Members of the Senate are looking to shine a little light into federal courtrooms.
A bill, co-sponsored by Sen. Charles E. Schumer, D-N.Y., has been re-introduced to provide media coverage of federal court proceedings.
Consideration of the bill (S.410), Sunshine in the Courtroom Act of 2011, is included on the agenda for the Thursday executive business meeting of the Senate Judiciary Committee.
Schumer’s office did not respond to a request for comment.
“Openness in our courts improves the public’s understanding of what goes on there,” Sen. Charles E. Grassley told the committee when he introduced the bill Feb. 17. “Our judicial system is a secret to many people across the country. Letting the sun shine on federal courtrooms will give Americans an opportunity to better understand the judicial process.”
The proposal applies to federal appellate and district courts and would allow the presiding judge, at his or her discretion, to permit the photographing, electronic recording, broadcasting or televising to the public of any court proceeding over which that judge presides. It would not be mandatory.
Coverage would be exempt if the presiding judge determined it would constitute a violation of the due process rights of any party. The identity of witnesses, at their request, could be kept secret by having the person’s face or voice disguised or obscured.
The bill, through a three-year sunset provision, also provides a mechanism for Congress to study the effects of the legislation on the judiciary before it became permanent.
Other safeguards are included, such as prohibiting media coverage of jurors. Advisory guidelines would be drawn up by the Judicial Conference of the United States, the policy-making body for the federal courts, which is “strongly opposed” to the proposed act.
“Cameras can affect behavior in court proceedings,” writes Conference Secretary James C. Duff in a letter conference to Sens. Patrick J. Leahy, D-Vt., and Jeff Sessions, R-Ala., on July 23, 2009. “Cameras can also affect courtroom security of judges, witnesses, employees and U.S. marshals.”
Duff is still the conference secretary and director of the Administrative Office of the U.S. Courts. A court spokesperson said the current bill is the same as the one introduced in the previous Congress and that the view of the conference is identical to its 2009 position.
Leahy is still the chairman of the committee. Sessions is a member, but no longer the ranking minority member, a position held by Grassley.
“The Judicial Conference bases its policy and opposition to the use of cameras in the federal trial court proceedings on decades of experience and study,” Duff wrote. “The conference considered the issue in a number of different situations and contexts — including a pilot project — and concluded that the presence of cameras in federal trial court proceedings is not in the best interest of justice.”
The conference believes the use of cameras and video equipment in federal court could interfere with a person’s right to a fair and impartial trial. Concerns include affecting the way trial participants behave; intimidating litigants, witnesses and jurors; violating privacy concerns; becoming a negotiating tactic in pre-trial settlement discussions; and encouraging some participants to become dramatic.
The letter was sent at a time when there were increased threats to federal judges. Duff wrote that cameras could increase security and safety issues by broadcasting the images of judges and court employees, making them more easily identified as targets.
Duff noted the Judicial Conference adopted a position in 1996 that each circuit could decide for itself whether to permit electronic coverage.
New York has also experimented with cameras in the courtroom; they are currently prohibited unless approval is otherwise granted. There are a number of restrictions in place to protect the dignity of the proceeding, prevent disruptions and not burden the resources of the court.
Monroe County Supreme Court Justice John J. Ark allowed TV cameras during the unsuccessful civil challenge in February to R. Carlos Carballada’s position as acting mayor of Rochester and the City Council’s decision to hold a special mayoral election March 29.
“It’s very controversial,” he agreed. “One of the fears of it is that it becomes more theatrical than legalistic. I, frankly, haven’t found that. My experience has been good lawyers are focused on his or her case and if the cameras are unobtrusive, you don’t even know that they’re there.”
He said the mayoral case was unique, but probably one of the most appropriate cases he could think of to allow media visual coverage of the proceedings because it dealt with very public matters.
“Everybody has an interest in who the next mayor is,” Justice Ark said. “The arguments were significant. It was a review of the City Charter. It was a review of the actions or inactions of the City Council.”
Justice Ark said he has probably allowed cameras in his courtroom about a dozen times in his 31 years as a judge. He’s not asked very often. He said he doesn’t know that he’s ever denied a request unless it had to do with one of the exclusions in the rule.
Justice Ark said one could also argue the opposite with regards to the effects on trial participants in that lawyers may prepare better if they know their arguments could be seen by potentially thousands of people instead of just the judge, court staff and people in court that day.
Justice Ark also participated in one of the state’s experiments with cameras in the courtroom in the early 1980s when he was a Brighton Town Court justice.
“I personally have no problem with it,” he said. “They’ve built in enough protections. The reality is cameras in the courtroom are an extension of open courtrooms. If you believe in open courtrooms, which is the law in New York, the cameras, arguably, are an extension of that.”