Cameras And Courts—A Project Destined To Fail?

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Was the federal pilot program to test cameras in civil courtrooms destined to fail?

Some judges who participated in the pilot, as well as transparency advocates, think so.

On Tuesday, during its semi-annual session, the Judicial Conference of the United States, the policy-setting body for the federal judiciary (chaired by Chief Justice John Roberts),  announced it would make no changes to its default ban on cameras in courts — following a recommendation from  its Committee on Court Administration and Case Management.

As news outlets reported, the federal judiciary decided not to expand the pilot program, although a majority of judges who participated in the four-year study said they would allow cameras in their courtroom if allowed.

“Ultimately… the cameras pilot project did not produce sufficient or persuasive evidence of a benefit to the judiciary to justify the negative effect upon witnesses and/or the significant equipment and personnel costs associated with video recordings of district court civil proceedings,” the committee’s report said.

As The Crime Report reported previously, 34 states currently allow cameras into courtrooms as long as their use meets some basic requirements; 14 allow partial access; Oklahoma has no rule and the District of Columbia prohibits cameras.

Federal district courts prohibit cameras. In the U.S. Court of Appeals, one circuit — the Ninth — films oral arguments and posts the video on its website.

In 2011, the feds started a pilot program where 14 district courts filmed civil proceedings and posted the videos online. Over the four-year project, 64 active and senior judges participated, meaning they notified parties of the opportunity to record, though only 33 judges had proceedings that were recorded, resulting in a total of 158 proceedings recorded and posted online.

The survey of judges, included in the 245-page report, showed 63 percent would allow cameras into their court if the judiciary allowed them to; another 22 percent “might permit” cameras; and only 15 percent responded  they would not permit cameras. When asked their opinion, 36 percent of responding judges were greatly in favor of recording courtroom proceedings and making them publicly available; 16 percent were somewhat in favor; 24 percent were somewhat opposed; 13 percent were greatly opposed; and 14 percent had no opinion.

But some judges who participated in the pilot, as well as transparency advocates, say the study’s narrow focus (only civil trials in districts that volunteered and where all consenting parties and judges consented to allow recording) made the judiciary committee’s ultimate conclusion inevitable.

Moreover, the way the pilot was tailored, they argue, gave the federal judiciary a reason to continue with the status quo regardless of the positive results.

“I believe that the restrictions imposed by the pilot make the project pretty much worthless,” wrote one judge who participated in the program.

That comment is included in a list of responses to a questionnaire given to judges in participating circuits at the conclusion of the study, and contained  in the appendices of the committee’s report.

Other criticisms revealed in the appendices include:

  • Deciding to only test cameras in civil proceedings rather than criminal;
  • Making participation voluntary so a majority of judges who participated were already in favor of cameras in their courtrooms; so when the study predictably revealed a majority of participating judges were in favor of cameras, the judiciary responded that those views don’t reflect judges nationwide.
  • Requiring consent from all parties to record, resulting in a very small number of tests.

One judge (names were kept anonymous) reflected many of the responses in the following comment:

Candidly, recording civil proceedings doesn’t matter a whole lot, if at all. My views remain entirely unchanged as a result of my participation in the pilot project, but my fear abides that the Judicial Conference will persist obdurately in the wrong-headed view that criminal proceedings should not be recorded and thereby available for broadcasting.

Most states allow it; so it’s been tested and proven. If any of the ill-effects the opponents of moving into the Twentieth (Century), much less the Twenty-First, were anything but chimerical, no doubt that would be well validated, well publicized, and well known.

Another judge bemoaned the restrictions established during the pilot program — which included districts in in Alabama, California, Florida, Illinois, Iowa, Kansas, Massachusetts, Missouri, Nebraska, Ohio, Tennessee, Washington and Guam — saying in their district they tried to test out cameras, but couldn’t.

“Despite my best efforts AND prompting, I could not get civil lawyers to agree to have any trials recorded by video. In [name of district removed], the experiment was an unmitigated failure,” the judge wrote.

The pilot was even extended a year because there were so few recordings. Over four years, a total of 33 judges across 14 districts actually had proceedings recorded. The total number of proceedings that were recorded and posted online was just 158.

In 2014, the 707 video files associated with those 158 proceedings were accessed a total of 21,530 times. It is unclear if that number is low, based on no precedent. The fact it was only civil trials caused one attorney to respond to the questionnaire: “Unless a person is [an] expert, or enjoys watching paint dry, it had no value as a tool for lawyers, judges or the public.”

‘Cumbersome and Intricate’

“As designed, this program was far, far too cumbersome and intricate. As one of my colleagues presciently said ‘This program was designed to fail and in that alone will it succeed,’” wrote another judge in response to the committee’s questionnaire.

These criticisms echo those of transparency advocates — as well as former District Court Judge Nancy Gertner, who pushed for more cameras in courts when she served on the bench in the District of Massachusetts.

In a recent interview with The Crime Report, Gertner, currently a senior lecturer at Harvard Law School, did not hold back.

“I think that this is an outrageous decision,” she said. “(It’s) completely a political decision of the federal judiciary conference, no doubt reflecting Chief Justice Roberts’ unyielding opposition to cameras.”

Gertner said it’s generally  believed that this pilot was initiated by the judiciary in an effort to show Congress that it was doing something about the issue after a series of bills were introduced that would have required courts to allow cameras.

She also said she’s seen this before.

In 1991, the judiciary conducted a similar pilot of civil proceedings and the judiciary concluded the same thing as now: “intimidating effect of cameras on some witnesses and jurors was cause for concern.”

In the new study, 59 percent of participating judges said they thought cameras distracted witnesses (25 percent to a small extent; 16 percent to a moderate extent; and 18 percent to a great extent).

But other results from the study show positive impacts on proceedings:  85 percent of participating judges responded that cameras helped educate the public in courtroom procedure; 67 percent agreed with a statement in the questionnaire that cameras motivated attorneys to be better prepared; 62 percent agreed that cameras motivated attorneys to be more courteous.

“This is an extraordinary document, because what the Judicial Conference did is cherry pick the negative comments out of a report that is overwhelmingly positive,” Gertner said.

As for the overwhelming majority of participating judges saying they “would” or “might” allow cameras in court if they were allowed to, the committee responded to that by saying the participating judges did not reflect the views of all judges.

“… their views do not necessarily represent the views of judges and attorneys nationwide,” reads their report.

Gertner says this proves the study was designed unfairly and their approach was “incredibly disingenuous.”

“They set it up so that it was completely driven by consent: the consent of the jurisdiction, the consent of the judges, the consent of the parties. And then they criticize the favorable result because the pool was skewed—but they skewed the pool,” she said.

She also said the decision has effectively closed the door on open, camera-friendly courtrooms for the foreseeable future.

“Frankly, I think this will doom cameras so long as Roberts is chief justice and until Congress acts,” Gertner said.

It is unclear if this decision will result in any action from Congress to require the judiciary to allow more cameras into courtrooms. It seems unlikely the judiciary would act on its own in the near future given this recent decision.

Transparency advocate Gabe Roth, who is the executive director of Fix the Court and previously managed the Coalition for Court Transparency, was a bit more optimistic of change in the future.

“Overall, there is a lot of inertia in the law, which is generally a good thing,” he wrote in an email. “But video recording has been around for 80 years and live-streaming for almost 20, and every other government institution — the executive branch, federal and state legislatures and state courts — uses this basic technology to keep the public informed about their important work. The federal judiciary should make a more concerted effort to do the same.”

Monday Night Football

Roth said a pilot would have been better suited if it had been expanded to circuit courts.

The judiciary had cited significant personnel and equipment costs as a reason to not expand the pilot.

“The pilot was only conducted in federal district courts, whose trials may be lengthy and involve juries, witnesses and evidence, which is not the case in the circuit level, where hearings typically last no more than an hour and not of those aspects are present,” Roth wrote in an email.

“While conducting the pilot across many jurisdictions, the [Administrative Office] refused to encourage use of broadcast technology at the circuit level, which would have been easier both technically and technologically.”

While some judges responded in the questionnaire about equipment problems (“Just one more equipment failure problem to manage”) one judge joked that the court personnel “loved it” and “it made them feel like they were recruited to do Monday Night Football.”

Some judges who responded to the questionnaire said they just want the chance to try out cameras in their court and didn’t get a chance to in this pilot.

“I would be willing to give it a try. Perhaps I could be persuaded otherwise,” the judge wrote.

“In the end, I think it comes down to our values as an institution. If transparency is one of our values, and we have no evidence of actual negative consequences, we may need to go where the evidence (or lack thereof) leads us,” wrote another.

Adam Wisnieski is a contributing editor of The Crime Report. You can follow him on Twitter @adamthewiz. He welcomes comments from readers.

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