Barry C. Scheck
Cameras in Our Courts: A Second Opinion
VTR Date: February 25, 1989
Guest: Scheck, Barry C.
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THE OPEN MIND
Host: Richard D. Heffner
Guest: Harry C. Scheck
Title: “Cameras in our Courts – a Second Opinion”
I’m Richard Heffner, your host on THE OPEN MIND. And, to start, a personal note: this is the first program we’ve recorded since the sad news that Eric Goldman, the distinguished Princeton Scholar, has died. The Open Mind began in May 1956 at NBC’s flagship studio here in New York…and when moving on to CBS some years later, I suggested that another American historian, my occasional guest Professor Goldman take over for me as host. He did for a time, is remembered for his work on the air, as in the Academy, and in print. And today we pay our final respects.
Now, let me begin the substance of this program as I did our last one: with full disclosure that, for my sins, perhaps, I serve as Chairman of a Committee structured by the State Judiciary to react to New York’s current experiment with cameras in the courts.
Of course, a number of states do already 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 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 has hopefully been a last bastion against the tyranny of the majority: the due processes of the real courtroom, not the commercial or perhaps prurient or morbid interests of broadcasters…or of the public.
But now new York State has authorized at least an experiment with cameras in our courts – one that is regulated rather well, though perhaps not quite sufficiently – an experiment that has attracted attention all around our nation, around the world, in fact, in the instance of the notorious Joel Stenberg murder trial.
Current belief (if not fact, to be sure) is that “the Steinberg trial was televised”. That’s what’s said. After all, seeing is believing. Yet the truth, of course, is that whatever was permitted, 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 judge’s 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 attorneys’ 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.
That judge, Harold J. Rothwax, tough, smart, fair (the best in New York, one hears over and over again) was here on the Open Mind last time, explaining how his experience presiding over the Steinberg trial with its camera coverage helped change his mind: now he’s for cameras in our courts, though apparently only, to be sure, at the discretion of the court, and presumably with at least the State’s present rather imposing Rules and Regulations governing what the camera can and cannot do very much in place.
Yet others who shared the experience of cameras in the Steinberg courtroom feel differently, as does my guest today, Barry C. Scheck, Hedda Nussbaum’s intrepid attorney. I gather that you moved in the other direction, MR. Scheck, from favoring cameras in the courts, to viewing them with real concern. How do we account for that?
Scheck: Well, I started from the proposition that it would be a good thing to have cameras in the courtroom, or at least it…we would want them there, unless it was going to be a very, very bad thing. And what happened during the course of the trial is I began to see how people reacted to the camera, not so much really in this trial, but how they would react in future trials, and it began to trouble and concern me.
Heffner: But what do you mean “In future trials?” If this experience indicated to you that they didn’t’ react, how can you project…
Scheck: Oh no, no. they did react.
Heffner: Okay, tell us about that.
Scheck: I think that there’s no question that the camera changes behavior, and it changes it in ways that are, to some degree, subtle. Now, in this particular trial, the lawyers, both prosecutors and the defense lawyers, and certainly the judge knew what good behavior was because they were capable and experienced attorneys. And so the fact that the camera was in the courtroom was not something that was going to make them act on their worst behavior, indeed, in some instances, it made them behave better than they might ordinarily act under other circumstances, or at least they would demonstrate less of a…in some instances a very emotional personality. Some of the lawyers and the judge, I think, acted better than they might have under other circumstances, being aware that a camera is there. Now, yo0u may ask “well, how is that really different from just the fact that it was a highly publicized trial?” I think the way…what I began to see and feel, both from the perspective of Hedda as a witness and just talking with the lawyers and the judge, whom…I know them all, was that, you know, you finish a day in court and then you go back and you watch the coverage, and that really is, to my mind, where the problem lies. By the nature of the six and eleven o’clock news on television, the cameras will always go for conflict, for the visual, in the short one or two minute sound bytes, that they put on the air. So I would watch reporters, who I’ve seen cover other trials, and…television reporters…and what they would have to do is fit their reports around the sound byte. They wouldn’t necessarily be picking the most important, or the most substantive, or the most informative bit of testimony, and then television news being what it is, they have, let’s say it’s a big case, so they’ve got two minutes, which is a long time on the six or eleven o’clock news, that sound byte would take like a minute and ten seconds and then they would try to wrap up everything else around the sound byte. And it distorts their coverage. Compare it to what it would have been like if there had been no camera in the courtroom, there would have been an artist sketching, there would have been a crawl, or letters going down the screen, isolating those moments in the testimony where the reporter might have felt there was a more substantive interchange, and I think you can just see even within the television coverage itself that there was a difference in the way they covered it, it slanted it more towards the dramatic, the visual, the moment of conflict, and that affects the people who participate in the trial because they know the next day that’s the way they’re going to be perceived.
Heffner: Well, that’s the…that it seems to me is the important point. I was going to ask you “So what?” yes, perhaps it affected what appeared on television, but you’re leading to an impact upon what happens in the courtroom.
Scheck: Oh, absolutely. I mean, the analogy that came to my mind during the course of these proceedings was the Presidential campaign. We went through a Presidential campaign where everyone felt cheated in many respects because the media advisors for the Presidential candidates were able to structure the campaign in such a way that you got, you know, a photo opportunity, the sound byte that they wanted you to hear. It was directed towards the television news, and then after that the candidates were insulated.
Heffner: Yes, but that was to…
Heffner: …have an impact upon the voters. We were the jury then. What impact is sought by posturing, if that’s what’s done, in the courtroom?
Scheck: Well, it may lead to posturing. What I’m saying is, the reason the Presidential campaigns have come to the point they have, is that the requirements of television coverage for the visual, for conflict, for drama, leads the people who are running the campaigns to slant the campaigns to the coverage and manipulate the coverage. It won’t be long before lawyers, frankly, begin to see that they can, certainly, to a large degree, manipulate the impact of the proceedings by creating moments in the courtroom that will fit the coverage.
Heffner: To what end?
Scheck: So the coverage will begin to…to what end?
Heffner: To what end?
Scheck: Well, there is no question that every lawyer in that courtroom operated on the assumption that the jurors were going to e watching the television. I mean I know that the Judge instructs the jury not to watch television, just as the judge instructs the jury not to read the newspapers. I think that we all have this feeling that there’s something about the nature of television that it’s going to be much more difficult for a juror to follow that instruction, not to watch television, than it is to follow the instruction not to read the newspapers. Now, again that maybe isn’t an argument for keeping the cameras out of the courtroom because television is going to cover trials whether the camera’s in the courtroom or not, and there’s a danger that jurors will watch the television one way or the other. But where I really think the impact comes in is this, and it’s a subtle point, but I think an important one, when you’re televising the proceedings in the courtroom, I think the general public walks away with the feeling “I saw it happen. I was there. I saw the witness. I know what happened in that courtroom. I can make a judgment about the credibility. I saw it”. And they may then second-guess the judgment of the jury when the jury comes in with the verdict in a different way than they might if it were just print coverage. And I think that the notion in that small sound byte, that you really saw what happened, is just not really fostering the proper perception and respect that the public ought to have for the judicial processes. Because they didn’t see anything close to what really happened in the courtroom that day.
Heffner: Well, there isn’t any question but that people thought, people said “seeing is believing”. As I commented before, therefore the Joel Steinberg trial “was on television” and the fact is that only snippets were, although at some points, rather substantial, more than snippets. But again the question that I have to keep raising, and I’m, as you know, am not unsympathetic to your point of view, is what in fact the impact will be? Does, is the thrust of your argument that there will be a different, perhaps different jury verdict because of the presence of the cameras?
Scheck: Well, I think it will affect jurors in the sense that the more the public has the feeling that they saw what happened, the more they will second guess juries about what their verdict is. The juries will not have what we try to design for them in the court system, that is the protection that “I was there, I was the jury”. We’ve hermetically sealed this proceeding, we’ve tried to keep out all kinds of extraneous information, you’re getting the best view to make the best judgment. When people say to themselves, the general public, “I saw that just the way the juror saw that”, then they’re going to be less charitable in their assessment of the juror’s performance. I think it might affect jurors, but I think it also will affect the behavior of a judge; for example, it affects the behavior of a prosecutor, defense lawyers as well, and as the judge and the prosecutors and the defense lawyer begin to change their behavior in order to fit the coverage, that’s going to affect the presentation of the evidence, and that in turn, affects the whole system.
Heffner: How do you see it as affecting your own behavior, as obviously, a defense attorney?
Scheck: Well, I had a very peculiar role in this trial in the sense that I only was sitting in the courtroom watching my client testify as a witness. So my primary exposure was walking outside of the courtroom and defending her, essentially, to the media, because she was being attacked by Mr. Steinberg’s lawyer.
Heffner: So you’ve become an expert on spinning.
Scheck: Oh yes, they should give…I’m a law professor and I suppose and I teach trial tactics, and I suppose we should start giving courses on that because it was very much part of the process, and frankly I was in a position where i felt there was no way out of that.
Heffner: But, look, before we get to that, and I don’t…
Scheck: And that’s a different issue.
Heffner: …pretend that that’s not important…it is a different issue, and it is important. Let’s go back to the question of the outcome of a trial, and the way you feel that that outcome may be changed by the presence of cameras in the courts. I don’t quite understand yet how you see the connection. You say there is an impact upon the public. We grant that. You say the jury is, later on, going to be impacted upon by the attitudes of the public.
Scheck: Well, juries…
Heffner: What happens…
Scheck: Juries are always worrying “what are people going to think of my verdict?” Yes.
Heffner: And you think there’ll be a change in what the verdicts will be?
Scheck: Well, that’s a factor that maybe they shouldn’t have to contend with. Perhaps more important than any of that is the effect upon the actors, that is to say, the witnesses, the lawyers and the jurists. Now, as I said in the beginning, the judge and the lawyers in this courtroom in the Steinberg case were experienced, and they were perhaps not as affected, or let’s put it this way, they were affected, but they were on their best behavior instead of their worst behavior.
Scheck: I have no such confidence for the same kind of exposure to a camera in the courtroom with many other judges and many other lawyers. And, indeed, as we have the camera in the courtroom more and more, I think even good lawyers are going to see the benefits of changing their presentations to fit the coverage.
Heffner: in what direction?
Scheck: And when that begins to happen…
Heffner: What do you see as happening? What kind of improper, or inappropriate behavior?
Scheck: Well, I mean it’s …improper, inappropriate. I don’t want to necessarily suggest, although it will unquestionably happen, that people will grandstand in a way that is really horrendous, but it will happen. But even small things, I mean, one knows for example, that the way to elicit contradictions in a witnesses testimony, in a witnesses’ testimony is to plug away, point by point to show the contradictions. It is not a particularly effective question to say “Isn’t it a fact you’re lying?”, and the witness goes “No”. I mean that proves noting. What is important are all the questions you ask before that, that in some fashion would emphasize that point. But if you’re on the television news, you know what question is going to be on the air if you have a camera in the courtroom. You know, over half of the two minutes that is devoted to this particular…coverage of this particular proceeding is going to be that one question where the lawyer winds up and goes “Isn’t it a fact, you’re lying”? And so that’s going to be done. And more and more lawyers are going to realize that the opening, the closing, the cross-examination, the direct examination has to have those moments that are dramatic, not the way that we ordinarily will be dramatic to affect jurors, but in a way that also is going to be dramatic, and visual and have conflict and be covered properly…on the television.
Heffner: Was Patricia Volk, in The New York Times Magazine, in that excellent piece on the televising of the Steinberg trial, was she correct when she said, when Steinberg’s attorney asked the question of Ms. Nussbaum, it was one of those “when did you stop beating your wife/child/husband” questions, the answer was not given. Is that, was that, did that happen that way? It wasn’t given on television.
Scheck: The…I think that what she was referring to there is that MR. London asked Hedda a question…”Isn’t it true that you are wrapping your memory in a sanitary cordon of forgetfulness, MS. Nussbaum, so you don’t have to remember the painful events of that night? Yes or no?” I mean, that question was very much unlike the wording of all of Ira’s other questions. Pat Voight wrote that it came out of a book, it was even suggested by a reporter at the trial, this is what she wrote in her article, and again I guess you could say that that was one of those questions that was a sound byte question as opposed to a real question.
Heffner: You’re suggesting that sound byte questions will become the order of the day.
Heffner: …with cameras focused.
Scheck: …there’ll be a tendency to do that. I should even move on to another point that I think is more important in some ways, and that is that our judges, for example, are going to have to be toughened to deal with the way they look on television when they make their rulings, and they go through their processes of thinking about how to rule, as much as anything else. I think…I know Judge Rothwax has indicated that he is upset that when he literally just recited what is in the bail statue about “I’m not going to grant Joel Steinberg bail” because he…the statute requires him to make an assessment as to the probability he will be found guilty, he just read the statute and said it is…”he will probably be found guilty”. Read it that way, announced his decision that way, boom, it’ son television, and all of a sudden everybody’s saying “Ah, the judge is prejudiced because he says Steinberg’s going to be found guilty”.
Heffner: You do know that it was reported just as inaccurately or at least inadequately, in the printed press.
Scheck: Oh, of course, but I think that one fuels the other. I mean I don’t think that would have necessarily been something that would have been picked up. That is to say that the press corps, who are experienced in the courtrooms, who know what the statute is, wouldn’t necessarily have written it that way, if it hadn’t been for the competition that they knew was going to appear as that kind of a sound byte on the television news. But the point is really this, you have to be just as careful in terms of how you make your decisions, in the way it looks on camera alight, if you’re a judge, as you are about what the substance of your ruling ought to be.
Heffner: Now, there are those…
Scheck: Take, for example, Judge Bell in the Chambers’ case, which was a notorious case. Judge Bell, finally near the end of that was criticized by one reporter in the printed media for taking too many sidebar conferences, and that happened late in the trial, and it’s true that one of the ways Judge Ball proceeded in that case is that he took a lot of sidebar conferences. If the Chambers case had been televised, he would have probably had to dispense with sidebar conferences in that frequency a lot sooner than he did because it would have driven the television reporters crazy and the complaints would have changed the way that he ran his courtroom.
Heffner: But, Barry, even as you say this…
Heffner: …you say that he was criticized by a print newspaper person, right?
Scheck: he was criticized by a print reporter near the very end of the trial, all right, when these sidebar conferences had been going on for a long time. It was the kind of thing that irritated reporters, okay, it was something this judge felt was a necessary way for him to proceed in a difficult and sensitive matter. If the television cameras had been in the courtroom covering that testimony in the same way that they covered the Steinberg case, they weren’t allowed in in the Chambers case, if that had happened, I daresay that he would have had to take a lot of heat to continue with sidebar conferences a lot earlier in the trial…a lot earlier in the trial.
Heffner: Now, you’ve been negative about this as you’ve said you moved from having a positive attitude to, thanks to the experience…
Scheck: Being ambivalent.
Heffner: Oh, come on, you’re more than ambivalent, aren’t you?
Scheck: Ah, I have strong ambivalence. I mean, I think there are probably ways to cover…I’m not as…I’m not, in principle, opposed, for example, to gavel to gavel coverage. I’m not opposed to coverage that…necessarily that is not regulated, but I’m deeply disturbed by this, I’m surprised at how strongly I feel about it.
Heffner: You’re surprised because of the experience.
Heffner: I mean you feel this way because of the experience. Now what are we going to do with those who say, “look…”, and you’ve heard this, it is what is most frequently said, “we do permit the printed press to be there”. How do we keep out, how do we logically, in equity, keep out this beady red eye of the television camera?
Scheck: Well, I don’ think it’s a principled equal protection problem. The issue that faces us in this state is not whether television should be allowed to cover a trial, it’s a public trial and television reporters can be there, but whether the camera, itself, should be in the courtroom, recording for the six and eleven o’clock news, frankly, snippets of what’s going on as opposed to the entire proceedings.
Heffner: They’re not there to record snippets, they’re there to record…
Heffner: …whether they use snippets or lengthier segments is an editorial judgment and that’s what gets the First Amendment people up in the air. Right?
Scheck: but it’s, but it’s that the issue now is a policy question. We’ve done find in this republic for hundreds of years without, well since the advent of television, we’ve done very…
Heffner: Thank goodness that hasn’t been hundreds of years.
Scheck: …well, hasn’t’ been hundreds of years, we’ve done very well without television in the courtrooms. We don’t have it in the federal courts, and it’s a policy question for the legislature. I mean by the terms of the New York statute, what we’re supposed to be deciding now and during this period, is whether or not the effect of having a camera in the courtroom is good or bad for the health of the judicial process.
Heffner: And your vote?
Scheck: At this point…
Heffner: Never mind the ambivalence, you’ve got to vote now.
Scheck: If I had to vote now, I’d vote that I don’t particularly like the effects they’re having, or I have tremendous fears about the effects that they will have.
Heffner: Barry, that’s not a vote, that’s an expression of ambivalence.
Heffner: Bu tit is not a vote. What would you do and we are faced with this question of continuing on some level, in some way, cameras in the courts, and this is true in so many other states, too, obviously decisions that are made can be unmade. Would you really…
Scheck: Well, that’s not such a clear proposition to me, at all.
Heffner: Politically, you’re right.
Scheck: Well, I that’s…so if you’re asking me why I’m hedging, in the best of all possible worlds, I would say well, let’s continue with this so-called experiment because it’s my belief that at some point something’s going to happen that will persuade people that maybe it’s not such a good idea, after all. On the other hand, realistically, as you force me into this position, I would probably vote “no”. because realistically speaking, if you continue this for much longer, and once the cameras are in the courtroom, it’s going to be hard to get them out, and not necessarily for such good reasons, because I think that a lot of lawyers and a lot of judges like to be on television because they think that, not for such good reasons, because they think the publicity is going to help them.
Heffner: And do you feel that there is…and we have forty-five seconds left…I gather you do feel that there is a parallel between the impact of television on American politics, with what may become the impact of television on our judicial process.
Scheck: I think the coverage has driven and shaped the political campaigns, and I think inevitably the coverage, having the camera in the courtroom and presenting this image is going to shape the way the processes go on in the courtroom. And frankly, it’s a subtle point, I know, but it’s a…one that’s important. I think that the notion that the public has when they see a small snippet on the news. That they’ve seen the whole trial, when they haven’t, and that coverage is not going to change. It is not such a good thing for the health of our judicial processes. That’s the policy question that the legislature is supposed to decide, and that’s what disturbs me.
Heffner: Barry Scheck, thank you for joining me today, and expressing so forcefully, your feelings about cameras in the courts.
Scheck: Thank you.
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, 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 another 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; Mr. Lawrence A Wein; the New York Times Company Foundation; and, from the corporate community, Mutual of America.