By Alex Roth
UNION-TRIBUNE STAFF WRITER
June 23, 2002
In retrospect, it's hard to pinpoint the most cartoonish aspect of the O.J. Simpson trial. Maybe it was the sitcom-style insults traded by the attorneys, or the ringing cell phones in the courtroom, or Johnnie Cochran making up rhymes during closing arguments.
All of it broadcast live on television.
The Simpson case was a public-relations fiasco for the California courts – and many people blamed the television camera. It became conventional wisdom in the legal community that televising trials was a bad idea. The camera would cause the attorneys and witnesses to grandstand, the argument went. It would distract the jury. It would cause the judge to freeze like a deer caught in the headlights.
Yet consider the David Westerfield trial.
Not since the Simpson trial have so many San Diegans tuned in to watch live coverage of a criminal case. And what they've seen is a thoroughly professional proceeding.
The attorneys are competent and focused. The judge is decisive and clearly in control. The closest thing to histrionics are Judge William Mudd's occasional rants about how miserably the Padres are playing.
"You're dealing with four very professional, highly prepared, highly qualified, very experienced attorneys, an excellent judge, and the proceedings are going smoothly," said Aaron Katz, past president of the San Diego County Bar Association. "I think the trial gives a very positive impression of the justice system, which is always a good thing."
Many First Amendment proponents say the case proves that letting cameras into a courtroom can be a healthy way to keep the public informed. They also argue that the camera wasn't to blame for the excesses of the Simpson case.
"Most of the arguments against cameras in the courtroom have to do with some alleged loss of decorum, and study after study shows that not to be the case," said Lucy Dalglish of the Virginia-based Reporters Committee for Freedom of the Press.
Still, many judges remain wary. They worry about jurors becoming intimidated by the presence of a camera, even if their faces can't be televised. They worry about attorneys and witnesses hamming it up. They worry about the possible effect of a live broadcast on the level of public chatter about the case.
"From my experience, it's very difficult to try to overcome those distractions," said Los Angeles County Superior Court Judge John Reid, former supervising judge of that county's criminal courts.
The televised trial has been making a comeback recently. For years after the Simpson case, many judges shuddered at the idea. No judge wanted a repeat of the O.J. circus, and none wanted to be known as the next Judge Lance Ito.
"He was subject to a lot of ridicule, to a lot of critics and a lot of negative attention that other judges felt took away from the dignity of the court system," said Jerrianne Hayslett, a recently retired spokeswoman for Los Angeles Superior Court.
In the immediate aftermath of the Simpson trial, the number of Los Angeles judges willing to permit television cameras in their courtrooms "plummeted."
"I don't know any better way to put it," she said.
No television cameras were allowed into Simpson's subsequent civil trial, in which he was found liable for wrongful death in the slayings of his ex-wife and her friend. The trial was handled by another judge.
The backlash wasn't limited to California. In 1995, the South Carolina judge presiding over the Susan Smith trial banned cameras from the courtroom after Smith's attorneys expressed concerns about an O.J.-style media circus. Smith was convicted of drowning her two children.
"I have come to the inescapable conclusion that in the court's discretion there is a substantial likelihood of interference to the process and is a substantial risk to this case," Judge William Howard ruled at the time.
Immediately after Simpson's criminal trial, then-Gov. Pete Wilson pushed for a ban on television cameras at criminal trials in California. Instead, the state Judicial Council came up with a new set of regulations giving judges discretion to permit or prohibit them as the judge saw fit.
Before the new regulations, it was unclear whether judges had the legal authority to keep the cameras out of their courts, said Justice Richard Huffman of the San Diego-based 4th District Court of Appeal. He headed a task force that made recommendations on the issue to the Judicial Council.
"Now the court clearly has the power to say yes or no, or to say at some point, 'No, it's not working; turn them off,' " Huffman said.
In addition to California, 24 states either allow unfettered television access to criminal trials or give the judge discretion on the issue, said Dalglish, executive director of the journalist association.
The remaining states either won't let criminal trials be televised or have such restrictive rules that it's a practical impossibility. In Minnesota, for example, a criminal trial can be televised only if the judge, the prosecutor and defense attorney all agree.
Officials at Court TV, the New York-based network, say many judges in California and other parts of the country seem to be overcoming their post-O.J. reservations. Court TV reporter Beth Karas cited "a backlash against the backlash" in recent years.
"It was, 'We're going to show Judge Ito how it should be run,' " she said.
In recent years, Court TV has been able to televise a number of high-profile cases around the country, including the Michigan murder trial of assisted-suicide advocate Dr. Jack Kevorkian and the Florida trial of Nathaniel Brazill, who was 13 when he shot his teacher to death.
In several other high-profile cases – such as the recent trial of Andrea Yates, the Houston woman who drowned her five children – judges have allowed television coverage of only certain portions of the trial, such as opening statements and sentencing.
Court TV has been broadcasting the Westerfield trial live across the nation, with few if any distractions in the courtroom. Under state law, cameras aren't allowed to show the jury. On the judge's strict instructions, the network also has made sure not to inadvertently record any private conversations between Westerfield and his attorneys.
Mudd allows one television camera and one still camera in his court. The cameras provide pool footage to all the other networks and newspapers.
"The camera in the courtroom itself becomes a nondistraction after the first three minutes," said retired Massachusetts Superior Court Judge Hiller Zobel, who presided over the 1997 trial of British au pair Louise Woodward, convicted of killing 8-month-old Matthew Eappen. Hiller allowed that trial to be televised.
Yet the fact remains that every move the attorneys in the Westerfield case make, and every ruling Mudd hands down, are transmitted live to hundreds of thousands of viewers, many of whom are following the case like a soap opera or sporting event. It is this level of scrutiny that makes many judges nervous.
"I know it affects me," said Superior Court Judge Robert Alsdorf in Seattle, who sometimes lets television cameras into his courtroom. "You cannot as a human be unaware that there may be a hundred thousand people watching or a million watching or more, depending on the case."
In high-profile cases, a judge might feel reluctant to take certain action – such as reprimanding an attorney for improper behavior – out of a fear of "what it's going to look like on the evening news," Alsdorf said.
There is also the fact that live television coverage breeds a level of media intensity that wouldn't otherwise exist. The Westerfield trial is a perfect example. KUSI-TV and KGTV's News Channel 15 cable outlet have been broadcasting the trial live. KUSI also uses the footage to broadcast an hourly wrap-up Monday through Thursday, along with legal analysis from lawyers who have been following the case. KFMB/Channel 8 does a nightly summary as well.
The live feed also gives the other networks the opportunity to break into their regular programming for important witnesses. These networks have their own legal analysts to dissect the day's footage for their viewers.
"The producers are there, so they have to do stories to justify their existence, so trivial things become headlines," said Hayslett, the retired Los Angeles court spokeswoman. "It just feeds upon itself."
One person's trivia, however, is another person's important news story. If some people think the Westerfield trial is being overly dissected on the nightly news, others think the public is getting a valuable education about the workings of San Diego's criminal justice system.
Without the live coverage, all the news about the case would be filtered through the print media.
And so far, at least, the reviews are positive. Katz, the former San Diego bar president, said the attorneys in the Westerfield case appear highly organized while the judge has made effective use of humor to "ease the tension of a very, very serious case."
"The trial is being handled with dignity and grace," he said.