The Wrong Villain   

The O.J. Simpson media circus pitched its tent far beyond the range of the cameras in the courtroom.

Of the more than 1,200 journalists who covered the O.J. Simpson trial worldwide, only 27 were actually in the courtroom. The rest watched the trial on television, and wrote their newspaper or magazine stories, books or television commentaries from their positions in the television audience. That fact is ironic since so many members of the media have joined in the general public's complaint about cameras in the courtroom.

What is wrong with televising trials? Why all the after-the-fact moralizing about the overexposure television provided to the O.J. Simpson judicial morality show? If television is to be faulted, is it the commotion outside the court building, the endless programs rehashing the trial or the courtroom camera itself that is to blame?

ýhe case was fascinating drama, and worldwide coverage was extraordinary (one account had over 100 million viewers watching the verdict). Because of the cameras in the courtroom, the trial presented the most pervasive public picture in history of how the justice system works, and how it fails. Perversely, while television is arguably a neutral mirror, it has borne much of the blame for the faults that critics have found with the trial.

Interesting courtroom dramas such as the Simpson spectacle have always generated keen public interest. The history of crime news can be chronicled by periodic causes célèbres: from John Peter Zenger, Aaron Burr, and Sacco and Vanzetti to the Chicago Seven, Watergate and Iran-contra. Because of the issues involved, along with their inherently dramatic natures, criminal cases have captured the imagination of notable fiction and nonfiction writers such as Dickens, Dostoyevsky, Zola, Kafka, Capote and Mailer.

The fact is, criminal trials engage the press and the public as few events do. An article (by one of Simpson's lawyers) in the San Jose Mercury News pointed out that there have been countless "trials of the century": among many others, the Charlie Chaplin paternity case, the Nuremberg war crime trials, the Alger Hiss perjury trial, the Rosenbergs' espionage trial, Jack Ruby, and the trials of Sirhan Sirhan, Charles Manson, John Hinckley, Bernhard Goetz.

Sensational cases won't go away. Nor will the public's appetite to see justice done or, if you are more cynical, to lap up the juicy sex, sin and gore of life.

When crime news has escalated from questions of bad taste to legal prejudice, courts have intervened: in cases of contempt by newspapers, in reversals of criminal convictions because of pretrial publicity, and more recently on the question of cameras in courts. In the mid-1960s, the Supreme Court issued two landmark decisions. It overruled both the Ohio conviction of Dr. Sam Sheppard because of excessive and unruly press misconduct in the court (a Roman holiday of virulent courtroom misbehavior by the print press was proven) and the Texas conviction of financial wheeler-dealer Billie Sol Estes because of disruptive television coverage. (At the pretrial hearing to ban cameras, wires snaked through the courtroom and there was constant commotion, but that was not so at the trial where television coverage was limited.) The historic bar association's and judicial ban on televised trials remained. But it was unclear whether the Supreme Court had ruled that the mere presence of cameras in courts was constitutionally impermissible or whether that was only so when specific, proven misconduct in court was caused by television's presence.

In 1981, a criminal conviction of Miami Beach policemen caught in a burglary was appealed to the Supreme Court. Although the television coverage in Miami was circumscribed and limited by the trial judge, the question was whether televised proceedings created, per se, a constitutional impediment without any proof of actual prejudicial behavior. The Supreme Court held that states are free to experiment with televised court proceedings; the high court would intervene only when a constitutional question was raised by the kind of specific misconduct that occurred in the Sheppard and Estes cases. The coverage itself was not enough.

Since then, all but three states – Mississippi, Indiana and South Dakota, along with the District of Columbia – have permitted televised court proceedings under the supervision of the courts. Court TV alone has broadcast hundreds of cases into millions of homes during the past four years. The federal system, except in military courts, continues the ban, though it, too, is considering reform. Despite such progress, the Washington Times has suggested that the Simpson trial armed opponents of court television "with their best weapon in 30 years of trying to put trial television off the air."

However logical it may seem to assume that televised trials turn lawyers into actors, frighten witnesses and jurors, and distract judges, there is little proof that this is so, and none that it is inevitable. Indeed, recent surveys have suggested that the decorous presence of cameras in courts does not make trials unfair. When questioned, participants in the trial process, including once skeptical judges, generally confirmed this conclusion.

Experienced trial lawyers know that judges are likely to be more autocratic and idiosyncratic when the public isn't looking. Aren't people on their best behavior when they are being watched? And if not, before it is possible to correct misbehavior, it must be known.

Along with the arguments that television corrupts trial participants is the scolding criticism that television appeals to our basest instincts. But why presume that the insatiable public curiosity about the Simpson case means that common folks were being entertained rather than informed? Surely the sex and violence surrounding a fallen celebrity titillates. But those who watched the year-long trial also learned about the legal rules governing suppression of evidence and the Fourth Amendment's probable cause standard, DNA evidence, important evidentiary rules, such as reasonable doubt, the jury system, the adversary system and a good bit about the police and prosecutorial and judicial systems – with all their strengths and weaknesses. Because some folks did not like what they saw, they blame the camera that portrayed it.

Complaints that the trial was a circus because of television did not take into account the fact that the circus took place on the premises outside the courtroom, at the homes and offices of the participants, in the scandal sheets. The only deliberate, mannered action took place on camera in the courtroom, where it was "unabridged, unexaggerated and unfiltered," to quote former Los Angeles District Attorney Ira Reiner.

The notion that dramatizations, re-creations, sound bites and press excerpts instead of cameras would be less sensational and more educational than the real thing, is questionable. Whatever one thinks about the hyping of the Simpson case outside the courtroom, the televised trial itself was just a mirror of what went on in the courtroom. The argument that the camera is a 13th juror, one that sees more than the actual jury, cuts two ways. While the informed public may not understand why a jury decided a case the way it did (as in the first Rodney King trial), when the public is able to see how a trial transpired (as in the Simpson trial), its knowledge can provide support for an unpopular verdict or lead to law reforms.

More surprising than the general public's criticism of the televising of the Simpson trial is the condemnation of cameras in the courts by many establishment media commentators. Rather than rising to the defense of their press colleagues, many print and even television journalists have criticized the televising of the Simpson trial and have blamed it for the sins of jurisprudence. Is there something elitist in the pummeling of TV coverage? Is there an unconscious jealousy in the print media that television has stolen their show?

George Will argued in a recent column that the presence of cameras in the courtroom converts the criminal justice system into a form of entertainment; he equated the public's right to know with "voyeurism tarted up in rights talk." In The New Republic, Lincoln Caplan issued a sweeping negative verdict about "the state of legal journalism," arguing that it substitutes "technology for judgment" by emphasizing "access rather than inquiry." Caplan says he deplores the play-by-play reporting of trial coverage for "providing an unprecedented amount of information, but too little help in making sense of it."

Ted Koppel argued to me that a journalist's explanation of what happens at a trial is more informed and thus closer to the truth than what the public sees for itself, or thinks it is seeing. When I debated a former U.S. attorney about this question on a Washington, D.C., radio show, the host, Diane Rehm – a particularly smart and high-minded moderator – asked me, "Don't you trust journalists?" She seemed surprised when I replied that I don't trust the best journalist more than my own observations. One perceptive observer told me she read three newspaper accounts of the dramatic moment in the trial when Simpson tried on the gloves and each was different; more important, they varied from her own assessment based on watching that scene on Court TV.

The negative verdict on court television is not unanimous. Los Angeles Times TV critic Howard Rosenberg admonished: "We in the media have met the circus, and we are it." In his view it was the newscasters, tabloids and trashy books that were the problem, "not the technology inside the courtroom." Court TV spokespeople remind that the 175 judges in cases that were televised on its new network all supported the values of the coverage; the surveys suggest that the present backlash results from overall dissatisfaction with the case.

The criticism about the public's obsessively prurient interest in the Simpson trial reminds me of Watergate news coverage in which one wry commentator remarked, "Yes, I can't wait for the day when we can read front page stories again about the drop in the GNP." Newsweek columnist Meg Greenfield suggested that gripping stories like the Simpson case do not require a redeeming social purpose to be reported because they engage "primal human concerns," while much of what is viewed as "serious" news is "speculative, transitory and more earnest than important."

Nonetheless, reactionary ripples are perceptible already. California Governor Pete Wilson is calling for judicial reform limiting the televising of trials. Several judges in recent high-profile criminal cases have banned cameras in their courtrooms, some alluding to the Simpson case. An L.A. trial judge barred television in the Menendez brothers' murder retrial. (The prior trial of the brothers was televised and the twin juries deadlocked.) Similar decisions to ban cameras were made by the South Carolina judge in the murder trial of Susan Smith, by the California judge in the trial of the alleged kidnapper-murderer of Polly Klaas, and in the Texas trial for the murder of Tejano singer Selena.

Televising court cases does not distort the administration of justice; it portrays it for what it is: tedious at times, dramatic other times, sometimes formal, but always human. If we don't like what we see on court television – primping participants, the vagaries of the adversary system, the perversity of the jury system, the way rich folks get better treatment than others – isn't it simplistic to complain that television is the cause? The trashy, inflammatory and prejudicial coverage of the Simpson case has not been in the gavel-to-gavel television but in all the commentary about it.

I believe we are better off seeing trials than not, warts and all, and that if any reform is ever to come from any perceived flaws in "the system," it will only come after public exposure. History proves that the more government operates in the open, the better.

Throughout the history of the "public trial" requirement of the common law, the rationale has been to demonstrate the workings of the judicial system to the people, and to discourage perjury and encourage witnesses to come forward (such as the filmmaker whose testimony exposed Mark Fuhrman's momentous lies).

Television is society's mirror; like Howard Cosell, it "tells it like it is." Presently, the judicial system is the only part of our government that resists the openness of television. The public has much to learn from what goes on in our courts, in civil and criminal trials, and even in the more cerebral appellate courts. The Supreme Court's public work, for example, would provide a rare and valuable civics lesson if it could be widely viewed. Who would be hurt?

Televising trials can be an edifying and self-righting practice. "We must judge television as we find it," the late Justice John Harlan stated, and I agree. But in judging, we must be careful that it is the medium we are judging and not its message, or messengers. l