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Open the courts Assembly bill on video coverage undermines the cause of transparency

The more the people see of their criminal justice system in action, the more they will have a stake in the way it performs. If it is doing justice, people will see that and give the system the public support it needs. If it is not doing justice, the people will have the evidence they need to demand that it be set right.

That's the theory behind the bill, passed 52-7 in the New York Senate Tuesday, that would open the state's courtrooms to video coverage.

If, however, the people see only bits and pieces -- a key witness missing in one case, whole trials going dark in others -- it greatly increases the risk that people will get a warped view of their judicial system, withdrawing their support and, perhaps, seeking vigilante or mob justice of their own.

That's the possibility raised as the same video coverage bill is stalled in the State Assembly. There, references to a decade-old proposal raise concerns that the goal of Assembly leaders is not the cleansing sunshine the courts need but a complicated process that could distort, rather than enlighten, the state's search for justice.

Among the poison pills in a discussed, but not yet voted upon, alternative would be language requiring judges to make individual rulings that the public interest in openness "substantially outweighs" any and all objection by defendants or witnesses to video openness. While the argument could be made that transparency can be presumed to outweigh opaqueness, such language could push judges to close their courtrooms to cameras lest someone object and convicted defendants have another cause of appeal.

Worse is a provision that would allow anyone participating in a trial, defendant or witness, to order the cameras and microphones turned off whenever they speak. That would be an unacceptable provision, as televising or, increasingly, Webcasting the bulk of a trial while going dark for a key witness or two threatens to deprive observers of the testimony that turned the whole case for or against the defendant. The calls of "What were you thinking?!" would grow louder, harder to answer and more likely to lead to public mistrust, up to and including violence, for those who didn't like the outcome of the trial.

The Senate bill would give trial judges the independence to decide when proceedings would truly be disrupted, or the rights of defendant, victim or witness unacceptably threatened, by video coverage. It strikes the right balance in favor of openness. The state's top judges, its legal community and the governor all support it. The Assembly would do the right thing if it stopped tinkering and passed the Senate bill right away.

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