Making the Case for Cameras in the Courts

 


April 20, 2021 – Former Police Officer Derek Chauvin led away in handcuffs after being found guilty of murdering George Floyd.

April 20, 2021 – Former Police Officer Derek Chauvin led away in handcuffs after being found guilty of murdering George Floyd.

On June 25, 2021, in Hennepin County, Minnesota, District Judge Peter Cahill sentenced former Minneapolis police officer Derek Chauvin to 22.5 years in prison.  A jury convicted Chauvin of second-degree murder for the May 2020 death of George Floyd, whose last minutes spent pinned under Chauvin’s knee were recorded by a bystander, Darnella Frazier, using her cellphone camera. Frazier’s video, which quickly went viral, shocked the nation and the world, and prompted both the Pulitzer Prize board and the BET Awards to honor Frazier for her courage and contributions to social justice.

 

Appropriately, the criminal trial that began with a video was also documented by video. The Chauvin trial was the first criminal trial to be televised and live-streamed in Minnesota. Although most state courts allow cameras in trial proceedings, Minnesota has been an outlier by steadfastly resisting electronic media coverage in criminal courtrooms without the consent of all parties.

 

But for the Chauvin trial, Judge Cahill issued his unprecedented order to record the proceedings in November 2020. Over Minnesota Attorney General Keith Ellison’s objections, Cahill concluded that, although under ordinary conditions the restrictions on cameras could be enforced “without concern that it will impinge on the right to a public trial or the right of access held by the public and press,” the COVID-19 pandemic meant that televising the trial was necessary.

 

The trial attracted millions of viewers worldwide, with over 20 million watching the final verdict on television, and even more on their laptops or cellphones. Court TV, which had provided gavel-to-gavel coverage of the infamous 1995 O.J. Simpson trial, operated the designated pool camera. Strict security measures and COVID-19 protocols helped ensure that Judge Cahill could keep the trial participants and media on a short leash. He admonished lawyers in mid-March to “just stop talking about” the $27 million wrongful death settlement between Minneapolis and Floyd’s family as jury selection was ongoing. He threatened to shut down the media center and expel the press from the courtroom after reading a pool report that included a reporter’s attempts to read notepads at the defense and prosecution tables and described security procedures in the courthouse.

The result was a textbook example of how cameras can enhance public understanding without undermining the rights of the parties or disrupting courtroom decorum.  The proceedings went so smoothly that even Attorney General Ellison changed his views and agreed that cameras should be allowed to cover the March 2022 trial of the other three former Minneapolis police officers charged in Floyd’s death.

 

Even more significantly, the Floyd trial appears to have broken a log jam that has blockaded cameras from the Minnesota courts for nearly 40 years.  The Minnesota judiciary was, at best, skeptical that any public benefit would flow from changing the rules. Advisory committees stubbornly clung to the status quo, unmoved by arguments from media representatives and judges from other states that cameras would promote public understanding of the often impenetrable and arcane judicial system.  

 

The Minnesota rule did permit cameras at most sentencing proceedings, such as the high-profile trial of former police office Mohammed Noor, found guilty in 2019 of the shooting death of Justine Ruszczyk two years earlier.  But because cameras were allowed only “with the consent of all parties,” they were effectively banned from the criminal trial itself.

 

The Minnesota Supreme Court’s concerns hearken back nearly 100 years, to the fallout from the infamous trial of Bruno Richard Hauptmann, convicted of the kidnapping-murder of the son of aviator Charles Lindbergh in 1935. Dubbed “The Crime of the Century,” the trial was, by any measure, sensational. Dozens of print and radio reporters and commentators claimed seats in the courtroom.  Five newsreel companies operated two pool cameras, although officially they were limited to recording only during recesses. Regardless, some of the trial testimony was captured on film, and distributed to movie theaters around the country. The trial judge, incensed at the violation of his ground, barred the camera operators from the courtroom after that

 

The consequences were immediate.  The public was enthralled by this window allowing them to see for themselves what transpired in the courtroom.  But the American Bar Association moved swiftly to slam that window shut and draw the blinds for good measure. In 1937, and again in 1952, the ABA amended Canon 35 of its Canons of Judicial Ethics to forbid photographic and other broadcast coverage of trials. It claimed that cameras “detracted from the dignity of judicial proceedings and created public misconceptions about the judicial process.” And, as night follows day, the federal and state courts excluded the new-fangled technology from their proceedings.

 

But advocates continued their efforts to open the courts to expanded media coverage. By the 1970s, most state courts had revised their rules to permit cameras in some cases. The ABA finally repealed Canon 35 in 1982.

 

Meanwhile, the federal courts persisted with their own prohibition on cameras in trial courts.  Then in 1990, the Judicial Conference of the United States authorized a pilot program to permit electronic media coverage in civil proceedings in designated district and appeals courts. The Conference’s own report found that judges’ attitudes toward electronic media coverage became more favorable after the pilot program. Furthermore, both judges and attorneys who had participated generally reported “small or no effects” on participants in the proceedings, courtroom decorum, or the administration of justice.

 

But the Conference refused to relinquish control or change the rule.

 

Then the definitive blow came. It came not from the federal experiment itself, but from the California state trial of celebrity football star O.J. Simpson, accused of murdering his ex-wife and her friend in 1994. Although – or perhaps because – the jury acquitted Simpson in 1995, the trial became the poster child for the case against cameras in criminal trials.

 

Observers are divided on whether and how cameras affected the outcome of the Simpson case.  Some were offended by the flamboyant conduct of the lawyers, the bizarre testimony of some witnesses, and the Monday morning quarterbacking of legions of “expert” commentators recruited by the cable networks to provide instantaneous evaluations of the trial. They complained that the coverage distorted the trial and undermined public confidence. Others point to the lax oversight of the trial by Judge Lance Ito, or the ethics rules governing California lawyers at the time, which permitted them to engage in more robust out-of-courtroom statements than in most other states. But in the end, it was easiest just to shoot the messenger: the camera.

 

And so, the momentum behind cameras in the federal trial courts effectively ground to a halt.  Only three circuits – the Second, Third, and Ninth – currently allow camera coverage of appellate arguments, even though these proceedings do not involve the issues that arise in a trial setting. There are no witnesses to intimidate and appellate lawyers are unlikely to engage in theatrics when they argue before a panel of judges. On top of that, appellate arguments lack the inherent drama of a typical criminal trial.

 

The news media historically have given them short shrift, with one glaring exception: the proceedings of the Supreme Court of the United States. The Court makes its own audio recordings of every argument, but cameras are barred from the courtroom.  At least one justice, Justice David H. Souter, vowed in 1996 that cameras would roll in only “over my dead body.”

 

But as was the case in Minnesota, the COVID-19 pandemic has shifted that dynamic.  Like most state and federal appellate courts, the Supreme Court live-streamed oral arguments throughout the pandemic, although only the audio feed is available.

 

Whether the courts will continue their policies as pandemic social-distancing requirements begin to abate is anyone’s guess.  But it will be difficult for courts to rescind these practices in the face of strong public interest and lack of evidence of any negative effects.  Restrictions that once seemed reasonable and appropriate will appear to be secretive and anti-democratic. In fact, the U.S. Congress is considering bills – the “Sunshine in the Courtroom Act” and the “Cameras in the Courtroom Act” – to permit full electronic coverage of proceedings in all federal courts, including the Supreme Court. Both of these bills have bipartisan sponsors.

 

Back in Minnesota, Chief Justice Lorie Gildea issued an order on June 18 acknowledging that “public interest in and access to judicial proceedings is vital to the fair, open and impartial administration of justice.”  She authorized the court’s advisory committee to undertake yet another review of the existing rule and produce a report with recommendations by July 1, 2022.

 

Let us hope that one of their recommendations will be to embrace cameras in Minnesota courts. It took a global pandemic to encourage a trial judge to open a Minnesota criminal trial to public scrutiny.  Its success should prompt courts to make that access permanent.  Cameras in courts are simply the logical evolution of a core principle of the United States: that our courts must be open to the public and the press. 

 

As former Supreme Court Chief Justice Warren Burger wrote in 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.”


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