminal cases. Under this bill, we
could, and I think that is where the most interest would be.
Mr. Coble. Thank you all for being with us.
Thank you, Mr. Chairman.
Mr. Delahunt. Before I go to Mr. Gallegly, I am going to
claim my own 5 minutes at this point.
And I noted in response to a question by Mr. Davis--I think
it was you, Mr. Richter, that responded--that it is the
position of the Department of Justice that cameras detract from
the cause of justice. Now it is my understanding that every
single State has some rule, some like Massachusetts which I
would describe as an expansive rule, one that I am familiar
with.
Why don't I ask the entire panel is it your position that
justice has been demeaned in the States since the advent of
cameras in the courts of general jurisdiction and appellate
courts in the various States?
Judge Gertner?
Judge Gertner. Well, you know, the last time I spoke in
favor of this bill, also on the panel was Judge Hiller Zobel,
who had just come off handling the case of Commonwealth v.
Louise Woodward, which was the Newton Nanny case in which he
had international press, national press, and he had cameras.
He talked about--this goes to Representative Davis' point
also--how good it was to present this case, to be able to show
the wheels of justice on television and to demystify the State
judiciary in that case.
Massachusetts has a very expansive rule, as you noted. We
do not hear of any problems.
Mr. Delahunt. Judge, is there a crisis in the State courts
now of detracting, to use Mr. Richter's word, from justice? Has
there been a clamor among the various State bars that you are
aware of?
Judge Gertner. I think at this point what has happened as
that as cameras have gotten more and more, as I said,
inconspicuous, as people got more comfortable with them, the
grandstanding problem, if it existed at all, did not exist, and
courts and judges learned how to deal with it.
Some of the problems that Mr. Richter raises also are
endemic to 24/7 cable news coverage. The problem with pretrial
publicity is not necessarily going to be enhanced with cameras.
In fact, one argument is that having the real deal in
television is better than having the caricature.
Mr. Delahunt. Well, I would note also that I think it was
Mr. Richter that noted that one of the solutions is press
conferences on the steps of the courthouse. You know, some
might describe that as the ultimate spin zone, and I would
suggest that, you know, getting this information unfiltered to
the American public gives them a much more realistic
understanding of the process that is embraced in having an
independent judiciary as opposed to simply lawyers standing
out, putting the facts as they often do in a very favorable
light to their client, whomever that client may be.
Judge Tunheim?
Judge Tunheim. You raise a very good question, Mr.
Chairman, and----
Mr. Delahunt. Is there a problem in the States now? Are you
concerned about those State courts going out there detracting
from justice?
Judge Tunheim. Generally no. I think that there have been
trials that have not reflected well on the State courts
systems. The O.J. Simpson trial comes to mind. And, secondly, I
think there is a concern about the 30-second sound bite from
inside the courtroom not reflecting well on the entire
proceedings.
Mr. Delahunt. The 30-second sound bite? I am unfamiliar
with it within a courtroom. I am very familiar with it on, you
know, the cable networks, particularly in the aftermath of the
trial as lawyers trot out with their clients and give press
conferences.
Judge Tunheim, in your written testimony, you make
reference to the current policy of the Administrative Office of
the U.S. Courts with regard to appellate courts permitting
broadcasts of their proceedings. Now the Circuits as a whole
already have the ability to permit the televising of
proceedings, to set policy, to decide how those proceedings are
televised, and yet you have a problem with individual appellate
judges making those same decisions. Are the judges better when
they are operating collectively as opposed to individually?
Judge Tunheim. Well, Mr. Chairman----
Mr. Delahunt. Do we have more confidence when they are
together as opposed to when they are making those individual--
--
Judge Tunheim. The Judicial Conference policy makes it an
issue for the entire court to determine. If the court, pursuant
to guidelines established by that court, wishes to open up
appellate court hearings to cameras, they can do that, and two
circuits, as you have noted, have done that, but it is pursuant
to guidelines established by the entire court, and that is the
rationale for that position.
Mr. Delahunt. Do you feel that you have the capacity and
the discretion to circumscribe appropriate rules----
Judge Tunheim. Well----
Mr. Delahunt [continuing]. You know, in the capacity of an
appellate judge?
Judge Tunheim. I may have the capacity, but perhaps not the
discretion.
Mr. Delahunt. Well, that is what this bill would do. It
would provide you the discretion, and I, for one, have full
confidence in the discretion that you would exercise.
And with that, let me turn to my friend and colleague, Mr.
Gallegly of California.
Mr. Gallegly. Thank you, Mr. Chairman.
I appreciate your testimony today, and I think you might
find it a little unique because I happen to be the first
nonlawyer in history to serve on the Judiciary Committee. So I
have a little different perspective, and unique to most
hearings, as a Member of Congress, I have more questions than
answers, okay. So I hope you can understand and respect that.
And listening to Ms. Swain, Ms. Cochran and Mr. Graham, I
understand and completely understand your advocacy, and I know
that Judge Gartner comes from a little different perspective
with her advocacy than you do, and I respect that.
Mr. Graham, I have watched Court TV as a consumer and as a
viewer for many years, enjoy it. I find it not only
entertaining, but extremely educational. I genuinely say that
as a consumer.
I do not have the benefit that my colleagues have in seeing
firsthand in the trenches what happens in the courtroom and
understanding the depth of whether this is competitive. It
appears to me, though, that our principal objective as Members
of this Committee is not to be an advocate for education in
this arena. We certainly have an opportunity to be an advocate
for education in other areas.
But our principal objective here, I would think, is making
sure that we do not do anything that compromises the
administration of justice, and I do not know that this would. I
do not know if anyone could give me an example--perhaps Judge
Gertner could--as to whether or not it could contribute to the
administration of justice.
I keep going back to as a consumer and as a viewer--I think
probably most Americans that are not lawyers and there are more
not lawyers--it hard to believe that when you live in this
town--than there are just the rank-and-file people across the
country--the O.J. trial. Perhaps this is not a classic example.
And, Ms. Cochran, you know, in your testimony, you said
that you believed that there would not be able infringement on
the process of justice.
Mr. Graham, you said that you are sure that this would not
have a harmful effect on the administration of justice.
First of all, Ms. Cochran, I am sure you followed the O.J.
trial. I do not know anyone that did not in some degree or
another. Do you feel that that was a good example of the effect
that cameras could have on the proceedings?
Ms. Cochran. I believe that the O.J. trial, whatever
happened and whatever one thinks about how that process was
carried out, that the most objective observer of what was
taking place was the very small camera in the courtroom, that
all of the other things that happened either happened because
of the way the judge acted or the way the lawyers acted or it
happened because of what happened outside of the courtroom on
the courthouse steps.
And so even though the O.J. trial is given as an example
and the camera is blamed, the camera in the courtroom actually
gave the public the most accurate picture of what was
transpiring, and the public could make up their own mind, and
members of the public made up their minds in vastly different
ways about how justice was served.
A few years later, there was a case in New York involving
an immigrant named Diallo, and the New York police officers
were on trial, and New York is not a State where cameras are
readily available. But the Supreme Court said that cameras
would be allowed in that court, and there are those who believe
that because cameras were present that the verdict, when it
came down, was more readily accepted because people could see
for themselves in a very controversial and inflammatory case
that justice had been done.
Mr. Gallegly. I know I am about to run out of time, but I
would hope that perhaps, Ms. Swain, you could join in--or Ms.
Cochran or Mr. Graham--and just give me a very honest
assessment as to whether, in your opinion, your objective
opinion--and perhaps Judge Gertner as well--do you believe that
the cameras in the courtroom had any effect on the way Judge
Ito presided over the case or either Johnny Cochran or Mr.
Shapiro? Do you think the cameras had any effect on the way the
case was presented and, more importantly, the way it was
presided over?
Mr. Graham. Well, I was there, Congressman, and I saw this
firsthand. It is impossible to know what was going on in the
minds of the participants that you discuss there, but I agree
with Ms. Cochran that what we saw basically was a judge who did
not control his courtroom. Some very feisty high-paid lawyers,
defense lawyers, some racial overtones of the case that the
judge should never have permitted to come out in this case. It
was not a race case----
Mr. Gallegly. Did he have a tougher job because of the
cameras or not?
Mr. Graham. I do not know. You know, I ran into Judge Ito
recently out there in California. I was at a judicial meeting,
and I said, ``How are things going with you?'' and he said,
``You know, I still allow cameras in my courtroom,'' and he
says, ``If you want to bring your cameras back out, you can
televise a trial in that courtroom.''
Very briefly, as you well know, after the O.J. case, the
judiciary in California did a thorough study on just these
topics we are talking about, and they concluded that cameras in
the courtrooms of California were a beneficial thing and that
it should stay.
And in that same regard, Mr. Delahunt, part of your
question, in the States that have cameras in courts, are they
perceived as being harmful, what we have seen in Court TV is
when we launched Court TV in 1991, about half the States
permitted cameras in the trial courts, and now that figure is
two-thirds. It has gone from a half to two-thirds in 16 years.
What has happened is that the word has gone out from the States
where they have cameras that it is a good thing, and others
have copied that.
Mr. Gallegly. Mr. Chairman, I know the red light is on, but
it is not often that we have Ms. Swain on the other end of the
microphone. [Laughter.]
So I wonder if the Committee would indulge me in asking her
to give us a response to the same question about the way the--
--
Mr. Delahunt. Without objection, the gentleman will have
another 30 seconds.
Mr. Gallegly [continuing]. Trial was presided over.
Ms. Swain. You know, Mr. Gallegly, like you, I am, I think,
the only nonlawyer on this panel. So I feel as though my
comments would only be as an observer, rather than as a
professional observer of this, as a citizen. So I think I will
defer on being able to answer anything that is of use to you.
I might say for the few members of the panel that have been
around Washington as long as I have, when the early debates
were happening over whether or not the Congress should be
televised and, 7 years later, that the Senate should be
televised, the arguments sound very similar to me today.
Technology of any sort, if you look through social scientists'
eyes, is always disruptive, but then the institution adapts,
and we believe the same thing would happen in this case.
Mr. Delahunt. Mr. Chabot?
Mr. Gallegly. Thank you, Mr. Chairman. Thank you for your
indulgence.
Mr. Chabot. Thank you very much, Mr. Chairman.
First of all, let me apologize to the panel. There are two
bills that are on the floor today. One of them has to do with
flood insurance, the other one has to do with the Small
Business Investment Act, and I am the Ranking Member of the
Small Business Committee, so I had to go back and deal with a
whole bunch of things relative to that.
So I heard the first four witnesses here personally. I
agreed with two of them. I disagreed with two of them, although
I think they all make wonderful points. But I did not hear
these three witnesses here. So this may be unfair, but could I
ask each one of you just in a sentence or two give me your most
persuasive argument or your most persuasive point for your
point of view, whatever that might be?
And I have a pretty good idea what that point is, or at
least not what the point is, but what the point of view is.
So, Ms. Swain, if we could start with you.
Ms. Swain. Certainly. Briefly, I think actually Judge
Gertner made the point well on our behalf, is that we are so
far down the road really with so many Federal courts allowing
audiotapes, where they do not allow cameras, and on same-day
release of the audiotapes, we are putting them on television in
their entirety with photographs and with graphics. So we are
this far along, and the republic has stood as we have done
this, and we think it will continue to if cameras are added.
Mr. Chabot. Okay. Thank you. It has even stood under
Democratic control with the House and Senate for the first time
in 12 years. So I do not know how long it will stand, but----
Ms. Cochran?
Ms. Cochran. Yes. Our position is that our members are the
people who are making cameras work in courts at the State level
and that the objections that we hear could just as easily apply
to what transpires in a State procedure as in a Federal
procedure, that we have made them work, we know of no instance
in which the outcome has been reversed because of the presence
of a camera, and we believe we can make it work at the Federal
level as well.
Mr. Chabot. Thank you very much.
And Mr. Graham?
Mr. Graham. What has happened here is that in the States
where cameras are permitted in the trials, this is a no-
brainer, this is a nonissue because everyone knows that the
system works, and it is not harmful.
As I mentioned in my earlier testimony, no one in no case
that we know of, certainly no case that has been before Court
TV, but in no other case in the last 16 years has a case been
overturned or has a trial judge held that anyone's rights were
violated because of the presence of the camera, and our feeling
is that if it is working, then it should be in the Federal
courts which are so much more important in general than the
State courts are.
Mr. Chabot. Thank you very much, Mr. Graham.
Judge Gertner, if I could go to you. Our colleague, Elton
Gallegly, was talking about the administration of justice in
his questions and made the point about detracting. Could you
give an example of it contributing to the administration of
justice?
You made a strong point about trials, in the Supreme
Court's own words, being a public event, and it seemed to me
that that might be a pretty good argument where they are
contributing to the administration of justice, cameras would
be. Would you want to comment on that?
Judge Gertner. First is the O.J. Simpson paradigm, which I
think would not happen again today and was idiosyncratic to the
judge and the lawyers in that case. But even in the O.J.
Simpson case, there was a huge number of people who
distinguished between ``I think he is probably guilty, but not
beyond a reasonable doubt.'' That was stunning to me as a
defense lawyer because that was a distinction, in fact, that
you have spent your life trying to identify, and it was
terribly important that people identified that.
The case in which it contributed to the administration of
justice, I think, was the Woodward case, the Newton Nanny case,
which had gavel-to-gavel coverage. The judge would actually
talk to the foreign press at the end of every day explaining
what the proceedings were. He understood he had a public event,
and when the verdict came down, the public understood how that
had happened.
I have seen so many times that I would be presiding over a
trial as a judge and the press would be there for one case, one
party's side and not the other, and then the verdict would come
down reflecting the defendant's side or the side that they had
simply not been a participant of, and there would be this
extraordinary outcry about how did it happen. Well, if you had
seen the proceedings, you would have understood how it
happened, and it seems to me that that is where we want to put
the public.
Mr. Chabot. Mr. Chairman, I am almost out of time. Just let
me make a couple of real quick points in the time I have. Can I
ask unanimous consent for 1 minute to finish?
Mr. Delahunt. Thirty seconds. I am sensing a revolt among--
--
Mr. Chabot. Okay.
Mr. Delahunt [continuing]. The other Members.
Mr. Chabot. Real quick. Thank you. Just a couple of quick
points.
First of all, I think the point has been made very, very
strongly that, you know, the Federal courts would basically
just be keeping up with what has happened already in the
experience of the States, and if we had seen it been a disaster
at the States, I would not have proposed this, Mr. Delahunt
would not be for it. But, clearly, we have 50 States out there
that are doing some form of cameras in the courtroom, and as
was mentioned, the republic still stands.
Judge, with all due respect, I would just make the point
that if we were telling you you had to do it, you know, we are
separate branches of Government, co-equals, et cetera, ``You
have to do it. You have to do it,'' I could understand the
objection, you know, even though I really do think they ought
to be open. But we are giving judges the discretion to do it. A
judge, if he does not want to do it in his courtroom, does not
have to, she does not have to, and so that is why I am just
surprised at the level of anxiety on the part of the judges,
but I know it is there.
And then finally just on the point of the witnesses being
afraid of cameras and things, I might have even thought that
maybe 20 years ago. But there are many houses in America now
where the video cameras are so common. You know, people are
always getting videotaped. They are on camera all the time. It
has become almost second nature, and I just do not think it is
as scary or hostile an experience as it once was. So those are
the points I wanted to make.
Mr. Delahunt. Let me go to a Member who is not afraid of a
camera, and that is the former Attorney General of the State of
California, my good friend----
Mr. Lungren. If we threw out the cameras, we would not be
asking for extra time. [Laughter.]
Since everybody is talking about the O.J. Simpson case, do
you remember what they said there? ``If it does not fit, you
must acquit.''
I have not heard a single argument from those who oppose
this that is relevant to not allowing cameras in appellate
courts or the United States Supreme Court. Everything you have
said is the impact on witnesses, impact on parties, and that,
for the life of me, underscores the silliness of the argument
that somehow the American people do not have a right to see
Government in action at the highest level.
And while I disagree with Mr. Graham that somehow the
Federal courts are the most important court, which you just
said--I disagree with that very strongly--the fact of the
matter is the Supreme Court does have a greater affect because
of its ability to finally determine interpretations of the
Constitution. But I can see nothing that has been said here
that in any way would suggest that somehow the presence of a
camera in the courtroom would unduly influence those who are on
the Supreme Court or those who are on the appellate courts.
But now getting to the question of the trial courts, man,
the only image I have in my mind when I hear the testimony of
those who oppose this is we are talking about the Federal
Wizard of Oz. We sort of know what is being said, but we cannot
dare see the wizard because somehow that is going to unduly
influence us, and I almost wonder if you want us to say that
jurors should have to close their eyes when they are sitting in
the jury box because as long as they hear it, it is okay, but
if they see it, they are unduly influenced.
One member of the Supreme Court many years ago talked about
the States of the union being the crucibles of experimentation,
and so, Judge Tunheim, we have had the crucibles of
experimentation now for how many years with the courts being
televised in the most gut-wrenching cases because that is the
ones the States have. Most of the violent crime cases are at
the State level, not the Federal level. Most of those cases
dealing with children's rights and domestic relationships are
State, not Federal.
I would just ask you very directly something that was only
hinted at a moment ago. Are you telling us that we have had a
substantial diminution of the rights of defendants and parties
in our courts at the State level since cameras have been
allowed?
Judge Tunheim. Mr. Chairman, Congressman Lungren, of course
not. I am not saying that. I think what I am saying is it is
very difficult to quantify and very hard to say what the impact
of cameras has been in courts. Defendants have raised these
issues on appeal. As it has been properly stated, it is rare
that a case has been overturned. But how do you measure and how
do you demonstrate that your rights have been impacted by the
presence of cameras in a particular----
Mr. Lungren. But I was asking for your opinion----
Judge Tunheim. It is very difficult.
Mr. Lungren [continuing]. As to whether you think there has
been a diminution of the protection of rights of individuals in
the courtrooms that have been exposed to cameras because your
premise is that that is necessarily what will follow if this
bill becomes law.
Judge Tunheim. Well, I think what I am saying, Congressman
Lungren, is that there is a significant risk of it, and I do
not know how we can quantify what has happened in the State
courts over the past 20 years when cameras have been there. It
is very difficult to determine how many rights have been
impacted by the cameras. It is a concern.
Mr. Lungren. Well, I will just give you an analogy of your
argument. When I was Attorney General of California, I helped
author Megan's Law. The same arguments I am hearing from you
are what I heard then, because under the law for a long period
of time, people who registered as sex offenders was public
information, except that the public could not get to it. They
were shielded from it. It was difficult to even try and find
it.
And when I first came forward with the idea, it was I was
going to deprive these folks, even though they had been
convicted, of their other constitutional rights and we could
not allow the public to handle this information, which is the
same argument I hear here.
And you say to us, look, these are public trials because
people are allowed to be in here. And maybe I am just a little
irritated about this, but as I grew up as a kid, I knew I did
not have a chance to come to Washington, D.C., and I could not
get in the galleries. One of the great things about C-SPAN is
it opened it up to the entire United States.
What is the craziness that says, yes, the Supreme Court is
public so long as you can be one of the few people that can get
into the few seats that are there, and so long as you can stand
in line and so long as you can get here? I mean, what does
public mean to you that says that only those selected people
that are able to get there can do it, number one.
And, number two, we talk about demeanor of witnesses. I
like to eyeball witnesses. I like to see what they say. What is
the matter with the public eyeballing the witnesses through the
TV cameras?
Judge Tunheim. Mr. Chairman, Congressman Lungren, I think
what we are trying to say is that it is the potential impact on
the testimony of the witness of having a camera staring them in
the face.
Mr. Lungren. So you have the discretion of the judge to
make that determination----
Judge Tunheim. You do----
Mr. Lungren [continuing]. Under this bill.
Judge Tunheim. But your discretion is at the beginning of
the trial whether or not to have the proceedings open or not,
and, as I indicated earlier, things change during the course of
the trial.
I have to also remind the Members that transcripts are
fully available. The courtroom doors are open. The briefs,
every filing in court is available through the Internet. We
have made these proceedings open.
The concern is about how the cameras affect the testimony
of the witnesses, their demeanor as reviewed by the jury, and
the impact on the truth-finding function of the trial court.
Mr. Lungren. I appreciate that. The only point I would make
is we have tested that in all the other States in the union.
The crucibles of democracy's experimentation has taken place.
With all due respect to Mr. Graham, perhaps the Federal courts
could learn from the State courts even though some may think
the Federal courts are most important.
Mr. Delahunt. I would associate myself with the final
conclusion and remarks of the gentleman from California.
I understand, Judge Tunheim, that you have to leave at 3.
Is that correct?
Judge Tunheim. Mr. Chairman, I should leave. I need to get
to a family funeral tomorrow morning----
Mr. Delahunt. Sure. Then this would be an appropriate----
Judge Tunheim [continuing]. In Congressman Lungren's home
State.
Mr. Delahunt. So this would be an appropriate time for you
before I call on the gentleman from Florida.
Mr. Keller?
Judge Tunheim. Thank you very much, Mr. Chair.
Mr. Keller. Thank you, Mr. Chairman.
And as I listen to the witnesses, I am very impressed with
all of you on both sides. To me, this turns on two central
issues. First, we have to weigh the first amendment right of
the public to view public trials versus the concerns of the
Judicial Conference that a witness on TV might pontificate his
personal views or promote his commercial interests.
Are we really worried about a witness saying, ``I will tell
you whether the traffic light was red or green, but, first, let
me just say that we should stop global warming and shop at
Joe's Hardware Store?'' I think if that is the true analysis,
you have to come down on the side of the first amendment here.
Now the second issue then becomes: Are Federal judges wise
enough to exercise their discretion about saying yes or no to
having cameras in the courtroom? I have to think they are smart
enough.
Let me give you an example. Let us take a Federal judge
sitting in the Southern District of New York. Osama bin Laden
has already been criminally indicted by a Federal grand jury in
New York for terrorism-related activity.
If he is captured somewhere in the hills of Pakistan and
brought to New York City, in light of the high-profile nature
of his crime and its impact on thousands of people, don't you
think that it would be best to have a public trial where all of
us can see it on TV, especially in light of all the kooky
conspiracy theories relating to 9/11, and we can see ourselves
what the evidence is with his various activities?
On the other hand, if I am that same Federal judge sitting
in the Southern District of New York, and I am presiding over
the prosecution of a mid-level Mafia thug who has been charged
with extortion, and I see that the witnesses include many
undercover FBI agents, as well as lots of paid informants and
fearful shopkeepers who are going to be witnesses for the
prosecution, I can tell you I would probably exercise my
discretion to say ``no cameras'' in that circumstance. So I
have to believe that the judges are smart enough to make that
call.
Mr. Graham, let me start with you. As a fellow Vanderbilt
Law School graduate, you have great credibility with me here.
Let me have you address some of the concerns. You have been
covering State courts and Federal courts for a long time raised
by the Judicial Conference. In all your years, have you seen a
big problem in these televised State court trials about
witnesses getting up there and promoting their own commercial
interests?
Mr. Graham. No, I have never seen that happen. You know,
when he mentioned that, I thought, well, we really are
wandering far afield here on our objection because I do not
think that would ever really happen in the real world.
Mr. Keller. Have you ever seen a big problem at these
televised State court proceedings about witnesses getting up
there and pontificating their personal views about various
political issues or other things?
Mr. Graham. Well, I have seen them try, but I have seen
them put down very quickly by the presiding judge.
Mr. Keller. And, next, let me talk to you about the issue
of witnesses being nervous. Obviously, many State court trials
are right there on national TV. O.J. is a good example. Is
there any evidence that somehow a witness would be more extra
nervous in a Federal court televised trial than in a State
court nationally televised trial?
Mr. Graham. I cannot see what the difference would be.
Mr. Keller. Now isn't it true that right now 43 States
already allow television for civil court proceedings in State
court?
Mr. Graham. State. Some of them criminal as well.
Mr. Keller. And I believe 39 States allow TV coverage in
criminal cases, 43 in civil cases. Is that about right?
Mr. Graham. I have seen those figures, yes. I believe they
are accurate.
Mr. Keller. Okay. Now one of the things Mr. Tunheim said
before he left was that, ``Well, in a Federal court, we are
dealing with people's livelihoods and money, and liberty is at
stake.'' In a State court action in a criminal prosecution,
isn't someone's liberty at stake?
Mr. Graham. Certainly.
Mr. Keller. And in a State court suit when you have a civil
action, isn't money often at stake?
Mr. Graham. Yes, it is.
Mr. Keller. Okay. Let me get my remaining person against
the--our prosecutor here. Sorry about that.
Mr. Richter, let me get your side of this. Do you believe
that Federal judges are wise enough to exercise their
discretion about whether to say yes or no in terms of having
cameras in the courtroom?
Mr. Richter. Thank you, Congressman.
I would direct you to a decision in which this issue was
taken up before the 11th Circuit Court of Appeals a number of
years back and the 11th Circuit Court of Appeals itself
addressed really that question, and what it said is that it
came down on the side of a per se rule, one blanket rule, for
the following reason, as opposed to a case-by-case approach as
presumably would occur with this legislation, and that is
because of the difficulty that a judge has--and this is the
court noting this--will have on detecting all the potential
adverse impacts that flow from a camera. And let me just
identify a few of those that it is likely a judge would be
unable to really identify.
Mr. Keller. Let me just have you be brief, and I will tell
you why. I would be happy to hear it, but we are going to have
votes here in a second, and I want to get to our other judge
and ask her some questions. So, if you could wrap that up kind
of in a summary form.
Mr. Richter. Well, secondly, I think what we are dealing
with here is a balancing between the benefits and the potential
harms that are out there. I think all the panelists agree that
there are potential harms out there. Where we disagree, I
think, is how heavily we weigh the potential benefits here.
Now what the 11th Circuit said in that is because the
public and media already have full access at some point to a
degree, the down sides did not outweigh the up sides of doing
that, and I think that is where the department comes down on
that.
Mr. Keller. Thank you.
Mr. Chairman, I will yield back my time.
Mr. Delahunt. Thank you.
And let me now go to a former jurist, an eminent Member of
the Committee, Mr. Gohmert from Texas.
Mr. Gohmert. Thank you, Mr. Chairman.
And thank you, members of the panel. I really appreciate
your being here.
Fred, you do not remember me, but in the early days of
Court TV, you had commentary on a case of mine.
But let me comment very briefly, and I would ask if in my
questions I not be restricted by a 5-minute rule, but by the
rule of the number of words that the gentleman from
Massachusetts used. I think we will come closer to being equal.
I cannot talk that fast.
Mr. Delahunt. So ordered. [Laughter.]
Mr. Gohmert. And I realize Judge Tunheim had to leave, but
let me address a couple of things, and I am talking from
personal experience here.
He said that it could change the activity or conduct in the
courtroom. I can tell you this. It could make them better
because you do not have lawyers and even judges that want to
come face that television camera unprepared, and if there is
anything that frustrates judges, it is having lawyers coming in
the courtroom unprepared.
They know they are going to be on TV, they would come in
ready, and then it is up to the judge to control the conduct in
the courtroom.
One other case, our chairman of the Judicial Conference had
referenced the Estes case and a quote from Judge Clark. He was
referencing Billy Sol Estes, tried in the early 1960's in the
7th District Courtroom in Tyler, Texas. That is the courtroom
where I presided 30 years after the trial.
As it happens, just this week, the local prosecutor passed
away, a fine man, Democrat, good friend of mine, Weldon
Holcomb. Weldon told me that during the course of that trial,
the judge had no rules as to the conduct of the media. They
were everywhere. He said at times, there were cameramen that
would walk up behind the judge, photographing, taking pictures
around, that they just had free reign.
I can tell you I allowed a camera in the courtroom, and I
never had a problem because it was very clear that in order to
bring a camera in the courtroom or to get footage from that
camera, as a member of the media, you had to sign a motion
seeking permission to have a camera in the courtroom or to get
footage in the courtroom.
Now the case I tried on Court TV that you all came in at
the last minute and wanted to cover, actually, I asked, ``Why
are you interested in this case? It is going to be a long case.
It has been tried once. We know it is going to be a long
case.'' And I was told by the Court TV personnel, ``Well,
initially, we were not interested in televising it, but O.J.'s
case just got moved to the spring, so you will be a great
filler.''
But anyway, with the order allowing camera in the courtroom
or footage, it allowed me to reach my control outside the
courtroom. I was able to control the sanctity of the
proceedings like a judge cannot do if they do not have that
leverage because, let's face it, whether you are in Congress or
you are in the courtroom, it is all about leverage.
And so we had the most interesting case, from what they
tell me, in Smith County history. The county was evenly
divided. We had three TV stations that wanted to cover it. They
all had to sign the motion. Court TV had to sign the motion. It
allowed me to control who was interviewed that was involved in
the case.
It allowed me to prevent, not just in the courtroom, but
outside the courtroom until that case was over, any photography
of any juror or any witness that I did not allow because if
anyone violated that motion that they signed and my order that
followed, they were subject to contempt, and they were subject
to sanctions. I controlled the media coverage for my trial.
Now Judge Ito seemed like a great guy, seemed like a really
smart kind of guy I would love to hang around with, but he did
not control the courtroom, and when I saw him putting
hourglasses that he was getting through the mail or from people
up on his bench, I knew he was concerned and the cameras were a
distraction to him. That was none of his business.
And as I recall, he said, ``Now the jurors and all the
parties have heard this tape of Mark Fuhrman, but since the
public has a right to know, we are going to sit here and we are
going to listen to it on camera,'' then I knew he had lost his
way. That was none of his business. His business was conducting
the trial and making sure they had a fair verdict. He could
have handed that out. So we know we had a judge lose his way a
little bit in that.
But the judge can ensure that the truth comes out, and when
it comes to the allegation that a witness may be more nervous,
maybe they are, maybe they are not. I can tell you I think
nervousness is a good thing in a witness. It makes potential
inaccuracies come to the light and easier to observe. Perhaps
you have seen that.
Also, the judge has said it may make it more difficult for
getting witnesses to testify, and I have experienced that. I am
sure we all have. There is a thing called a subpoena and
officers with handcuffs, and just like I found if people cannot
shut their mouth in the courtroom, duct tape is very helpful, I
also found that if people are not willing to come to court and
they are reluctant to testify, officers with handcuffs and guns
are very helpful. So I do not see that as being all that
helpful as an assertion.
The Federal judges may say that they are not paid
adequately to deal with the media, and I would submit they are
not paid adequately to do the job they are doing. When you can
have first year law students or people come out of the first
year of law school making more than judges, then it is time
that we gave them a raise, and I was hopeful we were going to
get that filed this week, as I understand, maybe next week to
give them a raise, and then they will feel better about dealing
with this.
But I would submit to the Chairman and to other Members
seeking input after the hearing from our witnesses, I would
like to tweak this bill a little bit to make sure that judges
have that power to require a motion and that they have the
power to fashion sanctions. But that is the one thing I have
never heard anybody on Court TV or anyone else say. It gives
the judge so much more control.
When my predecessor tried that case that ended up on Court
TV for 10 weeks, he did not allow a camera in the courtroom.
They chased witnesses. They chased jurors. He had no control
outside his courtroom. When I did it, I had total control.
And I would also add, it has advantages, too. We had a
witness in a hearing outside the presence of the jury that was
supposed to turn over all of his materials that he had used in
formulating his opinion, his expert opinion, and the judge from
Minnesota, as I recall, after we broke for lunch, gave the
defense time to review what had been provided. After lunch, we
came back and the prosecutor and the defense attorney said,
``Judge, we need to see you in chambers.''
The defense attorney's office had gotten a call, as I
recall, from somebody from Minnesota who said they believed as
the witness was turning over this big stack of documents and a
computer disc that he may have palmed a computer disc and put
it in his pocket, and they got that information to his office
in Tyler. They passed it on to him.
They approached me. We got with the Court TV editing room,
watched an instant replay of the witness, and saw that--nobody
had seen it--he palmed a disc, took it and stuck it in his
pocket, and it changed a little bit of the outcome of how that
played.
But there are all kinds of advantages, but the judge must
control what they do.
Mr. Delahunt. Thank you, Detective Gohmert.
Mr. Gohmert. Well---- [Laughter.]
Mr. Delahunt. Appreciate that.
Mr. Gohmert. Well, I would ask the Chairman would you be
open to some little tweaking to allow----
Mr. Delahunt. I mean, I think, you know, Mr. Chabot has
indicated that accommodations have been made in the past, and
as long as the core purpose of the proposal remains intact, I
think we would welcome that discussion among Members of the
Committee.
Mr. Gohmert. Thank you.
And thank you, witnesses.
I know I did not ask any questions, but I had a lot to
testify about. So I appreciate it.
Mr. Delahunt. Well, we are glad you were able to get it off
your chest. [Laughter.]
You know, we are at the end of this round, and I would ask
if any of the Members wish to make further inquiry. I would be
pleased to grant them as much time as they may consume and as
much time as the panel is willing to indulge us.
Mr. Lungren. Mr. Chairman?
Mr. Delahunt. Mr. Lungren?
Mr. Lungren. If I could just ask Mr. Richter a couple of
questions.
In your testimony, you outlined some serious concerns, and
so I would just like to ask you if the way the bill is written,
which allows the discretion of the judge, would not take care
of that. You are saying, ``We are concerned with the spillover
effects from cases where co-conspirators are tried
separately.'' Wouldn't that be a case in which the prosecutor
would ask that perhaps that not be televised for that very
purpose?
Mr. Richter. It certainly could be, yes.
Mr. Lungren. I mean, wouldn't you think the judges would be
sensitive to that as they are to other requests to be made when
you have those kinds of considerations?
Mr. Richter. Sure. That is clearly something that if the
issue was flagged and put before the judge, that we would hope
a judge would come down and take that in consideration. The
problem we see, Congressman, is that there are many other harms
in addition to that that are not necessarily so easily
quantified.
Mr. Lungren. Well, let me ask you about a couple others.
You say that, ``The bill fails to ensure that the attorney-
client conversations and confidences are protected.'' Talking
about what former Judge Gohmert said, wouldn't that be
something that could be controlled by the judge?
Mr. Richter. It could be.
Mr. Lungren. And let me ask those that have actually done
this in State cases, have you run into a problem where there
has been a complaint that attorney-client conversations and
confidences have been picked up and broadcast?
Mr. Graham. At Court TV, we take steps on the front end to
prevent that so that it does not happen. In the wiring of the
courtroom and the placement of the microphones, we have in mind
the fact that we do not want to pick up any privileged
conversation, and, to my knowledge, it has not happened.
Mr. Lungren. What about conversations between the judge and
the lawyers, sidebar?
Mr. Graham. Well, the same thing occurs, and judges are
very, very vigilant about sidebar conversations, as I am sure
you know, and, generally speaking, the judges see to it--they
really do not have to with Court TV because we see to it--in
case the broadcaster does not have experience in it, that they
just do not pick up sidebar conversations.
Mr. Lungren. Mr. Richter----
Mr. Graham. Some----
Mr. Delahunt. If the gentleman would yield for a moment?
Mr. Lungren. Yes.
Mr. Delahunt. You know, let me opine, put forth a premise.
I think what we are discussing here is whether we have
confidence in both the judgment and the integrity of the
individual participants in the judicial process. Mr. Richter
indicated that it was an 11th Circuit case where--and maybe I
am mischaracterizing his words--it was almost as if the court--
and I did not get the name of the decision--wanted to alleviate
the burden of discretion from individual judges.
I mean, you know, if that is the premise of our
jurisprudence, why don't we just, you know, mandate everything,
you know, from sentencing on? Let's really start to restrict
judicial discretion. Do we have confidence in our prosecutors
that they are going to protect in some aspects the rights of
the defendant as well as the administration of justice in a
larger sense? I mean----
Mr. Richter. If I might respond, the case called United
States v. Hastings--I do not believe the court was opining with
regarding to a lack of confidence in judges to identify the
kinds of points that Congressman Lungren credibly is
identifying, and, obviously, we would hope, of course, that the
parties to a case would do their utmost to identify pitfalls
and risks and problems.
What the court in Hastings identified, however, and what I
think is of deep concern from the Department's perspective is
that there are things that cannot be identified and cannot be
accounted for. So, for example----
Mr. Delahunt. But let me interrupt you. I mean, can't a
judge and a prosecutor and counsel for the defendant--aren't
they situated to determine potential problems and issues? They
are more familiar with the case than the collective position of
the Department of Justice or even, with all due respect, to the
perspective of one particular circuit court of appeal?
I mean, I hear--I do not know whether it was from you, Mr.
Richter, or maybe it was from Judge Tunheim--about impacting
negotiations as it relates to settlements or even being used as
a tool in terms of negotiating plea agreement. I mean, give me
a break.
You know, I would challenge the department and anyone to
come forward and present, you know, some empirical data that
would establish that that the threat of a camera in the
courtroom has been used as a tool in terms of affecting a plea
bargain. That argument just is silly.
You know, we can create all sorts of scenarios that have no
basis in reality. We all live in the world. We are all familiar
with the experience. I think it was maybe Judge Gertner that
said, I mean, we have--well, in Massachusetts--26 years of
experience. This is not something new. It would be my position
that the Federal Government or the Federal system is way
behind, way behind the States.
I yield to you, Mr. Lungren.
Mr. Lungren. I would like to raise this because Mr. Richter
raises this in his prepared testimony, and I would like Mr.
Richter to respond and also Judge Gertner, and that is the
assertion that ``The bill does not protect against the
televising of evidence that should not be disseminated except
to the limited degree necessary to ensure due process and fair
trial, for example, sensitive information relating to terrorism
prosecutions and that the bill does not account for the
increased harm caused by wider than necessary dissemination of
sensitive law-enforcement techniques when disclosed in open
court.''
I am concerned about those two things. I presume judges
would take care of those as they take care of unnecessary
dissemination in the open courtroom of those things. But, Mr.
Richter, if you could, you know, sort of flesh that out, I
would appreciate that.
Mr. Richter. Sure.
Mr. Lungren. That is a concern of mine, and particularly in
terrorism, that would be a generally unique circumstance for
Federal court versus State court.
Mr. Richter. Well certainly. Obviously, when we go through
a decision in which we are going to make use of information
that is classified and make a use decision that the attorney
general signs off on to authorize, with, obviously, the consent
of the classifying agency, the ultimate declassification of
information so that we could use it during the course of a
criminal proceeding, we necessarily have to calculate some of
the risks, obviously, to national security in weighing that
against the benefits of going forward with a criminal
prosecution.
The concern we have, of course, is that to the extent that
you are televising a proceeding--and more than just the one-
time broadcast--the fact that broadcasts now in the modern
world do not just include major networks or Court TV or C-SPAN,
but also include, of course, bloggers and all kinds of Web
sites and all kinds of unique other delivery mechanisms.
Mr. Lungren. Al Jazeera perhaps.
Mr. Richter. And Al Jazeera, for example, yes.
And so when information is conveyed in a courtroom, at some
level, there is still a degree in a continuum of privacy for
any information that is conveyed because you are only telling
the people that are in that courtroom. Now some of those people
may go out and tell a lot of other people, and the information
may be disseminated. But there is a difference to some degree.
There is, I think we all have to concede, a difference--
otherwise, we would not have this bill--between the amount of
dissemination that follows from a regular proceeding that is
not televised or in which cameras are not present, and the
amount of dissemination possible when cameras are there.
So I think from a national security perspective, obviously,
in those kinds of cases, if such a bill like this existed, we
would be, one, factoring in the possible risks. Again, it will
depend on the judge that we draw under a bill like this, and
that, obviously, is not something we know until the charges are
filed and we go forward.
And so while we would, of course, hope under those
circumstances that a judge would come down on the side that
you, Congressman, wisely have indicated you would. There is
certainly no guarantee, as this bill is currently drafted.
Mr. Lungren. Judge Gertner?
Judge Gertner. Well, we already have some experience with
this, even in the Federal courts. The Federal court now, all
our records, all the filings are electronic, and we have had to
come up with degrees of access because there are some things
that--Social Security numbers, all sorts of things--should be
sealed, things that are ex partes, things that may be sealed
and the lawyers only have access to, things that are more
broadly sealed, and literally we have come up with electronic
devices that would affect who has access to what. So, again, it
was a technical issue, and we worked on that.
In the open court--I have an electronic courtroom--
likewise, I had to learn to deal with how contemporaneously
information was now put on the screens. So we put in a kill
switch so that if the information as not properly admitted, I
could just press the button. It would then be only for me or
only for me and counsel. I do not remember who it was that said
that this is going to happen, and we have to come up with
techniques and rules to identify how to control it.
Terrorism is a unique situation, and it may be that those
trials ought to not be televised. Again, even with respect to
ordinary public trials--I am in the middle of a patent case
now--portions of the case deal with trade secrets. We empty the
courtroom, and we move on. It seems to me the parties in the
case are able to identify what the concerns are, and there is
not a court in the country that would not be deferential to
those concerns, particularly given how hostile judges are to
cameras.
What is going to happen the day after this bill is passed
is not that, you know, suddenly the Federal courts are going to
be wide open. This is going to proceed in baby steps, as it
should.
Mr. Delahunt. Mr. Keller?
Mr. Keller. Thank you, Mr. Chairman.
Let me begin by going to Judge Gertner. Why is it that you
think there is a split among the Federal judges the way that
there is? Is it possibly a deference by some of them just to
the Judicial Conference and to other folks, or do most judges
in the Federal genuinely oppose the cameras in the courtroom?
Judge Gertner. That is a very hard question for me to
answer. I think that one is in deference to the Judicial
Conference. [Laughter.]
Mr. Keller. Okay.
Mr. Delahunt. Hit that kill switch, please.
Judge Gertner. Right. I love that kill switch.
I think that part of it is the O.J. Simpson case completely
soured the Federal bench on this issue. I think that it is also
safer to say no than it is to engage with the technology.
Mr. Keller. It would appear to me that maybe they do not
want to have the discretion because that would put them in a
tough view on those situations when they say no.
Judge Gertner. No comment on that.
Mr. Keller. All right.
Let me go to the next question here. Mr. Richter, based on
the policy arguments that you have made here today, is it your
view that the 43 States that currently allow TV coverage in
civil trials and 39 States which allow TV coverage in criminal
trials are wrong to do that?
Mr. Richter. Well, as we all know, we live in a Federal
republic, and it is the decision of each individual State to
make its own decisions about how each individual system of
justice operates in those States. Certainly, in formulating our
position, we----
Mr. Keller. But do you see what I am getting at? The same
policy reasons that you have made could be made by the State
judges as well, correct?
Mr. Richter. Yes. We have looked, of course, and examined
those experiences to the degree that you can ascertain
anything. The concerns that we have--and, again, I have been
cut off a couple of times on this--there are things that cannot
be quantified, that simply cannot be identified by a judge,
that are not going to be quantifiable in a case such that it
would ever lead to reversal. You know, when----
Mr. Keller. What is a unique concern that is different in
the Federal courts than State courts?
Mr. Richter. Well, I do not know that it is necessarily
unique. I think some of these concerns----
Mr. Keller. All right. Let me stop you there.
Mr. Richter [continuing]. There are always significant
security----
Mr. Keller. I understand. My focus----
Mr. Richter. There are significant security----
Mr. Keller. I understand, and I----
Mr. Richter [continuing]. Concerns that extend at the
Federal level that are far greater in many circumstances than
you find at the State level.
Mr. Keller. All right. Let me stop you there because I do
not want to go too far, but it is a Federal crime to misuse the
4-H emblem. Murder is typically a State crime. So I think it is
a pretty broad generalization to say, ``What we do here in
Federal court is so important and unique, we cannot have
cameras. But what they do in State court is not that big of a
deal, so it is okay to have cameras.'' Would you agree with me
at least that that is a little too broad?
Mr. Richter. I was a State prosecutor. I prosecuted lots of
cases as an Assistant District Attorney. I know that the work
that State and local prosecutors and State and local law
enforcement does is God's work and some of the most important
work that we do in this country.
What I am trying to articulate is what we believe is best
for our Federal system of justice and the cause of justice at
the Federal level.
Mr. Keller. Let me just comment, too. One of my bright
colleagues, Judge Gohmert, has said that essentially maybe if
we give these judges a raise, they will swallow the TV cameras.
[Laughter.]
I am summarizing there here, and I am empathetic. But let
me just point out to my esteemed jurist who knows a lot more
about these issues than I do that the Supreme Court justices
made $202,000 a year. Judge Judy makes $27 million a year. So
we are never going to be able to come up with that kind of
money to make them happy. But I sympathize that they are
underpaid for the great value that they bring to society.
I would also point out that they write decisions like Brown
v. Board of Education. She wrote a book called ``Don't Pee on
My Leg and Tell Me It's Raining.'' I will let you know which
one has a bigger W-2 form, but sometimes life is not fair.
Let me just go to now Ms. Swain. One of the things I am
having a hard time with on the folks who want to shut down the
cameras in the Federal courtroom is they are saying, ``Well, it
is okay,'' as Judge Roberts said, ``that somehow we have
audiotapes in the Federal courtroom. It is okay to have the
sketch artists. It is okay to have the journalists. It is okay
to have members of the public present. But it is somehow not
okay to have the cameras there.'' Can you articulate why you
think you should have the cameras there if all the other stuff
is being allowed?
Ms. Swain. Well, I think you have just made my case for me,
that the discrimination between the types of media that are
currently allowed to cover the proceedings does not make any
sense to us. In fact, it seems to be a level of discrimination
between print press and electronic press by allowing the print
press into the room, but not allowing the electronic journalist
to take his or her tools into the same courtroom. So we do not
understand the inconsistency.
Obviously, the galleries, whether press or public, in the
Supreme Court or any of the Federal courts, there for a very
important reason, can only accommodate so much, and the whole
system was envisioned at a time when travel was not as distant
as it is today. The cameras just seem like a logical extension
to us.
Mr. Keller. Okay.
Mr. Chairman, my time has expired.
Mr. Delahunt. Judge Gohmert?
Mr. Gohmert. I thank my friend from Massachusetts.
And, you know, that was a very loose paraphrase of what I
said. The camera issue aside, Federal judges should have a
raise. I do not have any qualms about that, and I would not
want--I did not know she was making $27 million.
But I would like to comment on a few things that were
brought up. For one thing, my friend from California, my good
friend from California, brought up about sidebars and concerns
about things like that being picked up. My experience was when
the media knows that they will be kicked out of the courtroom
and will no longer be allowed to have any footage, any audio,
they are very careful, especially my experience with Court TV
was they went out of their way to be careful.
Especially after you have been covering a case for 3 or 4
weeks, if you do something and violate the rule or the law of
the order and you get yanked from the case, your viewers get
real upset with you, and they quit paying attention and may
watch something else because they do not want that interrupted.
By the same token, in Tyler, having three networks that
were constantly wanting footage from trials because they knew
in our small market to compete they had to get the things
people were interested in, they were very careful not to
violate the protective order because they did not want the
other two stations to be able to show stuff on the news that
they could not broadcast, and with that looming continuous
threat, it was my experience everyone was very careful. We
never had a problem in 10 weeks on that.
Now I will say on the issue of discriminating against the
types of media, I discriminated against the types of media
based on one issue, are you a distraction to the jury, because
when we were in session, anything that distracted the jury was
not going to be allowed in the courtroom. That was made very
clear to the media. Court TV was incredibly good. I kept
watching the jury because if I ever saw them distracted one
time, the camera was gone. And they were never distracted. It
was not a problem.
I got the ire of the print media because their cameras made
noise when they clicked, and, as I told them, ``You come in
here with a camera that does not click, you are welcome. Take
all the pictures you want.'' And he said, ``Well, our editor
and publisher will not buy cameras that do not click.'' I said,
``That is your problem. You are not clicking and making noise
in the courtroom because that is a distraction.'' So sometimes
it is necessary to discriminate between various types of media
if they are a distraction.
On another point, something I meant to bring up earlier, I
have heard so many people say when you bring a camera in the
courtroom, you just lengthen the trial, and I remember hearing
people say after the O.J. Simpson case, ``See, television was
in the courtroom. Therefore, it was long. In Susan Smith's
case, there were no cameras in the courtroom. Therefore, it
went very fast.''
That was not the reason. The reason the case I tried went
so long, the reason O.J. Simpson's case went long, is the
defendant had lots of money in both of those cases. They went
toe to toe with every witness. When one side had a witness, the
other side had a witness. As judges, we can control if there is
duplicitous testimony, things like that, but when it is fresh
testimony, you know, you have to allow it.
It was not so much an issue of television. It was an issue
of whether the judge will control the courtroom and also
whether or not the parties want to spend the money, and in
those cases, they did.
And I will say this, this is true, but I have had judges
tell me, ``Look, I know you allowed cameras in your courtroom
from time to time. I like the anonymity.'' And there is a lot
of comfort in anonymity when you are a judge that makes tough
rulings, and I recognize that, and there are cases it would be
nice to give anonymity, so you balance those things, and I
think you come out ahead if you say the public should be
allowed to see and hear what goes on in our courtrooms.
And I thank the Chairman and yield back.
Mr. Delahunt. Thank you.
Thank you to this panel for sharing your insights and your
expertise and experience.
And without objection, Members will have 5 legislative days
to submit any additional written questions to you, which we
will forward and ask that you answer as promptly as you can to
be made part of the record.
And without objection, the record will remain open for 5
legislative days for the submission of any other additional
materials.
It has been a very good hearing. It has generated valuable
input from all of you. I think we all concur that greater
transparency in the judicial process can enhance our democracy
by promoting greater public understanding of our judicial
system, and we do need to be cognizant that access to Federal
judicial proceedings is granted in a manner that does not
detract but enhances.
And with this, the hearing is adjourned.
[Whereupon, at 3:42 p.m., the Committee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Chairman, Committee on the
Judiciary
Since 1946, the photographing and broadcasting of federal district
court criminal and civil proceedings have been prohibited by directive
of the Judicial Conference. Federal appellate courts, in contrast, have
been authorized by the Conference to use their discretion in
determining whether to allow electronic media coverage of appellate
arguments. Currently, only the Second and Ninth Circuit Courts of
Appeals permit cameras in their courtrooms.
In recent years, however, there has been growing public interest in
having all federal judicial proceedings televised, which may reflect a
greater general desire for transparency, as well as heightened interest
in certain well-publicized cases.
Today's hearing provides an opportunity for us to consider H.R.
2128, the ``Sunshine in the Courtroom Act of 2007,'' which would allow
the presiding federal district or appellate court judge to permit
electronic media coverage of court proceedings. I commend my colleagues
on both sides of the aisle, Bill Delahunt and Steve Chabot, for their
leadership on this measure.
It is my hope that this hearing will shed some sunlight on the
following issues.
First, would this measure help promote greater understanding of the
judicial process by the public, by making it more transparent? It is
vital to our democracy that the public understand the critical role
that our federal judicial system plays in our system of open government
with respect to protecting the rights of all citizens. Greater
transparency also helps enhance the public's trust and confidence in
the judicial process. As Justice Louis Brandeis once said, ``Sunshine
is the best disinfectant.''
Second, would the measure grant access to federal judicial
proceedings in a way that promotes fairness? Many believe that the
constitutional right to a fair trial requires that all court
proceedings be open to the public, including the press. They cite, for
example, the Supreme Court's ruling in Richmond Newspapers, Inc. v.
Virginia, which held that ``the right to attend criminal trials is
implicit in the guarantees of the First Amendment.'' Similar statements
could be made with respect to civil trials.
Third, would the measure undermine due process and privacy rights
of participants in federal judicial proceedings by opening them to
intrusive electronic media? We should be appropriately careful that
media coverage of these proceedings not impair the fundamental right of
a citizen to a fair and impartial trial.
The prospect of public disclosure of personal information may have
a material effect on an individual's willingness to testify, or place
an individual at risk of being a target for retribution or
intimidation. Likewise, the safety and security of our judges, law
enforcement officers, and other participants in the judicial process
should not be jeopardized. Accordingly, we should take proper
precautions to ensure that the privacy of all participants in the
judicial process is appropriately protected.
I look forward to having an informative discussion on the
advantages and disadvantages of electronic media coverage of court
proceedings.