Nancy Hamilton's Notes

Nancy Hamilton's Notes Changing Times: From O.J. to Casey and Cameras in the Courtroom

Mention cameras in the courtroom and the name of O. J. Simpson immediately comes to the mind of most Americans. You remember--defense attorney Johnny Cochran deftly addressed the jury and television audience chanting “if it doesn’t fit you must acquit,” in his closing argument of the 1995 trial.

But even before O.J., in 1954, Dr. Sam Sheppard was convicted of second degree murder of his wife in their bedroom after a trial that the U.S. Supreme Court later held denied him due process, in part because a “carnival atmosphere” occasioned by extensive publicity that had permeated the trial. And in 1935, there was the nationally sensationalized trial of Bruno Hauptmann who was tried, convicted and executed for the kidnapping and murder of Charles Lindbergh, Jr., the two-year-old son of the national hero and aviator. The intensive and aggressive media coverage of each of these trials resulted in heavy criticism that the media alone was responsible for turning them into circuses. Indeed, the O. J. backlash still serves as the primary reason for most critics who seek to ban cameras in the courtroom. But times are changing.

Today, we are unfortunately in the midst of yet another sensational murder trial. Once again, as in the Lindbergh case, the body of a toddler who disappeared was found in some woods not far from home. In this case though, it is a Florida toddler’s mother, Casey Anthony, who is on trial for the death of her two-year-old daughter, Caylee. Defense counsel for Ms. Anthony moved to bar cameras at trial, blaming the intense media spotlight for concerns about seating an impartial jury. Chief Judge Blevin Perry, in considering the motion, however, stated, “We don’t live in Egypt. We don’t live in Libya…There’s a thing called the First Amendment. Whether we like it or not, it’s in the Constitution.” He added, “The First Amendment is not totally absolute, but it’s pretty close to being absolute.” The motion was denied.

So far, this case is different from O.J. — at least insofar as the cameras inside the courtroom are concerned. Indeed, the media attention of the Casey Anthony case has far eclipsed the Simpson coverage of sixteen years ago, not to mention Sheppard and Hauptman more than 75 years ago. Network and cable stations are dedicated to broadcasting the trial live on-the-air and streaming video over the internet every court day, all day, including Saturdays. Social media sites such as Twitter, Facebook, blogs and live chats offer the public opportunities to publish, argue, express and form opinions in an instant. The Orlando Sentinel, for example, offers an online chat room which has reportedly attracted up to 124,680 people a day to watch live streaming video and then “discuss.” I can’t walk through an airport or the downtown Houston food court without seeing the trial broadcast live from multiple venues. It is simply inescapable.

With all this going on, one would think that the Casey Anthony case is the Ringling Bros. “Big Top” of all cameras in the courtroom cases, but I think not. In my view, this extensive access permits the public to judge for themselves the conduct of the court, counsel, witnesses, and the accused without being wholly dependent upon the prismatic viewpoint of the multitude of reporters, commentators, and pundits. Although a brawl was reported among anxious and overwrought spectators outside the courthouse on June 17, that was outside not inside, and new rules were immediately put in place to assure some semblance of civility. News organizations have pooled coverage and media have assigned seats in the courtroom. Internet connections also permit fast distribution of video feeds and still photos. Unlike the notorious Judge Ito in the Simpson case, Judge Blevin Perry seems to have his courtroom well in hand. As one who appears before the trial courts on a regular basis, I well know it is the judge not the lawyers or the media who is the master of the demeanor, dignity, professionalism and civility in the courtroom.

Courts are supposed to be public, and the public needs to know how our judicial system works. The public’s understanding and faith in the judicial branch is bolstered by more access to trials via cameras in the courtrooms. Indeed, starting in July, 14 selected federal courts from around the country and Guam are beginning a three year trial experiment with camera access to civil trials and proceedings in the federal system. Previously, cameras were banned in federal courts. Although the rules for the federal pilot project are restrictive, we are moving in the right direction. Let’s hope the federal pilot is a success. Moreover, let’s hope that the critics of cameras in the courtroom learn from Judge Blevin Perry that access can be given to the multitudes without a “carnival atmosphere” overtaking the proceedings.

— Nancy Hamilton is a partner at Jackson Walker. She can be reached at nhamilton@jw.com.