Opinion: Columnists

Whitey Bulger trial points to value of cameras in federal courtrooms

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Gene Healy,Columnists,Supreme Court,FBI,Massachusetts,Surveillance,Terrorism,Analysis,Islamic Jihad

A week later, I'm still bitter about missing the most fascinating and colorful trial of the decade, the racketeering case against James "Whitey" Bulger, the Irish mobster who terrorized South Boston for two decades, before evading capture for another 16 years. Last Monday, a federal jury found Bulger guilty of all but one of 33 racketeering counts against him.

The Bulger story represents "the worst case of corruption in the history of the F.B.I.," says former Boston federal prosecutor Michael D. Kendall, "a multigenerational, systematic alliance with organized crime, where the F.B.I. was actively participating in the murders of government witnesses."

But unless you're from Boston, you probably missed it. That's largely due to Federal Rule of Criminal Procedure 53, which since 1946 has barred "broadcasting of judicial proceedings from the courtroom."

Most states have allowed cameras for decades, and the evidence suggests they've had positive effects. Whatever justification the federal ban once had, today it rests on the insulting notion that you're not mature enough to handle what goes on in the courtrooms you pay for.

Admittedly, some of my bitterness stems from the base motivation of wanting to see the show: to hear Patricia Donahue, the widow of a Bulger victim, shout: "You're a coward," and Whitey's snarl: "Do what yas want with me." Or this exchange with FBI agent Robert Fitzpatrick: "Q: 'Have any of your medications affected your memory?' A: 'Not that I recall.' "

Still, as the Boston Herald's Margery Eagan insists, the Bulger story -- where it's hard to tell the gangsters from the G-Men -- is "a civics lesson worthy of us all," a "teachable moment" about federal corruption. Alas, our government conspired with Boston's Irish Mafia for 20 years and all we got was this lousy sketch.

The camera ban treats "taxpayers ... like 10-year-olds," Eagan argues, and for no good reason. In 1991, the Federal Judicial Center evaluated a pilot program allowing cameras in the trial courts of six districts. They reported "small or no effects of camera presence on [the] participants, ... courtroom decorum, or the administration of justice."

In a 2010 article, federal judge Alex Kozinski noted that "judges overwhelmingly believed that cameras in the courtroom helped to educate the public about the courts."

The evidence from the states is much the same, the FJC concluded in 1994: "Most jurors ... indicated they were not distracted or were distracted only at first" by cameras. Per Kozinski, "once a trial gets under way," participants "tend to forget the cameras are there."

Judge Kozinski's ready for the "O.J." objection: "You can't talk about cameras in the courtroom without talking about The Juice," he writes, whose clown-show trial in 1995 derailed the movement for federal-court transparency.

But blaming the cameras is shooting the messenger, Kozinski says; Without them, "dollars to doughnuts the jury would still have voted to acquit, although the public wouldn't be in nearly as good a position" to judge the verdict or "evaluate the process that led the jury to reach it."

As it happens, the trial of Boston Marathon bomber Dzhokhar Tsarnaev will be held in the same federal courthouse as the Bulger trial.

In 2003, federal judge William Young gave convicted shoe-bomber Richard Reid a marvelous dressing down: "You are not an enemy combatant," he told Reid, you're a "species of criminal," and "no big deal." Wouldn't it be nice to have that on video?

I suspect if the Tsarnaev trial were televised, we'd see more evidence that these guys aren't criminal masterminds, but, in the words of Uncle Ruslan, pathetic "losers," and hardly a justification for massive, secret surveillance programs.

That could provide a valuable civics lesson as well.

Washington Examiner columnist Gene Healy is vice president at the Cato Institute and author of "The Cult of the Presidency."

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