Tags: Demand | Moussaoui | Trial | Riles | Old | Issue

TV Demand In Moussaoui Trial Riles Old Issue

Sunday, 06 January 2002 12:00 AM

A controversy that is almost as old as TV itself instantly got a boost. This week the judge will hear arguments from both sides.

Although Judge Brinkema is unlikely to find some extraordinary exception to the hard and fast rule against such coverage of federal criminal trials, her recent track record would indicate at least a willingness to listen and weigh the arguments carefully.

Judge Brinkema presided over two Internet related cases, which received national attention. In one case website operators and authors whose web pages may have been blocked asked the federal court to prevent the public library from using Internet blocking software on public access computers in the library.

Plaintiffs alleged that use of the software violated their First Amendment right to freedom of speech. Judge Brinkema ruled for them, finding the library's policy unconstitutional.

"The world’s eyes are upon the United States at this critical moment in history,” Court TV said in its filing. "The strength of our democratic system of government has been, and continues to be, the openness of our institutions. We can survive any attack except one that cripples those values."

In another paragraph of its pleadings, Court TV said, "There can be no dispute that the extraordinary nature of the proceedings, and the events that led to them, call for public observation and scrutiny. Through television, the means exist for all Americans to exercise their constitutional right to observe this trial."

But that Constitutional right to an open and public trial is not without boundaries.

The U.S. Supreme Court, which keeps its own hearings off the tube, decided in the 1965 case of Billie Sol Estes that television coverage had prejudiced his right to a fair trial. In subsequent federal appeals court cases, all have decided the TV ban in the federal criminal court system does not violate the Constitution.

But some analysts detect cracks in the high court’s armor. Case in point: the oral arguments in the case of Bush v. Gore were released by the Supremes on audio-tapes after they were concluded. Several networks aired the entire tapes, using background graphics.

And recently the U.S. Senate passed legislation allowing survivors of the Sept. 11 attack and relatives of the victims to view the Moussaoui proceedings on closed-circuit television.

The closed-circuit precedent in federal criminal trails was first set in the Timothy McVeigh Oklahoma City bombing trial. But the McVeigh exception was not because of any legislation.

On April 24, 1996, President Clinton had signed into law the Anti-Terrorism and Effective Death Penalty Act. A portion of that statute requires the closed-circuit televising of trial proceedings in cases in which venue has been changed to a distant location.

Federal prosecutors in the McVeigh proceedings petitioned the court for closed-circuit coverage, citing the act as authority. But often only as few as 50 people reserved seats at the remote FAA auditorium where the closed-circuit image was broadcast.

And, of course, there is the perennial "Sunshine in the Courtroom Act," resurrected again last year by Sens. Charles Grassley, R-Ia., and Charles Schumer, D-NY. The sponsors said the audio broadcast of the oral arguments before the Supreme Court in the 2000 Presidential election case showed the value of broadcasting federal court proceedings.

Their legislation would allow federal trial and appellate judges to permit cameras in their courtrooms. The bill would also direct the Judicial Conference, the federal courts’ principal policy-making body, to draft guidelines that federal judges can refer to in making a decision relative to the coverage of a particular case. The legislation is similar to that introduced in 1999.

A perennial issue with the perennial legislation: The Judicial branch of government likes to think of itself as independent, just as the Executive Branch is independent of the Legislative.

Even those that point to what they perceive as the liberal cameras-in-the-courtroom stance of the state criminal courts as good models to open up the federal venues might want to take a closer look at the fine print:

All states that permit television, radio, and photographic coverage of courtroom proceedings have adopted fairly stringent rules governing TV coverage.

The consent of the presiding judge is required in almost all states, and the judge has discretion to control the coverage during the proceedings. Many states require advance written application for permission.

Coverage is prohibited in nearly all states with respect to cases involving juveniles, and most states prohibit coverage of victims of sex crimes, domestic relations cases, and trials involving trade secrets.

The examination of the jury or "Voir dire" coverage is generally prohibited.

Coverage of jurors is either prohibited or is restricted to prevent visual identification of jurors.

Some states prohibit coverage of witnesses who appear under subpoena, and many states deny coverage of victims or witnesses who object.

All states ban coverage of conferences or "side-bars" in court.

The guidelines include many parameters in regard to media equipment, lights, number of media personnel, types of cameras, position of equipment operators, and movement in the courtroom.

A three-year experiment that permitted broadcasting, photographing and recording of civil proceedings in several eastern and midwestern federal venues, illustrated news media apathy toward the program.

One conclusion of the study(1993-96) was that if there is not "a dramatic increase in requests to cover proceedings in these other districts [other than the popular Philadelphia venue], cameras and recorders may never be allowed in federal criminal proceedings.”

One reason for the lack of interest is that for the most part civil proceedings are not as interesting as criminal proceedings.

All things considered, most commentators agree that Moussaoui’s chances to play to an international TV audience is slim or none, despite the argument of his defense:

"Mr. Moussaoui recognizes that the American criminal justice system will be on display for the entire world as the trial of this action proceeds,” said a defense motion supporting the proposal by Court TV to carry the proceedings.

Televising the proceedings would "add an additional layer of protection to see these proceedings are fairly conducted,” added the defense pleading.

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A controversy that is almost as old as TV itself instantly got a boost. This week the judge will hear arguments from both sides. Although Judge Brinkema is unlikely to find some extraordinary exception to the hard and fast rule against such coverage of federal criminal...
Sunday, 06 January 2002 12:00 AM
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