TCS Daily

Lights, Camera, History

By Duane D. Freese - March 10, 2003 12:00 AM

Millions of Virginia, Maryland and District of Columbia residents were terrorized by the D.C. Sniper last fall. But only a relative handful of them will get to view the trial of one of the two men accused of taking part in the killings. The same is true in any upcoming terrorism trials in federal courts, such as that for Zacarious Moussaoui.

Fairfax County, Va., Circuit Court Judge Jane Marum Roush has nixed cameras in the court for the trial of Lee Boyd Malvo, the 18-year-old accused of being the partner of 42-year-old John Allen Muhammad in the two-month shooting spree that killed 10 and injured three others.

"I am concerned with the possible prejudice to Mr. Malvo of photography - whether still or television," the judge said in turning down media cameras.

Well, maybe.

Despite all claims to the contrary, courts have readily been able to impanel impartial juries, even in follow up trials for the most notorious crimes. They found one for O.J.'s civil trial, where he ended up putting a big foot in his mouth by lying about those "ugly ass" Bruno Magli shoes and the bloody footprints.

The fact is that since the O.J. Simpson circus, judges are leery of themselves becoming the next Judge Ito in a high profile case. So skittish are judges these days that it took seven years after OJ for judges in Los Angeles County to exercise their discretion again to put a high profile case - the hearings leading to the guilty plea of the Symbionese Liberation Army's Sarah Jane Olson in 2001 - on the boob tube.

So Roush is hardly alone in seeking to avoid televising a high profile trial.

One would hope, though, that she would create a visual history of this trial. There will be closed-circuit television to an overflow crowd for the shooting victims of family members, police from various jurisdictions and a large media audience. So, all it would take is for the judge to hook up the feed to recording equipment and press record. That should not be too hard. Except, as with most things involving courts, there's procedure. In the case of recording the trial, as opposed to televising it, she needs to ask that her court become part of a Virginia pilot program for recording trials.

It's silly. Indeed, by now, video-recording trials should be a standard practice everywhere. After all, recording trials has gone on since March of 1985. That's when Jefferson, Ky., Circuit Judge Laurence Higgins, lacking a court reporter for a trial, popped two video tapes into a newly installed video recorder to become the first judge anywhere to make a court record on a fully automated video system.

Yet, nearly 20 years since Higgins did a smart thing, other courts have done little to record history and provide visual transcripts that attorneys, law enforcement, students, historians, citizens and ultimately even other courts might use in the future.

Not even a handful of states make heavy use of video recording trials. According to the National Center for State Courts, aside from Kentucky, only Michigan and Utah use video recordings as part of their official record. Kentucky is the only state where the appellate courts are required to accept a video as a trial transcript. The federal courts won't allow cameras or video recordings at all.

Why this rejection of technology?

For the most part, videotaping has proven to be a boon both to law enforcement and courts. Drunks videotaped at traffic stops have been shown to be less likely to challenge their tickets in court once they see the tape of how they were acting. In Minnesota, prosecutors have had an easier time winning convictions of criminals whose taped interrogations have been presented at trial. And if there is a case where someone claims they were tricked or coerced into confessing, police can, as Mason County Chief Deputy Kirk Myers noted "just roll back the tape and see what's going on." In more than 99 of 100 cases, the police will come out on top.

That's true for judges, too. A study in Kentucky found that appellate courts were more likely to uphold judges' rulings in cases where they had a videotape available for viewing.

Indeed, there are many good reasons to create a video record for a trial rather than rely strictly on written transcripts.

Video recording systems don't need to take breaks, or go on vacation, or suffer job stress. They thus can provide more timely trial transcripts for attorneys, judges and other litigants for immediate playback. By comparison, in South Carolina today, you have to wait 14 months to appeal a decision because that's how backed up their written transcript system has become.

They also help courts save money. Utah's information services director estimated that the video recording of non-capital and first-degree felony cases would have saved courts there about $166,000 a court room over five years since their 1998 implementation.

Most important, video records, especially now with digital sound capabilities and enhancement, provide a true verbatim record of all court proceedings. There's less chance of omissions than with a court reporter who might simply miss a word through a momentary distraction. In addition, the visual record can provide a look at demeanor along with voice inflection. It makes a heck of a lot of difference how a person says something and how they look when they say it - a derisively laughing voice with a look of contempt saying, "Yeah, sure I killed her" isn't the same as a contrite, weeping, "Yeah, sure, I killed her." Judges, students, lawyers, law enforcement and historians all can learn more from a visual transcript than a written one. Prosecutors and law enforcement fighting terrorism today might benefit mightily if they could look back at the trials of the World Trade Center bombings. But they have only dry paper transcripts.

So how do courts excuse themselves from doing what's smart for taxpayers and for justice? Well, they have many reasons, the silliest among them the position adopted by the federal courts - that cameras are so dangerous and intrusive that they would interfere with a fair trial.

That was the excuse trumpeted by Chief Judge Edward J. Becker of the Federal 3rd Circuit Court of Appeals against legislation by Sens. Charles Grassley, R-Iowa, and Chuck Schumer, D-N.Y., that would have simply allowed federal judges to do what judges in 37 states now have the power to allow - televise a trial.

"We believe that the intimidating effect of cameras on litigants, witnesses and jurors has a profoundly negative impact on the trial process," he intoned. "Moreover, in civil cases cameras can intimidate civil defendants who, regardless of the merits of their case, might prefer to settle rather than risk damaging accusations in a televised trial."

That's overblown rhetoric. As Mason County Deputy Myers noted about people being videotaped during police interrogations, "First, they (suspects) feel uncomfortable. But, oftentimes, they forget they are being taped because it's concealed."

Indeed, with modern unobtrusive recording technology, everybody is likely to forget cameras are there.

And maybe that's the problem. The one thing the camera doesn't do is lie. And one thing court reporters can do is cut judges a favor.

"Everyone knows it, but nobody says it," said Jim McMillan, director of the court technical lab at the National Center for the State Courts. "The reality is that court reporters cover up judges' misconduct."

So, it returns to O.J.: No judge wants to look like Ito. But in covering up for themselves, judges who don't video record their trials also are burying history and distorting the legal process, not protecting it.

Maybe the D.C. Sniper cases and upcoming terrorism cases shouldn't be televised to the world today. But they should be recorded for posterity. Wake up, courts! We don't record history on clay tablets, scrolls or with quill pens anymore. So, turn on the lights, and set the camera to catch the action for the world to learn from tomorrow.

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