The Gavel

Vol. 21, No. 3 Autumn 1998

By Convention Committee Co-Chair Patrick E. McGann

What promises to be an exciting and informative convention of the Illinois Judges Association kicks off Thursday afternoon, December 10, 1998, at the Sheraton Hotel and Towers in Chicago with a cocktail reception sponsored by the Illinois State Bar Association. The 27th annual IJA meeting will be held simultaneously with the ISBA's convention, affording judges the opportunity to meet and mingle with colleagues on the bench and at the bar.

And it will be Christmastime on nearby Michigan Avenue, where sparkling crystal lights lead the way to wonderful holiday shopping.

Friday's activities kick off at 6:45 a.m. with Justice Seymour Simon's Run for Justice. The nuts-and-bolts program Friday morning, led by Judge Richard Kavitt, will feature the latest on judicial benefits, including life insurance, deferred compensation, and medical savings accounts. Rudy Kink, manager of the Judges Retirement System, will be on hand to answer your questions. Other Friday morning topics are two of the least known but most helpful programs available to Illinois judges: judicial performance evaluations (see Supreme Court Rule 58), and the Judicial Ethics Committee.

By the time we convene, we may well have a constitutional amendment adding lay members to the Courts Commission. Be on hand for a candid discussion of what could be a new era in judicial discipline.

As announced in the summer issue of The Gavel, retired federal judge Abner Mikva will be the featured speaker at Friday's luncheon, which Co-Chair Gloria Coco promises will be an epicurean delight. [A recent article by Judge Mikva appears in this issue.]

Friday afternoon will feature what promises to be a spirited panel discussion on the proposition "Resolved: An independent judiciary is vital to our democracy." Led by DePaul Professor Jeffrey Shaman, the panel includes Mary Jane Theis and Timothy Slavin, Senator Carl E. Hawkinson, Jay Levine of News 2 Chicago, attorneys Patricia Bobb and William Conlon, and Edward Murnane of the Illinois Civil Justice League.

On Saturday morning, Kevin Forde, chair of the Compensation Review Board, will share his insights into the procedures and policies relating to judicial compensation. A distinguished panel will review the latest judicial decisions and legislative changes that will affect judges in the new year. Finally, we will honor our outgoing president, Justice Mary Jane Theis, for leading us in one of our most successful years as an organization, and install Timothy J. Slavin as our new president.

[Book Review]

Playing to the Crowd

Why televising trials will turn our courtrooms into circuses

By Abner Mikva

Last month, the U.S. House of Representatives passed a bill authorizing every federal judge to decide whether or not to allow the televising of the trial in every particular case. The bill has a long way to go before it becomes law (there are many other far-reaching, unrelated, and controversial changes in court procedure set forth in the bill, and the President has already indicated it is a candidate for his veto), but it will undoubtedly give comfort to Ronald Goldfarb, author of TV or Not TV. He freely predicts that all courtrooms in the future will be equipped with cameras. I hope he is as wrong about his conclusion as he is about the way he comes to it.

Since Goldfarb is a practicing litigator, he has to contend with the question that frames the debate about cameras in the courtroom: Does TV affect the procedures or the results of the trial? While he seems to answer that in the affirmative, he is less than clear as to whether the consequences should concern us.

According to Goldfarb, all high-profile trials are impacted by the publicity given to them. He starts off with the famous case of John Peter Zenger in 1734, whose trial helped to shape our commitment to a free press. The presence of a large, sympathetic audience was the equivalent of today's modern television audience. In Goldfarb's progression, all the "trials of the century"--the alienation-of-affection trial of Henry Ward Beecher, the Harry Thaw-Evelyn Nesbitt trial that has just been rejuvenated as a part of the musical "Ragtime," the Scopes theory of evolution trial, the Bruno Hauptmann kidnaping trial- were impacted by the heightened publicity of an expanding communication technology. To Goldfarb, televison is just another new medium that adds to the noise about a trial but doesn't change its nature. A public trial is one of our society's values; the more public interest, the more it can impact the way the trial comes out; television is just the newest medium that expands the universe of people who can be a part of that public. It follows that cameras in the courtroom are OK.

I must have missed something. I confess that I did not watch a lot of the O.J. Simpson trial (it was too painful). But I watched enough to see lawyers who were hamboning it up, not for the jury, but for the 6 o'clock news. I saw a judge who could not reclaim his turf sufficiently to preside over the trial, but seemed rather to be overwhelmed by his inability to compete with all the star power of lawyers and defendant. I saw a trial that went on for months longer than it should have because the participants seemed to be enjoying all the attention. I saw more bad information distributed about the criminal justice system by instant experts who should have known better-and by a judge who may have been the second biggest beneficiary of the not guilty verdict. (None of his rulings will ever be reviewed by an appellate authority.) I saw witnesses who paid more attention to the color of their ties than the color of their testimony.

I saw the greatest travesty of justice imaginable in the O.J. Simpson trial-and I don't even spoon in the verdict. I saw a spectacle that will haunt the legal and criminal justice systems for years as to what a criminal trial should not be. To say that the impact of television on the Simpson trial was only a difference in degree from the impact of the courtroom crowds in the John Peter Zenger trial is like saying that my grandson and Michael Jordan both play basketball. At some point, it's more than a difference in size.

There is a lot in Mr.Goldfarb's book about the people's right to know. I made many of those same arguments myself as a member of Congress. While television coverage of the Congress has not been without its cost (Newton Gingrich's success can be directly traced to his capacity to persuade C-SPAN audiences that his colloquies with one or two of his buddies, before an empty chamber, after the House had adjourned, were of great moment), the legislative process will survive. I am not as sanguine about the judicial process. The decisional process of the courts and the Congress is altogether different. We want as much public participation as we can get in the congressional process. Policy decisions are supposed to be as broad-based as possible-not because we are sure that better decisions will result-but because whatever the decision, right or wrong, there is a legitimacy to a broad-based, fully participatory decision. That is emphatically not the way we believe that court decisions should be made.

We do not want the criminal justice system of the French Revolution, where the crowd in the square would signal by their thumbs whether or not the accused should get the guillotine. We don't want an interactive television system to allow lawyers to tell the judge or the jury that "over two-thirds of our viewers think you should rule for the plaintiff." We expect judges and jurors to make decisions that may well be unpopular- antimajoritarian. Televising the trial events makes it harder to achieve that difficult goal.

The advocates of television in the courtroom argue that modern television techniques are so unobtrusive that any adverse impact can be avoided. While the absence of the Klieg lights and the large cameras have made it easier to ignore the physical presence of television apparatus, it does nothing about the awareness that the persons being televised will have their likeness, their words, their gestures, their ear-scratching spread nationwide. We can hope that judges, especially non-elected judges, can become impervious to such consequences. I have known a lot of appointed judges over the years, and I can only hope. But we have no reason to expect the other actors in a court drama to be so impervious. For the witnesses and the jurors and the parties, it may well be their first exposure to nationwide scrutiny. Most parties have not been in the business of making television commercials for Hertz. While the lawyers may not be quite as unexposed, it is hard not to think of how useful a telegenic performance would be to future career. Johnny Cochran's performance was so good that the criminal bar may have lost a valuable practitioner.

Elected judges present still another variation on the theme. C-SPAN watchers have become aware of the phenomenon of the members of Congress who use the availability of the television camera to get in a few licks for reelection while supposedly debating a bill before Congress. I wonder how many elected trial judges are using television in the courtroom for similar purposes. I find the chart showing the number of states already allowing cameras in the courtrooms a very troubling statistic.

Televising appellate proceedings, including those of the Supreme Court, does not create the problems that would occur in the trial courts. While there would not be much interest in most appellate cases, the salutary effects far outweigh any downside.

While it may take something like the House bill I referred to earlier to persuade Justice Antonin Scalia, Mr.Goldfarb's prediction about the future might occur in the appellate courts. But I think he is wrong, and I sure hope he is wrong, about the trial courts.

The Gavel received one response to the opinion piece by Abner Mikva in the summer issue, arguing against the election of judges. Space does not permit us to reprint Mitchell Leikin's thoughtful reply in full. Judge Leikin, a Cook County associate judge, wrote in part:

Justice Abner Mikva is absolutely correct. Our present method of electing judges has many faults and it does not assure us that the best qualified candidates will be selected. . . .The real problem is not that our present system has faults, but what other system would be better?

We must recognize the great wisdom of our founding fathers in the separation of powers which gives us the checks and balances necessary to protect and perpetuate our democracy.

To place the nomination or selection of the members of the judiciary in either the legislative or executive branch of our government would destroy the checks and balances system. It would give one branch more power over the other through the addition of the control of the judiciary. This would make it easier for a small group which may dominate and control one of the two branches to take control of our entire governmental system. History has shown that if a group controls the military and then the executive branch, it can dominate the legislative and judicial branches. . . .

We must not abandon our present plan unless another plan gives us a better method without destroying the essentials of our democratic system.

In a democracy, the power should always remain with the people and not be delegated to representatives selected by the people for other purposes.

Speak Up for the IJA

The IJA speakers' bureau is anxious to expand its roster of judges willing to speak to community organizations. An important method of improving the image of the judiciary is by sending representatives into our communities so that citizens may hear about the operation of the judicial system from those of us who know best how the courts work.

If you are interested and willing to speak in your community, please contact Stuart Shiffman at the Sangamon County Courthouse, 200 South Ninth, Room 524, Springfield, IL 62701. You may call him at 217/753-6736 or send him electronic mail at Shiffman@springnet1.com.

Says Judge Shiffman: "I know that many of our judges speak without request from the Speakers' Bureau. If you have been speaking locally, I would appreciate hearing from you about your topics and the community response. In this way I can suggest possible topics to other judges. I look forward to hearing from you."

E-Mail Directory in the Works

The Association would like to compile as complete an e-mail directory as possible, "both to assess the potential efficiency of organizational communication via the Internet and to build our technological network," according to First Vice President Timothy J. Slavin.

Please fill in the form below and mail, fax, or e-mail the information to Kathy McEnroe, IJA, 321 South Plymouth Court, Chicago, IL 60604, fax 312/554-2054, e-mail info@ija.org.

Judge's Name: _____________________________________

County: __________________________________________

Circuit: ___________________________________________

E-mail Address: ____________________________________