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Zacarias Moussaoui: A Televised Trial?

January 9, 2002 at 12:00 AM EDT


TERENCE SMITH: Moussaoui is the so-called 20th Sept. 11 hijacker. He’ll stand trial in the fall for allegedly conspiring with Osama bin Laden and his al-Qaida organization to commit the Sept. 11 attacks. Are there special circumstances in the Moussaoui trial that would justify an exception to the ban on cameras in federal courtrooms?

Joining us to discuss that question are Henry Schleiff, the chairman and chief executive officer of the Court TV Cable Network; and Chuck Rosenberg, a former Assistant U.S. Attorney from the federal district handling the trial. Last year, after a decade prosecuting sensitive cases for the federal government, he joined the private law firm of Hunton and Williams. The Justice Department declined to join the discussion. Gentlemen, welcome to you both.

Henry Schleiff, what are the arguments for cameras in this trial as opposed to others?

HENRY SCHLEIFF, CEO, Court TV: Well, I think the four principal arguments are quite simply in this trial the plaintiff in this lawsuit is not just the victims versus Moussaoui, it’s not New York City versus Moussaoui, it’s the United States of America. And I think we as citizens of this nation are virtually a named plaintiff, an argument one could make in fact about our access in all federal trial courts, particularly here, though, we are victims — maybe not victims in the sense that we lost loved ones, but we shared in the loss of those who did.

We were witnesses to the collapse, to the horrible bombing of those buildings; we should be allowed to be witness to the proceedings of someone allegedly to have been part of the planning of that destruction. And you know, I think as a legal matter, Terry, I think on its face, the rule prohibiting access right now is unconstitutional. It’s an abrogation, if you will, of the First Amendment’s guarantee of a free press — a press, by the way, both print and broadcast. And lastly, in most particularly in this lawsuit, what a wonderful opportunity, what a unique opportunity to show our system of justice: how it works, how it provides in fact a fair trial for virtually anyone, regardless of how evil or malevolent they may be.

TERENCE SMITH: Chuck Rosenberg you’ve prosecuted cases like this. Any of those arguments persuasive to you?

CHUCK ROSENBERG, Former Federal Prosecutor: Not to me, Terry, no. First, on the rule that precludes cameras from being used to televise federal criminal proceedings has been on the books since 1946. And the four courts of appeals that have addressed it have all unanimously agreed that that rule is constitutional. I don’t think there’s any question about that. Frankly, the Supreme Court has permitted time, place and matter restrictions on television stations, on print, broadcast media. This is nothing more than a time, place and manner restriction. It’s neutral, it’s reasonable, and it’s appropriate.

TERENCE SMITH: The rule that you mention, as you say, 1946, there have been a lot of changes, have there not?


TERENCE SMITH: Between technology and whatnot.

HENRY SCHLEIFF: That’s exactly our position, Terry, that certainly looking at technology, and I think most of the concern and the basis upon which the rule was promulgated was the large obtrusive technology, cameras and lights. We’ve come a long way, as you well know. I think frankly it’s one of the reasons why 37 out of 50 states allow cameras in. I think their experience has been good. Our experience at Court TV with over 750 trials and proceedings, not one of which has ever been reversed because of the presence of the camera, has also been favorable.

I think looking at C-SPAN, which is again yet another example of new technology, our ability to see a sister branch of government broadcast is a helpful one — and lastly the very studies, the more current studies since 1946, the four studies in New York, the two studies in California, one post-O. J. [Simpson], all of which concluded no negative impact from cameras in courts.

TERENCE SMITH: All right. Let me ask Chuck Rosenberg as somebody who has done this, what are the negative aspects from the prosecutor’s point of view?

CHUCK ROSENBERG: It doesn’t matter how small you make that camera — one fact remains. I have prepared hundreds of witnesses to testify in trials in federal district court. Putting aside law enforcement officers, those who are already comfortable in the courtroom, I’ve never met a witness who wanted to be there. And so when you prepare these witnesses for trial, you tell them if you’re nervous, just talk to me, it’s just you and me. The refrain now will be very different Terry, it will be just you and me and 60 million of your closest friends. It’s a very intimidating procedure. Witnesses are not in their element, it’s traumatic for some of them. And I don’t see how the size of the camera, number one, makes the witness feel better, or number two has any constitutional significance whatsoever.

TERENCE SMITH: Henry Schleiff, what about intimidating witnesses?

HENRY SCHLEIFF: I think that’s a very legitimate concern, it’s one that we address consistently. I think what we see is that the rule in the 37 or 38 states, for example, is that on the judge’s discretion, he can have cameras excluded from the proceedings. We are simply looking for the standard affirmative presumption that cameras should be allowed in. If there are specific issues — national security, a specific level of uncomfort on the part of witnesses — we can turn our cameras off, indeed as we did in a trial that we are covering yesterday on Court TV. I think the presumption should be in our favor, we are perfectly welcome or perfectly satisfied to have a judge exercise his good discretion.

TERENCE SMITH: Chuck Rosenberg, what about the constitutional mandate for public access to these trials?

CHUCK ROSENBERG: Let’s be very clear about this. This courtroom is open. Anybody who wants to attend this trial can attend. Moreover –.

TERENCE SMITH: Should he or she get a seat?

CHUCK ROSENBERG: There will be provisions for media, for instance, print or broadcast, there will be an overflow room so those who can’t make it directly into the courtroom will still be able to watch the proceedings on closed circuit TV, that was done today at this very hearing we’re talking about. So let’s make no mistake about it, this courtroom is open, all federal courtrooms are open. Nothing has changed.

TERENCE SMITH: Well, there will be cameras in the courtroom, isn’t that correct?

HENRY SCHLEIFF: There’s been no indication that they’ll allow closed circuit yet. I know that that has been a bill that was introduced in the Senate in December by Sen. Allen, which was unanimously passed in the Senate. The House has not yet ruled. But we think you begin to play a legal issue here of where do you draw the line. It seems to me that those allowed in to see closed circuit extend beyond just the mere victims or people in New York or Pennsylvania, I think we are all victims. I think it’s a difficult line to draw between who should be allowed into closed circuit and who should not. I think once you allow closed circuit, which I agree with, I think you have to allow cameras in completely.

TERENCE SMITH: What about that?

CHUCK ROSENBERG: Well, it is a difficult line to draw; I think it’s a fair point, but we drew it; we drew it in Oklahoma City and we’ll draw it again. It can be done and has been done. I think the bill to televise it for the victims is exactly right, it’s what needs to be done to bring some sense of closure to these people.

HENRY SCHLEIFF: I think it’s interesting, though, that some of those victims’ families have already come out and said that they find it difficult to go to some of these central locations where closed circuit would be available. They have come out, the victims’ families, have specifically asked to have Court TV be able to carry this with its cameras.

TERENCE SMITH: Okay. Chuck Rosenberg, the defendant in this case, his attorneys have asked that the trial be televised. Should that or does that carry any weight?

CHUCK ROSENBERG: Not in my mind. It’s not the first time a defendant in a highly-publicized case has asked for that. Congressman Hastings — at the time a judge in Florida — made the very same request in the 11th Circuit, upheld rule 53, the rule that precludes televising proceedings in federal criminal trials, said it was perfectly constitutional. But, Terry, if I may, my sense of it is that it’s little more than a ploy to bring his brand of martyrdom into every living room in America, and I think we’d be playing right into his hands, frankly, if we granted it for that reason alone.

TERENCE SMITH: What would you say to that, Henry Schleiff, about the possibility of grandstanding?

HENRY SCHLEIFF: I don’t think the Nuremberg Nazi war criminals, the tribunals which we had the benefit of being able to see, or an Eichmann trial, which we were able to see, I don’t think anybody felt as a result of that they were inspired to be a war criminal, I disagree. And particularly when you have a witness like that subject to cross-examination interrogation, I think the grand standing takes place when somebody sends in a home video.

TERENCE SMITH: Another issue that arose today in the courtroom was the possibility of a live radio broadcast, in other words without the cameras. What’s your view of that?

HENRY SCHLEIFF: Well, I think it’s an interesting question by the judge. It clearly shows that she is struggling with the desire to have greater access, I think. Clearly it would be a step in the right direction, not inconsistent with the Supreme Court’s delayed transcript. But I think we’re still missing something that it clearly reads in the Constitution that we are entitled to observe the proceedings. To me observe means to see the actual testimony with our own eyes.

TERENCE SMITH: Chuck Rosenberg, what do you think of radio, of live radio?

CHUCK ROSENBERG: That makes it a tougher call, except for one impediment. And I understand why people who want television in the courtroom ignore it. But it’s that rule; it’s that darn rule that keeps getting in the way. The rule that prohibits cameras also prohibits audio tapes of any federal criminal proceedings.

TERENCE SMITH: So the judge would have to find that unconstitutional?

CHUCK ROSENBERG: She would have to find that unconstitutional, and she would have to find that unconstitutional in the face of every appellate circuit that’s addressed it and has found it to be perfectly constitutional, so it’s a big, big hurdle.

TERENCE SMITH: Henry Schleiff.

HENRY SCHLEIFF: I wouldn’t say — certainly coming from Court TV I wouldn’t say rules are made to be broken, but I do think rules are made to be revisited. And I think it’s about time I think now coming out of the 1940s, new technology, clearly a greater understanding, greater experience, greater track record and evidence if you will of success. Thirty-eight states, most states allow cameras in in some fashion, allowing appellate. I think it’s about time for that rule to be revisited.

TERENCE SMITH: Okay, I’m afraid that’s the time we have. Thank you both very much.