By: Debra Gersh-Hernandez
A FTER TAKING THE blame for many of the procedural ills evidenced during the trial, the cameras in the O.J. Simpson courtroom, like the defendant himself, might be pleading 100%, absolutely, not guilty.
Following the trial, many of those against such camera access used the excesses of the Simpson case ? notably its length and circus-like atmosphere ? to push for removal of broadcast cameras at trials. In fact, such a proposal has been advanced in California, site of the Simpson trial, where cameras have been allowed in courtrooms for years.
“There have been allegations that the trial in Los Angeles somehow achieved the length it did because of the cameras. That has resulted in a political movement, spearheaded by the governor, Pete Wilson, to take cameras out of the courts,” explained Court TV chief anchor and managing editor Fred Graham during a seminar in Washington, co-sponsored by the Annenberg Washington Program and the Courtroom Television Network.
Calling the governor’s interjection into the debate “unfortunate,” media attorney Kelli L. Sager explained that Wilson’s argument “is that you can blame all the evils of the O.J. Simpson trial on the media, and particularly on the camera being in the courtroom.”
“That includes the length of the trial, the verdict, the behavior of the lawyers, the behavior of the judge; anything that anyone didn’t like about the trial is focused on the courtroom camera,” said Sager, a partner at Davis Wright Tremain in Los Angeles, who represented a coalition of media organizations during the Simpson trial.
“We’ve had cameras in the court in California now for 15 years without a peep from Governor Wilson, or anyone else, or any suggestion that the cameras have caused any harm to the judicial process,” she said. “And because people didn’t like what they saw in one case, all of a sudden the ills of the world are being put upon the courtroom camera. I think that’s very unfortunate and completely unjustified.”
Duke University School of Law professor Neil Vidmar, however, pointed out that the biggest problem “is that we are getting an imbalance of what the average court case is like from an O.J. Simpson case, [or] a William Kennedy Smith case. It’s not a typical case.”
Vidmar, a professor of social science law, has spoken to state legislators who point to those cases and say the whole court system needs to be changed.
“That’s just wrong,” he said. “That, to me, is the biggest problem. It is an unrepresentative image of the court system.”
Vidmar also questioned what would have happened in the Simpson case had there not been cameras in the courtroom, particularly during the preliminary hearing.
“That set the tone,” he said of the pretrial activity, “and, at minimum, it seems to me, cameras should have been excluded from that portion of the trial.”
In studies conducted for another case, Vidmar said he found that people have a much more emotional response to seeing action in the courtroom, as opposed to reading about it, “and, of course, that sets the whole stage.”
Sager argued that she did not believe the medium of reporting made any difference in the process, but she did agree that there may be some change in the public’s interest, particularly its feeling of being involved in the proceedings.
“But I have yet to see anything that suggests to me that the length of a trial is affected, one way or the other, by having a camera in the courtroom,” she said. “In California . . . we have incredibly lengthy trials with no cameras, and we also have experience televising many trials which are very short. So there doesn’t seem to be any correlation between the two things.”
Vidmar reiterated, however, that he was not referring to the length of trials, but rather to “building up the emotional expectations in the circus atmosphere before the trials even got started.”
“That seems, to me, to be the point that I was focusing on in terms of creating community concern and involvement. The kind of prejudice that develops probably would’ve been . . . at least a little bit moderated if there had been a straightforward reporting of the facts,” he said, noting that some countries do not allow reporting of pretrial inquiries.
“It would be hard for me to imagine more of an emotional outburst or feeling than what happened in the Susan Smith trial, and none of the proceedings were televised,” Sager commented, referring to the South Carolina mother who killed her two young children.
“Yet, not only in that community was it an incredibly emotional event, but nationwide,” she said. “It was all relying on printed reports, and to the extent that television covered it, it was covered based on printed reports.
“So, it wasn’t on television, any of the proceedings, and yet the emotional impact could be described was equal to that of the O.J. Simpson case, but for a shorter duration,” Sager commented.
Nevertheless, Vidmar noted the Smith case occurred in a local community and was an event that focused attention on the community, as well as the defendant.
“My solution to eliminating cameras in the courtrooms, at least in those kinds of cases, would not eliminate prejudice,” he added. “We had pretrial prejudice way before cameras ever existed. But it would certainly, it seems to me, temper some of the emotions.”
University of Delaware professor Valerie P. Hans commented that studies she has seen show that while jurors in trials that are being taped initially are a little nervous, “which is typical of jurors anyway,” the feeling dissipates over time.
“So, most of those studies really did not raise any major problems,” said Hans, professor of criminal justice and psychology and director of the legal studies program.
“I think there still is an issue about a really big case, and whether or not cameras might be creating additional problems for a really big case,” she added. “It seems to me that would be in the hands of a judge. I’m a fan of cameras in the courtroom.
“I’d like to see them allowed, but still allow the judges to have discretion in unusual cases . . . . “
Wall Street Journal editor Stephen J. Adler noted that he has never seen a circus atmosphere inside a courtroom.
“When you put a camera inside the courtroom and you watch the events, you might disapprove of some of them, you might like others; you learn a lot about how the process works,” said Adler, the Journal’s Page One special projects editor and former legal editor.
“But more to the point,” he added, “the circus tends to be outside the courtroom.”
“The circus involves things that the judge, perhaps, can’t control, in terms of controlling the leakage of evidence, controlling what lawyers are saying on the courthouse steps, controlling what’s going on surrounding the case.
“But I think the camera in the courthouse isn’t creating the circus, and it’s doing a lot of good,” Adler said.
A colleague of his, Vidmar commented, suggested that cameras be eliminated from high-publicity trials and be placed in local, community courts for ordinary trials.
“That might be the place where cameras can serve the role of educating,” Vidmar said.
Maryland attorney Fred R. Joseph, of Joseph, Greenwald and Laake P.A., said he can think of “many ways that a judge can get control that were not used in the Simpson trial.”
“I think there are many positive aspects to having that camera in the courtroom,” Joseph said, citing the fact that judges and lawyers likely would be on their best behavior.
“We’re all somewhat hams, whether there’s a camera or not,” Joseph said of lawyers. “What you need is a strong judge who doesn’t let things get out of control.”
Maricopa County, Ariz., Superior Court Judge B. Michael Dann agreed about judges and control, and noted in the 15 or 20 years of cameras in the courtroom, “routinely there have been no major problems.”
“Have there been abuses? Certainly, certainly. But the trial judge can and should control the case and the lawyers so that they won’t get out of hand,” the judge commented.
“If the lawyers are seen to be playing to the cameras, or if the presence of cameras is dragging out the trial, turning a two-week into a four-week or worse, the judge has to do something. I think most of the abuses can be prevented by sound, tight judicial control,” he said.
To the extent there is any change in people because of a media presence, attorney Sager said, “People’s behavior may be improved both in terms of how the judges react to the litigants, whether the judges are paying attention to the litigants, and how the litigants react to each other.
“The curious thing about the Simpson trial, where everyone is complaining about the behavior of virtually everyone involved in the trial,” Sager continued, “was that you do not hear from anyone in Los Angeles who knows these litigants and knows this judge; no one is saying that their behavior was inconsistent with the way they normally behave when there’s no camera in the courtroom.
“Johnny Cochran has a particular style. You see it whether there is a camera or not a camera. Marcia Clark has a particular style, and you see that as well.
“And Judge Ito, from my limited experience, is one of the world’s most patient judges, and he is that way whether there is a camera or not. He lets people say their peace,” she said. “To the extent that people complained that went on too long in the Simpson case . . . that wasn’t because of the camera. That was because that’s the way Judge Ito runs his courtroom.
“And so to try and put all of the ills of the world, as I said before, on the camera, I think, is missing the point,” Sager commented.
Attorney Adrian Cronauer of Maloney & Burch pointed to a study where respondents read transcripts, listened to audio tapes or watched kinescopes of the Kennedy-Nixon debates. The first groups gave the debates to Nixon, the second was split and the third gave the win to Kennedy.
“So, I’m suggesting that the medium ? through which the general public finds out about what’s going on in the trial ? is different when they see it on television than when they see a written reportorial report,” Cronauer said.
Sager agreed, and pointed out “that’s one of the reasons why having a camera in the courtroom is so critical, because people can see for themselves what is going on and they don’t have to rely on second- or third-hand information.”
Vidmar argued that as much as the print reporter in the courtroom gives a particular view of the trial, so does the editing of the excerpts that may appear on the evening news.
The Simpson trial, however, was covered gavel to gavel, Sager pointed out, “so people could, if they wanted to, watch every minute of it.”
Nevertheless, she added, “to hear someone describe what a witness did or said is not quite the same as seeing it for yourself, even if it’s in abbreviated form” on the evening news.
In addition, raising the passion of a community is not necessarily a bad thing, according to Annenberg senior fellow Fred H. Cate, professor of law at Indiana School of Law-Bloomington.
“The idea that you could have a community become impassioned or excited about a trial, about any small segment of the governing structure around us, it strikes me as a terrific thing,” Cate said. “It’s something that we would aspire to, to have a community that would say, ‘I care about this trial, I want to know more about it.’ “
Further, Cate noted, “The alternative to having cameras in the courtroom, for most people, is that instead of getting what you correctly criticize as being editorial choices that you watch on the nightly news or whatever, I now get editorial choices as to what the attorneys say on the courtroom steps, or what is reported as rumor for what occurred in the trial, or what editors are making as editorial choices.”
Sager pointed out that the U.S. Supreme Court has noted both the right and the cathartic effect of such public access to trials, “so that the public comes away feeling that justice has been served and the process has gone through its course.”
“If you had secret trials, no public access,” she continued, “it wouldn’t have any outreach or any mechanisms through which to feel that something is being done about a horrific crime or about a particular civil matter that has impact on the community . . . . “
In fact, Sager recalled a survey of people who had watched Court TV and “came away with a much more positive view of the court system . . . than they had without having watched anything at all.”
To the Journal’s Adler, the judicial process “needn’t be pretty. We shouldn’t necessarily like what we see. The real point is . . . it belongs to us, it doesn’t belong to the lawyers, and we should see when it’s working and when it’s not.
“So even if the public came away with a less positive view, I’d still be in favor of it, because it might mobilize people to start thinking about changes.”
?(Ron Taniwaki, Nikkon Professional Service, installs the photo pool remote still camera that was used in the O.J. Simpson trial courtoom. The camera was located inside a hard-plastic blimp to make it silent.) [Photo & Caption]
?(Media attorney Kelli Sager said O.J. Simpson attorney Johny Cochran (right) “has a particular style. You see it whether there is a camera or not a camera.”) [Photo & Caption]