Taxes, tapes and transparency

While we are lawyers, we are also taxpayers. And as taxpayers, we help fund the Michigan trial courts. The trial courts then use our tax dollars to pay for items they need - including the video equipment used to record court proceedings. But while we, the taxpayers, help pay for this video technology, not all trial courts let us, as taxpayers, watch or copy the videotapes. Something is inherently wrong with this, and not just for taxation reasons. Not letting the public have access to videotaped court proceedings clearly goes against the Michigan Supreme Court's "trial court transparency" initiative - things like trial court dashboards, trial court performance measures and trial court customer satisfaction surveys. Out of curiosity, I asked the State Court Administrative Office how many trial courts allow public access to videotaped proceedings. While SCAO could not provide an exact number, it did say this: "Most trial courts do not allow public access to videotaped court proceedings." Currently, trial courts have their own local rules governing videotape access because there is no statewide policy mandating it. Back in 2011-12, SCAO tried to implement a statewide policy. But it was unable to get all the trial courts on board with the idea, so the proposal was dropped, leaving the courts to continue with their own rules. SCAO had the right idea. It is time to get rid of the willy-nilly local stances and go with a statewide policy allowing public access. And if some trial courts still don't like the idea, the Supreme Court should exercise its authority and implement a statewide policy anyway. A statewide measure would avoid scenarios like the one playing out in Livingston County, which does not allow access to the general public. Earlier this year, Howell attorney Thomas J. Kizer asked Livingston District Judge Theresa M. Brennan to access and copy some of her videotaped proceedings. The request was denied. So Kizer sued Brennan to get the videos. Brennan claims she was just following the court's local policy. Some trial judges, like Livingston Circuit Chief Judge David J. Reader, are against public access to videotapes because they believe it increases the potential for abuse. In Livingston County, for example, if someone wants a record of court proceedings, Reader emphasizes the person can request a written transcript. Transparency, he says, does not include providing copies of videotapes because this compromises the safety and integrity of judges. While this point is well-taken, the opposite is true as well: not letting the public have access to videotaped proceedings is also a risk to the integrity of the judiciary. After all, trial courts serve the public. And when the trial courts do not let people view or copy videotaped proceedings - proceedings they can watch if they go to the courthouse in person on any given day - the prevailing perception is that the courts are being secretive. In other words, denying public access to videotaped proceedings fosters the public's distrust of the judicial system. Livingston and other counties that have a no-access policy could learn from counties like Washtenaw and Kalamazoo, as well as the Supreme Court. By filling out a form, paying a nominal fee and waiting a day or so, courts in Washtenaw and Kalamazoo let the public watch and copy taped proceedings. Meanwhile, all Supreme Court oral arguments and hearings are livestreamed on its website. The videos are then archived, so lawyers can watch them whenever they want. Some trial courts claim they have a no-access policy because they do not have enough staff to handle the requests. Other courts, including Livingston, assert their existing policies already give the public sufficient access through written transcripts. But written transcripts are vastly different than videotapes. The written word does not show body language or convey a person's tone of voice, whether it be that of the judge, a lawyer or a party in the case. Consider the video of former Baltimore Ravens football player Ray Rice punching his then-fiancée in the face and dragging her limp body out of an elevator. It was not until the video surfaced that he faced domestic abuse charges. The Ray Rice incident shows just how powerful a videotape can be. In that case, it possibly ended an athlete's career. Maybe some judges are so resistant to a statewide public access policy because they fear that videos of their proceedings, if seen by the public they serve, could end their judicial careers as well. Published: Fri, Dec 05, 2014