WASHINGTON — Most people will never glimpse one of the most notorious alleged criminals in Boston history as he stands trial on charges of terrorism.
The case against Dzhokhar Tsarnaev, the man accused of the 2013 Marathon bombings, has reignited controversy about a nearly 70-year old rule that bans cameras in federal district courtrooms. This much anticipated trial is the latest high-profile example of what some consider an archaic tradition in federal courts. And it has catalyzed opponents to demand more transparency in an age where information appears online in seconds.
“Having to rely on . . . an artistic sketch in 2015, it’s anachronistic,” said Mickey Osterreicher, general counsel for the National Press Photographers Association. “All of the speculative parade of horribles that have been articulated over the years about why we shouldn’t have cameras in federal courts and the US Supreme Court have proved to be just that: speculative.”
State and several appeals courts have long since eased their rules, allowing cameras to film the scandal-filled trial of football legend O.J. Simpson or the appeal of an Arizona law that gave police the ability to check immigration status. Some county courts allow residents to watch the proceedings on local television. There’s even a website, CourtChatter, that livestreams proceedings.
Opponents of the federal ban note such policies have had little effect on operations. They argue allowing still photographs and video coverage would offer the public a chance to engage in issues that affect their lives, from the emotional closure of the Boston Marathon bombings to the Supreme Court’s historic debate over same-sex marriage.
And yet federal courts have remained the holdout, requiring cameras be left in bags or stored in lockers.
Backers of the rule, including several Supreme Court justices, argue the issue comes down to a defendant’s rights. They warn allowing cameras could influence witnesses, encourage lawyers to embellish, hamper jury selection, or risk the safety of confidential informants.
An examination in the 1990s “made it clear that it did have a chilling effect on witness,” said Karen Redmond, a spokesperson for the Administrative Office of the US Courts. “So that is why [federal judges] said, ‘Yeah, we can’t jeopardize the legal process.’”
The Judicial Conference of the United States began a pilot program in 2011 that allowed cameras into 14 courts, including in Massachusetts. It is set to end about mid-July and a report will follow. But these only encompass civil proceedings, require consent from all parties, and are filmed by the court.
Capitol Hill lawmakers have introduced bills almost every session aimed at allowing more video in federal courts. They never make it far. Representative Steve King, an Iowa Republican, reintroduced his bill last month. It’s known as the “Sunshine in the Courtroom Act.”
The federal judiciary’s objections to cameras start at the very top.
Just to attend the Supreme Court’s oral argument on Wednesday, journalists needed to surrender cellphones and laptops in a downstairs room. They could bring only a pen and notepad to the hour-long debate in the grand chamber.
“They are worried about sensationalism, almost a prurient interest,” said Robert Bloom, a professor of law at Boston College. “Cameras don’t really affect the proceeding, but that is their worry and it hasn’t changed.”
Any shift, he said, probably won’t occur until a new chief justice takes control.
Former justice David Souter once said, “the day you see a camera come into our courtroom, it’s going to roll over my dead body.”
At least some of the current justices hold similar beliefs.
Justice Antonin Scalia told C-SPAN in April that cameras would allow for sound bites and inaccuracies. “For every person who watches us from gavel to gavel, there will be 10,000 who will watch a 15 or 30 second takeout on the nightly news,” he said. “So why should I participate in the miseducation of the American people?”
Justices Sonia Sotomayor and Elena Kagan also recently questioned their use.
Sotomayor, speaking in West Palm Beach last month, said both justices and lawyers might fall prey to “this temptation to use it as a stage rather than a courtroom.”
Kagan, at a recent speech in Chicago, said any change might “upset the dynamic of the institution.”