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Both Aaron Burr and the Norman conquest of England made cameos at last week’s U.S. district court hearing on whether the conspiracy trial of alleged terrorist Zacarias Moussaoui should be broadcast to the public. A Federal Rule of Criminal Procedure and a local rule in the Eastern District of Virginia bar broadcasting courtroom proceedings. At the Jan. 9 hearing, U.S. District Judge Leonie Brinkema pushed attorneys to the farthest reaches of the issue in a case that already has attracted the world’s scrutiny. Arguing against televising the Moussaoui trial, Justice Department attorney Elizabeth Collery acknowledged that in a 1980 case, U.S. v. Richmond News Service, the Supreme Court traced the tradition of allowing the public to observe trials to before the Norman conquest of England in 1066. In contrast, Collery said, “[T]here is not a long-standing historical tradition of cameras in the courtrooms or any other kind of broadcast, including radio broadcasts.” She added, “While it is historical for criminal proceedings to be open to the public, it has never been thought necessary to hold them in amphitheaters in cases of great public importance so that the number of people from the public can be maximized.” Later in the hearing, Court TV lawyer Lee Levine, of Washington, D.C.’s Levine Sullivan & Koch, countered that when former Vice President Aaron Burr was tried for treason in 1807, Chief Justice John Marshall moved the proceedings from the Richmond, Va., courthouse to a larger room in the House of Burgesses, as Virginia’s legislative chamber was known, to accommodate spectators. A jury acquitted Burr. In the Moussaoui case, Court TV’s effort to broadcast the trial was joined by the C-SPAN Networks. Five other media companies, as well as the Reporters Committee for Freedom of the Press, filed amicus briefs supporting some form of broadcast. Moussaoui is in favor of televising the trial, though he objects to televising any pretrial proceedings. Though he did not speak, Moussaoui appeared to listen intently to the arguments. The hearing had the feel of an appellate proceeding as Brinkema volleyed questions at the attorneys. She referred to an audio broadcast as a possible compromise — a suggestion made in a brief filed by National Narrowcast Network, a D.C. company that transmits congressional and federal agency proceedings to paying customers over the Internet. In her turn before the judge, Collery said, “There may be policy reasons why an audio broadcast would be preferable to a television broadcast. But the relevant rules prohibit both.” “But what if the rules didn’t exist?” Brinkema asked. “[W]hat would the basis be for your opposition to an audio broadcast?” Collery demurred, saying the issue required “careful consideration,” but said the dangers inherent in a television broadcast — that witnesses would feel intimidated — extend to audio broadcasts. The argument for broadcasting the trial, Brinkema concluded, was “very interesting.” Earlier in the hearing, however, she noted that “the law is by its nature a somewhat conservative and historically oriented discipline.” “You are asking the court to declare unconstitutional a Federal Rule of Criminal Procedure that has been enacted by the Judicial Conference of the United States, approved by the Supreme Court and the United States Congress,” Brinkema said. “One does not take that job lightly.” Regardless of the decision, the losing party almost certainly will appeal. While a number of federal appellate courts have upheld the camera ban, the question has yet to reach the 4th U.S. Circuit Court of Appeals.

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