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Journalists Urge House Panel to Open Door to Greater Transparency In Federal Courts

October 1, 2019 by Dan McCue
Visitors line up to enter the Supreme Court on Capitol Hill in Washington, Monday, June 24, 2019. (Photo by Dan McCue)

WASHINGTON – Fifty-four years after the U.S. Supreme Court heard its first case dealing with the televising and broadcasting of a trial, meaningful electronic coverage of federal courts remains an aspiration, this despite the exponential advances in technology to disseminate news and information.

That was the assessment of Mickey Osterreicher, general counsel for the National Press Photographers Association, in a statement submitted to a congressional subcommittee last week.

The House Subcommittee on Courts, Intellectual Property assembled Sept. 26, for its second hearing on how to ensure the public’s right to access the courts in the 21st century.

Before hearing from several witnesses, including two district court judges and several journalists, Rep. Hank Johnson, D-Ga., who chairs the subcommittee held up a New York Times photograph of a lengthy line outside the Supreme Court.

Johnson noted a scene like the one the photographer captured is commonplace before the arguments high-profile cases before the high court. He also noted that often-times, line-standers are paid as much as $50 an hour to hold a place in gathered humanity.

To Johnson, this didn’t seem fair.

“It’s not enough that justice is done, the public must also see justice being done,” he said.

That point was echoed and amplified by many of those who offered their opinion to the committee.

Jeffrey Toobin, staff writer for The New Yorker and chief legal analyst for CNN, said he came to Capitol Hill to make a simple point.

“The Sixth Amendment mandates ‘public’ trials. In the twenty first century, the only meaningful definition of ‘public’ is one with audio and video access,” said Toobin whose mother, Marlene Sanders, was one of the great female pioneers in the once male-dominated world of television news.

“By now, we as a nation have a lot of experience with cameras in the courtroom,” he continued. “In the states where it’s legal, and in the federal experiments, we have seen the public educated and the cause of justice advanced.”

As an example, he pointed to the case of Amadou Diallo, an unarmed immigrant from Africa who was mistakenly shot and killed by four white New York City police officers in the Bronx in 1999.

“The judge in the case granted a change of venue to Albany, but he allowed cameras. The public saw the trial, which ended in acquittals,” Toobin said. “Before the trial, there were worries that acquittals would lead to a violent reaction in New York, as in the Rodney King case.

“But I think the fact that the public got to see the trial – and hear the officers’ testimony for themselves – contributed to the peaceful reaction in New York, even among people who disagreed with the verdict. Cameras helped keep the peace,” he said.

When it comes to the Supreme Court, Toobin said he understands the justices being protective of the institution.

“They don’t want to jeopardize the respect the nation has for their judgments. They are understandably cautious about making changes,” he said. “But the Court has already made changes. It installed a sound system in the courtroom, it changed the arrangement of the bench, it streamed audio of its arguments, albeit with a significant delay.

“At a minimum,” he continued, “live streaming of Supreme Court audio would be a major positive step and pose no risk at all to the customs of the Court. But live audio, which would be an improvement, is not enough. Cameras are necessary.”

Sunny Hostin, co-host of “The View,” focused on how the absence of cameras in federal proceedings – and in the Supreme Court, in particular – has a profound effect on African Americans.

“The judicial system disproportionately affects the African-American community in the United States,” she said. “In this country, African-Americans are more likely than white Americans to be arrested, convicted and receive lengthy prison sentences. African-American adults are 5.9 times as likely to be incarcerated than whites and Hispanics are 3.1 times as likely.”

Hostin said that “there exists no better cure for the fundamental mistrust and perceived illegitimacy of the system than the transparency of the courts that define it – in particular, the highest court in the land.”

The committee members appeared to generally agree that more immediate access to audio recordings of Supreme Court oral arguments would be an improvement, but they differed on the subject of cameras in the courtroom.

A number of members said based on the Senate and House’s experience with C-SPAN, lawyers and judges might soon develop a penchant for playing to the cameras.

But Osterreicher said the benefits of allowing electronic coverage of the federal courts greatly outweigh such concerns. Further, he said, “we expect that the watchful eye of the public will demand increased accountability from all courtroom actors, each of whom may feel an increased responsibility to conduct themselves in a manner appropriate to their role, thereby diminishing the risk of rogue actors and other wayward judicial actions potentially harmful to the interests of justice.”

He also argued that cameras in the courtroom would create an increased weight of accountability on the print press.

“No longer the only source of information about the courts … sensationalistic or inaccurate [print] reporting will be readily verifiable by a public able to view the underlying proceedings for itself.”

Osterreicher closed his remarks to the committee by saying the ability of the public to view actual courtroom proceedings should never be trivialized.

“It touches on a fundamental right, which goes well beyond the mere satisfaction of a viewer’s curiosity,” he said. “That right, advanced by electronic coverage, is the right of the people to monitor the official functions of their government, including that of the judicial system. Nothing is more basic to the democratic system of governance than this right of the people to know how government is functioning on their behalf.”

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