In recent months cable television has carried the trials of two doctors from Massachusetts, both accused of killing their wives, both convicted. In the course of testimony it emerged that one spent his free time trolling the Internet looking for partners for group sex; the other was a cross-dresser who favored garish cocktail wear and a big-hair black wig that made him look like an unsuccessful country-Western singer. Had the cases not been televised by Court TV, they would surely have been snapped up by Ricki Lake.
This may seem an odd way to begin an argument in favor of more widespread use of cameras in the courtroom. After all, cases like these two are exactly what opponents predicted: that rather than focus on the fine points of law, televised trials would mimic the worst sort of television. The old objections have fallen away, the ones about intrusive equipment and privacy protection defeated by new technology, those about intimidated witnesses and skewed outcomes negated by recent history. The raft of appeals by defendants blaming their convictions on the cameras has never materialized. But people still argue the sleaze factor, and they have a single argument that they did not have decades ago, when the debate began. It can be summed up in two letters: O.J.
As usual, big cases make bad precedent. The notion that the murder trial of O. J. Simpson demonstrates much about televised trials is one of those false constructs they warn you about in college logic classes. There is no credible evidence that Kato Kaelin would have been any more palatable had he not been visible. As for the suggestion that trial attorneys play to the cameras, Johnnie Cochran would play to a cageful of hamsters. The only argument against televised trials writ large in the Simpson case has to do with the notion of a media circus. Only a weak judge can turn a trial into a media circus by losing control of the proceedings, as Lance Ito did.
And there's one other thing the Simpson case made clear. Many trials are only tangentially about such sterling-silver notions as the pursuit of justice. Day to day they are more often exercises in gamesmanship, strategy and semantics. The relationship between what goes on in court and the pursuit of justice is like the one between the Miss America pageant and college scholarships; one may lead to the other, but while you're watching, that scarcely seems the point.
So why watch? Because the beauty of the process is not that it is elegant, but that it takes this messy stew of evidence and egos and transmutes it finally through order, instruction and deliberation into a system that gets it right a good bit of the time. Zacarias Moussaoui, the first person charged with the terrorist attacks on September 11, has asked that his trial be televised despite a ban on cameras in federal court because, in the words of a defense motion, "the American criminal justice system will be on display for the entire world." If the American people got to decide the issue based on that standard, I bet they would respond: bring it on!
But while prosecutors come to the courtroom as "the people," intimating that the proceedings belong to us all, the question of whether trials should be televised has often come down to the inclinations of jurists, a less democratic group. Their opposition has usually been cloaked in arguments about the right of the defendant to get a fair trial, but too often it feels like a continuation of the insular clubbiness of the bar. In 1994 the U.S. Judicial Conference took only 20 minutes to conclude that cameras should be kept out of federal courts; the meeting itself was, of course, closed to the press. "We are not part of a national entertainment network," Justice Anthony Kennedy once said, obviously sure that no average American could want to watch Supreme Court proceedings for intellectual edification.
That's the irony: amid complaints that only salacious soap-opera trials are given air time, the proceedings that would be most educational remain unseen. Oral argument before the Supreme Court, which offers an unparalleled opportunity to understand the law in its most elevated and intellectually engaging form, has never been televised, and Justice David Souter famously said it would be so over his dead body. Even when the justices were effectively deciding who had won the presidential election in 2000, the closest they would come to accommodating the voters who employ them was an audiotape.
Compare the attitude of Justice Joseph Teresi of the State Supreme Court in New York. Despite the fact that New York is one of only a handful of states that do not allow cameras in the courtroom, he ruled that the public interest would be served by televising the trial of four cops accused of killing a black man named Amadou Diallo. The case had become yet another firestorm in the fraught relationship between the New York City Police Department and the minority community, but although the four officers were acquitted there was little public outcry. Perhaps that was because opening the proceedings allowed everyone to consider their fairness.
And so it should be with the trial of Moussaoui. Those who think the proceedings should remain closed to cameras argue that both witnesses and jurors would be loath to appear if such a fraught national event were aired on TV, that participants would fear being targeted for attack by terror networks if they were publicly identified. But such public identification could just as easily take place in print or by bystanders allowed in the courtroom, and in such a case television producers would obviously be especially circumspect about privacy issues. In the trial of Timothy McVeigh, only his victims and their families were allowed to watch on closed-circuit television. But the events of September 11 have left a nation of victims, and the number who bear witness should not be determined by the square footage of a courtroom. Let the world see how well the American justice system works. The point of public trials in the first place was to let the people in. In the 21st century, letting the people in means letting the cameras in.