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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
For more information email: info@clarkstonlegal.com

Friday, January 30, 2015

Legislation Seeks to Put Cameras in Federal Courts

Most serious-minded lawyers will tell you they prefer to practice law in federal court. It is a whole different professional arena.

Whenever I get to appear in Detroit for the occasional federal case, or in Cincinnati on appeal, I step-up my game a notch or two; you cannot help but do so. The moment you pass through security, into the sweeping marble halls, the history of the typical federal courthouse envelopes you. In addition to lots of marble, long usually uncrowded hallways, and spacious airy well-appointed courtrooms, you always find helpful but serious clerks.

One of the sacred traditions of federal practice is that no cameras are allowed into the courtroom. That's just the way it has been for the past 70-years.

Now, the unfortunately-named "Sunshine in the Courtroom Act" is again making its way through the U.S. House of Representatives; since 2005, the bill keeps getting reintroduced with various judges across the country expressing keen interest in getting cameras in their courts. If enacted, the bill calls for media coverage in federal courts at the discretion of the presiding judge.

Applying this concept to current affairs, it would mean we would all have the opportunity to follow the Boston Marathon bombing case; or the battle-of-the experts bench trial in the same-sex adoption case that unfolded here in Detroit just over a year ago.  Imagine the public interest in real-time coverage of the Supreme Court's proceedings in Bush v Gore, when the SCOTUS basically selected a President.

The prohibition of cameras is based on Federal Rule 53, which states:
Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.
This rule applies to all federal courtrooms, including -as amended- the U.S. Supreme Court. Despite occasional pressure from the legislature, and with three quarters of the American public indicating approval of placing cameras into federal courts, we predict that cameras will remain banned from federal courts.

One effect of the occasional pressure to open-up the federal courts has been to release digital recordings of the proceedings. This, of course, is a far-cry from real time streaming of the arguments and proceedings.

Some legal scholars question the public utility of having real-time media coverage of federal appellate argument, especially at the SCOTUS-level. The idea is that appellate courts do not issue on-the-spot decisions but rather, the appellate tribunals issue opinions and orders weeks after the submission of briefs and argument. Some say oral argument is but frosting on an already baked cake; so why the need for cameras?

Obviously, the countervailing argument is our need for the openness of government. As a member of the public, any one of us can go to Washington D.C. and stand in line at the SCOTUS to hopefully obtain one of the few hundred seats in the gallery of the High Court to observe the legal arguments first hand. But seriously, what's the likelihood of that?

For now, a federal court is one of the few areas of our government where the sun does not shine. We'll see whether the Sunshine in the Courtroom Act will get any traction to change all that...

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