Watching another lawyer try a case is a lot like watching ice melt: I know something is happening, but it I just can't see it. Even when I watch lawyers I admire, it's hard to enthuse about the show. Trial, a multi-dimensional game of chess to the participants, is not exactly riveting. Except on film.
We can't seem to get enough of courtroom dramas, or of crime shows. But fiction is not the new reality. A script writer's freedom from the rules of evidence or the adversary process can yield great entertainment. Real life just isn't that entertaining.
So why are the federal courts willing to experiment with cameras in the courtroom?
Alex Kozinski, the chief judge of the United States Court of Appeals for the Ninth Circuit, has announced that his circuit will “experiment” with cameras in Court. He wants "to help us find the right balance between the public’s right to access to the courts and the parties’ right to a fair and dignified proceeding.”
C'mon Alex, call your make up artist and tell her to stay home. This is a stupid idea. Casting pearls before swine doesn't make swine glamorous.
Court TV was supposed to edify us all about what went on in the courts. What we ended up with was 'round-the-clock shlock. Producers looked around for trials with sex appeal. Cameras were placed in these courtrooms, and then editors clipped the "sexier" moments for broadcast. To add color, lawyers were recruited as talking heads to "interpret" the significance of what was shown on the screen. The result was hardly edification; indeed, all we succeeded in doing was creating a few new talking heads, who copped just the right attitude on screen: Nancy Grace gracelessly rages about crime; Catherine Crier decries the role of lawyers. And the public, that vast entity of folks with some inchoate right to know, knows about as much as it knew before the klieg light's flashed -- zip.
I played at being a talking head for a while. Somehow, I made the Rolodex of a Court TV producer. Here's how the game worked. The phone would ring some morning. Was I free that evening? Great! Over the facsimile would come someone's narrative about what a case was about. A limousine would arrive. I'd read the facsimile on the drive to Manhattan. Once we arrived at the studio, I'd get a little make up. (I needed a lot.) Into the studio, chatter, blather and wisecrack. Then back to the limo. I knew the game was a fraud when I once saw a prosecutor from a low-level criminal court in Connecticut with little trial experience use family connections to make it big as a commentator. From time to time, she appears on national television offering opinions. I am green with envy, of course. She gets paid for that?
Cameras in the courtroom are a mistake. No one will broadcast the proceedings in their entirety, gavel to gavel. Editors will pick and choose what appeals. That will usually be something dramatic. As every experienced litigator knows, drama is usually more smoke than fire. Why would we want to trivialize what goes on in the courts by transforming court proceedings into entertainment?
Connecticut recently amended its rules to permit limited access to the courts by television. All that this has resulted in is delayed court proceedings. A client arrested in a so-called "high profile" case can expect delays in the court proceedings while the cameraman gets set up. Then everyone stands around like a debutante at the prom, waiting for the cameraman to signal he is ready. Then its lights, camera, action and the arraignment is on. All the television station really wants is a picture of the accused. The public learns nothing. We merely titillate.
“I think there’s something sick about making entertainment out of other people’s legal problems,” Justice Antonin Justice Scalia once said. He's right.
Judge Kozinski told The New York Times that the Ninth Circuit move is still an experiment. “It’s a little bit of an uphill battle” to get courts to adopt technology, he said, adding: “We all have to be much more tech savvy than we really ever were, or particularly wanted to be. It’s just the nature of life in the 21st century.”
Permitting television cameras in the courtroom merely trivializes the proceedings. If Judge Kozinski thinks otherwise, he's out of touch with reality.