One of the first things First Justice Mark Coven told us when we went down to the Quincy District Court to start talking about our project, Order in the Court 2.0, was that we had to hold an all-court meeting to introduce the project to everyone to get their input. This seemed like an excellent thing to do before waltzing into the complex world of the court with our video camera and high-speed Internet in hand.
On the day of the meeting in December, the First Session of the courthouse was standing room only, and included the entire court staff, attorneys from both sides, local journalists, and victim advocacy groups. Massachusetts Supreme Judicial Court Justice Robert Cordy was there, as well as the Norfolk County DA Michael Morrissey. Many, many people have a stake in this project, and have their eyes on what’s going on. The project stopped feeling abstract the moment all of those people filled that room.
Judge Coven said he is a proponent of court openness because he believes that if the public can see what happens in court they will have more confidence in the judicial system. He also stressed that sometimes the rights of the victims of crimes will be protected over the rights of access, and that this was an experiment to find those boundaries and to create a model that could be replicated across the country.
He introduced Justice Cordy, a champion of our project, who told of a recent dinner he’d had with retired Supreme Court Justice David Souter during which they debated electronic access to the courts. Souter said he would allow cameras into the Supreme Court “over his dead body.” Luckily for us, Justice Cordy has exactly the opposite opinion. He quoted early 20th century Supreme Court Justice Louis Brandeis as saying that “State courts serve as the laboratories of democracy.’”
Our executive editor John Davidow presented our project as an experiment with many open questions and opened the floor to input. And boy did we get it!
The range of concerns went far beyond what we’d been anticipating. While we were aware of the need to protect the privacy of women coming forward in domestic violence cases, we had not considered the privacy of defendants who were accused of sex crimes against children, one question the public defenders posed. Nor had we considered the possibility of confidential attorney-client discussions being caught on the microphones and broadcast worldwide.
Other thoughtful and thought-provoking questions included: How will a woman with a domestic violence case alert the judge that she wants the camera off without walking on camera? Will someone be monitoring the comments on your blog? Will you make transparent how you are scheduling what cases get shown? Will proceedings be re-broadcast at a later time? What will be the psychological impact of this project on the local community? How will you assess the project? How will we make our concerns known after this meeting?
While all of the exchanges were cordial, there were notes of resistance in some people — mostly defense lawyers — who felt like this project was being foisted upon them without their say. In a sense, this is true, as the court is an extremely top-down organization, but it is our aim to give everyone a voice in the project.
We came away with a list of concerns from many of the stakeholders of the process and a commitment to holding regular meetings to work through their questions and any other ones that will inevitably arise.
Many questions, a few answers
Several weeks later we held a smaller meeting. In attendance were Judge Coven, a court clerk, a prosecutor, members of the Norfolk County Bar including public defenders and private lawyers, and a representative of DOVE, the domestic violence advocacy group, along with our project staff.
Some of the topics were easy to discuss: Who will be allowed onto the WiFi network? How are we going to alert people coming into the courtroom that the proceedings are being streamed live on the internet? How will we let people know they’re in or out of the frame of the video? What’s your policy on blog commenting?
Then we moved on to the two most contentious issues: In what cases can the camera be shut off? Will we be archiving and re-posting the daily videos?
On the first question we are balancing the First Amendment right of press freedom with the Sixth Amendment right to have a fair trial. The Clerk Magistrate on one hand argued that what can be shown in open court should be shown on the feed, while the defense lawyers argued that there were cases where client privacy should be protected. The Harvard Cyberlaw Clinic has put together a preliminary list of cases that could shut off the camera; we’ve circulated it to the group and will be hammering out the specifics at our next meeting.
As for archiving, most people were opposed to it at first. Public defender Julieann Hernon was the most strenuously opposed — she felt like people would become “unwilling conscripts into a reality TV show.” But others realized it was an inevitability. That’s the point that we at WBUR had come to in our discussions before the meeting — that our definitions of public and private are changing. That our lives are going to be digitized and made accessible online. And that this will have real repercussions on people’s lives. So how do we do it responsibly?
Defense attorney Richard Sweeney brought up instances where his law firm or the D.A.‘s office legally froze pages from Facebook or other social networking sites because they were central to homicide cases. In light of similar possible situations with our project, he said he would prefer that WBUR did the archiving, rather than having an outside entity take it on as a business venture. And slowly most people came around to a pro-archiving point of view. But archiving still remains an open question, one of the largest.
We’re going to keep talking and thinking about these issues as we near our launch.