Ed. note: We’ve given your our views on why cameras should be allowed inside federal courtrooms. But, as bloggers, we’re not as directly affected by the current ban on cameras in court as many other journalists.
Today we bring you a guest post from a television reporter who covers the courts. Daryl Huff has been a television reporter, producer and assignments manager in Honolulu for 30 years. He has primarily covered courts, government and politics for KITV, the ABC affiliate, since 1990.
We met Huff last month in Honolulu at the District of Hawaii judicial conference, when we served together on a panel about media and the courts. We were impressed by his thoughts on cameras in the courtroom and asked him to contribute this guest post.
By Daryl Huff
There’s a fascinating trial coming up in U.S. District Court in Honolulu. It’s about an eccentric rocket scientist whose house on Maui is shaped like a B-2 Bomber. He’s accused of selling secrets to China.
I just wish I could do stories about it.
Why can’t I? After all, I’ve been covering courts or public affairs for more than 30 years. I’ve won awards. I get invited to conferences. I have basic skills and experience. I have a press pass, and my company has a large audience.
But I report for television — KITV4 News, the ABC affiliate in Honolulu, to be specific. I don’t cover many stories in federal district court anymore, because the court won’t let me bring in my tools: a camera and microphone.
This really pisses me off….
My station is actually better than most at covering federal court. At least we try. I am frequently the only television reporter standing outside the courthouse door, waiting with my cameraman for our 20-second shot of a defendant or plaintiff.
Exacerbating the challenge of having no sound or pictures from inside the courtroom is a culture of media-phobia that closes off other opportunities for television reporters to build effective stories. There is a Justice Department policy against releasing mug shots of criminal suspects (which, until recently, was unevenly enforced). Even interviews with defense attorneys or prosecutors are rare, because timid lawyers have vague ethics rules they use to avoid interviews when their real concern is offending a judge by appearing on television during the pendency of a case. Woe be to the lawyer who grants a television interview immediately before, or during, a jury trial.
We cobble stories together out of that emotionally vacant walking shot, still pictures from the internet, and graphics with a quote from a judge or prosecutor. If we’re lucky the story is about something visual – like endangered whales. If it’s about something hard to illustrate, like sexual harassment, you might as well forget about television coverage at all.
Even though cameras have become routine in most of America’s courtrooms, they are still considered such a terrible threat to liberty and justice by the federal bench they remain banned at the district court level and are barely tolerated and highly regulated by the circuit courts of appeal.
But there are signs that the wall is cracking. Limited access by television is being considered for district courts in the Ninth Circuit, as it has periodically been considered (and rejected) over the last decade or so in other circuits. Faced with the terrifying prospect of cameras in their courtrooms, Hawaii’s federal judges scheduled two back-to-back forums in early April, 2010, on the relationship of the media and the courts.
As Honolulu’s only television reporter assigned full-time to state and federal courts, the judges invited me to both events – and perhaps now regret it. I put forward my own theory: that the real reason the federal bench resists cameras is simply judicial vanity. They are comfortable, don’t like change, and aren’t sure how they’ll look on TV. There really is no other legitimate reason to keep the cameras out.
Why are you the only TV reporter here?
It’s a question that I’m often asked by attorneys and judges who see me standing alone with my cameraman outside the courthouse door. When I complain about the lack of pictures, they don’t get it. “What’s wrong with just taking notes?” they ask.
A television reporter without interesting audio or even still pictures of the subjects of the story is highly unlikely to make the Six O’clock News. Potential stories from federal court are competing with state court, which daily delivers sobbing victims’ families, defendants explaining their depravity or begging for leniency, and judges explaining their difficult choices. The stories from state court are often trivial in importance compared to the broader issues across Punchbowl Street in federal court, but without human beings explaining themselves in the courtroom, federal cases are too difficult to tell on television in a compelling way.
In Honolulu, and most cities across the country, television news organizations with shrunken staffs don’t dedicate resources to federal court except for the most sensational cases. Those end up poorly covered because reporters have no experience in federal law and procedure. Desperate for compelling interviews, they end up harassing attorneys, witnesses, victims’ families and even jurors.
The situation with television indirectly affects newspaper coverage as well. As newspapers downsize, the experienced courts reporters are often among the first to take retirement buy-outs. With television ignoring federal courts, there is less worry at the newspaper about falling behind on a big story, so the paper is less likely to invest in a full-time federal court reporter. The newspaper reporters can bring their pad and pen, but will be disconnected from e-mail and internet inside the court and unable to meet the demand of their newspaper website for hourly updates and breaking news to beat the competing websites.
In the age of “convergence,” in which newspapers offer their readers video to compete with television, newspapers are also seeking visuals unavailable from federal cases. The first “beat” scrubbed in budget-cutting session is federal court.
Cameras have been allowed in Hawaii courts since 1984. I was indirectly involved, along with many others, in writing the Hawaii Supreme Court Rules that allow television and still photography in all but Family Court cases involving children. The rules are relatively simple and have required no significant adjustments in 26 years.
The assumption is that cameras will be allowed in all cases, with appropriate notice to the parties, except for a handful of exceptions where media must overcome a presumption of good cause to deny photographic coverage. Good cause for excluding coverage includes testimony by a child witness, by an alleged victim of sexual abuse, or by a witness in real danger of physical harm due to his testimony and identification. Cameras are not allowed to take pictures of jurors prior to or during a trial. That’s basically it. Media are required to file a request for “extended coverage” for any case we want to cover with cameras. The one-page form, once submitted, allows for coverage with either still or television cameras for the entire case, all the way through sentencing.
The only issue over which we have ongoing conflict with judges is “adequate notice.” Because judges’ calendars for the day are usually only posted for the public in the morning, we often don’t see a new case until minutes before it begins. We will scramble to get in the form, but most defense attorneys will object that a few minutes’ notice is inadequate. A member of the media is usually allowed to explain, but certain judges, those most hostile to media, consistently support the defense in late-notice disputes and bar the camera.
Only one television camera and up to two still cameras are allowed in the courtroom. The television stations keep track of whose turn it is to be the “pool” camera and share the video. The judge determines where the camera is set up and where microphones can be placed. Once again, judges hostile to media will use this rule to put the cameras in the worst possible position, even unable to video the defendant or lawyer’s faces; while other judges, who consider the media just part of the judicial process, are considerate of our needs. In Honolulu, cameramen, still photographers and reporters often sit in the jury box during sentencing, to provide a better view of the hearing and allow more room in gallery for family and the public. The hostile judges keep the camera back behind the bailiff, won’t allow microphones near the defendant, and will themselves speak in inaudible whispers to frustrate any effort to record them.
But lest my bitching be misunderstood, I will cover a hostile judge in state court any day over a federal judge I am not allowed even to photograph.
Federal and state bench-bar-media conferences are nothing new in Honolulu. Every few years, the number of accumulated grievances about inaccuracies, sensationalism or stupid questions reaches the point that the federal judges feel it is time, once again, to “reeducate” the local reporters. But the fact is, many of the gripes are due to the fact that the typical television reporter might be sent to federal court only once or twice a year.
Even though the judges are sincerely motivated, it’s irritating to see them sponsor conferences to improve television coverage while still denying TV reporters the ability to use their tools. It’s like trying to make a sprinter run faster after breaking one of his legs.
The Balance of Harm
To open the first of the two April conferences, Chief Justice Ronald Moon of the Hawaii Supreme Court made a very straightforward assessment. After 26 years of cameras covering Hawaii court, he was not aware of a single case where media coverage had interfered with the outcome.
The Chief Justice went on to say that the impact of television coverage had, overall, improved the public’s understanding of the judicial process, did not discourage people from serving as jurors, and had a positive impact on the judiciary in general.
I thought at that point we should all leave the conference room, grab our box lunches, and go back to work.
But then the circuit executive of the Ninth Circuit, which is looking into limited camera access for district courts, described the history of that idea in other circuits. Time after time, when district court judges thought a case was of such significant public interest that actual video and audio of the arguments would be valuable, he or she was overruled by judges at a higher level.
I felt my face getting hot. It wasn’t personal. None of these high-up judges knew me, but I felt the sting of ignorant discrimination against my people: reporters who use video instead of ink to tell the story.
What is the rational basis to deny access by the television press to federal courtrooms?
One state judge said “people act differently” when the camera is present.
So? Maybe they act better.
I raised the question: “If federal judges are so certain that cameras endanger the right of defendants to a fair trial, shouldn’t they ban cameras from state courts? “
Our local Federal Public Defender jumped on me on that. “Daryl is going to have to go back to law school if he thinks the federal courts could reach out and ban cameras in state jurisdictions. I have never had a defendant for whom I think a camera would be of any assistance.”
I suppose I should have felt complimented by his assumption I went to law school, but for a guy who insists the prosecution produce evidence for their accusations, he hadn’t produced any real evidence for his accusation that cameras harm defendants’ rights.
I know for a fact that some defendants want coverage. Shouldn’t they be allowed to waive the prohibition? Could it also be that while individual defendants don’t benefit from exposure, the public – after learning of, say, lengthy sentences for non-violent drug offenders – might pressure Congress to go a little easier?
It’s clear to me that judges are not applying the same standard of proof to the ban on cameras as they do to other restrictions of liberty. They don’t fairly apply the balance-of-harm analysis that they would in a civil injunction context.
Why talk of “pilot programs” and “experiments” with cameras in federal court? There is no credible or measurable evidence against them, while the evidence provided by the extensive experience in state and local courts is unequivocal. Even conceding a handful of cases nationwide over three decades doesn’t tilt the scale toward restraining the ability of journalists to cover public events or the public to witness them at home. There is no evidence of harm. None. No preponderance, no reasonable doubt. No evidence of harm.
If there was, the federal courts would know it. There would be defendants all around the country marching into federal court screaming that their civil rights were violated by excessive, prejudicial or sensational coverage. It hasn’t happened because judges have been attentive and careful in selecting and instructing their juries. Jurors, even though we assume they defy judges and watch coverage, have consistently produced rational results.
The other complaint of public defenders is that judges with a camera in their courtroom are less likely to give a break to a defendant in the current “tough on crime” environment. In fact, those cases would get coverage anyway, and without a camera, instead of his words and tone being heard first hand by the public, the judge would have to trust reporters to explain his ruling.
Judges are better off with cameras in their courtrooms. So is the public.
Daryl Huff has been a television reporter, producer and assignments manager in Honolulu for 30 years. He has primarily covered courts, government and politics for KITV, the ABC affiliate, since 1990.