New rule means courtroom cameras will get their day in court

It's a safe bet that none of the delegates to the 1774 Continental Congress held in Philadelphia viewed their hotel rooms over the Net before booking them or planned their routes by checking out the traffic webcams.

Still, they managed to arrive. Once they did, those inventors of the form of our present government advanced the proposition that jury trials ideally should take place "before as many people as chuse to attend."

Certainly much has changed in 230 years, but some fundamental principles abide: The turnpike saves time, a clean room is a blessing for a weary traveler, and the broadest possible public access to court proceedings is good for both the parties and the public.

These days, just as we have chosen some different spellings, we have settled on photography as a means to enable us to visit places we couldn't otherwise see — such as trials too distant or too crowded for us to attend.

This winter, news cameras will find a slightly warmer welcome in courthouses across Washington state. As of Jan. 4, thanks to a new rule recently adopted by our state Supreme Court, any party objecting to courtroom photography will be required to overcome a presumption in favor of access for those cameras. To support a request for limits on courtroom photography, they will have to persuade the judge that there is some particular circumstance in the case that justifies restriction.

The history of cameras in court has not always been a pretty picture. Cumbersome camera equipment and an aggressive press corps turned the high-profile trials of Dr. Sam Sheppard (1954)and Lyndon B. Johnson's pal Billy Sol Estes (1962) into prototypical "media circuses."

With learned lessons, technological advances and fading memories, by 1976, Washington state had removed the outright ban on cameras in court. Fifteen years later, it adopted General Rule 16, which gave trial judges discretion in allowing news cameras in their courtrooms.

Then O.J. Simpson came crashing through. The football player's celebrated 1995 murder trial, with its widely seen images of bickering lawyers and a judge who allowed them to spend more time addressing each other and their vast TV audience than the business of the court, set back the progress that had been made.

The lingering after-effects of that trial included a generalized, albeit irrational, fear that any trial can become "another O.J." simply by allowing press cameras in to record what is going on. In some courts, blanket denial of camera access for this reason became regrettably common — regrettable because it reflected a failure to exercise the discretion called for by Rule 16.

Legally speaking, for a judge to exercise discretion means to weigh the specific circumstances of a particular situation, balance the public and private interests at stake, and then articulate a reasoned decision.

The new rule makes clear that blanket approaches — paranoid or principled — are inappropriate. Particular reasons for restrictions must be identified. Such circumstances are not uncommon. They might include child witnesses or others who, due to their emotional state or the subject matter of their testimony, would be inhibited by the presence of cameras. Another example might be the party or lawyer with a political or personal agenda aimed over the heads of judge or jury and at the cameras.

The general rule could be viewed this way: The camera should be able to see and transmit, without altering, what goes on in court.

Why is camera access so important to the justices and to all the judges of the state? Isn't the primary purpose of the courts to achieve fairness? Exactly!

The U.S. Supreme Court, in a 1986 case, observed that "openness enhances both the basic fairness of the criminal trial and also the appearance of fairness so essential to public confidence in the system." This is because a watchful public eye gives assurance that established procedures are being followed and that deviations evidencing bias will become known. It has long been reasoned that, along with bias, perjury and misconduct are actively discouraged by openness.

Judges also are convinced that the public's trust and confidence are strengthened when it views the work of the courts. The fact is that most trials are well-conducted by able and conscientious judges and lawyers. Judges rarely misbehave and rarely tolerate misbehavior in their courts and, if we do, the public should know about it.

In Washington, we also enjoy a tradition of responsible and ethical journalists covering the business of the courts. With modern equipment and pooling arrangements, cameras in court are quite unobtrusive and seldom cause any disruption or distraction.

Without compromising our primary function of providing a public forum for the fair resolution of disputes, the courts are committed to assisting the news media and the public in performing their own proper functions.

Although there exists no archived C-SPAN footage of the Continental Congress, the voice of that body was heard by the Washington Supreme Court this month. The Founding Fathers certainly would approve of this wise advance aimed at aiding those citizens who choose to keep a watchful eye on their justice system.

William L. Downing has been a judge of the King County Superior Court since 1989 and serves as chairman of the Washington Bench-Bar-Press Liaison Committee.