Over the coming months, Boston’s Moakley Courthouse will host some of the most significant trials in state history. And virtually no one will get to see them.

Consider the public corruption indictment against former Probation Department Commissioner John J. O’Brien and two of his top aides, which empanels this week in front of U.S. District Court Judge William G. Young. The case promises to put dozens of prominent legislators and judges on the witness stand where they’ll be called on to answer difficult questions about the way hiring within the judiciary has been conducted for decades.

In two other cases, U.S. Attorney Carmen M. Ortiz’s office is seeking the death penalty.

One of those trials, U.S. v. Tsarnaev, involves terrorism — last April’s Boston Marathon bombings — and is scheduled to begin in the fall. The other is the retrial of Gary Lee Sampson, whose original murder trial resulted in the state’s first death sentence in nearly 70 years.

But no matter how great the public’s interest is — and last summer’s James “Whitey” Bulger trial proved it can be substantial, with hundreds of people waiting in line daily for just a dozen reserved seats — the reality is few will catch a single second of any of the cases.

That’s because judicial officials in Washington, D.C., stubbornly forbid the broadcasting of U.S. District Court proceedings. The ban is based in part on what many, including a number of federal judges, say is an antiquated notion that high-profile trials can make a mockery of the process and subject the judiciary to unfair criticism.

“The O.J. Simpson case probably set back the prospect of cameras in courtrooms quite a distance,” U.S. District Court Judge Mark L. Wolf says.

And though studies show that a majority of lawyers, judges and the public agree with Wolf that cameras should be allowed, efforts to make that actually happen have gone nowhere, largely because the Supreme Court won’t hear of it.

“I’ve always said the courts belong to the public,” says retired Superior Court Judge Robert A. Barton. “The courts don’t belong to the judges, even in multi-million-dollar federal courthouses with magnificent lobbies. They belong to the people who pay the taxes. They are the people.”

A state court judge and former Marine, Barton clearly harbors a certain resentment toward the patrician ways and airs of the federal courts. But he’s merely the most colorful of a group of sitting federal judges, a former U.S. attorney, and a senior senator who spoke to Lawyers Weekly and WBUR for this story. They all rail against the unwelcome mat for cameras that has long been policy at the highest level of the federal courts.

Judge Alex Kozinski, chief of the 9th U.S. Circuit Court of Appeals, says the time has come for a change. But the veteran jurist doesn’t think his colleagues who are in the position to do something about it are ready to embrace the idea.

“If you ask me whether I think a day will come when we will see cameras allowed into criminal trials, I guess my answer to that would be not for a very long time,” Kozinski says. “I just know that federal judges tend to be quite conservative about this kind of thing, and I don’t think they are ready to take that plunge.”

Tweeters and bloggers only

The Judicial Conference of the United States, which sets policies for the federal judiciary and would have to endorse a lifting of the camera ban, actually gives circuit appeals courts such as Kozinski’s the right to broadcast oral arguments.

Although the rule has been in place for two decades, the 1st Circuit in Boston, which has been home to several high-profile appeals in recent years, doesn’t take advantage of it. In fact, the 9th and 2nd circuits are the only two that have opted to do so.

The 9th Circuit has a territory the size of India and a population of more than 60 million, Kozinski says. That means most people couldn’t travel to his courtroom in San Francisco even if they wanted to.

Just as Congress allows cameras in its chambers, he adds, people have come to expect that “access” to the courts means having the option to view public proceedings on television, radio and online.

“I can certainly understand that people who haven’t tried cameras might feel uncomfortable with it,” Kozinski says. “All I can say is we’ve done it … and all the fears that some [judges] had that things would be taken out of context or people would be caught looking like they are napping simply haven’t happened.”

To the dismay of the Supreme Court in D.C., Kozinski says, he ordered live broadcasting of two high-profile appeals: one challenging Arizona’s immigration law; and the other, California’s ban on same-sex marriage.

The proceedings, which were broadcast on CSPAN and streamed live on the web, drew more than a million viewers, he reports.

“I don’t think we do anybody any favors by keeping people out,” Kozinski says. “I don’t think we do anybody any favors by allowing tweeters and bloggers as the only means of getting information as to what happened.”

But the many federal trial court judges who agree with Kozinski are helpless to do anything about it. The rules, they say, do not afford them the same discretion as their circuit court peers.

Karen Redmond of the Administrative Office of U.S. Courts says photographing or broadcasting criminal proceedings in District Court has been prohibited under Federal Rule of Criminal Procedure 53 since 1946.

Television was in its infancy at that point, and the prohibition was triggered in part by reaction to the Lindbergh baby kidnapping. Coverage of the case showed court spectators posing for photos in the jury box, carving their initials in the woodwork, and carrying off pieces of tables and chairs as souvenirs.

In 1972, the Judicial Conference barred “broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto.” The ban, which was contained in the Code of Conduct for United States Judges, applies to criminal and civil cases.

When it looked like a change might finally be coming in 1994, the conference declined a judicial subcommittee’s recommendation to expand the use of cameras. At its September 1994 session, the conference also rejected an amendment to Rule 53, which would have allowed cameras in criminal proceedings if authorized under a set of court-approved guidelines.

The denials came at the conclusion of a 1991 pilot program, which allowed some civil trials to be recorded in six jurisdictions, including Massachusetts, and found no ill effects of cameras on courtroom participants. Despite those findings, the rejection of broadcasting was based in part on “the intimidating effect of cameras on some witnesses and jurors” and concerns that televising a trial would unfairly impact a defendant’s rights.

In 2010, the Judicial Conference launched another three-year pilot program, this time involving 14 courts.

Judge Wolf says that pilot, which will be the subject of a report due in 2015, again applied only to civil cases. But unlike the 1991 pilot, the 2010 program required the consent of the parties to the litigation before a trial could be broadcast.

“Requir[ing] consent … has substantially diminished the number of proceedings that can be recorded and, therefore, in my view, injures the value of the study,” Wolf says. “There’s [also] a serious question as to why another study was needed.”

Redmond refused to make any of the judges on the Judicial Conference available for an interview. She said the conference would “prefer to wait until after the pilot is completed and the Judicial Conference has made its recommendation before we offer an official spokesperson and comment.”

Efforts to locate local proponents of the camera ban were equally unsuccessful.

Not a ‘bold new experiment’

Wolf, who presided over the Sampson death penalty trial and other landmark cases including former House Speaker Salvatore F. DiMasi’s honest services fraud indictment, says transparency is essential to the operation of the courts in a democracy.

“Justice needs to be seen to actually be done,” Wolf says. “The courts depend very heavily on the confidence of people, and I think that the confidence of the American people in the Supreme Court and the lower courts would be enhanced if they could see directly what exactly is going on.”

State courts across the country permit the broadcast of civil and criminal proceedings, Wolf notes, and have experienced no problems.

Massachusetts has allowed cameras for decades, with cases such as Neil Entwistle, Louise Woodward, Clark Rockefeller and most recently Aaron Hernandez all receiving gavel-to-gavel coverage.

“This would not be a bold, new experiment,” Wolf says. “I don’t recall any reports of injury to the administration of justice from the practices of the Massachusetts courts.”

Boston lawyer Michael J. Sullivan, former U.S. attorney and district attorney for Plymouth County, says he can’t think of a good argument against cameras.

“Some people may argue that the participants will be more interested in what’s being picked up on camera as opposed to what’s taking place in the courtroom. I think that that’s hardly going to happen, if at all,” Sullivan says,
adding that plenty of safeguards exist to protect jurors and reluctant witnesses.

Nor is the issue one of technology, retired U.S. District Court Judge Nancy Gertner points out.

“What’s interesting about federal courts is that there’s a security camera built into the wall … and marshals can see what’s going on,” she says.

In fact, with each Moakley courtroom equipped with a camera and wired for sound, last summer’s Bulger trial and the 2012 terrorism trial of Tarek Mehanna were broadcast to overflow courtrooms to accommodate the large turnouts.

The same was done for the July 10 arraignment of Dzhokhar Tsarnaev, when many of the hundreds of spectators, including victims of the Marathon bombings, had to be turned away from U.S. Magistrate Judge Marianne B. Bowler’s packed courtroom.

And while new rules allow reporters to tweet from the courtroom, a photo taken with an iPhone, which one Russian television reporter tried during Tsarnaev’s arraignment, invokes the wrath of the federal government. Pictures and sound never leave the building intact.

Gertner calls the concerns over cameras “categorically wrong” and “out of touch with the 21st century.”

“The notion that every case will turn into O.J. Simpson is, of course, ridiculous,” she says. “That was really an idiosyncratic case with a judge who didn’t know how to control a courtroom. He wouldn’t have known how to control a courtroom whether there were cameras there or not.”

Most of the judges who have had any experience in state court don’t think cameras are an issue, Gertner adds.

“It’s a small group of judges who basically led to the restriction,” she says. “Unfortunately, they were very influential judges, from Justice [William H.] Rehnquist, now Justice [John G.] Roberts, on down.”

Sunshine in the forecast?

If the courts don’t budge, Congress may not defer for much longer.

Sen. Charles E. Grassley, ranking member of the Committee on the Judiciary, has repeatedly co-authored “Sunshine in the Courtroom” bills, which would give federal trial judges the discretion to allow media coverage.

The Iowa republican says pilot programs haven’t done enough, and he plans to continue submitting legislation to fix the problem until it is signed into law. Since 2001, his committee has marked-up his bill five times and reported it out each time with bipartisan support.

“It’s very frustrating,” Grassley says. “But it takes a very long time in Washington, and I have a philosophy in politics that if you’re right you’ll eventually win out.”

Grassley’s bills have included a number of procedural safeguards, such as allowing non-party witnesses to have their voices and images obscured during testimony. They also give the Judicial Conference the authority to issue guidelines on the administration of media coverage to ensure uniformity across the courts, he says.

“The Founding Fathers said that open trials ought to be held in front of as many people as would choose to attend,” Grassley says. “Well, you can’t get too many people into a courtroom, but when they watch on TV, you’re going to make sure that more people — if they want to — can participate.”