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If golfers and football players use videotapes to improve their game, why not judges? That’s the philosophy behind a pilot program in Massachusetts in which several judges were recently videotaped so they could see exactly how they act behind the bench. While cameras have long been in the courtroom documenting trial proceedings, this program is different in that the cameras zoom in on the judges, looking for blunders or improper behavior. “This doesn’t mean that judges are not performing well, it just means that we need to continue to perform well and when necessary, perform better,” said Charles Johnson, chief justice of the Boston Municipal Court Department, who is reviewing 30 videotapes of judges to see where potential weak spots are. “I’m sure that the majority of the tapes will reveal that the judges are doing exactly what they should be doing. But it may very well reveal that there are judges who could improve their courtroom demeanor,” said Johnson, stressing that the program is not punitive, but a preventative measure to weed out potential misimpressions. “You can see mistakes and say, ‘Oh my God, did I do that?’ or ‘Did I say that?’ But unless you have the opportunity to look back and observe your performance, you might miss your mistakes because a lot of people don’t point out our mistakes. They are reluctant to point it out, and to a large extent we operate in isolation,” Johnson said. OTHER TAPING STATES According to the National Center for State Courts, just two other states have similar programs. Minnesota has videotaped judges since 2000, while New Jersey has been taping for a decade. In recent years, Oregon experimented with the idea. And some courts in California review videotaped court proceedings, but only if there’s a complaint against a judge. Judge Geoffrey Neithercut of Michigan’s Seventh Judicial Circuit Court in Flint, whose courtroom has been videotaped over the last decade, sees videotapes as a useful tool that can help keep judges and lawyers in line. While the Seventh Circuit initially implemented cameras to save money on court reporters, Neithercut noted that the program has helped judges nix bad habits. Specifically, he recalled a judge who was famous for using body language to try to influence the jury, but modified his behavior after being caught on tape doing so. “He would sigh. He would roll his eyes. He would instruct the jury and say, ‘Now the law says we presume the defendant to be innocent,’ and his eyes would go to the back of his head,” Neithercut said. “With the video you could catch him in the act.” Neithercut applauded the Massachusetts program, saying, “I think it’s a great idea.” As for his own behavior in the courtroom, he said, “I’d like to say I try to do the right work with or without the [video] system.” Attorney Cynthia Gray, director of the Center for Judicial Ethics for the American Judicature Society, said videotapes could be a useful tool for judiciary review committees that have to investigate cases of judicial misconduct. She noted that misconduct cases saw a 29 percent increase in the last year, from 114 in 2004 to 147 cases in 2005. “I don’t know if it would get rid of misconduct or not. But I always think it’s good for judges to look at themselves and for commissions to have good evidence to exonerate judges or help prove misconduct,” Gray said. In New Jersey, court officials note that videotapes help give judges the kind of feedback that lawyers or jurors are afraid to give. “When we started doing evaluations with questionnaires, no one wanted to tell the judge what they honestly thought and the videotapes are pretty good at giving them some clear-cut feedback,” said Richard Young, chief of the judicial education and performance unit for the New Jersey Administrative Office of the Courts. David Givens, an anthropologist who researched and videotaped judicial behavior for the Washington state judiciary for seven years, said videotapes can show potential bias in a judge. For example, he said, if judges compress their lips when a defendant is talking, it sends a signal that they don’t believe the defense. Or when they pay attention to the prosecutor, but scribble notes when the defense lawyer speaks, that implies they favor the prosecution. Tresa Baldas is a reporter with The National Law Journal, a Recorder affiliate based in New York City.

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