Mimesis Law
10 December 2019

Courtroom Evils Remain Hidden Without Cameras

Sept. 8, 2015 (Mimesis Law) — There is something rotten at Bowden Municipal Court. As the New York Times reported, a judge was threatening to send people to jail for being unable to pay fines. A citizen surreptitiously recorded the proceedings on her cell phone:

“You can pay what you have, you can call whoever you need to call, go to an A.T.M. if you need to, do what you need to do,” Judge Richard A. Diment of Bowdon Municipal Court said to one defendant. “Call friends, call family, call your employer. But until you get $300 here tonight, you won’t be able to leave.”

That certainly is shocking, albeit in line with the findings of the Department of Justice that at least one city’s municipal courts were acting as mere revenue generators. But what we should find truly outrageous isn’t the conduct of the judge. It’s that such a recording had to be made in secret.

In theory, this should be straightforward. The Sixth Amendment guarantees everyone “the right to a speedy and public trial.” The United States Supreme Court took that right seriously enough to reverse a conviction when a defendant’s uncle was kicked out of the courtroom during jury selection.

Yet when it comes to opening its own proceedings to public view, the Supreme Court is far less accommodating. The rule is straightforward enough, and in bold letters: “No photography is allowed inside the Courtroom at any time.

So let’s be clear. Courts are public places. The proceedings are public. Trials are supposed to be public. But all the Supreme Court is willing to read into that guarantee of openness is that it will be public to the extent that a group of people can get past a velvet rope and up a set of marble steps to cram into a building. And as for whether those people will get invited back, it’s entirely up to the Supreme Court which media outlets will be allowed within its hallowed chambers.

Given this stellar example of transparency, is it any surprise that few lower courts are willing to open their doors? If the woman in Bowden Municipal Court had wanted permission to film, she would have had to go through a pretty onerous process:

 Persons desiring to broadcast/record/photograph official court proceedings must file a timely written request with the judge involved prior to the hearing or trial, specifying the particular calendar/case or proceedings for which such coverage is intended; the type equipment to be used in the courtroom; the trial, hearing or proceeding to be covered; and the person responsible for installation and operation of such equipment.

So, she would have to specify in advance exactly what she wanted to view, in writing. That might allow her to record her own proceeding, but it seems specifically designed to prevent her from watching what happened to everyone else unless she got a copy of the calendar ahead of time.

Not only that, but if she filmed something the judge wasn’t comfortable with, that violation “will be grounds for a reporter/technician to be removed or excluded from the courtroom and held in contempt.” So not only does she have to get permission ahead of time, if she doesn’t precisely follow the rules as given, she risks making her own legal situation worse.

The rule appears intended to allow only professional media into the process. Why else say that “[r]eporters, photographers, and technicians must have and produce upon request of court officials credentials identifying them and the media company for which they work”?

In short, the rules are designed to stop precisely the sort of recording that happened in Bowden Municipal. When an ordinary citizen sees something worth recording in the moment, her failure to ask permission in advance dooms her efforts to record what’s happening. “Other than as permitted by these rules and guidelines, there will be no photographing…”

Maybe courts have their reasons for keeping cameras outside the proceedings. Maybe we worry about humiliating people charged with crimes in court. Except, no, the media is allowed to publicize that sort of thing all the time, often with the assistance of prosecutors holding press conferences.

Maybe everything really is fair, but it just wouldn’t seem fair to lay people watching the proceedings. That wasn’t a particularly compelling excuse when the FBI gave it for not recording confessions, and it doesn’t seem any more persuasive here. Letting people watch the government in action so they can conclude if it’s working is, more or less, the entire basis of a functional democracy. If people’s response is to get angry at the judge, or the prosecutor, or the defense attorney or the rules, that might be what’s supposed to happen.

And all these concerns would seem more plausible if not for the rigid control courts exercise over lawyers’ ability to criticize them. The Supreme Court of Florida certainly seemed to have no trouble punishing a lawyer for saying that a judge was an “evil, unfair witch,” even though it issued a later opinion suggesting he was right when it censured that same judge for disrespectful conduct. If courts were worried that laypeople would view them unfairly, then why ban professionals from commenting?

Ultimately, if the public would lose respect for our courts upon seeing them more clearly, that’s a problem. But we don’t fix that problem by hiding courts from public view. We fix it by holding public officials accountable, and that gets a lot easier under the glare of the blinking red dot.

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