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Chairman & CEO
TESTIMONY OF HENRY S. SCHLEIFF, CHAIRMAN AND CHIEF EXECUTIVE OFFICER,
Chairman Specter, Ranking Member Leahy and Members of the Committee - my name is Henry Schleiff and I am Chairman and Chief Executive Officer of Court TV - our nation's only television network dedicated to providing a window on the American system of justice - and, in such capacity, I am both delighted and honored to testify before your committee, which is considering legislation that would permit the proceedings of our Federal Courts and perhaps, those of the United States Supreme Court, to be televised.
This committee - the Senate Judiciary Committee - need not, of course, be reminded that our trials and courtroom functions are open to the public, and, therefore, to the press. A long and unbroken line of decisions from the United States Supreme Court, have well established the doctrine - that victims, jurors and parties all have rights to privacy - but, except in extraordinary circumstances, that these rights cannot supersede public and media access to our courtrooms. Indeed, our Founding Fathers were, themselves, well aware of the importance and need for this openness: it is not by accident that they built a system of justice on four great pillars - an independent judiciary; the right to trial by jury (both established in Article III of the Constitution); rights of due process for defendants (established by the Fifth Amendment); and, an open court system scrutinized by a free press (recognized in the First Amendment), where as Justice Oliver Wendell Holmes well said, "every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed." Cowley v. Pulsifer, 137 Mass. 392, 394 (1884).
In holding that the First Amendment requires that all criminal trials be open to the press and public, absent compelling and clearly articulated reasons for closing such proceedings, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 & n.17 (1980), the Supreme Court relied on historical precedent, taking great pains to rest its conclusion upon historical tradition, dating back to the "days before the Norman Conquest." 448 U.S. at 565. Throughout the middle ages and during the American colonial period, the Court noted, "part of the very nature of a criminal trial was its openness to those who wished to attend." Id. at 568. Members of the community always possessed the "right to observe the conduct of trials." Id. at 572. But, as the Court in Richmond Newspapers realized, in the twentieth century "access to observe" only goes so far. Space constraints and changing times simply preclude the vast majority of Americans from physically attending trials and, therefore, from observing them. Thus, "[i]nstead of acquiring information about trials by first-hand observation or word of mouth from those who attended, people now acquire it chiefly through the print and electronic media. In a sense this validates the media claim of functioning as surrogates for the public." 448 U.S. at 572-73.
I believe that all citizens - not just the print press or those few who can fit into a courtroom - should be able to watch their judicial system in action. To suggest otherwise would be to penalize citizens for having had the misfortune to have been born in an age of greater population, and densely-packed urban areas, where courtrooms cannot accommodate that change. In that respect, the age-old arguments against cameras in courtrooms seem increasingly specious in the 21st century. Indeed, there can be no reasonable argument that advances in technology, such as smaller and unobtrusive cameras, merely expand the experience of being in the courtroom to the greater community, thereby allowing it to observe the functioning of the judicial branch, making "public trials" truly public, as was intended by the Founders.
The importance to our citizens of allowing cameras in the courtroom is, really, two-fold: it enhances public scrutiny of the judicial system which, in turn, helps assure fairness of court proceedings, thereby promoting public confidence in the government itself; Justice Louis Brandeis said it this way, "sunshine is the best disinfectant." Secondly, it increases our citizen's knowledge about how the third branch of the government functions: because television is the principal vehicle through which most people get their news, it only follows, that this same vehicle be employed as a tool to inform the electorate about this branch. Our democratic society is based upon the rule of law, and if citizens are given the opportunity to see lawyers, judges and juries - firsthand - working at the business of doing justice, much of the mystery will be removed...and, replaced with the confidence, it deserves. Because of these reasons, we vigorously support the proposed legislation which would open the courthouse doors to cameras and let the sun shine in.
Certainly, camera coverage of government proceedings is nothing new in the United States. Both houses of this Congress have already opened up their own chambers to television cameras. This legislation would, accordingly, provide that the third branch of our federal government, the judiciary, be given the opportunity to take a similar step. Of course, as proposed in the draft legislation (at Section 3(a) on page 2 of S. 829) - and, as long supported by Court TV - trial judges should be given the discretion in their courtrooms to determine whether to permit a camera in a particular trial. That is an important and practical safeguard, given the sensitive nature of some trials - and, it further ensures that the appropriateness of the camera is considered by the court, on a case-by-case basis. The bill also provides robust safeguards to protect witnesses, similar to those found in the bill passed just last month, on October 27, by the House Judiciary Committee. On the request of any witness at a trial other than a party to the case, the District Judge involved must order the face and voice of the witness to be disguised or obscured in a manner that renders the witness unrecognizable to the television audience (see Section 3(b)(2)(A) on page 3 of S. 829). While I believe that there is little evidence, as I discuss below, that witnesses are intimidated by the presence of a camera, this precaution ensures that no party will lose necessary evidence from a witness reluctant to face the camera.
The acceptance of cameras in court has now come full circle, as the limitations were virtually non-existent at the beginning of the 20th century. Until 1935, cameras and newsreel photographic equipment were widely permitted in trial court proceedings. For example, cameras and newsreel photography and radio microphones were permitted at the historic 1924 trial of Leopold and Loeb, argued by the now legendary Clarence Darrow, and the 1925 trial of John T. Scopes, the so-called "monkey trial," in which Darrow and William Jennings Bryan served as opposing counsel.
Now, as we move into the 21st century, in the United States today, all 50 states now allow cameras in some courts, generally at the appellate level - 43 states permit cameras in their civil trial courts - and, of those, 39 states permit cameras in their criminal trial courts: as you can see, there is, clearly, a growing consensus that having cameras in courtrooms serves the public interest. Since 1991, Court TV has covered more than 900 U.S. trials and legal proceedings, providing more than 30,000 hours of courtroom coverage. We have always made a special effort to televise trials that involve issues of great importance and interest to the American people, and we believe that many of the people who have watched these trials have gained an enhanced respect for the justice system and an improved understanding of American society and law.
The judicial proceedings Court TV has covered have raised serious social, political, cultural and economic questions. Some of the trials have been widely covered in the press; others reported on Court TV have been far less covered elsewhere. The underlying thought in all cases is the same, to capture the public workings of the justice system as accurately as possible, thereby seeking to vindicate the Supreme Court's teaching that "[a] trial is a public event. What happens in the courtroom is public property." Craig v. Harney, 331 U.S. 367, 374 (1947).
(dd) Massachussets v. Greineder (2001) - Prosecutors alleged that world-renowned physician Dirk Greineder was so obsessed with Internet porn and prostitutes that he fatally beat and stabbed his wife during an early morning walk after she learned of his alternative lifestyle. Greineder maintained that Mable was attacked by an unknown assailant. Greineder, a prominent allergist and asthma specialist, who was on the advisory board at Harvard Medical School was convicted and given a mandatory sentence of life in prison.
(ff) California v. Westerfield (2002) - Live from San Diego - David Westerfield faces kidnapping and murder charges in the death of 7-year-old Danielle van Dam. The second-grader disappeared from her room in the middle of the night Feb. 1. Her body was found more than three weeks later off the side of a road. Westerfield, 50, lived two doors from the van Dams and police found the girl's blood in Westerfield's recreational vehicle and on his jacket. Police also found child pornography in his home and suspect a sexual motive. Prosecutors are seeking the death penalty.
(gg) North Carolina v. Peterson (2003) - Live from Durham. Novelist Michael Peterson was accused of beating his wife, Kathleen Peterson, to death on December 9, 2001. He claimed that his wife of five years fell down the steep rear stairwell of their Durham home following a night of celebrating a movie deal that he had signed. Prosecutors told jurors that Peterson concocted a "fictional plot" to make it look like his wife fell down the stairwell. Prosecutors also alleged that Peterson also was responsible for the death of his then-neighbor, Elizabeth Ratliff. After her death, which also occurred at the bottom of a staircase, Peterson became guardian of her daughters, Martha and Margaret, who supported him throughout the trial. Peterson was convicted of murder and sentenced to life.
(hh) New Jersey v. Williams (2004) - Live from Somerville. Former basketball player Jayson Williams was charged with aggravated manslaughter for killing a limousine driver and then covering up the crime to make it look like a suicide. The defense contended the shooting was an accident, that the shotgun may have malfunctioned. Williams shot Costas "Gus" Christofi on Feb. 14, 2002, while giving houseguests a midnight tour of his sprawling Hunterdon County estate after a night out. Williams was acquitted of aggravated manslaughter but found guilty of hindering apprehension or prosecution, tampering with evidence, tampering with a witness, and fabricating evidence.
(ii) South Carolina v. Pittman (2005) - Live from Charleston. Christopher Pittman, 15, claimed the antidepressant Zoloft drove him to kill his grandparents in 2001. The trial was among the first cases involving a youngster who says an antidepressant caused him to kill. The trial also came at a time of heightened scrutiny over the use of antidepressants among children. But prosecutors called the Zoloft defense a smokescreen, saying the then-12-year-old Pittman knew exactly what he was doing when he shot his grandparents, torched their house and then drove off in their car. Prosecutors said the motive for the crime was the boy's anger at his grandparents for disciplining him for choking a younger student on a school bus. Prosecutors pointed to Pittman's statement to police in which he said his grandparents "deserved it." Pittman was found guilty of murder and sentenced to 30 years in prison.
Moreover, in the fifteen years that Court TV has been televising trials, no judgment in the United States has been overturned because a television camera was in the courtroom. One has to look back over forty years, when television was in its infancy and cameras were still generally prohibited, to find a case to the contrary, and that case predicted the future of cameras in court. In 1965, the United States Supreme Court, by a mere 5-4 margin, reversed a criminal conviction based in part on a determination that the televising of the pre-trial hearing and portions of the trial had prejudiced the defendant. Estes v. Texas, 381 U.S. 532 (1965). Four members of the Court, responding to the argument that tele¬vision technology and the public's reliance on television news would con¬tinue to advance, stated that "we are not dealing here with future developments", nor with "the hypoth¬esis of tomor¬row", but with "the facts as they are presented today." Id. at 551-52. Justice Har¬lan's disposi¬tive concurring opinion struck a similar note: Limiting his agre¬ement with the majority to the facts of the case, he observed that:
When Estes was decided, audio visual technology was crude, and cameras and other recording devices frequently intruded upon the dignity and conduct of courtroom proceedings with noisy cameras, bright klieg lights, snaking cables, and numerous technicians scurrying about the courtroom. In 1965, judges, juries, witnesses, counsel and parties to a proceeding could rightly claim to feel self con¬scious, intimidated or distracted by the presence of the crude technology, and by the knowledge that they were being filmed and would be seen by a television audience.
By contrast, Court TV and other broadcasters today employ a single, stationary camera, which produces no noise and requires no lighting other than existing courtroom lighting. The camera is placed away from the proceedings and, if necessary, it can be operated by remote control. Wiring is unobtrusive. Microphones are small and are never operated in such a way as to record conversations between attorneys and clients; they are turned off during all parts of the proceedings that are not part of the public record. Thus, the electronic media routinely record trial court proceedings without disturbing in the slightest the serenity of those proceedings. The fact is that cameras may well be less intrusive than the sketch artist's drawing pad or even the print reporter's pen and paper, and cameras provide all of the public with the opportunity observe trial proceedings first hand. Not only is there no "reasonable likelihood" that the simple presence of a modern in-court camera will "disparage the judicial process," but also there can be no question that television has "become so commonplace an affair," that the day foreseen by Justice Harlan has arrived.
As part of the movement during the past two decades to allow in-court coverage of trial court proceedings, more than half the states and the Federal Judicial Council itself have formally studied and evaluated the effects of the televising of such proceedings, some jurisdictions having conducted more than one such evaluation. These studies have examined the impact of audio-visual coverage on the dignity of the proceedings, the administration of justice, and on the effect of in-court cameras upon trial participants, including witnesses, jurors, attorneys, judges and other interested parties. The evidence assembled by all of these studies demonstrates that television coverage does not disrupt trial court proceedings or impair the administration of justice. Moreover, these studies demonstrate that televised coverage of trials provides substantial benefits to the public.
The conclusions of the 1997 New York study are worth noting here. That study found, among other things, that:
(i) Research has not revealed any appellate decision "overturning a judgment, verdict, or conviction based on the presence of cameras at trial." (emphasis added)
Of additional significance is the fact that cameras in the courtroom can keep "sound bites" in context and thus provide the least sensational and most unfiltered form of coverage. Why? - because, the camera permits the public to follow a trial, moment by moment, enabling them to better understand the verdict. Indeed, in Court TV's experience, coverage of high profile cases been no different than other cases. We have found that regardless of the publicity generated by the case, virtually every case proceeds in the appropriate manner regardless of the presence of television cameras. Where there is a "media circus" it is occurs outside he courtroom, whereas the camera consistently reveals the proceedings themselves going forward in a solemn, decorous manner. As the Florida Supreme Court has noted, "newsworthy trials are newsworthy trials, and . . . they will be extensively covered by the media both within and without the courtroom whether [cameras are permitted in the courtroom] or not." In re Petition of Post-Newsweek Stations, 370 So.2d 764, 776 (Fla. 1979).
One of the best known examples of this happened in a case that attracted national attention: the trial, only five years ago, of four New York City police officers charged in the shooting death of an unarmed man, whose name was Amadou Diallo.
Judge Joseph Teresi, the trial judge assigned to that case, understood the importance and value of having the public in New York City witness the trial, after it was moved to Albany. When the televised trial resulted in the acquittal of the police officers, the public's acceptance of the verdict was widely attributed to the fact that the public had been able to watch and listen to the proceedings unfold with their own eyes and ears. The Diallo judge rightly concluded that televising the trial would be the best way to show that all parties were given a fair trial - and, as such, his decision helped defuse a potentially dangerously charged situation. After the verdict, then New York City Mayor Rudolph Giuliani commended the trial judge for opening the courtroom to cameras, stating: "I commend the judge for opening the courtroom to cameras, because people can make their own judgment about this case. They don't have to listen to my views of it, they don't have to listen to opposing views of it, or anyone else's. They had the opportunity to listen and to see and to observe all of the witnesses; to observe the judge and the way in which he conducted the case; to sit by and listen to all the analysis the jury went through; and, they can draw their own judgment. And I believe that fact alone - the camera and the television coverage of it - has changed the minds of a lot of people about what happened."
Finally, I should note that some Justices of the Supreme Court have, over the years, claimed that allowing cameras in the courtroom would cause them to lose their personal anonymity and, perhaps, lessen the Court's aura or moral authority. However, I would submit that where no witnesses or other parties are involved, just lawyers arguing to other lawyers - albeit, lawyers dressed in robes - about issue which may fundamentally affect our daily lives, such as affirmative action, personal choice, religious freedom or our civil rights - the potential loss of anonymity would seem to be a fair price to pay. Moreover, I believe the Court's moral authority, itself, would, in fat, not be diminished but, rather, enhanced by observing the intelligent and dignified manner in which oral arguments are presented and addressed in our complete, gavel to gavel, coverage of such proceedings.
Indeed, a glance back at the disputed presidential election of 2000 is sufficient. By allowing delayed audio broadcast of the historic oral arguments before the Supreme Court in the case that ended the 2000 presidential election dispute, Chief Justice Rehnquist recognized the great public interest in access to notable judicial proceedings. While that case was unique in many ways, it demonstrated unequivocally the need for the American public to hear the arguments before the Supreme Court in other significant cases involving issues potentially as wide ranging as abortion, terrorism, human rights - including gay rights, and the separation of church and state, among others.
After all, the Supreme Court is not, only, our highest court - it is America's Court. We have the right to see and hear - our Court - decide issues of importance to all Americans. I do hope this is, exactly, what now Chief Justice John Roberts had in mind in his favorable response to Senator Grassley, during his confirmation hearings, regarding his willingness to be open minded on this very issue. In fact, I believe Americans should not just be allowed, but actively encouraged, to watch the workings of the most powerful court in the world.
In closing I would say this to the Committee: The American people deserve to see their judicial system in action, at all levels. The American people deserve to see this window on its system of justice now opened - and, for the sun to shine in, upon it. Indeed, the American people deserve to have cameras permitted in our nation's federal courtrooms.