By MIKE STRAND

Cameras in the courtroom: Will Illinois be next?

ON THE morning of January 26, 1981, a somewhat startling shift in U.S. judicial policy sent tremors rippling through the American journalism and legal communities. All but reversing itself on a 1965 decision, the U.S. Supreme Court had ruled 8-0 that a television camera inside a Florida courtroom did not violate or present an inherent threat to the 14th Amendment rights of two Miami Beach policemen convicted of theft. Noel Chandler and Robert Granger were the two policemen accused of stealing $3,000 from a Miami Beach restaurant in May 1977. Their trial drew considerable media attention, including television cameras which were permitted under Florida statute to film in the courtroom over defendants' objections. Both men appealed their seven-year sentences on the grounds that television had prevented them from having a fair trial. The Supreme Court did not agree and noted that in their appeal, the policemen "offered nothing to demonstrate that their trial was subtly tainted by broadcast coverage — let alone that all broadcast trials would be so tainted." The Florida statute had passed the test in Chandler v. Florida. By its ruling, the Supreme Court has said it is constitutional for criminal trials to be open to TV cameras, as well as regular cameras of the print media and tape recorders of the broadcast media. It represented a major breakthrough in media coverage of the courts, and is expected to have significant impact on the journalism and legal communities in Illinois. Inspired by Chandler Besides Florida, 26 other states (see chart) have already established either experimental or permanent rules for televised trials. In Illinois, however, the state Supreme Court has consistently rejected any proposals for experimentation with the broadcasting of court proceedings. But in light of the Chandler decision, it now appears the Illinois Supreme Court is willing to review its unyielding policy against cameras and microphones in Illinois courtrooms. Banking on a change of heart by the Illinois court, media-bar organizations made hasty attempts to again try and spur the justices to relax the ban.

Just a week after the Chandler decision, the Fair Trial-Free Press Committee of the Illinois State Bar Association (ISBA) approved a resolution that requests a one-year test period at the trial and appellate court levels. The ISBA committee is composed of members from the bar, bench and media, and is chaired by Chicago attorney Joel Weisman.

"Coverage of court proceedings by electronic means is a step that should be taken," according to Weisman in a prepared release announcing the resolution. He said, ". . . it is essential that courts allow reporters to use the tools of their trade as long as the rights of trial participants are protected." The resolution as of March 16 was awaiting final approval from the ISBA's Board of Governors before a formal petition could be issued.

Meanwhile, a smaller, so-called "progressive" bar association was talcing even quicker action. The Chicago Council of Lawyers, a group of about 1,500 attorneys, formally approved a similar resolution on March 2 and formally petitioned the high court March 6 for an experiment with cameras and microphones. In 1975, the council had petitioned the court for a similar test, but was turned down without explanation five months later.

The new petition, according to the council president, Robert Graham, requests experimental media coverage using cameras and microphones "under specific, limited circumstances."

"On the experiment question," said Graham, "we come down suggesting that all parties [involved in litigation] would have to agree [to electronic news coverage] beforehand. That's primarily because a witness has [under current Illinois law] a right to object." Any rule that would allow cameras to record without witness' consent, Graham believes, would require not only permission of the court, but also approval by the Illinois General Assembly to change the law (Ill. Rev. Stat. 1977, ch. 51, sec. 57).

Not all bar associations are enamoured with the possibility of having cameras in the courts. Eugene I. Pavalon, president of the Illinois Trial Lawyers Association (ITLA), admits that the Chandler ruling will probably pry open courtroom doors for TV, radio and newspaper photographers, but it will not eliminate the residual feeling of disapproval among lawyers. "I don't like it," he says, "but I guess we'll have to live with it. I will push for the most stringent rule to make as unobtrusive as possible any type of camera in the courtroom."

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Attorney Robert Bennett of the Northwestern University College of Law, says attitudes like Pavalon's are common in Illinois' legal community. Bennett, who drafted the Chicago Council of Lawyers' petition, says many attorneys now support the media position only because they are resigned to the implications that the Chandler ruling will have in courts across the country. "I don't think there's any strong [legal] constituency for bringing cameras into courts," says Bennett. "There's not a lot of self-interest [among lawyers]. It is more an attempt at bringing courts into the 20th century [to aid the] free flow of information."

Background for ban Until the mid-1970's, most states were still rigidly adhering to the strict precept of Canon 35 of the American Bar Association's Canons of Judicial Ethics. That canon (which never had the force of a law) effectively banished electronic news equipment from many courtrooms throughout the nation and came about, in 1937, as a result of the flamboyant and outrageous trial of Bruno Hauptmann in 1935. Hauptmann was convicted and sentenced to death for the kidnap-slaying of the Lindbergh child in a circus like courtroom atmosphere created, in large part, by the media. Surprisingly, most broadcasters at the time treated the ABA's grave decision with almost total disinterest. And failing to learn from their mistakes in covering the Hauptmann trial, television and radio journalists inflicted another near-fatal blow to broadcast court coverage 25 years later. '. . . it is essential that courts allow reporters to use the tools of their trade as long as the rights of trial participants are protected' It was in a cramped, second-floor courtroom in Tyler, Texas, in which television and radio technicians laced the room with cables and wires for the September 1962 trial of financier Billie Sol Estes on swindling charges. All three television networks (ABC, CBS, NBC) descended upon the Smith County courthouse for a two-day preliminary hearing with the intensity and competitiveness normally reserved for rocket launchings or political conventions. Despite the restraints placed on broadcasters and print photographers by the trial judge, the United States Supreme Court ultimately held, in a 5-4 ruhng, that Estes was deprived of a fair trial in violation of the due process clause of the 14th Amendment. Although the court's ruling was not, per se, a blanket prohibition against televising state criminal trials, the net effect was the same. In other words, Estes may not have killed cameras in the courtroom, but it left the issue in critical condition. "The right of .the communications media to comment on court proceedings," wrote Chief Justice Earl Warren, "does not bring with it the right to inject themselves into the fabric of the trial process to alter the purpose of the process." Although the high court had shut the door, it was not locked. Justice John Marshall Harlan, in another concurring opinion, laid the groundwork for future judicial acceptance of televised trials. Harlan agreed that Estes had been denied a fair trial. But even so, he suggested that "the day may come when television will have become so commonplace an affair in the daily life of the average person as to dissipate all reasonable hkelihood that its use in courtrooms may disparage the judicial process. If and when that day arrives, the constitutional judgment [in Estes] would be of course subject to reexamination . . . ." But in 1978, the lllinois Supreme Court had evidently not yet accepted television as a commonplace affair as Justice Harlan had predicted it would be and sent down bad news for Illinois broadcasters. Harold Fuson, a communications law professor at the University of Illinois, received a letter on May 27, 1978, that he and many others had hoped would never arrive.

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The letter was from the clerk of the Illinois Supreme Court notifying Fuson (who then was serving as counsel for the 250-member Illinois News Broadcasters Association [INBA]) that an INBA petition, which urged the court to lift its ban (Rule 61) on cameras and microphones in Illinois courtrooms, had been denied.

Although not entirely unexpected, the ruling was greeted with considerable dismay, and it alarmed many in Illinois' broadcast news industry because the justices never explained why they had turned down the INBA's request. "The disturbing thing about the ruling," said Fuson, "[was] not so much the decision, but [that] the court refused even to discuss the matter."

Ten years earlier, this decision (which took 36 days) wouldn't have surprised anyone in radio or television news. Back then, a petition like the INBA's would probably have been labeled futile from its inception, given the stormy relationship that existed between the entire U.S. justice system and the broadcast media.

Age of electronics
The pervasiveness of television that Justice Harlan foresaw 16 years ago has indeed arrived, and today the "tube" is an ingrained part of the modern American lifestyle.

We are living in an age when 97 percent of all U. S. homes have one or more television (and radio) sets — a distribution roughly matching that of indoor plumbing. In addition, nationwide polls (both Harris and Gallup) have indicated that a sizable majority of all Americans obtain the bulk of their news and information from television and radio.

Illinois courtrooms remain a protected warren. They are the last vestige in state government of political isolation from the revealing eye of the camera and indiscriminate ear of the tape recorder.

Meanwhile, other states have responded to TV's technological catharsis, and its part-of-the-family acceptance by most people. Media organizations began several years ago taking steps to regain the judiciary's confidence in the electronic news industry. And, in some states, those attempts have succeeded quite well.

On July 5, 1977, with routine court dockets and dozens of cameras, the much heralded Florida test of television in the courtroom began.

One of the more celebrated (and somewhat ironic) cases argued before the cameras during this experimental period in Florida was attorney Ellis Rubin's unique, though unsuccessful, "television insanity" defense of a 15-year-old boy accused of murder. "I think the experiment [went] very well," said Sandy D'Alemberte, the attorney who prompted the Florida test.

The order allowing courtroom photography in Florida was simple and did not require the permission of any party involved. Restrictions followed later, giving the judge discretion over what testimony could be filmed or recorded. The court also limited Florida's media to one television camera and one still photographer per courtroom. Flash photography was barred, and cameramen were limited to a designated court seat. On the county level, local rules of conduct were fashioned by media representatives and the judiciary.

The Florida experiment ended on July 1, 1978, and less than a year later the organizers and promoters of TV in the courtroom were told they had passed the acid test.

On May 1, 1979, Florida's Canon 3A(7) was repealed, and the courts opened their doors to broadcast journalists for the first time as a rule instead of an exception.

Efforts similar to the Florida experiment, which helped to demystify television, have had positive effects in opening courtroom doors in other states. Media attempts to educate attorneys and judges on the rapid technological breakthroughs in broadcasting since the early 1960's have had promising results.

Question of witnesses
In Illinois, members of the Illinois State Bar Association (ISBA) have slowly been persuaded that changes in Illinois' judicial standards should at least be considered.

Following the Chandler decision, ISBA President Robert G. Heckenkamp restated his organization's position that while they do not endorse the use of cameras in courtrooms, the Supreme Court decision "may prompt a re-examination of the existing rule . .. that flatly prohibits their use." Heckenkamp said there are still other problems to consider, including what effect the presence of cameras might have on witnesses (i.e. minor children who are called to testify), jurors and other trial participants.

However, the vast improvement in media-bar relations has apparently " infected the Illinois Supreme Court's outlook on the cameras-in-the-court-room question. In October of 1980, Chief Justice Joseph H. Goldenhersh told a news broadcasters' convention in Springfield that he and possibly some of the other justices were reconsidering their positions. The chief justice hinted that contingent upon the ruling in Chandler, Illinois might even begin a trial period of its own for electronic court coverage.

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Goldenhersh admitted that after observing several demonstrations with the newer types of television equipment, his opinion had "shifted from being unalterably opposed to where at least I have an open mind on it," he said. "And I thought that a [trial court] proceeding could be televised without disrupt[ion]."

Following the Chandler decision, Goldenhersh was asked how the Illinois Supreme Court might respond to another petition for experimenting with televised trials. "Well, I think that perhaps [the media organizations] might find us a little more amenable to it, but I still would not predict what the individual justices [would] want to do about it.

"There's a lot of [negative] feeling by lawyers, and several of the [attorneys] associations are strongly opposed to it, and [they] make some very cogent arguments in opposition. So, before I would vote on it, I would want to refresh my memory on just what the pros and cons are. And before the court would make any commitment, we would want to have a pretty thorough investigation and presentation on it." So what efforts must the media make?

"They've got to come to grips with the disruptive effects [of hauling around equipment and people]," professes Northwestern's Robert Bennett. "If in the early days [of a test period] there are a couple of unpleasant incidents, it might gut it. They must be careful in going about their business." Bennett's sentiments are, in fact, echoed by some reporters, who see an experiment as a chance to sell the Supreme Court on the idea of new, permanent rules allowing electronic coverage.

"Most importantly, it will take responsible action on the part of journalists," said Patrick Gordon, a Springfield radio newscaster and member of the ISBA Fair Trial-Free Press Committee. "One of the concerns that I have," he says, "is that someone is going to do something gross and just mess it up for everybody else [during a test period]. I hope that doesn't happen; that's what would blow it and spell trouble for all of us."

One major flaw in broadcast reporting, as seen in the minds of many lawyers, is the superficial or incomplete coverage that TV and radio devote to their stories. Gordon believes that's a myth. "What we need to do," he says, "is convince them that's all that's really happening now. All news is a distillation of facts rather than a complete recitatiori of [the event]. Just as a print reporter, or any reporter now sits in the courtroom with pad and pencil and jots down portions of testimony to report on later [that] is essentially the same thing that's going to happen if we have a camera in there." Gordon says the only significant difference will be actual scenes and sounds of the case unfolding, instead of reporters trying to rehash the sequence of events from memory or notes.

But the impact on witnesses who become integral parts of the media's court stories deeply concerns attorneys like Pavalon of the ITLA, who believe such an influence could discolor trial testimony and prevent courts from finding the truth.

"Without cameras," says Pavalon, "I think that the [courtroom] environment ... is more conducive for people to tell the truth. I'm not saying that their testimony [before cameras] will differ 100 percent of the time. [But] if it could affect one out of a hundred witnesses, why bother? What advantage is there to the public in having them filmed, rather than reporting the story as it's presently done?

"I know what the advantage is to the media, of course," says Pavalon. "It might make their news programs a little more entertaining at night. But I think the trade-off is not worth it."

Beneath the veneer of a First Amendment victory for the news media, there lies a fine-print warning that limited restrictions on the use of television in the courts are still appropriate and warranted where necessary. For example, in the unanimous high court opinion in Chandler, Justice Burger talks of how "an absolute [my emphasis] Constitutional ban on broadcast coverage of trials cannot be justified simply because there is a danger that, in some cases, prejudicial broadcast accounts of pretrial and trial events may impair the ability of jurors to decide the issue of guilt or innocence, uninfluenced by extraneous matter." However, that does not preclude the court in the future from making a less sweeping judgment against television.

In addition, although the justices reaffirmed that Estes did not slap an absolute ban on state experimentation of televised court trials, they neither endorsed nor invalidated the practice in Florida. And although the decision is likely to give added impetus to the state-by-state drive to roll back Canon 35, there was no outpouring of restored faith or trust in broadcast journalism exhibited in the Supreme Court's formal opinion.

Challenge to media
In effect, what the high court has done is to take a laissez-faire attitude towards the camera-in-the-court question, making it a minor victory for states rights. But by not overturning Estes, the Court has reserved the right to review future challenges to broadcast and/or photographed trials. In other words. Chandler has provided television journalists both a tremendous opportunity to vindicate the broadcast medium's notorious reputation in covering the courts, and also enough legal rope to hang themselves if the job is again done improperly.

Mike Strand is the legislative correspondent for Sangamon State University's public affairs radio station, WSSR-FM, and is a member of the Freedom of Information Committee of the Illinois News Broadcasters Association.