Ruth Marcus / Politics

The Camera's Place in Court

WASHINGTON -- The video of James Holmes from inside the Arapahoe County Courthouse was as mesmerizing as it was creepy. His fluorescent mop of pink and orange hair. His vacant eyes, alternately bulging and droopy. Was he medicated? Crazy? Vamping for the camera? And the question, unbidden and against journalistic interest: Should we really be seeing this? Is justice best served by having a camera in this courtroom?

I believe it is, but I also believe this is a question worth discussing. Cameras have become such a fixture of the modern legal system that we scarcely pause to register their presence, except when the images are as jarring as those from Colorado or the proceedings as soap operatic as in the O.J. Simpson trial.

Nearly all states allow cameras in court; 44 permit them in criminal trials, although 10 of those on only a limited basis, according to the Radio Television Digital News Association. Even the fusty federal courts are experimenting with allowing cameras, albeit in a limited number of places, only in civil trials and when the parties agree.

One place cameras won't be: at Holmes' next court hearing, on Monday. Responding to a request from Holmes' defense lawyers, Judge William Sylvester ordered that the session be closed to cameras.

Sylvester, who had refused a defense request to bar cameras at the earlier hearing, weighed the various factors set out under Colorado court rules: whether allowing cameras "would interfere with the rights of the parties to a fair trial ... unduly detract from the solemnity, decorum and dignity of the court" or "create adverse effects which would be greater than those caused by traditional media coverage."

From the judicial viewpoint, keeping cameras out of court represents the path of fewest potential problems -- lessening, if not eliminating, defendants' complaints about adverse pretrial publicity.

But -- my initial queasiness notwithstanding -- the additional intrusion and disruption presented by cameras in court is minimal. Cameras were first booted from courts after the circus atmosphere coverage of the Lindbergh baby kidnapping trial in 1935, with 130 cameramen jockeying for position and spectators posing for pictures in the witness chair and jury box. Two years later, the American Bar Association inserted a ban on cameras in court in its judicial ethics code.

Now, though, the disruption factor is minimal; modern cameras are unobtrusive and footage can be shared through a pooling arrangement. Legitimate concerns for witness safety can be easily accommodated in individual cases, with cameras turned off or faces blurred.

If witnesses -- or lawyers, or judges even -- mug for the cameras, so be it. However, according to a 1994 analysis by the Federal Judicial Center, judges and lawyers participating in an earlier pilot program reported "small or no effects of camera presence on participants in the proceedings, courtroom decorum, or the administration of justice."

As to having cameras turn trials into spectacles, cases like the Aurora shooting are going to be spectacles in any event. The question is whether the coverage must be mediated through print journalists like me, or whether the public is permitted to see the proceedings and draw conclusions itself.

As federal appeals court judge Alex Kozinski and law clerk Robert Johnson wrote in a 2010 law review article, "cameras have become an essential tool to give the public a full and fair picture of what goes on inside the courtrooms that they pay for."

Which brings me back to Holmes. The "Dark Knight Rises" shooting rampage transfixed the country: What was the motivation? What kind of person could do this? The courtroom glimpse of Holmes offered some sense of the deranged person accused of the crime, an impression that could not have been conveyed by the most gifted wordsmith.

Like any defendant, Holmes is entitled to a presumption of innocence and to be judged by an impartial jury. But given the blanket coverage of the massacre, it is hard to see how having a camera record what is open for the public to see -- and for journalists to describe -- makes those rights any more difficult to assure.

The camera offered an insight. It did not impair Holmes' rights. If anything, being able to see the video made me more inclined to buy in to an insanity defense, if Holmes chooses to mount one.

The judge's decision to close Monday's hearing was understandable but wrong. It would be a shame if cameras were excluded from the remainder of this sad, strange case.

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Ruth Marcus' email address is ruthmarcus(at symbol)washpost.com.

Copyright 2012 Washington Post Writers Group



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