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One of the most vexing (and arousing) issues in the administration of both civil and criminal justice emanates from television. On Feb. 14, United States Supreme Court Justice Anthony Kennedy, appearing at a U.S. Senate Judiciary Committee hearing for the purpose of increasing federal judges’ salaries, inveighed against possible legislation to require the televising of oral arguments in the Supreme Court. Since July 1984, the California Rules of Court have contained a compendious rule governing not only televising, but also photographing, recording or radio broadcasting of court proceedings. Rule 1.150 of the California Rules of Court introduces the rule under the rubric of public access to court proceedings with an inescapable bromide: “The judiciary is responsible for ensuring the fair and equal administration of justice. The judiciary adjudicates controversies, both civil and criminal, in accordance with established legal procedures in the calmness and solemnity of the courtroom. Photographing, recording, and broadcasting of courtroom proceedings may be permitted as circumscribed in this rule if executed in a manner that ensures that the fairness and dignity of the proceedings are not adversely affected.” (Emphasis added.) Rule 1.150 then declares that a presumption for or against granting permission to photograph or broadcast court proceedings is not created and does not exist. The rule establishes procedures for photographing, recording, broadcasting or televising court proceedings in a common-sensical fashion. Media coverage is permitted “only on written order of the judge …” who in his or her discretion may permit, refuse, limit or terminate media coverage. The rule sets forth 19 specific factors for a judge to consider, including, for example, the importance of maintaining public trust and confidence in the judicial system and promoting public access thereto, the parties’ positions, the participants’ privacy rights, any continuing law enforcement activity in the case such as unresolved identification issues, and the effect on any minor who is a party, witness or victim. The rule specifically limits media coverage to one television camera and one still photographer and prohibits equipment that causes a distraction. Finally, Rule 1.150 expressly prohibits media coverage of proceedings in chambers, jury selection, jurors or spectators, conferences between an attorney and a client, and other sensitive proceedings. As the Fourth District Court of Appeal noted in KFMB-TV Channel 8 v. Municipal Court (1990) 221 Cal.App.3d 1362, 1366: “From the time of its initial study of ‘cameras in the courtroom’ California has taken a deliberate and thoughtful approach to accommodate the competing interests of the parties’ rights to privacy and a fair trial and the public’s right to scrutinize court proceedings. � The drafters of [the court rules] were also well aware of the wisdom contained in Justice Brennan’s observation: ‘[s]ecrecy of judicial action can only breed ignorance and distrust of courts and suspicions concerning the competence and impartiality of judges; free and robust reporting, criticism, and debate can contribute to public understanding of the rule of law and to comprehension of the functioning of the entire criminal justice system, as well as improve the quality of that system by subjecting it to the cleansing effects of exposure and public accountability.’” ( Nebraska Press Ass’n. v. Stuart (1976) 427 U.S. 539, 587.)” (p. 1366.) Having been admitted to practice law in California in January 1954 and having practiced trial law since 1956 after service in the United States Air Force Judge Advocate Corps and one year as assistant counsel to the New York Waterfront Commission, I yield to no one, not even my friend Justice Kennedy, in devotion to the dignity and decorum of the courtroom. That’s the reason I have espoused only the televising of certain court proceedings and have applied Rule 1.150 in but two criminal cases. I believe in the comprehensive and prudent content of Rule 1.150. I do not believe in televising examination or cross-examination of witnesses, or opening statements and closing arguments of counsel or motion arguments during a trial even if jurors have been excused. I do believe in permitting the televising of pretrial motions prior to jury selection, and I have allowed, but only with the consent of all jurors and respective counsel, the announcement of a verdict in open court after the jury had reached it. And, for the record, I have publicly espoused a statute which would indeed preclude any television in a criminal trial, because, invariably, a criminal trial is more intense and foreboding in consequence than almost all civil trials. With that in mind, I most unreservedly advocate televising appellate proceedings. Why? An appellate proceeding differs markedly from a trial. By its nature, appellate argument occurs with “calmness and solemnity.” Perhaps some trial judges find television, like some judges find sensational cases, so attractive that it affects their customary decorum. Those judges, however, constitute the exceptions rather than the norm, and especially so in our federal and state appellate courts. In the Feb. 15 edition of The Recorder Justice Kennedy is quoted as stating to the Senate Judiciary Committee anent television: “We don’t want it!” The reason for his remark springs from Sen. Arlen Specter’s introduction of a measure in January 2007 that would require televising of U.S. Supreme Court proceedings. (Specter is a one-time Philadelphia district attorney.) Justice Kennedy urged the committee “not to introduce the ‘insidious temptation’ for justices to shape their comments and questions from the bench into catchy sound bites.” The article described his tone as “impassioned,” reaching “a level he usually reserves for students he lectures about the rule of law.” Sen. Specter proclaimed the wisdom of television in the Supreme Court because “the court’s function ought to be better understood.” He observed that televising oral arguments “might help the public comprehend rulings” like United States v. Morrison, invalidating part of the so-called Violence Against Women Act. Justice Kennedy responded by describing oral argument as “a way of using the attorney to have a conversation with ourselves and with the attorney” � a dynamic that he suggested would be ruined by the presence of cameras. He declared that the Supreme Court is judged “by what we write” and not by questioning during oral argument. He also admitted the Supreme Court “probably should do more in the way of teaching” the public about its procedures. I cannot claim special understanding of the customs and practices of the U.S. Supreme Court more than any other lawyer or state court judge. I can, however, understand from more than 50 years of trial and appellate practice and eight years of superior court service that appellate judges are not likely to be influenced by television or radio � or print media. Appellate judges function in an atmosphere and culture of dispassion, discourse and discussion. Moreover, why should an appellate hearing be deemed solely a “conversation” between appellate judges themselves and between appellate judges and respective counsel? Why shouldn’t other lawyers, law students and interested non-lawyers be privy to those “conversations”? What better method than television to teach the public about appellate court workings? In fact, the Supreme Court itself has approved broadcast coverage in a criminal case and in an era before prevalent videotaping. In Chandler v. Florida (1981) 449 U.S. 560, 582-583, it concluded: “Whatever may be the ‘mischievous potentialities [of broadcast coverage] for intruding upon the detached atmosphere which should always surround the judicial process’ � at present no one has been able to present empirical data sufficient to establish that the mere presence of the broadcast media inherently has an adverse effect on that process. � The appellants have offered nothing to demonstrate that their trial was subtly tainted by broadcast coverage � let alone that all broadcast trials would be so tainted.” The court thereby upheld a one-year experimental Florida program that allowed electronic media at all judicial proceedings under specific guidelines. As recently as March 8, the Second District Court of Appeal in People v. Dixon, 07 C.D.0.S. 2536, reminded us that both federal and state courts acknowledge a presumption of public access. So, while the Supreme Court approved televising a criminal trial as in Chandler, recognizing (in the words of Dixon) that “television coverage was not as mischievous as previously thought, and the cautious use of modern technology could advance the public interest �,” it refuses even to adopt guidelines for televising oral argument. Something is wrong here. Just as Rule 1.150 maps a precise procedure and criteria for consent to televising a trial court proceeding (the rule can be applied also to the California Court of Appeal and Supreme Court), so, too, can such principles be adopted by the U.S. Supreme Court and all federal courts. Most important is the United States Supreme Court. Under the leadership of a new chief justice, that court should set an example for appellate courts throughout the nation and lead the public to a better understanding of the place of law in our society, rather than shutter its actions and “conversations.” From Justice Kennedy’s view, I respectfully dissent. Quentin L. Kopp is a retired judge of the San Mateo County Superior Court.

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