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Jacobs & Dow, LLC


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Is there anyone who really believes that having television cameras in courtrooms is a good idea? C’mon, let’s be serious. Does anyone really think, using the probative value/prejudicial impact balancing test, that it’s better for “The Process” to televise trials where an individual’s liberty is at stake? Does the public really give a hoot? Who really benefits from this cockamamie proposal?

We’re now in the midst of one of those pendulum swings of over-reaction that always occurs when an error is uncovered. Somehow, like Chicken Little, people run around in circles predicting The Apocalypse unless drastic measures are taken immediately. And, without thinking things through, they act.

This all began, it seems, when it was discovered that there were “secret files” hidden in the bowels of various clerks’ offices, a fact unknown to many lawyers
and judges. Once discovered, steps were taken to correct this error. The sin, I believe, was not so much that there were closed files, but that there were no procedures to guide the determination of when it was appropriate-when the interests of the parties and, to a great extent, the public-to seal files from public access. Steps were taken to implement rules and regulations to govern the process.

Now, however, because of the public flap over what came to be known as “The GA 7 Case,” the delay in publication, and the alleged reasons for the delay, commissions have been appointed, studies done and proposals uttered, all toward the end of providing the public with better access to the workings of our courts. Some of these proposals are ok. Many are not. And the worst of the lot is TV’s in the courtroom.

Overlooked in all of this are the interests of the individuals who are most affected by the proposal: the parties to the proceedings. Forgotten, as well, is the fact that our courtrooms
are open to the public and the press. Anyone who wants to catch a little shuteye on any given day can slide into a pew in any courtroom around the state and learn that boredom is just another name for trials.

To think for a moment that TV cameras will not affect what happens in a courtroom is preposterous. I know that when I’m in a courtroom speaking on behalf of a client and a newspaper reporter is present, I am aware of that fact and my behavior is modified in some way. I adjust what I say, always concerned my words may be repeated in tomorrow’s paper, and, if I’m not careful, it will be to my client’s detriment. There is an additional audience-in addition to the jury and the judge-to which I must play. I have an obligation to represent my client as best I can. I want to make sure decision maker-judge or jury-is the focus of all that I do. I don’t expect my client is concerned with whether I sound like Winston Churchill or Jabba the Hut. What my client wants is a result. To the extent that I am distracted by the press from doing the best for my client, my client suffers. And so does the court process.

Add to the mix a video image of my performance. I don’t want to have to worry about whether someone in East Hampton thinks I wore the wrong tie, or that some present or potential client thinks I sound like an unprepared Fred Flintstone and, based on that, decides to take his business elsewhere. If I’d wanted to be in show business, I could have tried out for American Idol or refined my juggling skills and run away with Cole Brothers Circus the last time they set up tents in the church parking lot.

And forget about me. Do any of us think that the other participants in this bombastic review will not be similarly affected? Tell me, Your Honor, are you really going to be unmindful of how your neighbors see you on TV? And how about you Mr. Witness, are you going to really forget there are camera’s there when, directing your attention to the evening in question, you are asked to recall what happened as you looked down the street? Of course not. We all perform to the audience. Listen, it’s tough enough for all of us to do the job right under present circumstances. We don’t need any other distractions.

The point is, however, bigger than the self-centered concerns any of the individual players in this drama. If in fact the proponents of the televised proceedings are interested in making “The Process” better, they have missed the boat. If the participants are affected by the cameras, the end result is that “The Process” is not just affected, but infected. The quality of the end result is compromised and less worthy.

Those who cry for greater access to the courts, particularly the televising of court proceedings, are those with the greatest self-interest: the electronic media. Forgive me, but I am skeptical of the First Amendment warriors who maintain that they speak for the public interest. Like all of us they are looking out for Number One. Entire proceedings will not be televised. Rather, if cameras are allowed, there will be video snapshots of handcuffed defendants, dithery witnesses, bumbling lawyers and distracted judges. Trials will not be broadcast; only snippets which will mislead and give false impressions. Court TV began by televising entire trials. That fell on its face fairly quickly. The public was not interested. Now I can surf through that channel and catch “Forensic Files” and celebrities and the law. I can get all that through Access Hollywood and Entertainment Tonight. An educational experience it’s not.

And so, as the lights come up and the camera moves in for a close-up of an anxious lawyer asking a courtroom marshal to please get some paper towels to sop up the water spilled over counsel table while Her Honor declares a recess. The public is enthralled. I’m switching to SportsCenter.