A Globe article on Thursday detailed the extraordinary and expensive preparations for next week’s trial of Whitey Bulger. Public interest in this trial is so high that court officials predict demand for public seats far in excess of the court’s capacity. A mere 15 public spectators will fit in the courtroom. The remainder of the 70 seats will be filled by relatives of Bulger’s alleged victims, press, and most notably, a sketch artist. No photographs may be taken in the courtroom. No voice recordings may be made. The best the court can do for the public is to co-opt a second courtroom in which there will be a video feed for overflow press and spectators.
This needless constraint on open access to the public is expensive and inadequate. In this era, a different, and we believe constitutionally required, solution is staring us in the face.
Criminal trials in federal court in which the defendant does not object should be streamed live on the Internet. For the defendant, the right of the public to see his trial should not be limited to court transcripts, a sketch artist, and media reports. In addition, the public should not have to endure an arduous trip to the federal courthouse, waits in long lines, physical searches, and the good possibility of no seat in any event.
Streaming the event on the Internet requires no physical intrusion into the courtroom, and no further dollar cost to the court. The cameras are already in place in the courtroom and will be streaming to the “public” in the overflow courtroom. That stream need only be opened to the Internet. Indeed, opening the feed would lower costs by relieving the security concerns caused by crowds at the courthouse.
What is a public trial in the age of Internet? There is no reason beyond hidebound historicism to limit our constitutional concept of “public trial” to the state of communication technology in 1791. The purpose of public trial is not only to protect against abuses of secret trials but also to allow the public to see and assess the quality of justice done in our name. Let us all see and judge the trial for ourselves.
Charles Nesson is a professor of law at Harvard Law School. Fern Nesson is an appellate attorney and college counselor at the Commonwealth School.