Walter Cronkite said about journalism, “Our job is only to hold up the mirror—to tell and show the public what has happened.” Judge Vaughn Walker—who authorized the Internet broadcast of arguments for the Prop 8 case—would agree.
Judge Walker spoke about the history of cameras in the courtroom at Arizona State University, aptly to their Walter Cronkite School of Journalism, in February of this year. He spoke on the various precedents set by the Ninth Circuit Supreme Court and the legal developments permitting courtroom cameras over the past 20 years. In the Prop 8 case Perry v. Schwarzenegger —arguing a proposition that changed the California state constitution to disallow same sex marriage—Judge Walker’s ruling that televised coverage of the proceedings could be permitted in U.S. District Courts was eventually overturned by the Ninth Circuit and the Supreme Court. The question is, when it comes to knowing the facts or just reading conjecture, wouldn’t you rather your clients and your firm’s courtroom prowess be accurately represented in the media?
The broadcast of appellate arguments in the Ninth Circuit was first permitted over 20 years ago when J. Clifford Wallace, Thomas Nelson, and Oliver Kelch, allowed C-SPAN and three television stations to broadcast an appellate argument. Since then, 365 cases in the Ninth Circuit have requested courtroom broadcasts and 71 percent of these requests have been granted. During a judicial conference in 2007, lawyers and judges voted separately (but overwhelmingly) to approve the broadcast of district court proceedings. They also urged the federal judicial conference to reconsider its opposition to video recordings of trial broadcast and proceedings. The Ninth Circuit pushed judges in civil, non-jury cases of public interest to use his or her discretion in permitting video recording and broadcasts. Last year, the perfect case for this kind of recording and broadcasting came to light. This case concerned Prop 8.
Perry v. Schwarzenegger was a civil, non-jury case, with lawyers of impressive pedigree on both sides, and was a case of widespread public interest. So where did the hesitation to have it broadcast come from? In the 1960s, the case of swindler Billie Sol Estes involved a two-day hearing broadcasted live on television. According to Supreme Court, it was “not a scene of judicial serenity.” The motion to cease broadcasting was granted. And, later during the appeal, Supreme Court Justice Clark led the majority verdict on Estes v. Texas claiming cameras in the courtroom caused a distraction, had an insidious influence on the proceedings and a negative influence on testimony, distracted the jury, allowed judges to use televised trials for political purposes, among a variety of other reasons. Despite this opinion, upon retrial, Estes was reconvicted.
By the 1980s, technology advanced in a way that broadcast equipment was more portable and less obtrusive, leading to the Richmond Newspapers v. Virginia Supreme Court ruling that members of the public and the media have a constitutional right to attend criminal trials. By 1980, 22 states allowed cameras in their courtrooms, and a dozen others were in the process of implementing the same. In the words of Judge Walker, “The public ought to see that there are moments in trial where not much happens.” This he demonstrated with three minutes of Prop 8 courtroom cross-examination. His conclusion
“What would you rather have the people learn how the court functions? Would you rather have them listen to the Prop 8 musical, a reenactment, or the real thing? I submit to you that he real thing is far better, far more informative, and far better for the public, and far better for teaching people how our institutions work than the kind of reenactments that we have in the Prop 8 case, the Judge Judys in the world. The real thing is always much better than the reenactment.”
However, screening the real thing has gotten Judge Walker in real trouble. By showing the video, Judge Walker violated his own order placing the recording under seal. More markedly, he defied the U.S. Supreme Court’s ruling on cameras in this case. As a result, Prop 8 supporters are asking the Ninth Circuit to force Walker to turn over all trial recordings and cease showing clips of the case, according to the San Francisco Recorder and WSJ.
Theodore Boutrous, an attorney from Gibson Dunn & Crutcher, the firm that represents the Perry plaintiffs, is as outraged as Judge Walker. Boutrous said in an official statement that Prop 8 proponents have “repeatedly attempted to obscure and distort the facts of this trial because they simply have no case and they seem desperately anxious to prevent the American public from seeing the facts for themselves.”
Technology continues to impact trials and their verdicts. Very soon expect judges to tweet from the bench.