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With criminal prosecutions increasingly resembling reality TV and court proceedings taking on the aura of game shows, many practitioners fear public trials are becoming public spectacles. Thursday, a New York State Bar Association panel debated whether fair trial rights — especially in legal proceedings featuring celebrities like Kobe Bryant, Martha Stewart and Michael Jackson — are compromised when the public and the press have unfettered access, particularly through TV cameras. The Criminal Justice Section and the Committee on Media Law hosted a debate on First Amendment versus Sixth Amendment concerns and fostered a lively discussion between two major media lawyers and two renowned defense attorneys. If the debate resolved anything, it made clear that the debate is unresolvable. With the lack of anything other than anecdotal proof, Stephanie S. Abrutyn of the Tribune Co. and George Freeman of The New York Times clearly cannot be persuaded that cameras in the courtroom impede fair trial rights and tarnish the perception of the judicial system. Likewise, defense attorney Jack T. Litman of Litman Asche & Gioiella and Barry Scheck of the Benjamin N. Cardozo School of Law insist that TV cameras cause deep and insidious damage to the system and alter the behavior of trial participants, even if there are no camera-attributable reversals to cite. Where the attorneys did seem to agree, however, is that the courtroom should almost always be open to the public, and that closure is a drastic remedy that should be employed only in unique circumstances. But on the issue of cameras, there was little common ground. Scheck and Litman would allow cameras only with consent, meaning the defendant and defense attorneys would have an absolute veto. Abrutyn and Freeman argued from the sunlight-as-disinfectant position. “Our system of justice depends on tedium, a constant, quiet, solemn, dignified search for the truth,” Litman said. “The values that underlie commercial television are entertainment and ratings.” Litman also said he feared that judges, the majority of whom are elected, would be more worried about “how they look in television-land” than in dispensing justice. He presented a particularly harsh view of TV networks and their motives, and suggested they would, and do, trade substance for ratings. “They are trying to sell a product,” Litman said. “They are trying to get ratings. So, they put on garbage.” Freeman bemoaned the fact that New York, “the media capital of the world,” is now one of only nine states in the union barring cameras in the courtroom. He said that even if television broadcasts only snippets of trials, and even if it focuses on the most controversial or salacious aspects, that is still better than the fictional view of the justice system the public sees on TV shows. Abrutyn said the public will have greater confidence in a process they can view. CHANGED VIEW Scheck described himself as a “friend of the media” and a natural advocate for the press. However, he said he changed his views on cameras after witnessing in several high-profile cases how the presence of TV cameras alters the behavior of trial participants. “It changes the behavior of the witnesses, it changes the behavior of the jurors, it changes the behavior of the lawyers, it changes the behavior of the judge,” Scheck said. Scheck, who was involved in the O.J. Simpson case, said the impact of cameras and running commentary was clear in that matter. He said that while lawyers and the judge may not have been aware at any given moment that they were on television, they could not help but be influenced after watching the broadcast that evening or having someone comment on their on-air performance. “Judge [Lance] Ito would get certain kinds of criticism and the next day he’d be the good Ito or the bad Ito — all in response to what happened [on television],” Scheck said.

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