By Hon. Kevin S. Burke
You can find flash bulbs for vintage cameras on eBay, but no journalists use them. Indeed, reporters may be of an age where they do not know what flash bulbs or photo film were for. Gone, too, are the bulky television cameras that—if used in a courtroom—inherently would cause a distraction. Very few newspapers have a sketch artist on staff and none of the Minnesota papers do. Sketch artists are expensive. Digital cameras are not.
Pictures can tell us a lot. Although the courts are more receptive to allowing journalists to report with the use of pictures, Minnesota’s courts have not been in the vanguard of allowing the practice. Audio recording ensures accuracy and, again, Minnesota courts have not been in the vanguard of allowing reporters to use audio recorders or to easily access recorded audio of proceedings. Even such things as allowing taking notes on a laptop or iPad are restricted by some judges. Unlike the federal court, whether to allow notetaking on a device is up to the whims of individual state court judges.
The coronavirus pandemic has changed courts significantly on a temporary basis and likely for a long time. There are Zoom pretrials, appearances on Skype, even the U. S. Supreme Court broke with tradition and conducted oral arguments by phone and broadcast simultaneously on C-SPAN.
Courts are restricting the number of people in a trial because of the imperative of maintaining social distancing and, instead, simulcasting the proceedings to nearby rooms. This way of conducting public trials is a commonsense response to one of the many challenges courts face. But there simply is no reason to limit the simulcast to those willing to sit in an adjacent room watching and wearing a mask.
Cameras in the courtroom is no longer the defining paradigm or, if it is, then the paradigm needs to promptly shift. The issue is to what extent are the courts (and the legal community) committed to transparency and enabling accurate reporting of what Minnesota courts do.
The founders of this country, including Presidents George Washington and Thomas Jefferson, spoke of their belief that the newspapers of their time were full of lies. And yet they believed that an open and transparent judiciary was essential for this fledgling democracy to grow. The people had a right to know what went on behind the closed doors of the courthouse. The Framers of the Federal Constitution committed to open courts. Years later that same commitment was embodied in Article 1 Section 6 of the Minnesota Constitution, which explicitly provides a right to a speedy and public trial in criminal cases.
When this country was founded there were no cameras. The first photograph to include people was made by Louis Daguerre in 1838. But, before originalists say that proves this transparent-courts stuff was not envisioned by the Framers of the Constitution, there is zero historical evidence any judge conducted public trials. Instead, they told the reporters: “Please check your quill pens at the door.”
Former Attorney General John Mitchell famously said, “Watch what we do, not what we say.” And that is true when it comes to a commitment to public trials and journalists being allowed to use the tools of their trade to report what happens. Former Minnesota Supreme Court Chief Justice Peter Popovich created the Minnesota Court Information Officer position. He did so because of his abiding commitment that courts are public institutions and that through the media the people had a right to know what was going on. And Chief Justice Popovich was roundly criticized for that decision. “What do we need that for?” was a refrain spoken by a lot of judges.
While virtually no one today suggests courts should not have a public information officer, Minnesota courts need to be far more media friendly than we presently are. Yes, video or audio recording can result in snippets of proceedings taken out of context, but that is as possible in print as it is on video or audio. Yes, the media may focus on more sensational proceedings that have widespread public interest, but that has historically been true and has nothing to do with quill pens of yesterday or cameras and audio recordings today. Thomas Jefferson said, if “left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter.”
One of the byproducts of the coronavirus pandemic is to put even more economic pressure on newspapers and television. Television lives for pictures, but pictures are also important for newspapers. Increasingly gone are the days when there was a beat reporter who covered only courts. This is not a metro versus Greater Minnesota issue. Everyone in Minnesota needs to better understand what Minnesota courts are doing and why. A lot of small-town newspapers are ceasing publication. Radio stations are laying off broadcasters left and right. No matter what medium they use, the journalists of today—particularly the television journalists—are generalists. Newsrooms are far sparser and as a result what they cover, what information Minnesota citizens get is more competitive. Journalists have to have the tools to accurately tell the story of how our justice system performs and the public has a right to know that story.
What the public thinks about courts is important. Minnesota is going to make some tough budget decisions soon. Should we fund the courts, guardians ad litem, and public defenders or fix potholes? Not an easy choice. Should we fund education or give the judge a law clerk? If you are a parent of a school-age child, funding education is the easy choice. Judge, do your own research.
In a democracy, a strong independent judiciary is important and that can only be achieved with popular support. For a long time, the mantra has been courts need to view their volume of cases as their strength, not a weakness. If courts perform well, if litigants leave the courthouse feeling good about the process, courts build positive support for the judiciary. Trust is a precious commodity and as a result courts need to pay attention to building a reservoir of trust to withstand the tide winds that inevitably occur when an unpopular decision is issued.
Recent data from the National Center for State Courts shows little difference in perceptions of the courts between those who have had actual experience and those who have had none. Journalists do not always get it right, but if the public’s insight is reduced to what it learns from television drama, our courts are in a lot of trouble.
Minnesota has been aggressive in trying by very conventional means to educate people about what the courts do. Have a Rotary Club meeting and want a speaker? A judge will likely show up. High school students might get to see the Minnesota Supreme Court hear an oral argument. And all of that is good, but, to steal a term from sales, the “market penetration” of these efforts—particularly during the coronavirus pandemic—is not sufficient to meet the challenge courts face. Trust in institutions is fractured. And while that fractured trust is not mostly directed at courts, it is dangerously close.
As courts return to the new-normal, people need to have questions answered. What is jury service like in Minnesota? Will I be safe if I respond to a jury summons? What a great story television needs to tell, and you know what? It is easier to cover a fire and help tell that story with flaming pictures in the background than it is to tell the story of changes to jury service in the new-normal Minnesota. There have been a lot of stories about what stay-at-home orders have done with domestic violence. How have the courts responded? Will I be safe if I seek an order for protection (assuming I know what that is)? If the town newspaper is gone and the public’s information comes from Law & Order: Special Victims Unit, courts and the legal system are doomed.
Nothing is more irritating to a judge or lawyer than reading an article or seeing a news report that is inaccurate. Judges are careful. Most judges take copious notes, they have a court reporter who may even be doing real-time reporting, and, just to make sure, there is a tape-recorded backup. Journalists want to be accurate, too, and if judges and lawyers are frustrated by an inaccurate story, the author of that story is likely even more upset and embarrassed. If courts desire accurate reporting, there is no justification for stripping journalists of their tools to tell an accurate story, i.e., using a tablet to take notes, allowing audio recording or ready access to the backups courts keep and, yes, pictures. Perhaps watch what we do, not what we say, starts with a uniform rule that allows journalists to use technology to take notes. And that means they can use iPads and tape recorders just like their predecessors used quill pens. Watch what we do, not what we say also means not fearing pictures.
Former U.S. Supreme Court Justice Sandra Day O’Connor said, “Our nation can only be successful if all of the citizens understand how our democratic system works.” That is true not just of the nation as a whole but of the courts of this state in particular. Fostering an open, transparent, indeed, even helpful attitude toward the media is one of the steps that will foster better understanding of the legal system in this state.
The Hon. Kevin Burke is a district judge in Hennepin County. Judge Burke was elected for four terms as Chief Judge and three terms as Assistant Chief Judge. From 1991-1996 he served as the Chair of the Conference of Chief Judges. He chaired the State Board of Public Defense and was a leader in the effort to improve and expand the state’s public defender system.