• Show Notes

Dear Reader,

In the movies, the courtroom is always packed. You’ve got the scowling judge, the attentive jury, the stern prosecutor, the schmaltzy defense lawyer, and the befuddled defendant. And then there’s the full-to-capacity gallery of observers who watch with rapt attention, gasp dutifully when the witness points a finger at the defendant, and incessantly fan themselves to keep cool. (They’re always fanning. It’s actually required by the official RCCP, the Rules of Cinematic Criminal Procedure. I looked it up.)

Reality is a bit different. Sure, you’ve got your occasional blockbuster celebrity trial – but even then, the courtroom usually is at less than capacity for everything but jury addresses. In the average case, you might see a smattering of the defendant’s family and friends, a couple cops or prosecutors there to support the cause and pick up some trial pointers, maybe a local reporter or two. And then there’s the sad tableau of the absolutely empty courtroom; in a few of my cases, nobody at all showed up to support the defendant. 

And then there’s a curious phenomenon that’s not widely known: the courtroom watcher. These are just regular folks – mostly retirees – who simply enjoy going to court and watching trials. They’d form a community of sorts, talking about what trials were happening in the courthouse, which cases promised the most action, and what was coming down the pike. (Hey, the Gotti re-trial is docketed for June!) I wondered if this was a Southern District of New York, Manhattan-specific phenomenon – we do tend to have some quirky personalities on the island – so I checked with friends who had worked in two other districts. They confirmed that they, too, had courtroom watchers. 

I’ll admit that, when I first started seeing these people, I regarded them with a bit of condescension. I wondered who the heck has so much free time, and chooses to spend it sitting on hard wooden benches watching legal proceedings. Go to the beach or something. But in time, I’d stop and chat with these courtroom watchers during trial breaks, and I came to like them and appreciate their presence. They went to court for simple and relatable reasons: they found it interesting, and they were moved by the high-stakes human drama. You have to admit, as governmental proceedings go, SDNY criminal trials beat the hell out of open public meetings of the Advisory Commission on Property Tax Reform. 

And, although the courtroom watchers wouldn’t quite phrase it this way, their attendance at trials is a basic but fundamental exercise of civic engagement. The Sixth Amendment explicitly guarantees the right to a “speedy and public trial.” This is a bedrock principle of our constitutional democracy; we don’t do secret tribunals here in the United States. We take this public trial guarantee as a given, and we rarely consider it in much depth. That’s an unambiguously positive indicator for our democracy. But once in a while, we need to re-examine even the most basic of our constitutional protections, to make sure we aren’t letting them slip behind the times and lapse into antiquity.

Over the years, our courts have wrestled with whether to allow public broadcasting of trials – by television cameras, or at least by audio feed. Practices vary by jurisdiction. Many states allow at least some form of real-time broadcasting, while the federal trial courts remain reliably stodgy and pretentious in forbidding any kind of live feed. 

In New York state courts – which soon (or perhaps not-so-soon, but eventually) will hold a historic trial of the former president of the United States, Donald Trump – it’s up to the judge whether to allow live media coverage from inside the courtroom. The judge on the Trump case, Judge Juan Merchan, is generally held in high regard; we’ve seen near-universal praise for him from prosecutors and defense attorneys alike. But he has a history of denying broad media access requests in other high-profile cases. He denied a request for cameras in the courtroom in the Trump Organization trial last year, and he permitted only still photography during the sentencing of Trump Organization CFO Allen Weisselberg. 

Earlier this week, Judge Merchan refused to allow television cameras or a live audio feed at Trump’s arraignment. The Judge offered up a pale consolation, allowing still photographs for a limited time before the proceedings began. Of course, a trial of Trump himself will garner exponentially more public interest than even these prior high-profile matters, and Judge Merchan will have to make an even more important call when that day comes.

We might fairly ask: why wouldn’t a judge allow cameras in the courtroom, in any case, ever? If the American public is interested, and the media wants to broadcast it, then why not? Courtrooms are open to the public – our aforementioned courtroom watchers just stroll right in – so why wouldn’t we use modern technology to maximize public access? The answer you’ll hear from the courts is that we need to worry about courtroom decorum; we wouldn’t want cameras encouraging grandstanding or boorish behavior by the lawyers or parties, after all.

It’s time to put an end to this suspect rationale against media access to trials. The courts need to get over themselves. We don’t use powdered wigs and quill pens anymore; the courts are live, modern venues for our most important public processes. It’s foolish to continue insisting on some antiquated notion of mannered propriety, at the expense of public access and transparency. In fact, we’ve seen plenty of high-profile trials conducted in recent years with live television feeds – Derek Chauvin (the police officer who murdered George Floyd), Kyle Rittenhouse, the men who killed Ahmaud Arbery – and all of them have been full, fair processes, untainted by over-the-top courtroom histrionics. In these cases, the public benefited by seeing the proceedings play out, and the courts promoted the vital goals of transparency and access.

Even the snootiest of our judicial institutions, the U.S. Supreme Court, finally conceded to reality and allowed live audio feeds of oral argument, starting during the early days of Covid in 2020. Guess what? The sky hasn’t fallen. We didn’t see Supreme Court practitioners suddenly pulling wild stunts, and the Court somehow managed to maintain its dignity while at the same time enabling the entire country to listen in on high-stakes arguments, and maybe even learn something. And now that Covid is over, the Court rightly continues its live feed. The experiment has been an unqualified success, and it should pave the way to someday allowing full audio-visual coverage. 

In my view, when Trump’s trial happens, Judge Merchan must allow full, live audio-visual broadcast. Public interest has never been higher, perhaps in any other case in U.S. history. And what’s the downside? The lawyers might showboat? Prior experience with the aforementioned televised trials shows us that this is more hypothetical than reality. And even if some lawyers play to the camera a bit – so what? Judge Merchan has shown an ability to control his courtroom, and he surely will be up to the task even with cameras around. (Disclosure: I work for CNN, which was a party, along with other media outlets, to a motion to allow cameras in the courtroom for Trump’s arraignment, and probably will be party to a similar motion relating to future appearances.)

When Trump goes on trial in New York someday, we’ll all want to see it. More to the point, the court should want us to see it. It’s important for the American public, and for the courts themselves. With the aid of modern technology, and a bit of judicial common sense, we’ll all become like those dedicated Manhattan courtroom watchers. That’s a good thing for all of us, and for our democracy.

Stay Informed, 


Note From Elie is part of the free weekly CAFE Brief newsletter.

Sign up free to receive the CAFE Brief in your inbox every Friday: cafe.com/brief