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Candid Cameras

CBS News Legal Consultant Andrew Cohen previews the court hearing on Court TV's request to set aside rules banning cameras in federal courtrooms for the trial of Zacarias Moussaoui.

Zacarias Moussaoui doesn't mind having his terror conspiracy trial on television. Except that he doesn't want any pre-trial proceedings to make it on-air. And the jury has to be sequestered. And if the jury is not sequestered only a live television feed may be aired-- there may be no replays in case a non-sequestered juror happens to turn on the television one night. And Court TV has to make available its feed to anyone who asks anywhere in the world.

With supporters like that who needs opponents, right? That's what Court TV officials must be asking themselves as the legal network's lawyers gear up for a hearing Wednesday. U.S. District Judge Leonie Blakema will hear arguments on whether and to what extent she would permit cameras to televise for the first time a federal trial -- Moussaoui's federal trial, the latest trial of the century.

Intended or not, Moussaoui's conditions to televised proceedings make the government's anti-TV-trial points far more forcefully than the fed ever could. It's the best strategic gift the defendant could have given the Justice Department and the most harm he could have done to Court TV in this instance. Televise a trial like this and dozens of legal and practical headaches surely will arise, Moussaoui's brief court papers suggest.

So if Judge Blakema had been inclined to be even remotely receptive to Court TV's argument here -- and that's a long, long, longshot here -- surely Moussaoui's position reminded her why the blanket prohibition against televised federal proceedings is a reasonable one. Why would the judge want to worry about which media outlet disseminates the video feed once it leaves her courtroom? What possibly could she do about it if, say, Outer Mongolia's news outlet violated her ban, aside from throwing its correspondent out of court after the images already have been aired?

Full Coverage
Radical Change: a look at the man charged with the deadliest crime ever committed in the United States and whether his actions should have raised many more red flags.

Pretrial Tactics: CBS Legal Analyst Andrew Cohen on what to expect in th months leading up to Moussaoui's fall 2002 trial.

Click here to read the entire 6-count indictment against Zacarias Moussaoui. (.pdf format)

And why would the judge want to force jurors into sequestration for a period of several weeks simply because it would make it less likely that television broadcasts of the trial would get through to them? You certainly couldn't blame the judge if she took one look at Moussaoui's conditions, decided that televising the trial would allow the tail (i.e. the act of televising) to wag the dog (i.e. the trial process itself), and then declared that she wasn't particularly interested in charting her own, new constitutional path in this direction.

That's the most important legal reality to remember before the lawyers start talking. This isn't one of those disputes where the law is unclear or ambiguous. It is quite clear. And quite clearly on the side of the Justice Department which argues that even if television cameras ought to one day in theory be allowed into federal courtrooms this case presents neither the right time nor the right place for such judicial experimentation.

Despite some fairly decent results with cameras in state courtrooms around the country, Court TV is really up against it here. A general federal rule (Rules 53 of the Federal Rules of Criminal Procedure if you are scoring at home) and a local federal rule (Rule 83.3 governing local practices in the Eastern District of Virginia) both prohibit televised federal trials. In order for Court TV to win this battle then, it must convince the judge that both of those rules are unconstitutional infringements upon first amendment rights which require public trials and which permit journalists to cover them.

The network is asking the judge to do what no federal judge has yet dared to do; what not even the Supreme Court or any of those hoity-toity judicial conference panels have recommended. It is asking her to jump out on a limb and decide a double negative-- that the rules which prohibit conduct (televising trials) are themselves prohibited. That's tough in any case but it ought to prove impossibly tough here, where the "policy" arguments in favor of televising the trial, while strong and decent in their own right, do not clearly outweigh the policy arguments offered by the government against the use of cameras. If a tie goes to the runner in baseball, a tie goes to the status quo in the law and in this case, the status quo means Court TV loses.

For example, Court TV argues that cameras don't create grandstanding by lawyers and witnesses. The government in response cited a survey done by the Federal Judicial Center which suggests that cameras can in some ways distract witnesses. Is Court TV's argument compelling enough on this score to win the day for the network? Probably not.

Likewise, Court TV arges that only televised proceedings will provide news consumers with an accurate and complete picture of what is happening during trial as opposed to "second-hand summaries presented on the news." But the government counters by arguing that in a high-profile case like this security concerns actually increase. The feds even go so far (too far in my view) by arguing that "televising these proceedings may assist al-Qaida in identifying and targeting prosecution witnesses." Think Judge Blakema wants to go down in history as the judge who allowed a televised trial which resulted in post-trial carnage? Me neither.

I have no doubt but that cameras one day will be permitted into federal courtrooms. But given the parties involved in this particular case, the positions they've taken, the law as it now stands, and the context in which United States v. Moussaoui came about, I'm betting that people won't get a chance to tune into Z(acarias)TV anytime soon.

By Andrew Cohen © MMII, CBS Worldwide Inc. All Rights Reserved