THE OPEN MIND
Host: Richard D. Heffner
Guest: Judge Harold J. Rothwax
Title: “Cameras in our Courts:
Due Process v. The Court of Public Opinion”
I’m Richard Heffner, your host on THE OPEN MIND.
First, full disclosure: that, for my sins, perhaps, I serve as Chairman of a Committee structured by the State Judiciary to provide our plain, ordinary citizens’ reactions to New York’s current experiment with cameras in the courts.
The very thought of television obtruding upon our judicial processes, too, ws once totally anathema to Americans. And for many of us it remains so, to be sure. After all, the impact of television upon our lives generally – upon our politics most recently, upon our education, upon so many of the ways we think and the things we do as a people these days – seems to many thoughtful persons hardly to warrant full faith and confidence in extending even further the role of media in American life!
Yet the fact is that many states do now permit cameras in the once sacred halls of justice (many, but by no means all, even in trial courts!) though some of us continue to believe strongly, albeit probably helplessly, that this further touch of modernity is an abomination, that in a very real and dangerous sense it further imposes majoritarianism – the court of public opinion, if you will – upon what had hopefully been a last bastion against the tyranny of the majority: the due processes of the courtroom, not the commercial or perhaps prurient or morbid interests of broadcasters…or the public.
But now New York State has succumbed to media pressure, too, authorizing at least an experiment with cameras in our courts – one that is regulated rather well, though perhaps not sufficiently – an experiment that has attracted attention all around our nation, around the world, in fact, in the instance of the notorious Joel Steinberg murder trial.
Current belief (if not wisdom and fact, to be sure) is that “The Steinberg Trial was televised”. That’s what is said. After all, seeing is believing! Yet the truth, of course, is that television chose to provide us only fractional coverage of the Steinberg trial, snatches amounting to only perhaps 7 to 8% of the entire time the real jurors were watching everything in the courtroom, not just what broadcasters chose occasionally to show us through the eye of one camera. No “gavel to gavel” coverage here…though, to be sure, on seven of the trial’s 49 days one station did astonish its commercial broadcast competitors by pre-empting a large chunk of its regular daytime schedule to show Hedda Nussbaum’s sensational testimony and, impressively, the Judges’ charge to the jury, too. Still, what in this media age has become the increasingly important court of public opinion saw only a fragment of what the real jury saw – don’t forget that – and the viewing public wasn’t guided day in and day out by the various attorney’s arguments or, most importantly, by the full sight and sound and directive commentary of the brilliant jurist who presided so ably and so forcefully over the entire courtroom proceeding.
His Honor, Harold J. Rothwax, Acting Justice of the New York Supreme Court, is a tough, smart, fair, trial judge…the best in New York, I hear over and over again as I chair our Committee on Cameras in the Courts. Scholarly, so knowledgeable in the intricacies and precedents of the law itself that no one gets away with anything, and justice is well served, in the cases over which he presides, Judge Rothwax epitomizes our courts at their best.
But the fact is our courts and those who preside over them aren’t always at their best. So, to begin I want to ask Judge Rothwax – given what he’ll recall as some of the negative potentials of cameras in the courts that once concerned him aplenty, just how sanguine is he, on the proverbial score let’s say of one to ten, that justice for all, and the best interests of contemporary American life, including our historic devotion to due process, will be served by inviting cameras into our courts, now that they have had their way with our political and other institutions.
After all, let’s set aside the Judge’s natural modesty. The controlled success of cameras in the Rothwax courtroom doesn’t vouchsafe their success in any and every other courtroom! So, Judge Rothwax, that’s a mouthful on my part. I apologize. But where on that scale of one to ten do you put your own feelings about, and hopes for cameras in the courtroom?
Rothwax: Well, based on the experience we’ve had during this experimental period, which was focused, I guess, on the Steinberg case more than on other cases, I think I’m pretty high on them. As I previously indicated to you, I had been originally an opponent of cameras in the courtroom because I thought that they would be disruptive, and that they would be distracting to the people who were performing in the well of the courtroom. And I found that they were not, that the cameras were quiet, that they did not use artificial light, that they quickly became part of the furniture, that the jury did not seem to be distracted by them, that the lawyers were too focused on their work to be distracted by them, and I found that their role was not…did not…was not significant insofar as the Steinberg case, even without cameras in the courtroom, would have attracted enormous publicity during the trial. Throughout the trial we had anywhere from 30 to 50 reporters in the courtroom almost every day, and the trial would have received enormous publicity whether the cameras had been in the courtroom or not. Additionally, even where you don’t have cameras in the courtroom, you have cameras outside of the courtroom. As you know, the Myerson case was being tried at the same time that the Steinberg case was being tried. The Myerson case being a Federal case, there were not cameras in the courtroom, nor even cameras in the hallways, but on each evening’s news coverage that trial seemed to receive as much camera and television coverage as the Steinberg case did, because the television cameras were equally assiduous to cover the trial from the court house steps, as the cameras were to cover the Steinberg trial from within the courtroom. If anything I prefer the cameras in the courtroom to the cameras outside of the courtroom. It seems to me their impact outside the courtroom is far more sensational, far more focused on excitable matters and sensational matters and matters that don’t relate to the actual procedures of the court. And it’s very hard for me to find any principled basis for keeping the cameras out when in our…in America today clearly through…in every jurisdiction, Federal and State, the newspaper people and the media people are there in full number. So it seems to me that unless that cameras are allowed in the courtroom, we’re cutting out a dimension that I think should be there. Even though, as you point out the coverage is sometimes fragmentary, and it is incomplete, those portions which were shown, it seemed to me, had a certain drama, and inevitably portrayed the court in some of its processes, and could not, while it simply reported from the courtroom, focus on the sensational. It was, in fact, recording what was going on in the courtroom. Now I understood the burden of some of your remarks were, although you were very nice to me and said very nice things about me, that other judges impliedly would not do as good a job as you think that I have done. And I’m not sure that that’s an argument for keeping cameras out of the courtroom. It seems to me the camera’s going to record what’s going on, and if it records judges doing a poor job, or lawyers doing a poor job, it’s perhaps just as important that the American public know about that, as it is that it recorded it accurately when we do a good job. So, that’s not an argument against it from my point of view.
Heffner: Well, I think you say that modestly, too. I understand you’re saying true or untrue, it’s not an argument.
Heffner: But I was fascinated in seeing some years back, when you had, as a Professor at Columbia Law School, reported to a Criminal Justice Coordinating Council that, by and large, strike that, if I may use that expression…let’s not say “by and large”, that there were too damned many less than thoroughly competent judges on the criminal courts. Now, are you suggesting that you’ve changed your mind in the generation since that time?
Rothwax: Well, I think in fairness when I wrote that, merit selection of judges in the lower criminal courts was not as prevalent as it is now. The Koch Administration has been fairly careful to appoint people non-politically an on a merit, non-political based system. That was not as true when I wrote that. But certainly it is true that not all judges are equally good, and that we have good judges and we have bad judges. I think we have many, many more good judges today than we had when I wrote that report back in 1970.
Heffner: Doesn’t it require, Judge Rothwax, a good judge to make the kinds of decisions that I gather you still feel the presiding judge should make about cameras in the courts? As I understand it, you haven’t joined those who say, “Hey, look, they are right there, and there should be and can be no limitations upon what they do”. You’re not one of those people?
Rothwax: I am definitely not one of those people. I think the judge does have to retain discretion. The law should permit him to retain discretion, to regulate the use of cameras in the interests of justice. As I mentioned to you on a prior occasion, we did have a witness in the Steinberg trial who felt that she could not testify with the cameras on and I had the discretion and the authority, which I exercised, to turn the cameras off, and we don’t allow the cameras to focus on the jury. We don’t allow them to focus on the audience, or on sidebar conferences, so I think certain regulations are absolutely necessary, and the judge must retain the discretion to control the use of the camera in the courtroom. That’s entirely true. I’m not sure that it’s at all bad for cameras to reflect breakdowns in the system. It seems to me that may become an engine for reform, an argument for changing things. It will be vividly displayed and in a way that it is not now. So I’m not sure that’s bad. If the cameras abuse the authority that’s given to them, if they abuse their presence in the courtroom, it seems to me it would be reasonable to expect that the Legislature would quickly act against them if the judges began to complain about what they were doing, and of course, each judge retains the capacity to exclude them under the regulations that we now have.
Heffner: Do you really think, as street smart as you are…
Heffner: …that once the media have their noses under the tent that any legislature is likely to say, “We’ve changed our minds, fellas. Get out”.
Rothwax: I think the nose is already under the tent, and I don’t think, street smart as I am, that it would be easy to get them out. But I do think it would be considerably easier to get them out if they were doing things that were outrageous, were abusive, or violative of judges’ instructions or regulations that had been promulgated. So I don’t think that our society or our legislature is prepared to cede to the cameras complete power over the courts in the courthouse setting. No, I don’t think that. And, I think the press being very mindful of that, and very aware of that, has been scrupulous in following the regulations. Implicit in your question is that once this ceases to be an experimental period, and the process becomes formalized that that sensitivity and that rigorous self-control will be dissipated. I don’t expect that will be the case. I think that within a courthouse setting, the press will be prepared to abide by the judges’ rules and regulations so long as they think that the judge is acting in a reasonable fashion.
Heffner: And when they don’t think?
Rothwax: Then I think…
Heffner: When they don’t think that the judge is so acting?
Rothwax: Then it seems to me the judge has to retain the power and the capacity to restrain them, and to, if need be, banish them, if it came to that. But I wouldn’t think it would come to that.
Heffner: Are you, and this is not off the point, are you satisfied with the impact of television upon our political life generally?
Rothwax: No, I’m not. (Laughter) No, I’m not. I’m not especially satisfied with the impact of television on our court system, either. I mean it’s clear that throughout the Steinberg trial most evening broadcasts focused on the most sensational aspect of that particular day’s testimony. They weren’t focused especially upon more profound, intricate legal issues. Perhaps they don’t have the time to give to it. But it’s clear that they did not give extensive amounts of time to that. I’ve mentioned that during a bail hearing I said something that was provocative. I felt I was required to say it by the statute. Pursuant to the statute I was required to find, under the facts then available to me, that Joel Steinberg was probably guilty and would probably be found guilty. It’s unusual for a judge to be in a situation where he would make that kind of a comment, and I had qualified it in a number of different ways before I got to that point. The press never undertook to report the qualifications that preceded the ultimate statement, nor did they undertake thereafter to explain the statement. So, I’m not entirely satisfied with the way in which the courts are covered. The fact remains, however, that the camera in the courtroom, per se, does not really change that because the newspapers that covered it did not give any greater space to it, or any greater information in regard to it, than the television reports had, and I think we’ve reached a point in our Constitutional history where we are no longer going to be able to exclude the press from covering active trials, as they do in England and in perhaps other areas. So, I think we’ve reached a stage where the trials are, in fact, open to the public, and there is simply no principled basis for keeping the cameras out of the court.
Heffner: That’s the second time you’ve said “no principled basis”…
Heffner: …but I’m a little puzzled. What do you mean “no principled basis?”
Rothwax: Well, so long as the camera does not, by itself, disrupt the proceeding, it’s not noisy, it’s not distracting…there is nothing inevitable in its operation that creates an aura that causes judges or lawyers to behave differently. I can’t see justification, any principled basis, for keeping cameras out of the courtroom and allowing print media into the courtroom. I’m not delighted with the print coverage, and I’m not delighted with the television coverage of the courtrooms. But if you’re going to allow print media into the courtroom, it seems to me there’s simply no justification for excluding the cameras.
Heffner: But, you seem to be saying, it’s acceptable to make a bad situation worse. To exacerbate the presence of the scribblers in the courtroom by the presence of these damned cameras.
Rothwax: I’m saying the cameras don’t do that. You could still have the television reporters in the courtroom, just like you have the print reporters in the courtroom, and they could go right out into the hallway and say whatever they wanted to say on camera. In a way, having the camera in the courtroom permits the camera to record what is actually going on, something which the print reporters and the television (laughter) reporters don’t necessarily report. I think over time, and maybe the Steinberg case is some illustration of that, there will be broader coverage of it, which will give less editorial discretion to what is reported, given all of Hedda Nussbaum’s testimony, it seems to me, and an impact. Surely it was chosen because it was likely to be the most significant testimony, and the most interesting testimony to the public at large, and that’s why it was chosen, but inevitably, it seems to me, the press was able to get come sense of the way a court operates, how direct and cross-examination work, how a judge’s rulings affect what goes on. From time to time during her testimony I was called upon to address the jury and give them legal instructions to explain a legal argument that may have taken place, or an objection that was going on, and I think the public inevitably gets a greater sense of what is going on under those circumstances.
Heffner: I certainly thought it was an amazing thing that on a commercial station your charge to the jury was shown.
Rothwax: (Laughter) So did I.
Heffner: But you think that there’s going to be more and more of that, rather than less and less of that.
Rothwax: I think on reflection it was a…almost a natural development. Here the jury had heard about this for many, many months, extraordinary publicity pre-dating the trial and accompanying the trial, and I suppose the station, in its judgment, although judges’ charges to the jury are of necessity technical, highly legal, complex, this channel undertook to do it because they felt that there was wide public interest in the judge’s charge. What is the judge telling this jury on the basis of which they’re going to reach their verdict? And I think that, inevitably, that will happen more and more with cases which the networks follow fairly closely.
Heffner: Are you going to leave the bench now and go to Hollywood?
Rothwax: No. I’ve had no offers… (Laughter)
Heffner: Wait. Wait, Judge, they may come.
Heffner: You were a very impressive…
Heffner: …very impressive television personality, and in a sense that concerns some of us, that you’re so darn strong, and tough, and you are, and you look good and looking at Rothwax on the camera, was a very positive and commercially acceptable process. The question is how the choices are going to be made in the future, which brings me back to the question that I asked you and you answered it very straight, about how satisfied you are with television and politics in American life, television coverage of politics. And you’re not. What we’ve had most recently is a campaign. There was a media campaign. Increasingly we have that. Why don’t you anticipate that the same thing will happen with the courtroom?
Rothwax: I think judges are very mindful of how they are constrained by law. A trial judge especially is very aware that everything he does is going to be subject to review, not by Hollywood, not by editorial writers, but by Appellate Courts that will be unforgiving of his departures from legal norms, his or her departures, I should say, since we have an increasingly large number of women judges, and I think that a trial judge is simply not going to give way to that. It’s important for the trial judge, for his personal pride, for his sense of professional accomplishment and satisfaction, that he do the thing the right way. That’s ultimately the source of his joy in the work. And so he cannot, I think, reasonably give way to the temptation to play to the crowd, and I don’t think that judges will be doing that. I don’t think that’s a realistic prospect. When I said that we have good judges and we have bad judges, I felt that the camera would pick up the inadequacy of some of the judges that we have. I think by and large the bench is a good bench. I think that’s inevitable. But I don’t think that even the bad judges will be playing to it. I think that the camera is also a merciless medium in the sense that it picks up fraudulence, it picks up insincerity, it picks up playing to the camera. I felt that that was one of the reasons, not the major reason, but one of the reasons, why the lawyers in the case that I’ve just completed really seemed to ignore the camera. They just got so involved with the case that I felt that they were unaware of the camera insofar as it contributed to what they were doing in the courtroom.
Heffner: Of course, as I’ve indicated to you one of the lawyers feels rather negatively, not about your conduct of the case, not about cameras in the courts in that particular case, but generally, and I’m going to have him here to talk about that on THE OPEN MIND because obviously this is an important subject. But I was thinking a little about the first presidential televised debate between Nixon and Kennedy, when the distinguished historian, Henry Steele Commager, commented on the fact that Jefferson couldn’t have been a candidate, a successful candidate with television around, that Lincoln probably couldn’t either, Woodrow Wilson certainly not. And while you say judges won’t play to the camera, weren’t we going to need, now, judges who are not just smart and television-wise and televisible, like Judge Rothwax, but those who make a point of their potential for appearing on the camera?
Rothwax: Well, I don’t know. I mean part of the problem is that I guess in Jefferson’s time, and with the Lincoln-Douglas debates, people had more time to listen for hours and pay attention, and go into it in depth. Our society, I guess, is largely a television society now. I think one of the reasons why I disagree with you is that the camera didn’t condense the Joel Steinberg trial. The Joel Steinberg trial lasted, I guess, two and a half to three months, and the judge is there six, seven hours a day on the bench. He’s doing what he’s doing for that six and a half to seven hours a day. He’s not like the candidates in a presidential TV debate, condensing an answer that should require maybe fifteen or twenty minutes into a minute and a half. What’s happening is he’s saying whatever he has to say and some TV editor, somewhere, is condensing it down to a minute and a half. He’s picking out a phrase or a paragraph. I don’t think the judge is going to be trying to condense his answer. I think the judge is going to be taking the time that’s necessary in his case. It’ll be the editor that’s cutting it down, so I think it’s somewhat different than a presidential debate. But I just don’t think we can take television out of our lives any more. We can take the camera out of the courtroom, but we can’t take the case or the courtroom off television.
Heffner: But you know, it’s so interesting to me, I’ve heard that in your teaching at Columbia Law School you confound your students by putting before them propositions that they simply have not thought about…the unthinkable…
Heffner: …”suppose we didn’t have this Amendment to the Constitution, or that part of the Bill of Rights?” But I’ve wondered what your own visceral, not for the public, nobody’s watching, we’re just talking together…
Heffner: …what your own reaction would be if you didn’t have either the scribblers or the cameras there in the courtroom or even in the corridors?
Rothwax: Well, I think if I had my druthers, I would rather just proceed quietly, I mean…
Rothwax: …because I think it creates an atmosphere which is more dignified and which allows us to be unaware of the external consequences of what we do. I think it allows us to focus more. So if I had my druthers, I think you’re right…I mean since the Steinberg case I’ve tried two cases, and there hasn’t been a single person in the courtroom, and it’s been wonderfully quiet, so quiet, alone. We’ve been allowed really to focus and not be distracted by the inevitable noise that comes from people entering and leaving the courtroom, the endless newspaper and radio and TV coverage. Obviously, I would prefer to proceed that way, and for most of us, most of the time that’s going to continue to be the case. It will be that way with most of the rest of the cases I try through the rest of my professional life. I just don’t see how we can, given our Constitutional history at this point in time, expect to keep the newspapers out where the public is deeply involved with a particular case.
Heffner: Of course what we’re faced with now in New York State is not really keeping the newspapers out, but expanding the degree to which there is that imposition of the outside world on your court.
Rothwax: I guess I’m disagreeing with you, I don’t think you’re really expanding it. Basically what I have in my courtroom in the Steinberg case, without the cameras is 50 reporters there. With the cameras I have 50 reporters, and a quiet camera that has no artificial light, no special sound, is placed in a way that’s not distracting, the jury can’t even see it, and with increasing technology, that, of course, will be improved upon, so the distinction is not a meaningful one. 50 reporters and a camera, or 50 reporters and no camera is not significant in terms of the way I run my courtroom.
Heffner: But no reporters would be.
Rothwax: But that is not within the range of possibility.
Heffner: You know, we’ve reached the end of our program. I told you it would seem very, very short…
Rothwax: It does.
Heffner: …I’d love to do another one with you, and talk about this other question of the court of public opinion and whether, forget about the furniture in the courtroom, the noise of the cameras, etc., whether there isn’t some substantive impact of expanding due process to everybody who wants to watch, and for whom commercial television provides sight and sound. Meantime, Judge Rothwax, thank you so much for joining me today.
Rothwax: My pleasure.
Heffner: And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about today’s program, today’s guest, today’s subject, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $3.00 in check or money order. Meanwhile, as an old friend used to say, “Good night and good luck”.
Continuing production of this series has generously been made possible by grants from: The Rosalind P. Walter Foundation; The M. Weiner Foundation of New Jersey; The Mediators and Richard and Gloria Manney; The Edythe and Dean Dowling Foundation; Lawrence A. Wien; The New York Times Company Foundation; and, from the corporate community, Mutual of America.