Three years ago, Janie Shores, associate justice of Alabama's Supreme Court, was addressing a luncheon for attorneys newly admitted to the court. "The average citizen," she told them, "doesn't have even a passing acquaintance with the Bill of Rights . . . he lives his entire life without exercising any of the rights safeguarded to him by the Bill of Rights. . . .
"He has never invoked his right to remain silent in the face of interrogation. He has never had the occasion to cross examine his accuser nor demand bail, nor have the right to counsel. He has never been confronted with a criminal charge nor had a public trial. . . . This lack of exposure to the Bill of Rights has caused an indifference on the part of many of our citizens to due process."
During the past three years, while many citizens have remained ignorant of their rights _ and therefore everybody else's _ a growing number have been educated by watching, at home, actual cases in actual courtrooms. In 47 states, television cameras have been allowed in some courts; and until recently, a pilot project has permitted cameras during civil trials and appeals in eight federal courts.
In January of this year, a Times Mirror national survey showed that large numbers of viewers have watched the more publicized trials and that "regular viewing of court trial proceedings may lead to a greater appreciation of the United States court system, which has fallen out of public favor in recent years." Many regular viewers of the court TV programs, for example, now think the courts are fairer than they were before.
There certainly has been an increase in understanding how the courts work. For years, I have been trying to interest family and friends in some of the various tributaries of due process: the exclusionary rule, reasonable doubt, probable cause to obtain a warrant, and other minefields of the justice system. Until television entered more and more courtrooms, I had not made much headway.
The pretrial proceedings of the O.J. Simpson case have resulted in a particularly remarkable advance in many people's interest in the justice system. I have heard friends and acquaintances _ who had no previous concern with the Bill of Rights _ argue heatedly as to whether there was sufficient probable cause for the Los Angeles police to conduct a search of O.J. Simpson's home and grounds.
Recently, a federal judge told me of hearing, on an airplane, two passengers behind her exploring at length whether a jury in the Simpson case would be stymied on the question of reasonable doubt.
"It was very clear," the judge told me, "that they were not lawyers." But they had been educated in the law by television in the courtroom.
Nonetheless, in a vote behind closed doors, the United States Judicial Conference decided in September to end the pilot project that had given television access to a small number of federal courthouses over the past three years. And this policy-making body continued a total ban on television cameras in federal criminal trials.
Yet, in early 1994, the Federal Judicial Center _ the research division of the federal court system _ found, after an extensive survey of the pilot project, that "judges and attorneys . . . generally reported observing small or no effects of camera presence on participants in the proceedings, courtroom decorum or the administration of justice."
Moreover, the Judicial Center recommended that "federal courts of appeals and district courts nationwide . . . provide access to civil proceedings in their courtrooms."
That recommendation has been overruled. In a letter to the New York Times, Floyd Abrams, an active authority on the First Amendment, quoted a 1980 plurality opinion by the Supreme Court that throughout American history, the openness of our courtrooms has been an "indispensable attribute" to the fairness of trials.
But when it comes to television _ as Legal Times and USA Today Supreme Court reporter Tony Mauro says _ many judges "believe that the courtroom is theirs _ not the public's. They forget it is the public's business they are conducting."
That the Supreme Court unaccountably refuses to televise its oral arguments nurtures the ignorance of the public as to how its court of last resort works. To close off the rest of the federal courts from the citizenry further mocks the letter and spirit of constitutional democracy. There is still hope, however. Congress has the power to let the sunshine in to federal courtrooms. Who will make the first move?
If the president takes the lead, he could have significant bipartisan support in Congress _ and among the public at large.
Nat Hentoff is a nationally renowned authority on the First Amendment and the rest of the Bill of Rights.
Newspaper Enterprise Assn.