Washingtonpost.com: Live Online

The Moussaoui Trial:
Cameras in the Courtroom?
With Jay Ward Brown
Attorney, Court TV
and Bruce Collins
Vice President and General Counsel,
C-SPAN
Thursday, Jan.. 10, 2002; 2 p.m. EST

Court TV and C-SPAN have requested that the trial of Zacarias Moussaoui, the only man facing U.S. charges charges in the Sept. 11 terrorist attacks, be televised. In a hearing Wednesday, lawyers for the television networks said that the American public has a First Amendment right to observe criminal court proceedings by televising the landmark conspiracy trial. But Justice Department lawyers urged the court to turn back the cable networks' constitutional challenge to a long-standing rule barring cameras in the courtroom. Moussaoui's lawyer has said his client does not oppose live broadcasts during the trial but does not want clips replayed later.

Bruce Collins

Bruce Collins

Should cameras be allowed in the courtroom? Jay Ward Brown, attorney for Court TV and Bruce D. Collins, vice president and general counsel of C-SPAN, will be online Thursday, Jan. 10, at 2 p.m. EST, to discuss possible television coverage of the trial.

The transcript follows.

Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.

Washington, D.C.: After yesterday's hearing, how long will it take to determine if cameras will be allowed in the courtroom?

Jay Ward Brown and Bruce Collins: JB--Judge Brinkema indicated that she would try to rule by next Tuesday morning and she is a judge who tries hard to keep to schedules she sets but of course, her ruling might not be the last word.

Alexandria, Va.: I am appalled that the "media" will try to "sensationalize" this allegedly misguided individual under the guise of letting the world know about our system. What a crock!The world already knows about our system. And it is apparent from these terrorist that they don't like our system. So why let the terrorist benefit from the publicity of this individual's trial?

Jay Ward Brown and Bruce Collins: BC--Terrorists used many ways to publicize their causes. We do not believe that witnessing the American justice system is the same thing as promoting terrorism in this case. Also, of all the media that is going to cover this trial, C-SPAN and Court TV are the two news organizations that can be relied upon not to sensatiionalize the events that take place in the courtroom.

JB--I respectfully disagree with the premise that all people of the world actually understand American democracy and in particular our system of justice. And therefore, I think that coverage of the trial will help people around the world to understand and appreciate and value our system of justice and I think that is a very important goal.

Constant State of Confusion:: How can televising this trial possibly help anyone? Do the families of the victims really need to see and hear what this man has to say? Do any of us really need to hear how methodically planned out the attacks were?

If the trial does get televised, I absolutely will not watch any part of it or any of the clips that invariably will be on the evening news.

Your thoughts?

Jay Ward Brown and Bruce Collins: BC--First of all, many victims' families do want to see how our justice system treats terrorists. The facts that come out in the trail will be facts on both sides. On the one hand, there may be some details about how terrorism is conducted but on the other hand the U.S. government will provide all the evidence it has to prove to the jury and, if this is televised, to the world that the defendant is indeed guilty. Finally, our system allows Mr. "Confusion" not to watch any of it.

JB--I agree. After all, many families of victims of the Oklahoma City bombing desired to observe that trial and I personally know people touched by the Sept. 11 bombings who want to decide for themselves whether Mr. Moussaoui is guilty of involvement in those events. They can only do that if they can observe his trial.

D.C.: Exactly which law or regulations banned cameras in the courtroom?

Jay Ward Brown and Bruce Collins: JB--There are two rules that the government argues prohibit camera or radio coverage. The first is Federal Rule of Criminal Procedure 53. That is a rule which was as Judge Brinkema pointed out yesterday, approved by the Judicial Conference (the body that sets federal court policy) approved by the Supreme Court and which also was approved by Congress. In addition, the court in Alexandria has its own local rule established by its judges which likewise reports to bar camera and radio coverage in that courthuse.

Chicago, Ill.: In first requesting that cameras be permitted in the courtroom, Moussaoui's lawyers were quoted in the press as saying that the coverage would add "an added layer of protection" for their client, by permitting outside parties to better observe what was going on, etc. Maybe this snippet was taken out of context, but I find that argument incredibly insulting to our judicial system, like this is some Soviet show trial or something. What happened to that argument and did the judge have anything to say about it? Thanks.

Jay Ward Brown and Bruce Collins: BC--I am not aware of any participant in the judicial process here taking Moussaoui's comments as an insult. I think the reason for that is that the people in our judicial system are very conscious of the centuries' old tradition of public access to trials and to courts in general. As a matter of fact, in my opinion, the greater the public access, the greater the protection against an unfair trial.

JB--Precisely the reason our constitution recognizes a right on the part of the public to observe trials and also separately, the right of a defendant to a public trial is to ensure that every person who becomes a defendant will receive the full measure of rights to which they are entitled. In each of us, were we a defendant in a criminal proceeding, I am confident, would feel similarly to Mr. Moussaoui. Although I have the highest confidence in the fairness of our court system as a defendant, I would want to know that others knew what was happening to me.

Judge Brinkema acknowledged Mr. Moussaoui's position but did not respond to it specifically.

Alexandria, Va.: Live Online notes that: "Moussaoui's lawyer has said his client does not oppose live broadcasts during the trial but does not want clips replayed later."

How would Maussaoui, who most likely will be in jail for the remainder of his life, stop news organizations from replaying clips of his trial?

Jay Ward Brown and Bruce Collins: BC--He can't. If there's anything that's unconstitutional in free speech law in this country it is that the government can't stop you from speaking before you've even done so. To let television carry the trial only on a live basis but not on a delayed basis is clearly unconstitutional and should not be given any credence.

Alexandria, Va.: Previous Al Qaeda defendants have used their trials to denounce America, Israel and the West.

If that happens during a televised trial would it have a public relations impact on how people in America percieve the Moslem countries? Might Americans become even angrier than they are now at Saudi Arabia and Iraq?

Jay Ward Brown and Bruce Collins: JB--It's difficult to predict how others will react to something that might be said during these proceedings. Of course, in the American judicial system. defendants typically do not have the opportunity to make speeces. Mr. Moussaoui may or may not choose to testify during the proceeding and, if he is convicted, he would have an opportunity to speak to the court during sentencing. But that is a right that all defendants enjoy in our system.

BC--I'm relying on our experience with televised courts in this country where similar fears of incitement or public misunderstanding were expressed. It just hasn't turned out that way. The best example is the Diallo trial in New York, involving the police shooting of an unarmed youth. Amid great public interest and tension, the trial proceeded on television and has been largely credited for lowering the temperature of debate and demonstrating to all viewers that the system worked fairly. Experiencew would say the same would happen if this trial were to be televised.

Bowie: Who would own the rights to the footage?

Would anyone be permitted to tape and re-release it?

Jay Ward Brown and Bruce Collins: BC--This raises rather arcane issues. However, C-SPAN's view is that the video feed made available to news organizations is for their news use however they want to use it. If any lawyers are reading this chat, my legal analysis is that every user of the pool video including the producer of the pool video, which could be Court TV or some other organization, is the joint copyright owner of the video.

JB--As a practical matter, if individuals, whether here or abroad, want to record part of the proceedings, it seems unlikely that any copyright owner would seek to prevent non-commercial uses of those tapes.

BC--I agree with Jay on this point.

N.Y., N.Y.: Opponents always say that cameras create a circus atmosphere.

How specifically, though, might a televised trail actually affect the conduct of a trial, the fairness of that trial, and the ultimate verdict.

Doesn't the circus part outside the realm where the trial actually takes place and is thus not a negative direct influence on the defendant's right to a fair trial?

Jay Ward Brown and Bruce Collins: JB--The analogy to a a circus arose back in the days when camera coverage involved dozens of people, bright lights and bulky equipment all being manhandled in the courtroom during the trial. None of that happens today. Moreover, although some people contend that lawyers and witnesses will "perform" for a camera, I doubt that this is true and there are studies that tend to show it is untrue. After all, a lawyer or a witness is ALWAYS performing for an audience: the judge, a jury and perhaps as many as 100 spectators in the courtroom. The presence of the camera does not make any meaningful difference.

BC--If my reading of history is correct, Clarence Darrow and William Jennings Bryan did not need a television in a courtroom in order to "perform."

Washington, D.C.: This is for Mr Jay W. Brown: Do you think that the law prohibiting cameras in the courtroom for this case would have been viewed differently ten years ago, or twenty years ago? Has the computer age added to the want for cameras in the courtroom?
Thank you!

Jay Ward Brown and Bruce Collins: JB--Yes. I think the further back in time you go, the greater the difference in the way this issue would have been viewed because of the differences in technology. And I do think that the advent of the Internet, which permits people to download video to watch at a time convenient for them (in the same way a VCR can permit home viewing of television broadcasts at more convenient times) makes it possible for more people to become involved and therefore more people want to become involved.

Mt. Vernon, Va.: Liza Collery (the Justice attorney arguing against cameras in the courtroom) is an excellent attorney, but don't you think that she lost substantial credibility with the judge when she also tried to assert that there were security concerns with even having audio coverage of the trial? That position (clearly set forth by her superiors) makes the government look like they are exaggerating concerns over security and overplaying their cards. Audio coverage of the trial would seem to be a reasonable compromise given all of the competing interests.

Jay Ward Brown and Bruce Collins: BC--As the lawyer representing the entire U.S. government in this case, Ms. Collery was probably reluctant to concede any electronic access to this trial and that her reaction was in my view, understandable in that context. I doubt that she or any single attorney representing the U.S. is going to depart from strongly expressed Justice Department policy simply because he or she is being questioned by a federal judge in a hearing.

JB--Although I disagree with the government that the security concerns cannot be addressed appropriately with camera coverage, to give Ms. Collery her due, I think the point she made was that there may be some witneses whose cooperation the government needs who would be frightened even by the prospect of radio coverage. I find that unlikely.

Harrisburg, Pa.: What is your evaluation, in retrospect, of how television coverage affected the trial of O.J. Simpson? To what degree was the trial playing "for the cameras" and the court of public opinion? Now that the public has become accustomed to televised hearings, do you believe the presence of television is becoming less intrusive on how participates behave during trials?

Jay Ward Brown and Bruce Collins: BC--The O.J. Simpson trial was not a case where television caused courtroom chaos. The O.J. trial was a case of the judge losing control of his courtroom and the trial. Also, don't forget that Court TV has televised over 700 trials with no comparable effects. And I agree with Harrisburg that as television coverage of public events loses its novelty that human nature says to the extent there's any tendency to grandstand then there will be less of it. But keep in mind, our experience over the last decade tells us that lawyers in court respect their duties to the court and their clients and do not engage in the kind of behavior so many Americans witneses in the O.J. Simpson trial.
JB--The simple truth is that no good lawyer fulfilling his or her professional obligations would allow themselves to be influenced by the presence of a a camera in the courtroom. The lawyers in this case are very, very good lawyers.

Washington, D.C.: In the past, cameras have accidentally shown jurors on TV. Thus, the judge dimisses the juror who was shown. Here is an instance where cameras in the courtroom have directly influenced the outcome of the case. What if that one juror was a swing vote? Should it be declared a mis-trial?

Jay Ward Brown and Bruce Collins: JB--It's hard to anwswer that question in the abstract. First of all, I think such incidents are extremely rare. Second, housekeeping rules can be established that minimize the potential for such a thing to happen -- if a conclusion has been reached that the jurors should not or must not be depicted. But as for whether a particular instance requires a mistrail is something that can only be considered in a specific factual context.

Alexandria, Va.: Terry Nichols is about to face Oklahoma charges for bombing Oklahoma City.

Is there any possibility that defendants charged with Sept. 11 offenses might face charges in Virginia or New York, and that those state trials would be televised?

Jay Ward Brown and Bruce Collins: JB--That certainly is possible and both Virginia and New York allow camera coverage in state courts in certain circumstances.

Washington, D.C.: Since "right to access" is provided anyway via public seating in the courtroom, isn't there a qualitative difference in the intimidation level of potential witnesses by broadcasting their faces, voices and full testimony worldwide? Couldn't televising therefore threaten the government's ability to make their case?

Jay Ward Brown and Bruce Collins: BC--Let's all remember that we have over a decade of experience on the state level with televised where this identical concern has come up. We have no evidence despite the so-called "common sense" instinct of so many people, that this indeed happens. And we should also keep in mind as Court TV's attorney Lee Levine said in yesterday's hearing the judge has several devices that she can use to provide for the security of all of the participants in the trial if that is thought to be necessary.

JB--The question raises the government's main argument against camera coverage. In addition to Bruce's point, don't forget that we virtually never allow anonymous witnesses in our court system. Witnesses have to walk into and out of the courthouse and they may be photographed on the sidewalk, and in almost all circumstances, their testimony must be given in open court. Forbidding cameras will not shield witnesses from worldwide publicity. That is simply part of an open system of justice.

Chicago Ill.: Excluding the OJ trial, are there any cases you can think of that were televised, that would have been better off without TV coverage?

And on an unrelated note, are there any significant differences in position on this issue between C-SPAN and Court TV?

Jay Ward Brown and Bruce Collins: BC--No. And no.

JB--I agree.

washingtonpost.com:

That wraps up today's show. Thanks to everyone who joined the discussion.

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