Vol. 37, Number 12—December 2005

First Session Legislation Waits for 2006, Continued

Court Security Bill Passes House With Cameras in Courtroom Provision
H. R. 1751, the Secure Access to Justice and Court Protection Act of 2005, which passed the House in November, moved on to the Senate for consideration by the Senate Judiciary Committee.

Judges Diarmuid O’Scannlain (9th Cir.) and Judge Jan E. DuBois (E.D. Penn.) talk with Dan Cunningham from the AO’s Office of Legislative Affairs, prior to the start of the Senate Judiciary Committee hearing on cameras in the courtroom.

The bill addresses several aspects of judicial security. Provisions in the bill would make it a federal offense to file fictitious liens against a federal employee, require the U.S. Marshals Service to consult with the Administrative Office regarding security requirements for the Judicial Branch, prohibit dangerous weapons in federal court facilities; fund the hiring of additional U.S. Marshals to protect the Judiciary; grant authority to federal judges and prosecutors to carry firearms, subject to regulations; and repeal the sunset of authority to redact personal and sensitive information from financial disclosure reports for security reasons. (Redaction authority also is in Senate bill, S. 1558, which would amend the Ethics in Government Act of 1978 to extend for four years the authority to redact financial disclosure statements of judicial employees and judicial officers.)

H.R. 1751 also would establish mandatory minimum penalties for certain federal offenses and allow broadcast media coverage of federal court proceedings at both the appellate and trial court level, at the discretion of the presiding judge.

The Judicial Conference, while supporting the judicial security provisions, opposes both the mandatory minimums, which severely distort and damage the federal sentencing system, and the bill's provision on cameras in courtrooms. The Conference has concluded that it is not in the interest of justice to permit cameras in federal trial courtrooms.

The White House said, in a Statement of Administration Policy, that it supports the passage of H.R. 1751 to strengthen judicial security; "A Nation founded on the rule of law must protect the integrity of its judicial system, which must apply the law without fear or favor. Enactment of this bill is important to vindicate the essence of the rule of law." The White House also weighed in against cameras in the courtroom.

"The Administration opposes Section 22 of the bill. . . that would allow media coverage of Federal court proceedings under certain circumstances," the statement read, "While the Administration understands the public interest in viewing trials . . . Section 22 has the potential to influence court proceedings unduly and to compromise the security of participants in the judicial process."

Senate Considers Allowing Broadcast Media in Courtrooms
Two federal judges, Judge Diarmuid O'Scannlain (9th Cir.) and Judge Jan E. DuBois (E.D. Penn.) appeared before the Senate Judiciary Committee in November to testify on cameras in the courtroom, specifically on S. 829, the Sunshine in the Courtroom Act of 2005. S. 829 was introduced by Senator Charles E. Grassley (R-IA) in April 2005. A companion bill, H.R. 2422, was introduced in the House by Representative Steve Chabot (R-OH) in May 2005. A separate Senate bill, S. 1768, introduced by Senator Arlen Specter (R-PA), would apply only to the Supreme Court, requiring the Court to permit television coverage of its sessions, unless the justices decide, by majority vote, that such coverage would violate the due process rights of one or more of the parties.

Senators Charles E. Schumer and Charles E. Grassely appeared before the Senate Judiciary Committee in support of S. 829, the Sunshine in the Courtroom Act of 2005. Grassley introduced the legislation and Schumer is a co-sponsor.

"The Judicial Conference in its role as the policy-making body for the federal Judiciary has consistently expressed the view that camera coverage can do irreparable harm to a citizen's right to a fair and impartial trial," O'Scannlain testified on behalf of the Conference.

The federal Judiciary has a number of concerns with S. 829. The bill would allow the photographing, electronic recording, broadcasting, or televising to the public of court proceedings. The presence of cameras might make witnesses less willing to appear in court, increase pressure on jurors, and tempt both attorneys and witnesses to try their cases in the court of public opinion rather than in a court of law.

DuBois was one of a relatively few federal judges who participated in a pilot program providing for camera coverage of civil proceedings in the federal trial courts. His district, the Eastern District of Pennsylvania, had the greatest application and coverage activity of the six participating district courts.

"My personal view is that, at the trial level" said DuBois, "the disadvantages of cameras in the courtroom far outweigh the advantages. In such a setting the camera is likely to do more than report the proceeding­—it is likely to influence the substance of the proceeding."

"This is not a debate about whether judges would be discomfited with camera coverage," said O'Scannlain. "Nor is it a debate about whether the federal courts are afraid of public scrutiny. . . . Rather this is a decision about how individual Americans—whether they are plaintiffs, defendants, witnesses, or jurors—are treated by the federal judicial process. It is the fundamental duty of the federal Judiciary to ensure that every citizen receives his or her constitutionally guaranteed right to a fair trial. The Judicial Conference believes that the use of cameras in the trial courtroom could seriously jeopardize that right."

Presently, two of the 13 appellate courts, the Second and Ninth Circuits, permit camera coverage in appellate proceedings; cameras are not permitted at the trial court level.

The majority of states impose restrictions on the use of cameras in the court or have banned cameras altogether. Approximately 31 states that permit cameras have restrictions of some kind written into their authorizing statutes; 13 states do not allow coverage of criminal trials; and nine states only allow cameras in appellate courts. Only 19 states provide the presiding judge with the type of broad discretion over the use of cameras contained in this legislation.

The presence of cameras in the trial courtroom also raises the profile of judges, witnesses, jurors, and U.S. Marshals Service personnel, who may be put at risk. The number of threats against judges has escalated over the years, and widespread media exposure could exacerbate the problem.

O'Scannlain's individual testimony and his testimony on behalf of the Judicial Conference is available on-line at www.uscourts.gov/testimony/exhibit4CameraTest05.pdf.