Federal judge apologizes for allowing cameras in court

Guest Commentary

By BY DOUGLAS LEE

Posted: October 25, 2009 at 6:52 a.m.

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If news is something you don’t see every day, the recent apology of U.S. District Judge Joe Billy McDade is certainly news.

On Sept. 21, McDade, a judge in the Central District of Illinois, apologized in writing to Frank Easterbrook, the chief judge of the 7th U.S. Circuit Court of Appeals, for allowing video and still cameras into a hearing in a school-desegregation case. As McDade admitted in his letter, his decision to permit camera coverage of the hearing violated a Judicial Conference of the United States policy and a local rule of the Central District.

When he allowed the cameras into the courtroom, McDade wrote, “I erroneously thought that I had the authority to waive the Rule because of the great public interest.”

“I was wrong,” McDade continued. “[M]y violation of the policy was not intentional, but negligent. ... My action in no way reflect[s] any disagreement on my part with the policy of the Judicial Conference or our Local Rule 83.7.”

The Judicial Conference policy and Local Rule 83.7 prohibit all photography, audio and video recording andbroadcasting in federal trial courtrooms, except recording done by court reporters to assist them in making written reports of proceedings. A district judge can waive this prohibition only for ceremonial occasions.

Although legally irrelevant, McDade’s motives for allowing camera coverage were pure. The school-desegregation case had been pending for nine years, and the Champaign, Ill., school district at issue had been under a consent decree for the last seven. McDade conducted the Sept. 15 hearing to determine whether a proposed settlement of the case was fair. (The proposal is still under advisement.)

“In connection with the hearing,” McDade explained to Easterbrook, “the local television station asked if it could video record the hearing. Because of the considerable interest in the case by the Champaign community ... I wanted the widest possible dissemination of the hearing. ... Therefore, I allowed the television station and all other media to record the court hearing.”

Easterbrook learned of the violation through a newspaper report. Shortly thereafter, he learned that a video of the hearing was available online and that at least one newspaper had published photos taken during the hearing. Then, Easterbrook wrote in a Sept. 28 memorandum, the 7th Circuit received inquiries “about whether this action shows that the Judicial Branch’s policy concerning cameras in court has been altered.”

After identifying McDade’s action as a possible violation of the Judicial Conduct and Disability Act of 1980, Easterbrook launched a “limited inquiry” under the act. McDade’s response to the inquiry was his Sept. 21 letter, in which he said he deeply regretted his violations of the policy and local rule and promised to abide by them in the future.

McDade’s apology was sufficient for Easterbrook.

“The 1980 Act’s goal is to ensure performance of each judge’s duties,” Easterbrook wrote. “I am satisfied that Judge McDade’s apology and promise to comply in the future accomplish this objective.”

In his memorandum, Easterbrook acknowledged “the ongoing debate” about the role of cameras in the courtroom “in the legislative and judicial branches, and among members of the public.”

While Easterbrook’s public admonishment of McDade undoubtedly will remind all federal trial judges of theirobligation to keep cameras out of their courtrooms, McDade’s misstep might also become Exhibit A in the effort to open federal courtrooms to electronic coverage.

As Easterbrook noted, no harm came from the coverage of the hearing. To the contrary, when McDade allowed cameras into the courtroom he assisted the news media - and himself - in explaining and disseminating news of the settlement as widely as possible. Through this coverage, a legitimate public interest in a case of significant importance was recognized and satisfied. This, as even the harshest critics of cameras in the courtroom would have to acknowledge, is how electronic coverage of the courts should work.

No one expects the federal courts to throw open their doors to cameras anytime soon. The experience in the Central District of Illinois, however, might help persuade policymakers to trust trial judges to know when electronic coverage can be beneficial.

If that occurs, McDade might no longer be remembered for his mistake. Instead, he might be remembered for being ahead of his time.

Douglas Lee writes for the First Amendment Center Online.

Opinion, Pages 5 on 10/25/2009

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