February 12, 2002

Televise Moussaoui’s Trial

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U.S. District Court Judge Leonie M. Brinkema has denied Court TV’s request to broadcast the trial of accused terrorist Zacarias Moussaoui, citing security and procedural concerns. She determined that the public benefit from televising this noteworthy trial is “heavily outweighed” by the “significant dangers… [it] would pose to the orderly and secure administration of justice.” Although cameras have been excluded from federal criminal courts for 56 years, this trial should be televised.

In 1963, the Warren Court held that televising a trial denies the defendant due process. Twenty-one years later, the Burger Court ruled that a state judge may allow cameras into the courtroom unless the defendant demonstrates that televising the trial would deny due process by interfering with the ability of the jury to be fair. That case assigned the defendant a burden, which was almost impossible to meet, consistent with the Burger Court’s steady evisceration of the rights of criminal defendants.

Today, all 50 states allow some type of camera coverage; 38 permit cameras in criminal courts. Federal courts, however, have forbidden courtroom cameras since Rule of Criminal Procedure 53 was enacted in 1946. Although there have been limited experiments with televising civil proceedings, federal judges, like Brinkema, have held fast to the ban in criminal cases.

Jury pools and evening news

Moussaoui’s lawyers favor broadcasting the trial but not the pretrial proceedings. They rightly fear that the jury pool might be tainted by exposure to evidence that may be ruled inadmissible later at trial. They’re also concerned that snippets from the trial could be played and replayed on the evening news, which would distort the proceedings in the eyes of the viewing public. But the defense wants Moussaoui’s trial broadcast in order to show the world-and indeed to ensure-that his trial is being conducted fairly.

The brutality of the Sept. 11 attacks has shaken our country and the world. Although a strong response is warranted, the government has overreacted with an alarming erosion of civil liberties.

With almost no dissent, Congress enacted Attorney General John Ashcroft’s USA Patriot Act, which makes it easier for the government to read our e-mail and see the Web sites we’ve visited. Ashcroft has announced the return of government surveillance of political and religious organizations. And President Bush has established a mechanism for military tribunals that doesn’t comply with basic standards of due process.

In our haste to bring the culprits to justice, we must ensure that we do not sacrifice our basic constitutional rights. Anyone who comes before our courts is entitled to the presumption of innocence and the right to a fair trial, which is enshrined in the Constitution.

The Sunshine in the Courtroom Act was approved by the Senate Judiciary Committee late last year and is pending in the Senate. The bill would give judges in federal trials and appeals discretion to permit cameras in their courtrooms, but it would require them to accord witnesses the option of having their faces and voices obscured.

Security could be protected by broadcasting the trial without showing the faces of the jurors, so as to shield them from possible retaliation. Witnesses’ faces could be obscured by covering them with blue dots.

Because of the overwhelming public interest in Moussaoui’s trial, millions of people would watch it on television. The defense motion to broadcast only the trial should have been granted, in order to protect the impartiality of the jury panel.

The Supreme Court has upheld the public’s right of access to the judicial system, but has stopped short of saying the right to a public trial means the right to a televised one. It has also refused to prioritize between the defendant’s Sixth Amendment right to a fair trial and the public’s First Amendment right to access to the criminal system. Whether these rights can be protected involves a case-by-case determination. In Zacarias Moussaoui’s case, both rights could be safeguarded by televising it.