TV or Not TV: Television, Justice, and the Courts.

By Ronald Goldfarb New York University Press, $24.95

Last month, the U.S. House of Representatives passed a bill authorizing every federal judge to decide whether or not to allow the televising of the trial in every particular case. The bill has a long way to go before it becomes law (there are many other far-reaching, unrelated, and controversial changes in court procedure set forth in the bill, and the President has already indicated it is a candidate for his veto), but it will undoubtedly give comfort to Ronald Goldfarb, author of TV or Not TV. He freely predicts that all courtrooms in the future will be equipped with cameras. I hope he is as wrong about his conclusion as he is about the way he comes to it.

Since Goldfarb is a practicing litigator, he has to contend with the question that frames the debate about cameras in the courtroom: Does TV affect the procedures or the results of the trial? While he seems to answer that in the affirmative, he is less than clear as to whether the consequences should concern us.

According to Goldfarb, all high-profile trials are impacted by the publicity given to them. He starts off with the famous case of John Peter Zenger in 1734, whose trial helped to shape our commitment to a free press. The presence of a large, sympathetic audience was the equivalent of today's modern television audience. In Goldfarb's progression, all the "trials of the century" -- the alienation-of-affection trial of Henry Ward Beecher, the Harry Thaw-Evelyn Nesbitt trial that has just been rejuvenated as a part of the musical "Ragtime," the Scopes theory of evolution trial, the Bruno Hauptmann kidnapping trial -- were impacted by the heightened publicity of an expanding communication technology. To Goldfarb, television is just another new medium that adds to the noise about a trial, but doesn't change its nature. A public trial is one of our society's values; the more public interest, the more it can impact the way the trial comes out; television is just tile newest medium that expands the universe of people who can be a part of that public. It follows that cameras in the courtroom are OK.

I must have missed something. I confess that I did not watch a lot of the O.J. Simpson trial (it was too painful). But I watched enough to see lawyers who were hamboning it up, not for the jury, but for the 6 o'clock news. I saw a judge who could not reclaim his turf sufficiently to preside over the trial, but seemed rather to be overwhelmed by his inability to compete with all the star power of lawyers and defendant. I saw a trial that went on for months longer than it should have because the participants seemed to be enjoying all of the attention. I saw more bad information distributed about the criminal justice system by instant experts who should have known better -- and by a judge who may have been the second biggest beneficiary of the not guilty verdict. (None of his rulings will ever be reviewed by an appellate authority.) I saw witnesses who paid more attention to the color of their ties than the color of their testimony.

I saw the greatest travesty of justice imaginable in the O.J. Simpson trial -- and I don't even spoon in the verdict. I saw a spectacle that will haunt the legal and criminal justice systems for years as to what a criminal trial should not be. To say that the impact of television on the Simpson trial was only a difference in degree from the impact of the courtroom crowds in the John Peter Zenger trial is like saying that my grandson and Michael Jordan both play basketball. At some point, it's more than a difference in size.

There is a lot in Mr. Goldfarb's book about the people's right to know. I made many of those same arguments myself as a member of Congress. While television coverage of the Congress has not been without its cost (Newton Gingrich's success can be directly traced to his capacity' to persuade C-SPAN audiences that his colloquies with one or two of his buddies, before an empty chamber, after the House had adjourned, were of great moment), the legislative process will survive. I am not as sanguine about the judicial process.

The decisional process of the courts and the Congress is altogether different. We want as much public participation as we can get in the congressional process. Policy decisions are supposed to be as broad-based as possible -- not because we are sure that better decisions will result -- but because whatever the decision, right or wrong, there is a legitimacy to a broad-based, fully participatory decision. That is emphatically not the way we believe that court decisions should be made.

We do not want the criminal justice system of the French Revolution, where the crowd in the square would signal by their thumbs whether or not the accused should get the guillotine. We don't want an interactive television system to allow lawyers to tell the judge or the jury that "over two-thirds of our viewers think you should rule for the plaintiff" We expect judges and jurors to make decisions that may well be unpopular -- antimajoritarian. Televising the trial events makes it harder to achieve that difficult goal.

The advocates of television in the courtroom argue that modern television techniques are so unobtrusive that any adverse impact can be avoided. While the absence of the Klieg lights and the large cameras have made it easier to ignore the physical presence of television apparatus, it does nothing about the awareness that the person being televised will have their likeness, their words, their gestures, their ear-scratching spread nationwide. We can hope that judges, especially non-elected judges, can become impervious to such consequences. I have known a lot of appointed judges over the years, and I can only hope. But we have no reason to expect the other actors in a court drama to be so impervious. For the witnesses and the jurors anti the parties, it may well be their first exposure to nationwide scrutiny. Most parties have not been in the business of making television commercials for Hertz. While the lawyers may not be quite as unexposed, it: is hard not to think of how useful a telegenic performance would be to future career. Johnny Cochran's performance was so good that the criminal bar may have lost a valuable practitioner.

Elected judges present still another variation on the theme. C-SPAN watchers have become aware of the phenomenon of the members of Congress who use the availability of the television camera to get in a few licks for reelection while supposedly debating a bill before Congress. I wonder how many elected trial judges are using television in the courtroom for similar purposes. I find the chart showing the number of states already allowing cameras in the courtrooms a very troubling statistic.

Televising appellate proceedings, including those of the Supreme Court, does not create the problems that would occur in the trial courts. While there would not be much interest in most appellate cases, the salutary effects far outweigh any downside. While it may take something like the House bill I referred to earlier to persuade Justice Antonin Scalia, Mr. Goldfarb's prediction about the future might occur in the appellate courts. But I think he is wrong, and I sure hope he is wrong, about the trial courts.

ABNER MIKVA, currently a professor at the University of Chicago, has served as both a U.S. representative from Illinois and a chief judge of the D.C. court of appeals.