10-70063 #1

Case: 10-70063 01/08/2010 Page: 1 of 48 ID: 7187906 DktEntry: 1-1
NO. 10-____
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
IN RE: DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ,
MARK A. JANNSON, AND PROTECT-MARRIAGE.COM—YES ON 8, A
PROJECT OF CALIFORNIA RENEWAL
DENNIS HOLLINGSWORTH, et al., Petitioners
v.
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
CALIFORIA, Respondent,
KRISTEN M. PERRY, SANDRA B. STIER, PAUL K. KATAMI, JEFFREY J.
ZARRILLO, CITY AND COUNTY OF SAN FRANCISCO, NON-PARTY THE
MEDIA COALITION, ARNOLD SCHWARZENEGGER, in his official capacity as
Governor of California, EDMUND G. BROWN, JR., in his official capacity as Attorney
General of California, MARK B. HORTON, in his official capacity as Director of the
California Department of Public Health and State Registrar of Vital Statistics,
LINETTE SCOTT, in her official capacity as Deputy Director of Health Information &
Strategic Planning for the California Department of Public Health, PATRICK
O’CONNELL, in his official capacity as Clerk-Recorder for the County of Alameda,
DEAN C. LOGAN, in his official capacity as Registrar-Recorder/County Clerk for the
County of Los Angeles, and HAK-SHING WILLIAM TAM, Real Parties in Interest.
United States District Court for the Northern District of California

Civil Case No. 09-CV-2292 VRW (Honorable Vaughn R. Walker)
EMERGENCY PETITION UNDER CIRCUIT RULE 27-3 FOR

A WRIT OF MANDAMUS OR PROHIBITION TO THE
NORTHERN DISTRICT OF CALIFORNIA
Andrew P. Pugno Charles J. Cooper

LAW OFFICES OF ANDREW P. PUGNO Michael W. Kirk
101 Parkshore Drive, Suite 100 Jesse Panuccio
Folsom, California 95630 COOPER AND KIRK, PLLC
(916) 608-3065; (916) 608-3066 Fax 1523 New Hampshire Ave., N.W.
Washington, D.C. 20036
Brian W. Raum (202) 220-9600; (202) 220-9601 Fax
James A. Campbell
ALLIANCE DEFENSE FUND
Attorneys for Petitioners
15100 North 90th Street
Scottsdale, Arizona 85260
(480) 444-0020; (480) 444-0028 Fax
Circuit Rule 27-3 Certificate
Pursuant to Circuit Rule 27-3, Petitioners respectfully certify that their
petition for a writ of mandamus or prohibition to the United States District Court
for the Northern District of California in district court case number 09-CV-2292
(VRW) (the “mandamus petition”) is an emergency petition requiring at least
temporary “relief … in less than 21 days” in order to “avoid irreparable harm.”
Petitioners are a “primarily formed ballot committee” and the “official
proponents” of Proposition 8 (“Proponents”), who were permitted to intervene in
this case to defend that California ballot initiative. The mandamus petition
concerns the district court’s decision to broadcast the trial proceedings in this case,
beginning this coming Monday, January 11, 2010.
As elaborated in Proponents’ mandamus petition, the district court’s
unlawful decision to broadcast the trial proceedings will cause immediate
irreparable harm. Because the trial is set to begin on Monday, “relief is needed in
less than 21 days”—and indeed by Monday morning—in order to prevent these
irreparable injuries. Cir. R. 27-3(a). Accordingly, Proponents respectfully request
that the Court immediately issue a writ of mandamus or prohibition barring the
district court from proceeding with its plan to broadcast the trial, or in the
alternative, at least temporarily stay the district court’s hand pending disposition of
Proponents’ mandamus petition.
i
All of the grounds the mandamus petition were presented to the district
court, and were rejected.
This morning, Proponents’ counsel notified counsel for the other parties that
they would file this mandamus petition presently and served counsel for the other
parties with copies thereof by email.
The telephone numbers and addresses of the attorneys for the parties are as
follows:
Attorneys for Plaintiffs Kristin M. Attorney for Defendant Clerk-

Perry, Sandra B. Stier, Paul T. Recorder Patrick O’Connell:
Katami, and Jeffrey J. Zarillo:
Claude Franklin Kolm
Theodore B. Olson Lindsey G. Stern
Matthew C. McGill COUNTY OF ALAMEDA
Amir C. Tayrani 1221 Oak Street, Suite 450
GIBSON, DUNN & CRUTCHER, Oakland, CA 94612-4296
LLP (510) 272-6710
1050 Connecticut Avenue, NW claude.kolm@acgov.org
(202) 955-8668
Fax: (202) 467-0539 Attorneys for Plaintiff-Intervenor
tolson@gibsondunn.com City and County of San Francisco:
Theodore J. Boutrous, Jr. Dennis J. Herrera, City Attorney

Christopher D. Dusseault Therese Stewart, Chief Deputy City
Ethan D. Dettmer Attorney
Theane Evangelis Kapur Danny Chou, Chief of Complex and
Enrique A. Monagas Special
GIBSON, DUNN & CRUTCHER, Litigation
LLP Vince Chhabria, Deputy City
Attorney
333 S. Grand Avenue Erin Bernstein, Deputy City Attorney
Los Angeles, CA 90071 Christine Van Aken, Deputy City
ii
(213) 229-7804 Attorney

Fax: (213) 229-7520 Mollie M. Lee, Deputy City Attorney
tboutrous@gibsondunn.com CITY AND COUNTY OF SAN
FRANCISCO
David Boies OFFICE OF THE CITY
Theodore H. Uno ATTORNEY
BOIES, SCHILLER & FLEXNER, 1 Dr. Carlton B. Goodlett Place
LLP Room 234
333 Main St San Francisco, CA 4102-4682
Armonk, NY 10504 (415) 554-4708
(914) 749-8200 Fax: (415) 554-4655
Fax: (914) 749-8300 Therese.stewart@sf.gov.org
dboies@bsfllp.com
Attorney for Defendant Registrar-

Attorneys for Defendants Recorder Dean C. Logan:
Governor Arnold Schwarzenegger,
Director Mark B. Horton, and Judy Whitehurst
Deputy Director Linette Scott: OFFICE OF COUNTY COUNSEL –
COUNTY OF LOS ANGELES
Kenneth C. Mennemeier 500 West Temple St
Andrew Walter Stroud Los Angeles, CA 90012
MENNEMEIER GLASSMAN & (213) 974-1845
STROUD LLP JWhitehurst@counsel.lacounty.gov
980 9th St, Ste 1700
Sacramento, CA 95814
(916) 553-4000 Attorneys for Defendant-
Fax: (916) 553-4011 Intervenors Dennis Hollingsworth,
kcm@mgslaw.com Gail J. Knight, Martin F.
Gutierrez, Mark A. Jansson, and
ProtectMarriage.com—Yes on 8, A
Attorneys for Defendant Attorney Project of California Renewal:
General Edmund G. Brown, Jr.:
Charles J. Cooper
Gordon Bruce Burns Michael W. Kirk
Attorney General’s Office, Dept. of Jesse Panuccio
Justice COOPER & KIRK, PLLC
1300 I Street, 17th Floor 1523 New Hampshire Ave., NW
Sacramento, CA 95814 Washington, D.C. 22036
iii
(916) 324-3081 (202) 220-9600

Gordon.Burns@doj.ca.gov Fax: (202) 220-9601
ccooper@cooperkirk.com
Tamar Pachter mkirk@cooperkirk.com
Office of the California Attorney jpanuccio@cooperkirk.com
General
455 Golden Gate Ave, Suite 11000 Andrew P. Pugno
San Francisco, CA 94102-7004 LAW OFFICES OF ANDREW P.
(415) 703-5970 PUGNO
Fax: (415) 703-1234 101 Parkshore Dr., Ste. 100
Tamar.Pachter@doj.ca.gov Folsom, CA 95630
(916) 608-3065
andrew@pugnolaw.com
Brian W. Raum
James A. Campbell
15100 N. 90th St.
Scottsdale, AZ 85260
(480) 444-0020
braum@telladf.org
iv
Corporate Disclosure Statement Under Fed. R. App. P. 26.1
Defendant-Intervenors-Petitioners are not a corporation but a primarily
formed ballot committee under California Law. See CAL. GOV. CODE §§ 82013 &
82047.5.
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TABLE OF CONTENTS
CIRCUIT RULE 27-3 CERTIFICATE ......................................................................i
CORPORATE DISCLOSURE STATEMENT ........................................................vi
TABLE OF AUTHORITIES ....................................................................................ix
INTRODUCTION .....................................................................................................1
JURISDICTION ........................................................................................................4
ISSUE PRESENTED.................................................................................................4
STATEMENT............................................................................................................4
ARGUMENT ...........................................................................................................11
I. Absent Mandamus, No Other Means of Review is Available. ...................12
II. Proponents Will Be Irreparably Harmed Absent Immediate Review.........13
III. The District Court Clearly Erred as a Matter of Law..................................21
A. The Purported Revision of Local Rule 77-3 ............................................22
B. Ninth Circuit Judicial Council Policy ......................................................27
C. The Lack of Guidelines Governing the Pilot Program.............................28
D. Public Broadcast of the Trial in This Case Would Violate Proponents’
Due Process Right to a Fair Trial. ........................................................29
IV. The Question Presented Is One of First Impression but Is Capable of
Creating a Persistent Disregard of the Federal Rules. ................................30
vii
CONCLUSION........................................................................................................30
STATEMENT OF RELATED CASES...................................................................32
viii
TABLE OF AUTHORITIES
Cases
Chandler v. Florida, 449 U.S. 560 (1981)...............................................................30
Admiral Ins. Co. v. U.S. Dist. Court, 881 F.2d 1486 (9th Cir. 1989);.............. 12, 30
Bauman v. United States District Court, 557 F.2d 650 (9th Cir. 1977) ..................23
Estes v. Texas, 381 U.S. 532 (1965). .......................................................... 14, 29, 30
In re Cement Antitrust Litigation, 688 F.2d 1297 (9th Cir. 1982). ............ 12, 13, 16
In re Complaint Against District Judge Billy Joe McDade, No. 07-09-90083

(7th Cir. Sept. 28, 2009) .......................................................................................22
In re Imperial “400” Nat’l, Inc., 481 F.2d 41 (3d Cir. 1973) .................................28
In re McBryde, 117 F.3d 208 (5th Cir. 1997) ..........................................................28
In re Sony BMG Music Entertainment, 564 F.3d 1 (1st Cir. 2009)...... 13, 20, 21, 25
Jinro Am., Inc. v. Secure Inv., Inc., 266 F.3d 993 (9th Cir. 2001) ..........................30
Miner v. Atlass, 363 U.S. 641 (1960) ......................................................................24
NRDC v. Evans, 316 F.3d 904 (9th Cir. 2003) ................................................. 26, 27
Perry v. Schwarzenegger, No. 09-17241, slip op. at 15-16

(9th Cir. Jan. 4, 2010) .................................................................................... 12, 30
Petry v. Block, 737 F.2d 1193 (D.C. Cir. 1984) ......................................................24
Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479 (9th Cir. 1992)........................24
Russell v. Hug, 275 F.3d 812 (9th Cir. 2002) ..........................................................28
Star Editorial, Inc. v. United States District Court, 7 F.3d 856 (9th Cir. 1993) .....12
ix
United States v. Carr, 2006 U.S. Dist. LEXIS 74757 (E.D. Cal. 2006)…………26
United States v. Edwards, 785 F.2d 1293 (5th Cir. 1986).......................................20
United States v. Hastings, 695 F.2d 1278 (11th Cir. 1983).....................................21
United States v. Hernandez, 251 F.3d 1247 (9th Cir. 2001) ...................................23
United States v. Klubock, 832 F.2d 664 (1st Cir. 1987) .........................................25
United States v. Terry, 11 F.3d 110 (9th Cir. 1993) ................................................25
United States v. Yonkers Bd. of Education, 747 F.2d 111 (2d Cir. 1984) ...............21
Weil v. Neary, 278 U.S. 160, 169 (1929)………………………………………….21
Westmoreland v. Columbia Broadcasting System, Inc., 752 F.2d 16

(2d Cir. 1984) .......................................................................................................20
Statutes
5 U.S.C. § 553(b)(B)................................................................................................26
28 U.S.C. § 332(d)(1).......................................................................................... 2, 27
28 U.S.C. § 1651....................................................................................................1, 4
28 U.S.C. § 2071..................................................................................... 2, 22, 25, 26
28 U.S.C. § 2077(b) .......................................................................................... 23, 25
Rules
FED. R. APP. P. 21.......................................................................................................1
FED. R. CIV. P. 83(a)(1)..................................................................................... 22, 24
N.D. Cal. L.R. 77-3..................................................................................... 23, 27, 28
x
N.D. Cal L.R. 83-1...................................................................................................22
N.D. Cal L.R. 83-3(a) ..............................................................................................22
Constitutional Provisions
CAL. CONST. art. I, § 7.5.............................................................................................1

Other Authorities
Notes of Advisory Committee on 1985 Amendments to FED. R. CIV. P. 83...........24
Thomas M. Messner, The Price of Prop 8, Heritage Foundation, available at

www.heritage.org/Research/Family/bg2328.cfm.................................................17
www.youtube.com/usdccand...................................................................................11
http://www.youtube.com/watch?v=hcKJEHrvwDI.................................................17
xi
Pursuant to 28 U.S.C. § 1651, FED. R. APP. P. 21, and this Court’s Circuit
Rule 21, Petitioners respectfully petition for an emergency writ of mandamus or
prohibition barring the district court from broadcasting the trial in this case. With
trial set to begin Monday, January 11, 2010, an immediate writ of mandamus or
prohibition (or at least a temporary stay pending disposition of this petition, see
Cir. Advisory Comm. Note to Rules 21-1 to 21-4) is necessary to stop the irrepara-
ble harm that will flow from the unlawful broadcast of the trial proceedings.
INTRODUCTION
This petition arises in a case presenting a federal constitutional challenge to
a provision of the California Constitution (“Prop 8”), providing that “[o]nly mar-
riage between a man and a woman is valid or recognized in California.” CAL.
CONST. art. I, § 7.5. Although the case concerns a question of law that can be an-
swered solely by resort to controlling precedent and, if necessary, legislative facts,
the district court has ordered a full-scale, multi-week trial. Dozens of witnesses are
expected to testify on a range of topics related to the divisive issues of same-sex
marriage and sexual orientation in general. Yesterday, the district court formally
notified the parties that, subject to the approval of the Chief Judge of the Ninth
Circuit, the trial would be broadcast daily on YouTube several hours after the
completion of the day’s proceedings. See Notice to Parties (Jan. 7, 2010) (Ex. 1);
Tr. of Hr’g of Jan. 6, 2010 (Ex. 2) at 6, 46. Although there is no record that Chief
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Judge Kozinski has yet acted, Petitioners feel compelled to seek relief now to af-
ford this Court adequate time to rule before the trial begins Monday morning.1
The district court’s order is contrary to the long-established policy of the Ju-
dicial Conference of the United States—as well as the policies of both the Northern
District of California and the Ninth Circuit in effect at least until late December
2009. The district court issued the order pursuant to (i) a purported revision, made
on the eve of trial, to the district court’s Local Rule 77-3, which had previously
prohibited public broadcast, and (ii) a press release by the Ninth Circuit Judicial
Council announcing a “pilot program” permitting broadcasting of district court
proceedings within the Circuit. Both policies appear to have been changed with
great haste solely to ensure that this case would be publicly broadcast.
Congress has mandated that the public be afforded notice and the opportu-
nity to comment before a district court revises a local rule or a circuit judicial
council revises a practice or procedure. See 28 U.S.C. § 2071(b) & (c)(1); 28
U.S.C. § 332(d). Nonetheless, the Ninth Circuit Judicial Council’s announcement
failed entirely to comply with this statutory mandate, while the Northern District
first offered a belated, truncated opportunity to comment that foreclosed meaning-
ful consideration of the public’s views and then at the last minute shifted its ration-
ale in an attempt to take refuge in a statutory exception for rule changes prompted
1
Petitioners are simultaneously moving the district court to stay its order
pending disposition of this petition.
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by an “immediate need.” Neither process produced carefully considered or de-
tailed guidelines about how a pilot program allowing public broadcast will operate
or how it will address the many serious concerns this practice raises.
The questions of whether and how to publicly broadcast trial proceedings are
weighty and have for years been the subject of study, debate, proposed legislation,
and testimony from dozens of federal judges, including the justices of the Supreme
Court. For fifteen years the Judicial Conference of the United States has “consis-
tently” and repeatedly voiced its strong opposition because “camera coverage can
do irreparable harm to a citizen’s right to a fair and impartial trial.” Cameras in
the Courtroom: Hr’g Before the S. Comm. on the Judiciary, 109th Cong. (Nov. 9,
2005) (statement of Hon. Diarmuid O’Scannlain for the Judicial Conference of the
United States) (Ex. 3) (“Testimony of Judge O’Scannlain”) at 40; see also, e.g.,
Letter from James C. Duff (July 23, 2009) (Ex. 4) (“Duff Letter”) at 2.
Here, the district court, because it has before it a high-profile case, has de-
cided to short-circuit the national debate on this issue, to change its controlling
rules in a matter of days through a process that violates the letter and spirit of the
law, and to broadcast on YouTube a trial that has the potential to become a media
circus. It has done so without addressing the many concerns cited by the Judicial
Conference and the parties in this case.
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Indeed, the specific concerns underlying the Judicial Conference’s firm op-
position are present in spades here. The record is already replete with evidence
showing that any publicizing of support for Prop 8 has inevitably led to harass-
ment, economic reprisal, threats, and even physical violence. In this atmosphere,
witnesses are understandably quite distressed at the prospect of their testimony be-
ing broadcast worldwide on YouTube. Whatever truth there may be to the notion
that televising trials will better educate the public about the federal judiciary, “in-
creased public education cannot be allowed to interfere with the judiciary’s pri-
mary mission, which is to administer fair and impartial justice to individual liti-
gants in individual cases.” Testimony of Judge O’Scannlain, Ex. 3 at 48.
JURISDICTION
This Court has jurisdiction over this petition pursuant to 28 U.S.C. § 1651.
ISSUE PRESENTED
Whether the district court may broadcast the trial beyond the courthouse.
STATEMENT
Petitioners, a “primarily formed ballot committee” and the “official propo-
nents” of Prop 8 (“Proponents”), intervened to defend the amendment to Califor-
nia’s constitution because the State declined to do so. When they intervened in
June 2009, the long-standing policy of the Ninth Circuit Judicial Council flatly
prohibited public broadcast of district court proceedings. See Resolution of the
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Ninth Circuit Judicial Conference (July 2007) (Ex. 5). Likewise, the Northern Dis-
trict of California’s Local Rule 77-3 stated that “the taking of photographs, public
broadcasting or televising, or recording for those purposes in the courtroom or its
environs, in connection with any judicial proceeding, is prohibited.” See Ex. 6; see
also N.D. Cal. Gen. Order No. 58 (Ex. 7), ¶ III (adopting Judicial Conference’s
policy against broadcasting district court proceedings).
The Judicial Conference of the United States adopted its current policy in
1996. See JCUS-SEP 96, p. 54, available at www.uscourts.gov/judconf/96-
Sep.pdf. The policy is based upon the potentially negative impact that the public
broadcast of trial court proceedings could have on the administration of justice.
After an extensive, multi-year study of the issue by the Federal Judicial Center
(“FJC”), the Judicial Conference, in 1994, rejected proposals for public broadcast
of trial court proceedings. See JCUS-SEP 94, pp. 46-47, available at
www.uscourts.gov/judconf/94-Sep.pdf. “Based upon the data presented, a major-
ity of the Conference concluded that the intimidating effect of cameras on some
witnesses and jurors was cause for concern, and the Conference declined to … to
expand camera coverage in civil proceedings.” Id.
In July 2007, the Ninth Circuit Judicial Conference adopted a resolution rec-
ommending that the Judicial Conference of the United States change its policy to
permit the broadcast of civil, non-jury trials. See Ex. 6. The Ninth Circuit Judicial
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Conference also recommended that, “to the extent permitted by Judicial Confer-
ence [of the United States] procedures, this Circuit should adopt a Rule that would
allow the photographing, recording, and broadcasting of non-jury, civil proceed-
ings before the District Courts in the Ninth Circuit.” Id.
Despite these recommendations, the Ninth Circuit Judicial Council took no
action for nearly two years. In the interim, “[t]he Ninth Circuit Judicial Council
considered the resolution at a number of meetings following the 2007 Judicial
Conference but deferred action to await possible developments at the national lev-
el.” Letter from Cathy A. Catterson (May 7, 2009) (Ex. 8). Finally, in May 2009,
for reasons left unstated, the Ninth Circuit Judicial Council decided “that it is ap-
propriate to forward [to the United States Judicial Conference] the [2007] resolu-
tion now and ask that it [be] considered by [the Committee on Court Administra-
tion and Case Management] at its June meeting.” Id.
The Judicial Conference of the United States has not retreated from its pol-
icy against the broadcast of district court proceedings. Indeed, as recently as July
2009 the Judicial Conference forcefully reiterated to Congress its concern that
broadcasting would interfere with a fair trial. The Judicial Conference empha-
sized, inter alia, its considered judgment that “[t]elevision cameras can intimidate
litigants, witnesses, and jurors, many of whom have no direct connection to the
proceeding and are involved in it through no action of their own. Witnesses might
-6-
refuse to testify or alter their stories when they do testify if they fear retribution by
someone who may be watching the broadcast.” Duff Letter (Ex. 4) at 2.
On September 25, 2009, despite the local and national policies barring pub-
lic broadcast of proceedings in the Northern District, the district court informed the
parties that it had received inquiries about publicly broadcasting the trial and asked
the parties for their position. Tr. of Hr’g of Sept. 25, 2009 (Ex. 9) at 70. The court
acknowledged that “[t]here are, of course, Judicial Conference positions on this,”
but stated that “[t]his is all in flux.” Id. at 72. Plaintiffs, Plaintiff-Intervenors, and
the Attorney General (all of whom seek invalidation of Prop 8) stated their support
for publicly broadcasting the trial. See Doc. No. 215 (Ex.10). Proponents op-
posed, explaining that it would violate the United States Judicial Conference’s pol-
icy and would threaten the fairness of the trial. See Doc. No. 218 (Ex. 11).
Neither the Ninth Circuit Judicial Council, nor the Northern District as a
whole, nor the trial court in this case took any further public action with regard to
this issue between September 25 and December 16, the date of the final pretrial
conference. However, the presiding judge later informed the parties (on the eve of
trial) that he sat on a Judicial Council committee of three judges created by Chief
Judge Kozinski on October 22 “to evaluate the possibility of adopting a Ninth Cir-
cuit rule” regarding broadcast of district court proceedings, and he acknowledged
that this “case was very much in mind at that time because it had come to promi-
-7-
nence then and was thought to be an ideal candidate for consideration.” Tr. of
Hr’g of Jan. 6, 2009 (Ex. 2) at 43. Neither the parties nor the public received any
notice or opportunity to comment on this proposed policy change.
At the final pre-trial conference, the court announced that although public
broadcast was “not permitted” under “current Ninth Circuit policy and rules” or the
Northern District’s local rules, the Ninth Circuit Judicial Council was considering
implementation of a pilot program permitting broadcast of nonjury civil cases. Tr.
of Hr’g of Dec. 16, 2009, at 10 (Ex. 12). The court explained that its “understand-
ing [was] that a proposal to implement that is pending before the Judicial Council
of the Ninth Circuit, and may very well be enacted in the very near future,” though
the court did not yet “have a green light for it.” Id.
The next day, December 17, the Ninth Circuit Judicial Council issued a
“News Release” announcing it “ha[d] approved, on an experimental basis, the lim-
ited use of cameras in federal district courts within the circuit.” See Ex. 13. The
press release provided no details as to how the pilot program would be imple-
mented other than that “[c]ases to be considered for the pilot program will be se-
lected by the chief judge of the district court in consultation with the chief circuit
judge.” Id. No Circuit rule or order permitting the broadcast of trials has been no-
ticed, opened for public comment, or promulgated, nor has the Judicial Council is-
sued any policies or procedures to govern the pilot program.
-8-
On December 21, a coalition of media companies (the “Media Coalition”)
sought leave to televise the trial. Doc. No. 313. On December 23, the Northern
District of California posted on its website “public notice” that the court “has ap-
proved a revision of Civil Local Rule 77-3, effective December 22, 2009.” See Ex.
14 (screenshot of the webpage on Dec. 29, 2009). The purported amendment
carved out an exception to the ban on public broadcasting of proceedings, authoriz-
ing “a Judge or a Magistrate Judge with respect to his or her own chambers or as-
signed courtroom” to allow “the taking of photographs, public broadcasting or te-
levising, or recording for [the] purpose[]” of “participation in a pilot or other pro-
ject authorized by the Judicial Council of the Ninth Circuit.” Id.
On December 28 and 29, Proponents opposed the Media Coalition’s request,
explaining that any change in Ninth Circuit policy or local rules regarding broad-
cast of district court proceedings would require a sufficient public notice and
comment period. Doc. Nos. 324, 326 (Exs. 15 & 16). Proponents reiterated that
this case implicates the precise concerns that animated the Judicial Conference’s
policy against broadcast of district court proceedings. Doc. No. 324 at 6-7.
On December 30, the district court set a hearing for January 6, 2010, on the
issue of broadcasting the trial. Later that day, the court informed the parties that
“in light of the recent change to the Ninth Circuit Judicial Council’s policy regard-
ing cameras in district courts and the subsequent amendment of Civil LR 77-3 to
-9-
conform with Ninth Circuit policy, the court is considering seeking approval from
Chief Judge Kozinski to record or webcast the January 6 hearing.” Doc. 332 at 2.
The court ordered that any objections be filed by January 4. Id.
In the late afternoon on New Year’s Eve, the Northern District removed
from its website the posting announcing that it had “approved a revision of Civil
Local Rule 77-3, effective December 22, 2009.” In its place, the court put up an
announcement of a “proposed revision of Civil Local Rule 77-3,” which it had
“approved for public comment.” Ex. 17 (emphasis added). Any comments were
to be submitted by today, January 8, 2010. Id.
On January 4, 2010, Proponents objected to public broadcast of the January
6 hearing for the reasons previously stated. Doc. No. 336 (Ex. 18). Proponents al-
so explained that pursuant to the court’s New Year’s Eve announcement, it no
longer appeared that the purported amendment to Local Rule 77-3 was operative.
Id.
Later on January 4, the Northern District removed from its website the post-
ing announcing the “proposed” revision of Rule 77-3 and replaced it with a notice
announcing that the court had approved the revision “effective December 22,
2009.” Ex 19. The notice further stated that “[t]he revised rule was adopted pur-
suant to the ‘immediate need’ provision of Title 28 Section 2071(e).” Id.
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On January 6, the court held a hearing that was recorded on video over Pro-
ponents’ objections, for later posting on YouTube. See
www.youtube.com/usdccand. The court announced that the live broadcast of the
trial would go not only to the overflow courtroom in the courthouse, but also to
this Court’s San Francisco courthouse and courthouses in Seattle, Portland, Pasa-
dena, and Chicago. Tr. of Hr’g of Jan. 6, 2009 (Ex. 2) at 16-17. The court further
ruled that this case was appropriate for public broadcast and held that if Chief
Judge Kozinski approved, the trial would be recorded and broadcast beginning
Monday January 11, 2010. Id. at 46. A court technician explained to the parties
that proceedings would be recorded using three cameras and the resulting broad-
cast would then be uploaded for posting on YouTube, with a delay due to the web-
site’s processing requirements. Id. at 4, 6.
ARGUMENT
Five “guidelines aid this Court’s determination of whether mandamus relief
is appropriate in a given case: (1) whether the petitioner has no other means, such
as an appeal, to obtain the desired relief; (2) whether the petitioner will be dam-
aged or prejudiced in any way not correctable on appeal; (3) whether the district
court order is clearly erroneous as a matter of law; (4) whether the district court’s
order is an oft repeated error or manifests a persistent disregard of the federal rules;
and (5) whether the district court’s order raises new and important problems or is-
- 11 -
sues of first impression.” Perry v. Schwarzenegger, No. 09-17241, slip op. at 15-
16 (9th Cir. Jan. 4, 2010) (citing Bauman v. United States Dist. Ct., 557 F.2d 650
(9th Cir. 1977)). “Satisfaction of all five … is not required,” Admiral Ins. Co. v.
U.S. Dist. Ct., 881 F.2d 1486, 1491 (9th Cir. 1989); indeed, “it is unlikely that all
of the guidelines will be met in any one case, and the decision often requires bal-
ancing of conflicting factors,” Star Editorial, Inc. v. United States Dist. Ct., 7 F.3d
856, 859 (9th Cir. 1993). Moreover, where the Court is exercising its supervisory
or advisory mandamus authority, rigid adherence to these guidelines is not re-
quired. In re Cement Antitrust Litig., 688 F.2d 1297 (9th Cir. 1982).
I. Absent Mandamus, No Other Means of Review Is Available.
Appeal following an already televised trial cannot remedy the harm flowing
from the broadcast. Many of the likely adverse effects of broadcasting this trial—
harassment of witnesses, threats to the safety and security of trial participants, un-
necessary public exposure and ridicule of trial participants—cannot be corrected
on appeal. As Judge O’Scannlain explained to Congress in 2005 on behalf of the
Judicial Conference, “camera coverage can do irreparable harm to a citizen’s right
to a fair and impartial trial.” Ex. 3 at 40 (emphasis added).
Moreover, when, as here, the Court is called upon to exercise its “supervi-
sory authority to insure the proper and orderly administration of the federal judicial
system,” the Court is “concerned with far more than the injury to the[] particular
- 12 -
petitioners; [it is also] concerned … with the effect of the challenged order on the
operation of the courts.” Cement Antitrust, 688 F.2d at 1299, 1303. Thus, “as long
as petitioners have demonstrated that they will suffer an actual injury not correct-
able on appeal, they have satisfied … the injury requirement.” Id.
The First Circuit recently reaffirmed this insight, exercising its mandamus
jurisdiction to address the very same issue raised here: public broadcast of trial
court proceedings. See In re Sony BMG Music Entertainment, 564 F.3d 1 (1st Cir.
2009). The Sony court explained that immediate review through mandamus was
appropriate because the issue was “systemically important and rife with implica-
tions for the public interest” and thus merited “prompt and authoritative resolu-
tion.” Id. at 4. The same, of course, is true here. See Allowing Cameras and Elec-
tronic Media in the Courtroom, Hr’g Before the S. Judiciary Comm. (Sept. 6,
2000) (statement of Hon. Edward R. Becker for the Judicial Conference of the
United States) (“Testimony of Judge Becker”) (Ex. 21) at 1 (“The Judicial Confer-
ence maintains that camera coverage would have a notably adverse effect on court
proceedings.”).
II. Proponents Will Be Irreparably Harmed Absent Immediate Review.
As noted above, “decades of experience and study,” including the FJC study
of a multi-year, multi-district pilot program, have demonstrated a variety of harms
that arise from public broadcast of district court proceedings, leading the Judicial
- 13 -
Conference of the United States to “consistently” conclude “that camera coverage
can do irreparable harm to a citizen’s right to a fair and impartial trial.” Testimony
of Judge O’Scannlain (Ex. 3) at 40; Duff Letter (Ex. 4) at 1.2
(i) Effect on Witnesses. The Supreme Court has long recognized that “[t]he
impact upon a witness of the knowledge that he is being viewed by a vast audience
is simply incalculable.” Estes v. Texas, 381 U.S. 532, 547 (1965). The Estes
Court concisely summarized many of the potential adverse effects on witnesses:
Some may be demoralized and frightened, some cocky and given to

overstatement; memories may falter, as with anyone speaking pub-
licly, and accuracy of statement may be severely undermined. Em-
barrassment may impede the search for the truth, as may a natural ten-
dency toward overdramatization. Furthermore, inquisitive strangers
and “cranks” might approach witnesses on the street with jibes, ad-
vice or demands for explanation of testimony. There is little wonder
that the defendant cannot “prove” the existence of such factors. Yet
we all know from experience that they exist.
Id.; see also id. at 591 (Harlan, J., concurring).
2
See also Cameras in the Courtroom, The “Sunshine in the Courtroom Act
of 2007,” H.R. 2128, Hr’g Before the H. Judiciary Comm. (Sept. 27, 2007) (state-
ment of Hon. John R. Tunheim for the Judicial Conference of the United States)
(“camera coverage can do irreparable harm to a citizen’s right to a fair and impar-
tial trial”) (Ex. 20); Testimony of Judge Becker (Ex. 21) (public broadcast of dis-
trict court proceedings “can result in real and irreparable harm”). The United
States Department of Justice—the federal courts’ most frequent litigant—also op-
poses broadcasting district court proceedings. See, e.g., Cameras in the Court-
room, The “Sunshine in the Courtroom Act of 2007,” Hr. 2128, Hr’g Before the H.
Judiciary Comm. (Sept. 27, 2007) (statement of John C. Richter for the Dep’t of
Justice) (Ex. 22).
- 14 -
Although Estes involved a criminal trial, the Judicial Conference of the
United States has recognized that its insights apply equally to civil proceedings.
The FJC study of its three-year pilot program found, inter alia, that “64 percent of
the participating trial judges and 40 percent of the participating attorneys reported
that at least to some extent cameras make witnesses more nervous than they other-
wise would be” and that “46 percent of the trial judges believed that at least to
some extent cameras make witnesses less willing to appear in court.” Testimony
of Judge Becker (Ex. 21) at 1-2. Based on these results, the Judicial Conference
has repeatedly and consistently concluded that a witness “will often act differently
when he or she knows, or even believes that thousands of people are watching and
listening to the story.” Id.; see also Duff Ltr. (Ex. 4) at 2 (“the presence of cameras
in a trial court will encourage some participants to become more dramatic, to pon-
tificate about their personal views, to promote commercial interests to a national
audience, or to lengthen their appearance on camera”).
Most troubling, public broadcast “can intimidate … witnesses,” who might
“refuse to testify or alter their stories when they do testify if they fear retribution
by someone who may be watching the broadcast.” Duff Letter (Ex. 4) at 2; see al-
so Estes, 381 U.S. at 591 (Harlan, J., concurring) (“there is certainly a strong pos-
sibility that the timid or reluctant witness, for whom a court appearance even at its
traditional best is a harrowing affair, will become more timid or reluctant when he
- 15 -
finds that he will also be appearing before a ‘hidden audience’ of unknown but
large dimensions”); Testimony of Judge O’Scannlain (Ex. 3) at 44. Further, the
Judicial Conference has found these “disquieting” insights likely to be far more
pervasive and problematic in “truly high-profile cases,” like this one. Testimony
of Judge Becker (Ex. 21).3
Plaintiffs contended below that any concerns a particular witness might have
can be addressed by the district court’s discretion to bar public broadcast of spe-
cific testimony or “control the format and timing of all broadcast transmissions.”
Doc. 327 at 3. This argument fails for several reasons. First, any control the judge
exercises over the format and timing of the broadcast is illusory, for once the video
is released, it could easily be altered and disseminated widely by those with modest
technical skill and an agenda. Second, barring public broadcast of a particular wit-
ness, or blurring his or her face or voice, only serves to shine an even brighter spot-
light on that particular witness. As Judge Becker observed on behalf of the Judi-
cial Conference, “[p]roviding [a witness] with the choice whether to testify in the
open or blur their image and voice would be cold comfort indeed.” Ex. 21 at 2.
Third, Plaintiffs’ contention ignores that the effect of public broadcast is a two-
edged sword: some witnesses will shy away from cameras, others will crave the
3
The Judicial Conference has also repeatedly expressed concerns about the
effect of public broadcast on witness privacy. See Testimony of Judge
O’Scannlain (Ex. 3) at 54-55; Testimony of Judge Becker (Ex. 21) at 8-9; Duff
Letter (Ex. 4) at 2.
- 16 -
spotlight and shade their testimony for dramatic effect. A trial judge cannot de-
termine in advance whether a witness will fall into this latter category. Finally,
Judge Becker explained that a district court’s discretion is no certain salve for the
wounds of public broadcast, for they often arise unexpectedly. “Federal judges are
not clairvoyants”; one never knows “what is going to happen in a trial.” Id.
In this case, these concerns are not just hypothetical. All of Proponents’ wit-
nesses have expressed concern over the potential public broadcast of trial proceed-
ings, and some have stated that they will refuse to testify if the district court goes
forward with its plan. Their distress is not unreasonable, as the record reflects re-
peated harassment of Prop 8 supporters. See Doc. Nos. 187-1; 187-2 at ¶¶ 10-12;
187-9 at ¶¶ 6-8; 187-9 at 12-15; 187-11; 187-12 at ¶¶ 5-6; 187-13 at ¶ 8; see also
Thomas M. Messner, The Price of Prop 8, available at www.heritage.org/
Research/Family/bg2328.cfm; www.youtube.com/watch?v=hcKJEHrvwDI (do-
cumenting instance of harassment). This campaign of harassment and reprisal has
often been “targeted and coordinated,” Messner, supra, and the retaliation has of-
ten been quite serious. See, e.g., Doc No. 187-11 at 81 (Brad Stone, Disclosure,
Magnified on the Web, N.Y. TIMES (Feb. 8, 2009) (“Some donors to groups sup-
porting the measure have received death threats and envelopes containing a pow-
dery white substance ….”). Broadcasting the trial would vastly increase the likeli-
hood that trial participants would face similar experiences.
- 17 -
Broadcasting this trial would also impinge upon the privacy interests of wit-
nesses, “some of whom are only tangentially related to the case, but about whom
very personal and identifying information might be revealed.” Duff Letter (Ex. 4)
at 2. Already, one website “takes the names and ZIP codes of people who donated
to the ballot measure … and overlays the data on a Google map.” Doc No. 187-11
at 81. Another website published the name, hometown, home phone numbers,
workplace, workplace contact information, and pictures of Prop 8 supporters so
that “whenever someone Googles them this [website] will come up.” Id. at 55, 62,
65-66, 73, 77.
(ii) Effect on Attorneys. The FJC study revealed that “twenty-seven percent
of the attorneys reported that the cameras distracted them.” Testimony of Judge
Becker (Ex. 21) at 2. And “[f]ifty-six percent of the appellate judges found that, to
some extent or greater, cameras cause attorneys to change the emphasis or content
of their oral arguments.” Id. Many judges also concluded that “cameras caused
attorneys to be more theatrical in their presentations.” Id. As Judge O’Scannlain
explained to Congress, “[c]ameras provide a very strong temptation for … attor-
neys … to try their cases in the court of public opinion rather than in a court of
law.” Ex. 3 at 52; see also Duff Letter (Ex. 4) at 2.
(iii) Effect on Judges. The Judicial Conference has also cited “disturbing re-
ports about the effect of … cameras on judges,” with “[n]ine percent of … trial
- 18 -
judges report[ing] that at least to some extent the cameras caused judges to avoid
unpopular decisions or positions.” Testimony of Judge Becker (Ex. 21) at 2. And
“34 percent [of appellate judges] reported that at least to some extent cameras
cause judges to change the emphasis or content of their questions at oral argu-
ment.” Id. And these are judges who self-reported their views.
(iv) Security Concerns. The Judicial Conference has repeatedly stressed:
[T]he presence of cameras in a trial courtroom … increases security

and safety issues. Broadcasting the images of judges and court em-
ployees, such as court reporters, courtroom deputies, and law clerks,
makes them more easily identified as targets by those who would at-
tempt to influence the outcome of the matter or exact retribution for
an unpopular court ruling. Threats against judges, lawyers, and other
participants could increase even beyond the current disturbing level.
Cameras create similar security concerns for law enforcement per-
sonnel present in the courtroom, including U.S. marshals and U.S. at-
torneys and their staffs.
Duff Letter (Ex. 4) at 3; see also Testimony of Judge O’Scannlain (Ex. 3) at 52-53.
Security is particularly important today, as annual “[t]hreats against federal judges,
U.S. Attorneys, Assistant U.S. Attorneys ..., and other court officials ... have more
than doubled during the past several years, increasing from 592 in fiscal year (FY)
2003 to 1,278 in FY 2008.” U.S. Dep’t of Justice, Office of the Inspector General,
Review of the Protection of the Judiciary and the United States Attorneys (Ex. 23)
at 1 (Dec. 2009).
* * *
- 19 -
Finally, as Judge Becker explained, all of these concerns arose just from a
study of low-profile cases. He warned that in “truly high-profile cases” one can
“[j]ust imagine what the findings would be.” Ex. 21 at 2.
Plaintiffs discount all of the Judicial Conference’s concerns, claiming that
the First Amendment grants a right to public broadcast of this trial. See Doc Nos.
327, 334. This contention is without foundation. As Judge O’Scannlain explained,
“increased public education cannot be allowed to interfere with the judiciary’s
primary mission, which is to administer fair and impartial justice to individual liti-
gants in individual cases.” Ex. 3 at 48. And “today, as in the past, federal court
proceedings are open to the public; however, nothing in the First Amendment re-
quires televised trials.” Id. at 57. Judge O’Scannlain noted that Estes, Westmore-
land v. Columbia Broadcasting System, Inc., 752 F.2d 16 (2d Cir. 1984), and Unit-
ed States v. Edwards, 785 F.2d 1293 (5th Cir. 1986), all “forcefully make the point
that, while all trials are public, there is no constitutional right of media to broadcast
federal district court or appellate court proceedings.” Id. at 57-59. And just last
year, the First Circuit rebuffed this very argument when made by broadcasters in
another case that elicited significant public interest. See Sony, 564 F.3d at 8-9
(“the venerable right of members of the public to attend federal court proceedings
is far removed from an imagined entitlement to view court proceedings remotely
on a computer screen”).
- 20 -
III. The District Court Clearly Erred as a Matter of Law.
At the December 16, 2009, pretrial conference, the district court correctly
acknowledged that it lacked authority to permit public broadcast of the trial in this
case. See Tr. of Hr’g of Dec. 16, 2009 (Ex. 12) at 10. Local Rule 77-3 unambigu-
ously prohibited it, as did the policy of the Ninth Circuit Judicial Council and the
Judicial Conference of the United States. Local Rule 77-3 “has the force of law,”
Weil v. Neary, 278 U.S. 160, 169 (1929), and therefore bound the trial court. See,
e.g., United States v. Yonkers Bd. of Educ., 747 F.2d 111, 112 (2d Cir. 1984) (dis-
trict judge bound by local rule prohibiting recording of proceedings); United States
v. Hastings, 695 F.2d 1278, 1279 nn.4-5 (11th Cir. 1983) (same).
In similar circumstances, the First Circuit recently issued a writ of manda-
mus overturning an order permitting a webcast of a trial. See Sony, 564 F.3d 1.
Although a local rule barred the broadcast, see id. at 10, the trial court had sought
to read into the rule discretionary authority to allow it. Declaring that “the Judicial
Conference’s unequivocal stance against the broadcasting of civil proceedings …
is entitled to substantial weight,” the First Circuit held the trial court lacked discre-
tion to broadcast the trial. Id. at 7. The court of appeals emphasized “ ‘that the in-
timidating effect of cameras’ in the courtroom presented ‘cause for concern.’ ” Id.;
see also In re Complaint Against District Judge Billy Joe McDade, No. 07-09-
90083 (7th Cir. Sept. 28, 2009) (Easterbrook, C.J.) (district judge “engaged in con-
- 21 -
duct prejudicial to the effective and expeditious administration of the business of
the courts” by permitting broadcast of civil trial contrary to local rule and policies
of Judicial Conference and Seventh Circuit Judicial Council).
The district court thus rests its order permitting public broadcast of the up-
coming trial entirely upon the revision to Local Rule 77-3 promulgated on January
4 and the Circuit Judicial Council’s December 17 press release announcing the pi-
lot program. But neither policy change was made with statutorily required public
notice and opportunity for comment and thus neither authorized the district court’s
order. Moreover, the district court’s order violates Proponents’ due process rights.
A. The Purported Revision of Local Rule 77-3
Federal district courts have the power to promulgate local rules and to
amend those rules, but “[a]ny rule prescribed by a court, other than the Supreme
Court, … shall be prescribed only after giving appropriate public notice and an op-
portunity for comment.” 28 U.S.C. § 2071(b); see also FED. R. CIV. P. 83(a)(1)
(district court may amend rules only “[a]fter giving public notice and an opportu-
nity for comment”); N.D. Cal L.R. 83-3(a) (“Before becoming effective, any pro-
posed substantive modification of the local rules shall be subject to public com-
ment ….”); United States v. Hernandez, 251 F.3d 1247, 1251 (9th Cir. 2001).4
4
Before prescribing a local rule, a district court must also “appoint an advi-
sory committee for the study of the rules of practice … of such court.” 28 U.S.C.
§ 2077(b); see also Local Rule 83-1 (“Any proposed substantive modification or
- 22 -
On December 23, 2009, the Northern District announced on its website that
it had revised Local Rule 77-3, effective December 22. See Ex. 14; Doc. No. 332
(order of Dec. 30, 2009) (recognizing the “recent … amendment of Civil LR 77-
3”). However, after Proponents objected to the lack of prior public notice and op-
portunity for comment, see Doc. Nos. 324, 326, the district court, late in the day on
New Year’s Eve, removed from its website the notice of the completed revision
and substituted a notice of “proposed” revision. Exs. 15 & 16. The notice stated
that a comment period would be open through Friday, January 8, 2010—a total of
five business days following the New Year’s holiday weekend for interested per-
sons to submit comments on the proposed revision to Local Rule 77-3.
On January 4, 2010, the district court again revised its posting, this time re-
moving the “proposed” revision to Local Rule 77-3 and substituting a notice stat-
ing that the revision had been “adopted” effective December 22, 2009. See Ex. 19.
The notice stated that the “[t]he revised rule was adopted pursuant to the ‘immedi-
ate need’ provision of Title 28 Section 2071(e).” Id.
This haphazard process does not come close to satisfying the statutory re-
quirement of appropriate advance public notice and an opportunity for comment.
Cf. Miner v. Atlass, 363 U.S. 641, 650 (1960) (procedure for promulgating federal
civil rules is “designed to insure that basic procedural innovations shall be intro-
amendment of these local rules must be submitted to a Local Rules Advisory

Committee for its review ….”).
- 23 -
duced only after mature consideration of informed opinion from all relevant quar-
ters, with all the opportunities for comprehensive and integrated treatment which
such consideration affords”). Courts ordinarily allow at least 30 days for comment
on a proposed local rule.5 That conforms to the agency practice under the Admin-
istrative Procedure Act, which was intended to guide judicial rulemaking. See
Notes of Advisory Committee on 1985 Amendments to FED. R. CIV. P. 83. Agen-
cies “usually” provide a comment period of “thirty days or more.” Riverbend
Farms, Inc. v. Madigan, 958 F.2d 1479, 1484 (9th Cir. 1992); see also Petry v.
Block, 737 F.2d 1193, 1201 (D.C. Cir. 1984) (Administrative Conference suggests
60 days, and concludes that “the shortest period in which parties can meaningfully
review a proposed rule and file informed responses is thirty days”) (quotation
marks omitted).
The five business days commencing on New Year’s Eve afforded by the
Northern District for comment was therefore patently inadequate—especially for
an issue that the Judiciary and Congress have spent years debating. It is doubtful
that many interested persons will have become aware of the New Year’s Eve no-
tice before the comment period expires today. And given the haste and determina-
tion with which the district court has sought to revise the local rule—an effort that,
5
See, e.g., United States Court of Appeals for the Ninth Circuit, Opportunity
for Comment – Rules Governing Judicial Misconduct Complaints (Dec. 21, 2009)
(30-day comment period) (Ex. 24).
- 24 -
as discussed below, reached its zenith when the court implemented the revision
even before the truncated comment period had ended—it appears no serious con-
sideration would have been or will be given to the views of the commenters who
manage to meet the deadline. Especially given the seismic shift in policy effected
by the revision—contravening the long-established policy of the Judicial Confer-
ence of the United States based on the fear that broadcasting would deprive liti-
gants of a fair trial (which policy is “at the very least entitled to respectful consid-
eration,” Sony, 564 F.3d at 6)—this process was woefully inadequate.
A local rule adopted without appropriate notice and a meaningful opportu-
nity for comment is invalid and unenforceable. United States v. Terry, 11 F.3d
at110, 113 (9th Cir. 1993); see also United States v. Klubock, 832 F.2d 664, 671-
75 (1st Cir. 1987) (Breyer, J., dissenting) (local rule “is too important, its ramifica-
tions too complex, its contours too uncertain” to be adopted without “ ‘appropriate
public notice and an opportunity to comment’ ”).
Finally, the district court’s last-minute invocation of the “immediate need”
exception to the notice and comment mandate, see 28 U.S.C. § 2071(e), does not
save the revision. There is little case law applying the § 2071(e) “immediate need”
exception, cf. United States v. Carr, 2006 U.S. Dist. LEXIS 74757, at *3-7 (E.D.
Cal. 2006) (invoking § 2071(e) “immediate need” exception to promulgate rule re-
quiring criminal defendants to be fully shackled at initial appearances in light of
- 25 -
recent history of threats against judges and other court personnel and participants),
but the APA again provides useful guidance. An agency may dispense with the
comment period “when [it] for good cause finds (and incorporates the finding and
a brief statement of reasons therefor in the rules issued) that notice and public pro-
cedure thereon are impracticable, unnecessary, or contrary to the public interest.”
5 U.S.C. § 553(b)(B). Courts “construe” the APA’s exception “narrowly”; “notice
and comment procedures should be waived only when delay would do real harm.”
NRDC v. Evans, 316 F.3d 904, 911 (9th Cir. 2003) (quotation marks omitted).
The district court failed to provide any statement of its reasons for invoking
the immediate-need exception here. The Circuit Judicial Council took two years to
act on its 2007 resolution in favor of allowing cameras in district courtrooms, and
none of the other fourteen district courts in this Circuit has yet taken any public ac-
tion to implement the pilot program. As the timeline of events detailed above sug-
gests, the only conceivable “immediate need” was to amend the local rule in time
to publicly broadcast this case. In reality, this is not an instance in which a particu-
lar case has been selected for televising under a pilot program; it is an instance of a
pilot program being created for televising a particular case. No harm could result
from delaying the amendment in order to receive and consider comments. The
court has an unending stream of cases from which to find a suitable guinea pig.
Certainly, such delay would not preclude the court from “execut[ing] its … du-
- 26 -
ties.” NRDC, 316 F.3d at 911. On the contrary, as explained above, the district
court’s precipitate amendment of Local Rule 77-3 so that it could broadcast this
controversial case threatens to harm Defendant-Intervenors by interfering with “the
judiciary’s primary mission, which is to administer fair and impartial justice to in-
dividual litigants in individual cases.” Testimony of Judge O’Scannlain, Ex. 3 at
48.
B. Ninth Circuit Judicial Council Policy
Even if the revision to Local Rule 77-3 were otherwise valid, it could not au-
thorize the public broadcast of district court proceedings because the Ninth Circuit
Judicial Council has not validly authorized such broadcasts as yet. The court be-
low clearly erred by concluding that the December 17 press release constituted a
valid revision of Judicial Council policy.
Congress has authorized the Council to “make all necessary and appropriate
orders for the effective and expeditious administration of justice within” the Ninth
Circuit. 28 U.S.C. § 332(d)(1). But “[a]ny general order relating to practice and
procedure shall be made or amended only after giving appropriate public notice
and an opportunity for comment.” Id. (emphasis added). This notice and comment
procedure is a “check” placed by Congress on “the delegation of power to [the
Council] under § 332(d)(1).” Russell v. Hug, 275 F.3d 812, 818 (9th Cir. 2002).
- 27 -
Other than the December 17 press release announcing the Council’s vote in
favor of a pilot program permitting public broadcast, the Council has not issued
anything formally revising its 1996 policy prohibiting the public broadcast of civil
trials—no general order, rule, or other official statement of policy. Standing alone,
the Circuit Council’s vote and subsequent press release do not represent a valid
amendment of the 1996 policy and that policy remains in effect.
The invalidity of the Council’s action renders the district court’s order inva-
lid, for it means that the 1996 Judicial Council policy remains in place and is bind-
ing on the trial court. This Court can correct the error through exercise of its man-
damus jurisdiction. See In re McBryde, 117 F.3d 208, 221-22 (5th Cir. 1997); In
re Imperial “400” Nat’l, Inc., 481 F.2d 41, 42 (3d Cir. 1973). Moreover, the inva-
lidity of the Council’s purported revision also renders the district court’s order in-
valid under the direct terms of revised Local Rule 77-3 (assuming arguendo that
the revision was valid). If the Council has not validly launched a pilot or other
program, then the new exception in revised Local Rule 77-3 does not apply.
C. The Lack of Guidelines Governing the Pilot Program
In light of the significant concerns raised by the Judicial Conference regard-
ing public broadcast of district court proceedings and the lengthy guidelines that
govern broadcast of Ninth Circuit proceedings, it is highly problematic that neither
the Northern District nor the Circuit Judicial Council has promulgated or even no-
- 28 -
ticed any rules or guidelines to govern the pilot program. See Estes, 381 U.S. at
537, 551 (holding that public broadcast of a trial violated due process where “the
rules governing live telecasting … were changed as the exigencies of the situation
seemed to require” and the “day-to-day orders made the trial more confusing to …
the participants”). Even if the per se objections to public broadcast are to be ig-
nored, such guidelines are needed to regulate the trial court’s discretion in selecting
cases for broadcast and placing restrictions on broadcasts. At a minimum, such
regulations should provide that public broadcast should be permitted only if all
parties and all witnesses consent.
D. Public Broadcast of the Trial in This Case Would

Violate Proponents’ Due Process Right to a Fair Trial.
Public broadcast of this trial would violate Proponents’ due process right to
a fair trial. In Estes, the Supreme Court held that “the atmosphere essential to the
preservation of a fair trial—the most fundamental of all freedoms—must be main-
tained at all costs.” 381 U.S. at 540.6 There, the Court found public broadcast of a
trial violated “the basic requirement of due process”—a “fair trial”—because, inter
alia, public broadcast might have (i) “impaired” the “quality of the testimony,” (ii)
affected the responsibilities and demeanor of the judge, and (iii) created “mental—
if not physical—harassment” of the defendant. Id. at 543, 547, 549 (quotation
6
Estes involved a criminal trial, but civil litigants have no less of a Fifth
Amendment due process right to a fair trial. See, e.g., Jinro Am., Inc. v. Secure
Inv., Inc., 266 F.3d 993, 1007 (9th Cir. 2001).
- 29 -
marks omitted). In this high-profile, highly contentious case, the potential for all
these harms and many more is great. Thus, Proponents respectfully submit that in
the specific circumstances presented here, public broadcast would violate their due
process rights to a fair and impartial trial.7
IV. The Question Presented Is One of First Impression but Is

Capable of Creating a Persistent Disregard of the Federal Rules.
The district court’s broadcast order clearly presents “new and important
[questions] of first impression.” Perry, slip op. at 16. The fifth Bauman factor is
thus satisfied. The fourth Bauman factor—whether the district court’s order is an
oft-repeated error, or manifests a persistent disregard of the federal rules—need
not, and usually cannot, be met where the fifth factor is present. Admiral, 881 F.2d
at 1491. The order is nonetheless capable of creating such disregard.
CONCLUSION
For the foregoing reasons, this Court should issue a writ of mandamus or
prohibition barring the district court from broadcasting the trial in this case. To the
extent the Court requires additional time to consider the merits of this Petition, we
respectfully request that it issue a temporary stay to prevent the broadcast of trial
proceedings on Monday, January 11.
7
In Chandler v. Florida, the Supreme Court held that Estes did not an-
nounce a per se due process ban on public broadcast, but left open an as-applied
due process challenge in an appropriate case. 449 U.S. 560, 573, 582 (1981).
- 30 -
DECLARATION OF SERVICE
I hereby certify that on the 8th day of January, 2010, I caused to be served on the
following counsel a true and correct copy of the foregoing via FedEx Express:
Kenneth C. Mennemeier Gordon Burns

Andrew W. Stroud Tamar Pachter
MENNEMEIER, GLASSMAN & OFFICE OF THE ATTORNEY
STROUD LLP GENERAL
980 9th Street, Suite 1700 1300 I Street, Suite 125
Sacramento, CA 95814-2736 P.O Box. 944255
kcm@mgslaw.com Sacramento, CA 94244-2550
gosling@mgslaw.com Gordon.Burns@doj.ca.gov
aknight@mgslaw.com Tamar.Pachter@doj.ca.gov
stroud@mgslaw.com
lbailey@mgslaw.com Attorneys for Defendant Attorney
General
Attorneys for the Administration Defen- Edmund G. Brown, Jr.
dants
Dennis J. Herrera Elizabeth M. Cortez

Therese M. Stewart Judy W. Whitehurts
OFFICE OF THE CITY ATTORNEY THE OFFICE OF CITY COUNSEL
City Hall, Room 234 648 Kenneth Hahn Hall of Admini-
One Dr. Carlon B. Goodlett Place stration
San Francisco, California 94102-4682 500 West Temple Street
therese.stewart@sfgov.org Los Angeles, CA 90012-2713
erin.bernstein@sfgov.org jwhitehurst@counsel.lacounty.gov
vince.chhabria@sfgov.org
danny.chou@sfgov.org Attorneys for Defendant Dean C. Lo-
ronald.flynn@sfgov.org gan
mollie.lee@sfgov.org Registrar-Recorder/County Clerk,
Christine.van.aken@sfgov.org County
catheryn.daly@sfgov.org of Los Angeles
Attorneys for Plaintiff-Intervenor City

and County of San Francisco
Richard E Winnie Ted Olson

Brian E. Washington Matthew McGill
Claude F. Kolm Amir Tayrani
Manuel F. Martinez GIBSON, DUNN & CRUTCHER
THE OFFICE OF CITY COUNSEL LLP
1221 Oak Street, Suite 450 1050 Connecticut Avenue, N.W.
Oakland, California 94612 Washington, DC 20036-5306
Brian.washington@acgov.org T: (202) 955-8500
Claude.kolm@acgov.org F: (202) 467-0539
Lindsey.stern@acgov.org TOlson@gibsondunn.com
Judith.martinez@acgov.org MMcGill@gibsondunn.com
ATayrani@gibsondunn.com
Attorneys for Defendant Patrick
O’Connell Theodore Boustrous, Jr.
Clerk Recorder of the County of Alemeda Christopher Dusseault
Theane Kapur
GIBSON, DUNN & CRUTCHER
LLP
333 South Grand Avenue
Los Angeles, CA 90072-1512
T: (213) 229-7000
F: (213) 229-7520
TBoutrous@gibsondunn.com
CDusseault@gibsondunn.com
TKapur@gibsondunn.com
SMalzahn@gibsondunn.com
Ethan Dettmer
Enrique Monagas
LLP
555 Mission Street, Suite 3000
San Francisco, CA 94105
T: (415) 393-8200
F: (415) 393-8306
EDettmer@gibsondunn.com
SPiepmeier@gibsondunn.com
EMonagas@gibsondunn.com
RJustice@gibsondunn.com
MJanky@gibsondunn.com
Theodore Uno
BOIES, SCHILLER & FLEXNER
LLP
1999 Harrison Street, Suite 900
Oakland, CA 94612
T: (510) 874-1000
F: (510) 874-1460
jgoldman@bsfllp.com
tuno@bsfllp.com
brichardson@bsfllp.com
rbettan@bsfllp.com
jischiller@bsfllp.com
Attorneys for Plaintiff Kristin M.

Perry
following counsel a true and correct copy of the foregoing via United States
Postal Service express mail overnight delivery:
Terry L. Thompson
LAW OFFICE OF TERRY L. THOMPSON
P.O. Box 1346
Alamo, CA 94507
T: (925) 855-1507
F: (925) 820-6035
tl_thompson@earthlink.net
Attorney for Defendant-Intervenor Hak-ShingWilliam Tam

s/Jesse Panuccio
Jesse Panuccio
UNITED STATES COURT OF APPEALS for the NINTH CIRCUIT
Office of the Clerk
After Opening a Case – Counseled Cases

(December 2009)
Court Address – San Francisco Headquarters
Mailing Address for Mailing Address for Street Address

U.S. Postal Service Overnight Delivery
(FedEx, UPS, etc.)
Office of the Clerk Office of the Clerk 95 Seventh Street
James R. Browning James R. Browning San Francisco, CA
Courthouse Courthouse 94103
U.S. Court of Appeals U.S. Court of Appeals
P.O. Box 193939 95 Seventh Street
San Francisco, CA San Francisco, CA
94119-3939 94103-1526
Court Addresses – Divisional Courthouses
Pasadena Portland Seattle

Richard H. Chambers Pioneer Courthouse William K. Nakamura
Courthouse 700 SW 6th Ave, Ste 110 Courthouse
125 South Grand Avenue Portland, OR 97204 1010 Fifth Avenue
Pasadena, CA 91105 Seattle, WA 98104
Court Website – www.ca9.uscourts.gov
The Court’s website contains the Court’s Rules and General Orders, information
about electronic filing of documents, answers to frequently asked questions,
directions to the courthouses, forms necessary to gain admission to the bar of the
Court, opinions and memoranda, recordings of oral arguments, links to practice
manuals, and an invitation to join our Pro Bono Program.
Court Phone List

Main Phone Number. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-8000
14-day Telephone Extension for Briefs
Northern & Eastern California, Hawaii,
Arizona, Nevada, Guam,
Northern Mariana Islands (San Francisco) .. . . . . . . . . . . . . . (415) 355-7853
Central & Southern California (Pasadena). . . . . . . . . . . . . . . . . (626) 229-7261
Eastern & Western Washington, Idaho,
Montana, Oregon, Alaska (Seattle). . . . . . . . . . . . . . . . . . . . . (206) 224-2210
Attorney Admissions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-7800
Calendar Unit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-8190
CJA Matters (Operations Unit) . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-7920
Docketing. . . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-7830 or (415) 355-7840
Death Penalty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-8197
Electronic Filing – Appellate ECF.. . . . . . . . . . . . . . . . . . . . . . . . . Send email to
cmecf_ca9help@ca9.uscourts.gov
Library. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-8650
Mediation Unit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-7900
Motions Attorney Unit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-8020
Procedural Motions Unit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-7860
Records Unit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (415) 355-7820
Divisional Court Offices:
Pasadena.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (626) 229-7250
Portland. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (503) 833-5300
Seattle.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (206) 224-2200
After Opening a Case – Counseled Appeals Page 2

Electronic Case Filing
The Ninth Circuit’s Appellate ECF (Electronic Case Files) system is mandatory for
all attorneys filing in the Court, unless they are granted an exemption. All
non-exempted attorneys who appear in an ongoing case are required to register for
and to use the Appellate ECF system. Registration and information about ECF is
available on the Court’s website at www.ca9.uscourts.gov under Electronic
Filing–ECF. Read the Circuit Rules, especially Ninth Circuit Rule 25-5, for
guidance on Appellate ECF, including which documents can and cannot be filed
electronically.
Rules of Practice
The Federal Rules of Appellate Procedure (Fed. R. App. P.), the Ninth Circuit
Rules (9th Cir. R.) and the General Orders govern practice before this Court. The
rules are available on the Court’s website at www.ca9.uscourts.gov under Rules.
Practice Resources
The Court has prepared a practice guide video entitled Perfecting Your Appeal.
The video may be viewed for free on the Court’s website at www.ca9.uscourts.gov
under FAQs, Forms and Instructions -> Guides and Legal Outlines, and may be
purchased through the Clerk’s office in San Francisco for $15.00. Continuing
legal education credit for viewing this videotape is available in most jurisdictions.
Admission to the Bar of the Ninth Circuit
All attorneys practicing before the Court must be admitted to the Bar of the Ninth
Circuit. Fed. R. App. P. 46(a); 9th Cir. R. 46-1.1 & 46-1.2.
To apply for admission, obtain an application (on the Court’s website at

www.ca9.uscourts.gov under Forms or by calling (415) 355-7800) and submit it to
the Clerk’s Office in San Francisco with the admission fee of $190.00. Make
checks payable to Clerk, U.S. Court of Appeals. It takes 4 to 6 weeks to receive a
certificate of admission.

Notice of Change of Address
Counsel who are registered for Appellate ECF must update their personal
information, including street addresses and/or email addresses, online at:
https://pacer.psc.uscourts.gov/psco/cgi-bin/cmecf/ea-login.pl 9th Cir. R. 46-3.
Counsel who have been granted an exemption from using Appellate ECF must file
a written change of address with the Court. 9th Cir. R. 46-3.
Motions Practice
Following are some of the basic points of motion practice, governed by Fed. R.
App. P. 27 and 9th Cir. R. 27-1 through 27-13.
• Neither a notice of motion nor a proposed order is required. Fed. R. App. P.

27(a)(2)(C)(ii), (iii).
• Motions may be supported by an affidavit or declaration. 28 U.S.C. § 1746.
• Each motion should provide the position of the opposing party. Circuit
Advisory Committee Note to Rule 27-1(5); 9th Cir. R. 31-2.2(b)(6).
• A response to a motion is due 10 days from the service of the motion. Fed.
R. App. P. 27(a)(3)(A). The reply is due 7 days from service of the
response. Fed. R. App. P. 27(a)(4); Fed. R. App. P. 26(c).
• A response requesting affirmative relief and/or relief by a date certain must
include that request in the caption. Fed. R. App. P. 27(a)(3)(B).
• A motion filed after a case has been scheduled for oral argument, has been
argued, is under submission or has been decided by a panel, must include on
the initial page and/or cover the date of argument, submission or decision
and, if known, the names of the judges on the panel. 9th Cir. R. 25-4.
Emergency or Urgent Motions
All emergency and urgent motions must conform with the provisions of 9th Cir. R.
27-3. Note that a motion requesting procedural relief (e.g., an extension of time to
file a brief) is not the type of matter contemplated by 9th Cir. R. 27-3. Circuit
Advisory Committee Note to 27-3(3).
Prior to filing an emergency motion, the moving party must contact an attorney in
the Motions Unit in San Francisco at (415) 355-8020.

When it is absolutely necessary to notify the Court of an emergency outside of

standard office hours, the moving party shall call (415) 355-8000. Keep in mind
that this line is for true emergencies that cannot wait until the next business day
(e.g., an imminent execution or removal from the United States).
Briefing Schedule
The Court issues the briefing schedule at the time the appeal is docketed.
Certain motions (e.g., a motion for dismissal) automatically stay the briefing
schedule. 9th Cir. R. 27-11.
The opening and answering brief due dates (and any other deadline set for a
date certain by the Court) are not subject to the additional time described in Fed. R.
App. P. 26(c). The early filing of appellant’s opening brief does not advance the
due date for appellee’s answering brief. 9th Cir. R. 31-2.1.
Extensions of Time to file a Brief
A party may seek either an oral or written extension of time.
Oral Extension
If good cause is shown, the clerk may grant a single extension of no more than 14
days to file an opening, answering or reply brief. 9th Cir. R. 31-2.2(a). You must
inform opposing counsel of your plan to request an extension of time before
contacting the clerk. If an oral extension is granted, the moving party will not
receive any further extensions of time unless the moving party can demonstrate
extraordinary circumstances. You may apply for an oral extension by calling:
• Northern & Eastern California, Hawaii, Guam, Arizona, Northern Mariana

Islands, Nevada: (415) 355-7853
• Central & Southern California: (626) 229-7261
• Eastern & Western Washington, Idaho, Montana, Oregon, Alaska:
(206) 224-2210
Written Extension
Requests for extensions of more than 14 days will be granted only upon a written
motion supported by a showing of diligence and substantial need. This motion

shall be filed at least 7 days before the due date for the brief. The motion shall be
accompanied by an affidavit or declaration that includes all of the information
listed at 9th Cir. R. 31-2.2(b).
The Court will ordinarily adjust the schedule in response to an initial motion.
Circuit Advisory Committee Note to Rule 31-2.2. The Court expects that the brief
will be filed within the requested period of time. Id.
Contents of Briefs
The required components of a brief are set out at Fed. R. App. P. 28 and 32, and
9th Cir. R. 28-2, 32-1 and 32-2.
Excerpts of Record
The Court requires excerpts of record rather than an appendix. 9th Cir. R. 30-
1.1(a). Appellant shall file 4 separately-bound excerpts of record with white
covers at the time the Opening Brief is filed, and shall serve one copy on each
party. 9th Cir. R. 30-1.3. Please review 9th Cir. R. 30-1.3 through 30-1.6 to see a
list of the specific contents and format.
For excerpts that exceed 75 pages, the first volume must comply with 9th Cir. R.
30-1.6(a). Excerpts exceeding 300 pages must be filed in multiple volumes. 9th
Cir. R. 30-1.6(b).
Appellee may file supplemental excerpts and appellant may file further excerpts.
9th Cir. R. 30-1.7 and 30-1.8. If you are an appellee responding to a pro se brief
that did not come with excerpts, then your excerpts need only include the contents
set out at 9th Cir. R. 30-1.7.
Mediation Program
Mediation Questionnaires are required in all civil cases except cases in which the
appellant is proceeding pro se, habeas cases (28 U.S.C. §§ 2241, 2254 and 2255)
and petitions for writs (28 U.S.C. § 1651). 9th Cir. R. 3-4. They are not required
in criminal cases.
The Mediation Questionnaire is available on the Court’s website at

www.ca9.uscourts.gov under Forms. The Mediation Questionnaire should be filed

within 7 days of the docketing of a civil appeal. The Mediation Questionnaire is
used only to assess settlement potential.
If you are interested in requesting a conference with a mediator, you may call the
Mediation Unit at (415) 355-7900, email ca09_mediation@ca9.uscourts.gov or
make a written request to the Chief Circuit Mediator. You may request
conferences confidentially. More information about the Court’s mediation
program is available at http://www.ca9.uscourts.gov/mediation.
Oral Hearings
Notices of the oral hearing calendars are distributed approximately 4 to 5 weeks

before the hearing date. The Court sits monthly in San Francisco, Pasadena and
Seattle. The Court sits in Portland every other month, depending on caseload. The
Court also hears cases 3 times a year in Honolulu and once a year in Anchorage.
The Court will change the date or location of an oral hearing only for good cause,
and requests to continue a hearing filed within 14 days of the hearing will be
granted only upon a showing of exceptional circumstances. 9th Cir. R. 34-2.
Oral hearing will be conducted in all cases unless all members of the panel agree
that the decisional process would not be significantly aided by oral argument. Fed.
R. App. P. 34.

Office of the Clerk

United States Court of Appeals for the Ninth Circuit
Post Office Box 193939
San Francisco, California 94119-3939
415-355-8000
Molly C. Dwyer
Clerk of Court January 08, 2010
No.: 10-70063
D.C. No.: 3:09-cv-02292-VRW
Short Title: Dennis Hollingsworth, et al v. USDCSF, et al
Dear Petitioner/Counsel
A petition for writ of mandamus and/or prohibition has been received in the Clerk's
Office of the United States Court of Appeals for the Ninth Circuit. The U.S. Court
of Appeals docket number shown above has been assigned to this case. Always
indicate this docket number when corresponding with this office about your case.
If the U.S. Court of Appeals docket fee has not yet been paid, please make
immediate arrangements to do so. If you wish to apply for in forma pauperis status,
you must file a motion for permission to proceed in forma pauperis with this court.
Pursuant to Rule 21(b), FRAP, no answer to a petition for writ of mandamus

and/or prohibition may be filed unless ordered by the Court. If such an order is
issued, the answer shall be filed by the respondents within the time fixed by the
Court.
A copy of the docket sheet case title page is attached. Please take special note of
the case caption, as it may differ from that shown on the papers submitted for
filing. Pursuant to Circuit Rule 21-2, an application for writ of mandamus and/or
prohibition shall not bear the name of the district court judge concerned. Rather,
the appropriate district court shall be named as respondent.
Exhibit 10
Case:
Case3:09-cv-02292-VRW
10-70063 01/08/2010 Document215
Page: 2 of 75 Filed10/02/09
ID: 7187906 DktEntry:
Page1 of 1-4
3
GIBSON, DUNN & CRUTCHER LLP
LAWYERS
A REGISTERED LIMITED LIABILITY PARTNERSHIP
INCLUDING PROFESSIONAL CORPORATIONS
__________
333 South Grand Avenue, Los Angeles, California 90071-3197
(213) 229-7000
www.gibsondunn.com
cdusseault@gibsondunn.com
October 2, 2009
Direct Dial Client Matter No.

(213) 229-7855 T 36330-00001
Fax No.
(213) 229-6855
The Honorable Vaughn R. Walker

Chief Judge of the United States District Court
for the Northern District of California
450 Golden Gate Ave.
San Francisco, California 94102
Re: Perry v. Schwarzenegger, Case No. C-09-2292 VRW
Dear Chief Judge Walker:
At the conclusion of the hearing before this Court on September 25, 2009, the Court
proposed to transmit images of counsel, the witness, and the Judge in our proceeding into an
overflow courtroom. All parties indicated their consent to that proposal. The Court also asked
the parties to consider their respective positions on the transmission of those same images
beyond the overflow courtroom. In response to a question from counsel, the Court indicated that
this transmission might potentially include broadcast on a television station. On September 30,
2009, counsel for Plaintiffs initiated meet-and-confer discussions in which the parties expressed
their views on the issue raised by the Court. The parties’ positions, as expressed by and to
Plaintiffs’ counsel, are set forth below.
Plaintiffs do not object to the transmission of images from our proceeding beyond the
overflow courtroom, and we would be happy to work with the parties, the Court, and others as
appropriate regarding the specifics of how this would work.
Counsel for the Attorney General, the City of San Francisco, Alameda County and Los
Angeles County have expressed their support for Plaintiffs’ position.
Counsel for the Administration has indicated that they will support any position on which
the other parties are able to reach an agreement. In the event the other parties cannot reach an
agreement, the Administration will take no position.
Case:
10-70063 01/08/2010 Document215
Page2 of 1-4
3

October 2, 2009
Page 2
Counsel for the Defendant-Intervenors have indicated that they are still reviewing the
issue raised by the Court and hope to have a position by Monday of next week. We therefore
expect Defendant-Intervenors to submit their own, separate statement of position to the Court
next week.
Thank you for raising this issue with the parties. Plaintiffs would be happy to discuss
further with the Court should the Court wish to do so.
Respectfully submitted,
/s/ Christopher D. Dusseault
Christopher D. Dusseault
Counsel for Plaintiffs
cc: Counsel of Record

Case:
10-70063 01/08/2010 Document215
Page3 of 1-4
3

October 2, 2009
Page 3
ATTESTATION PURSUANT TO GENERAL ORDER NO. 45
Pursuant to General Order No. 45 of the Northern District of California, I attest that
concurrence in the filing of the document has been obtained from each of the other signatories to
this document.
By: /s/ Sarah E. Piepmeier

Sarah E. Piepmeier
Exhibit 11
Case:
10-70063 01/08/2010 Document218
Page1 of 1-4
3
0B Cooper & Kirk

Lawyers
1B
A Professional Limited Liability Company
Charles J. Cooper 1523 New Hampshire Avenue NW (202) 220-9600

ccooper@cooperkirk.com Washington, D.C. 20036 Fax (202) 220-9601
October 5, 2009

Chief Judge
United States District Court for the
Northern District of California
Re: Recording and broadcast of proceedings in

Perry v. Schwarzenegger, No. C-09-2292 VRW
Dear Chief Judge Walker,
I write on behalf of Defendant-Intervenors in response to the Court’s inquiry

regarding the parties’ positions on “projecting [a video recording of the proceedings in
this case] … beyond an overflow room,” perhaps in the form of a public television
broadcast. Hr’g of Sept. 25, 2009, Tr. 70-71.
It is Defendant-Intervenors’ understanding that the policy of both the Northern

District of California and the Judicial Conference of the United States prohibits any kind
of photographic depiction of district court proceedings outside of the courthouse itself.
According to this Court’s General Order No. 58, the “[p]olicy of the Judicial Conference
of the United States prohibits, in both civil and criminal cases in all district courts,
broadcasting, televising, recording, or photographing courtroom proceedings for the
purposes of public dissemination.” See also United States District Court for the N.D.
Cal., General Information Guide for Journalists at 5 (July 14, 2009) (“Broadcasting of
proceedings is prohibited by policy of the Judicial Conference of the United States.”);
JCUS-SEP 96, p. 54 (adopting ban on broadcasting); JCUS-MAR 96, p. 17; JCUS-SEP
94, pp. 46-47. See also In re Complaint Against District Judge Joe Billy McDade, No.
07-09-90083 (Memorandum of Chief Judge Easterbrook, 7th Cir. Sept. 28, 2009).
The Judicial Conference’s policy is based upon the potentially negative impact
that the public broadcast of federal trial court proceedings could have on the
Case:
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Page2 of 1-4
3

October 5, 2009
Page 2 of 3
administration of justice. After an extensive study of the issue in 1994, the Judicial
Conference rejected proposals for public broadcast of trial court proceedings. See JCUS-
SEP 94, p. 47. As reflected in this Court’s General Order No. 58, that policy, and the
reasons undergirding it, remain in effect today. See Administrative Office of the U.S.
Courts, “Implementation of the Long Range Plan of the Federal Courts: Status Report
April 2008,” ¶ 86d, available at http://www.uscourts.gov/library/Implementation_the_
Long_Range_Plan.pdf (“The Conference continues to oppose cameras in the courtroom
legislation.”). In testimony before Congress in September 2007, Judge Tunheim
explained the Judicial Conference’s position, in pertinent part, as follows:
The Judicial Conference position is based on a thoughtful and reasoned

concern regarding the impact cameras could have on trial proceedings.
[Public broadcast has] the potential to undermine the fundamental rights
of citizens to a fair trial. It could jeopardize court security and the safety
of trial participants, including judges, U.S. attorneys, trial counsel, U.S.
marshals, court reporters, and courtroom deputies. The use of cameras in
the trial courts could also raise privacy concerns and produce intimidating
effects on litigants, witnesses, and jurors, many of whom have no direct
connection to the proceeding.
…
Because cameras in trial courts could profoundly and negatively impact

the trial process, the Judicial Conference strongly opposes any legislation
that would allow the use of cameras in the United States district courts.
Cameras in the Courtroom: The “Sunshine in the Courtroom Act of 2007,” H.R.
2128: Hr’g Before the H. Comm. on the Judiciary, 110th Cong. (Sept. 27, 2007)
(statement of The Honorable John R. Tunheim, Judge, United States District
Court for the District of Minnesota and Chair of the Court Administration and
Case Management Committee of the Judicial Conference), available at
http://www.uscourts.gov/testimony/ Tunheim_cameras092707.pdf. As Judge
Tunheim concluded, “the Judicial Conference believes … [that] the presence of
cameras has the potential to deprive citizens of their ability to have a claim or
right fairly resolved in the United States district courts.” Id.
Publicly televising the proceedings in this case would give rise, we

believe, to these concerns. Given the highly contentious and politicized nature of
Proposition 8 and the issue of same-sex marriage in general, the possibility of
compromised safety, witness intimidation, and/or harassment of trial participants
is very real. Indeed, lead counsel for Plaintiffs has acknowledged that
Case:
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Page3 of 1-4
3

October 5, 2009
Page 3 of 3
“widespread economic reprisals against financial supporters of . . . Proposition 8”

resulted from public disclosure of the names of donors. Doc # 187-1 at 6-7. And
the record of other forms of harassment against Proposition 8 supporters is well
documented. See id. & Exs. B, I, K, M. For these reasons, Defendant-
Intervenors must respectfully object to any departure from the policy of the
Northern District of California and the Judicial Conference of the United States.
Sincerely,
/s/ Charles J. Cooper
Charles J. Cooper
Counsel for Defendant-Intervenors
Exhibit 12
Pages 1 - 120
UNITED STATES DISTRICT COURT
BEFORE THE HONORABLE VAUGHN R. WALKER
KRISTIN M. PERRY, )
SANDRA B. STIER, PAUL T. KATAMI, )
and JEFFREY J. ZARRILLO, )
)
Plaintiffs, )
)
VS. ) NO. C 09-2292-VRW
)
ARNOLD SCHWARZENEGGER, in his )
official capacity as Governor of )
California; EDMUND G. BROWN, JR., )
in his official capacity as )
Attorney General of California; )
MARK B. HORTON, in his official )
capacity as Director of the )
California Department of Public )
Health and State Registrar of )
Vital Statistics; LINETTE SCOTT, )
in her official capacity as Deputy )
Director of Health Information & )
Strategic Planning for the )
Health; PATRICK O'CONNELL, in his )
official capacity as )
Clerk-Recorder for the County of )
Alameda; and DEAN C. LOGAN, in his )
Registrar-Recorder/County Clerk )
for the County of Los Angeles, )
) San Francisco, California
Defendants. ) Wednesday
) December 16, 2009
___________________________________) 10:00 a.m.
TRANSCRIPT OF PROCEEDINGS
Reported By: Katherine Powell Sullivan, CSR #5812,

#5812, RPR, CRR
Official Reporter - U.S. District Court
Case: 10-70063 01/08/2010 Page: 11 of 75 ID: 7187906 DktEntry: 1-4 2
APPEARANCES:
For Plaintiffs: GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.
Washington, D.C. 20036-5306
BY: THEODORE B. OLSON, ESQUIRE
MATTHEW D. MCGILL, ESQUIRE

Los Angeles, California 90071-3197
BY: THEODORE J. BOUTROUS, JR., ESQUIRE
CHRISTOPHER D. DUSSEAULT, ESQUIRE
BOIES, SCHILLER & FLEXNER LLP

333 Main Street
Armonk, New York 10504
BY: DAVID BOIES, ESQUIRE

575 Lexington Avenue, 7th Floor
New York, New York 10022
BY: JOSHUA I. SCHILLER, ESQUIRE

Oakland, California 94612
BY: JEREMY MICHAEL GOLDMAN, ESQUIRE
For Plaintiff- CITY AND COUNTY OF SAN FRANCISCO

Intervenor: OFFICE OF THE CITY ATTORNEY
One Drive Carlton B. Goodlett Place
BY: THERESE STEWART, DEPUTY CITY ATTORNEY
DANNY CHOU, DEPUTY CITY ATTORNEY
For Defendant MENNEMEIER, GLASSMAN & STROUD

Gov. Schwarzenegger: 980 9th Street, Suite 1700
Sacramento, California 95814-2736
BY: ANDREW WALTER STROUD, ESQUIRE
For Defendant STATE ATTORNEY GENERAL'S OFFICE

Edmund G. Brown Jr.: 455 Golden Gate Avenue, Suite 11000
BY: TAMAR PACHTER, DEPUTY ATTORNEY GENERAL
APPEARANCES (CONTINUED):
For Defendant- COOPER & KIRK

Intervenors: 1523 New Hampshire Avenue, N.W.
BY: CHARLES J. COOPER, ESQUIRE
DAVID H. THOMPSON, ESQUIRE
HOWARD C. NIELSON, JR., ESQUIRE
JESSE PANUCCIO, ESQUIRE

BY: BRIAN W. RAUM, SENIOR COUNSEL
For Defendant OFFICE OF LOS ANGELES COUNTY COUNSEL

Dean C. Logan: 500 West Temple Street, Room 652
Los Angeles, California 90012
BY: JUDY WHITEHURST, DEPUTY COUNTY COUNSEL
For Defendant
Patrick O'Connell: OFFICE OF ALAMEDA COUNTY COUNSEL
1221 Oak Street, Suite 450
BY: CLAUDE F. KOLM, DEPUTY COUNTY COUNSEL
MANUEL MARTINEZ, DEPUTY COUNTY COUNSEL
For Proposed ADVOCATES FOR FAITH AND FREEDOM

Intervenor Imperial 24910 Las Brisas Road, Suite 110
County, et al.: Murrieta, California 92562
BY: JENNIFER L. MONK, ESQUIRE
1 So the Court of Appeals did an excellent job of
2 expediting the matter, and hearing it and giving it full
3 consideration when it went up the first time. And I understand
4 that the Court of Appeals is going to make a similar good
5 effort to move that issue along expeditiously.
6 So you'll know more about that later today. And so I
7 guess it's fair to say that at least in one aspect of this
8 case, you're just touching down here today, and you're soon
9 going to be bouncing back to the Court of Appeals.
10 (Laughter)
11 THE COURT: But we are going to make every effort to
12 bring you back here in time for our January 11 trial date.
13 Now, I've mentioned the things that I think need to
14 be resolved and I think we can accomplish this morning. Are
15 there any things that I've overlooked?
16 First, from the plaintiffs and the
17 plaintiff-intervenors, any other items you'd like to add to the
18 agenda? Mr. Olson?
19 MR. OLSON: I think these are mostly in the nature of
20 trial issues and logistic or procedural things.
21 We had a reference earlier in these proceedings to
22 the possibility of televising the trial. And I think that's
23 still an open item. We expressed support for that, if it could
24 be done. Our opponents were opposed.
25 And I don't know whether you wish to get into that or

1 not, but I wanted to mention it.
2 THE COURT: I appreciate that.
3 My understanding is that under current Ninth Circuit
4 policy and rules -- and this is true of our local rules, as
5 well -- that is not permitted; that is, dissemination of
6 courtroom proceedings outside the courthouse is not permitted.
7 However, two years ago the Ninth Circuit Judicial
8 Conference voted for a pilot or experimental program to permit
9 dissemination of District Court proceedings that are nonjury
10 proceedings in civil cases.
11 The Circuit Council has taken up the issue of whether
12 it wishes to implement that resolution that was adopted by the
13 Conference.
14 My understanding is that a proposal to implement that
15 is pending before the Judicial Council of the Ninth Circuit,
16 and may very well be enacted in the very near future.
17 And, if it is, then I think this is an issue that we
18 should probably discuss and decide whether we are going to do
19 it; if so, on what basis we're going to do it, and how we can
20 do it consistent with the needs of the case, and to do it in a
21 way that does not interfere in any way with the processing of
22 this case.
23 But, at the moment, I don't think we have a green
24 light for it. And I'm inclined to wait to discuss this with
25 you after we get a green light, if in fact one comes through.

1 MR. OLSON: That's perfectly acceptable, of course,
2 to us. And we're happy to address it whenas and if it's an
3 appropriate time to do so.
4 THE COURT: Very well.
5 The Ninth Circuit, of course, has had a good deal of
6 experience with this in appellate proceedings, and has
7 broadcast or permitted broadcasting of appellate proceedings in
8 quite a large number of cases.
9 That, of course, is somewhat different than a
10 District Court proceeding, in that those proceedings last an
11 hour, two hours, three hours at most.
12 Three hours won't do very much for us here in this
13 proceeding, so --
14 MR. OLSON: Well, we have a great deal to say about
15 it when it's appropriate and an a propitious time for us to do
16 so. I won't attempt to get into our point of view on it at
17 this time, then.
18 THE COURT: That's fine. I think it's probably
19 something we should discuss, if it is possible.
20 There certainly has been a good deal of interest in
21 the case. And it would appear to fit the formula that the
22 Ninth Circuit Judicial Conference contemplated in 2007, when it
23 adopted that resolution that I referred to.
24 MR. OLSON: One or two other items --
25 THE COURT: Certainly.

Exhibit 13
NEWS RELEASE
December 17, 2009 Contact: David J. Madden, (415) 355-8800

dmadden@ce9.uscourts.gov
Ninth Circuit Judicial Council Approves

Experimental Use of Cameras in District Courts
SAN FRANCISCO – The Judicial Council of the Ninth Circuit, governing body for
federal courts in the western states, has approved, on an experimental basis, the limited
use of cameras in federal district courts within the circuit. The action was announced
today by Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth
Circuit.
The Judicial Council voted unanimously to allow the 15 district courts within the Ninth
Circuit to experiment with the dissemination of video recordings in civil non-jury matters
only. The action amends a 1996 Ninth Circuit policy that had prohibited the taking of
photographs, as well as radio and television coverage, of court proceedings in the district
courts. It also responds to a resolution supporting the use of cameras, which was passed
by judges and lawyers attending the 2007 Ninth Circuit Judicial Conference.
"We hope that being able to see and hear what transpires in the courtroom will lead to a
better public understanding of our judicial processes and enhanced confidence in the rule
of law. The experiment is designed to help us find the right balance between the public's
right to access to the courts and the parties' right to a fair and dignified proceeding,”
Judge Kozinski said.
Cases to be considered for the pilot program will be selected by the chief judge of the
district court in consultation with the chief circuit judge. The participating district courts
will be asked to evaluate their experiences and report to the Council.
The Ninth Circuit takes in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada,
Oregon, Washington, the U.S. Territory of Guam and the Commonwealth of the Northern
Mariana Islands. There are four district courts in California and two in Washington.
- more -
The Ninth Circuit Court of Appeals has permitted television and radio broadcasting of
oral arguments with approval of the panel hearing the case. Since 1991, the court has
permitted video and audio recordings of oral arguments in approximately 200 cases.
All of its oral arguments are available on its website -
http://www.ca9.uscourts.gov/media/
###
Exhibit 14
Exhibit 15
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0B Cooper & Kirk

Lawyers
1B

December 28, 2009

Chief Judge
Re: Perry v. Schwarzenegger, No. C-09-2292 VRW (N.D. Cal.)
I write on behalf of Defendant-Intervenors (“Proponents”) to reiterate our objections,

conveyed in my letter of October 5, to televising the proceedings in this case beyond the confines
of the courthouse. See Doc. No. 218.
Proponents respectfully submit that photographic or video depiction of the trial

proceedings in this case is not authorized, and it would violate this Court’s Local Rule 77-3, this
Court’s General Order No. 58, and the policy of the Judicial Conference of the United States. As
explained in detail below, the concerns animating the policy adopted by the Judicial Conference
– particularly the unacceptable danger that the right to a fair trial will be undermined and the
potential for intimidation of witnesses and litigants – apply with particular force in this case.
The Media Coalition seeks leave to broadcast and webcast the trial proceedings in this
case, relying upon a press release issued by the Ninth Circuit on December 17, 2009. See Doc #
313. However, the Judicial Council for the Ninth Circuit has not yet issued an order or
resolution setting forth the policies and procedures that will govern the pilot program described
in the press release (for example, the Ninth Circuit’s press release does not specify whether a
trial may be broadcast over the objection of one of the parties). More importantly, the Ninth
Circuit has not yet provided notice and an opportunity to comment on the pilot program or the
(as yet unpromulgated) policies and procedures that will govern it. As explained below, this
Court is bound to comply with its Local Rule unless and until it either is amended by this Court
following notice and an opportunity to comment or is abrogated by order of the Judicial Council
following notice and an opportunity to comment. See FED. R. CIV. P. 83(a)(1); 28 U.S.C.
§ 2071(b) & (c)(1); 28 U.S.C. § 332(d).
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1. Current Governing Policy
This Court’s Rule 77-3 flatly prohibits the broadcast or webcast of trial proceedings
beyond the courthouse: “the taking of photographs, public broadcasting or televising, or
recording for those purposes in the courtroom or its environs, in connection with any judicial
proceeding, is prohibited.” Likewise, this Court’s General Order No. 58 provides that the
“[p]olicy of the Judicial Conference of the United States prohibits, in both civil and criminal
cases in all district courts, broadcasting, televising, recording, or photographing courtroom
proceedings for the purposes of public dissemination.” See also United States District Court for
the N.D. Cal., General Information Guide for Journalists at 4 (October 29, 2009) (“Broadcasting
of proceedings is prohibited by policy of the Judicial Conference of the United States.”).
The Judicial Conference of the United States adopted the current policy in 1996. See
JCUS-SEP 96, p. 54, available at http://www.uscourts.gov/judconf/96-Sep.pdf. The policy is
based upon the potentially negative impact that the public broadcast of federal trial court
proceedings could have on the administration of justice. After an extensive study of the issue in
1994, the Judicial Conference rejected proposals for public broadcast of trial court proceedings.
See JCUS-SEP 94, pp. 46-47, available at http://www.uscourts.gov/judconf/94-Sep.pdf. “Based
upon the data presented, a majority of the Conference concluded that the intimidating effect of
cameras on some witnesses and jurors was cause for concern, and the Conference declined to
approve the Committee’s recommendation to expand camera coverage in civil proceedings.” Id.
In testimony before Congress in September 2007, the Chair of the Judicial Conference’s
Court Administration and Case Management Committee explained the Judicial Conference’s
position, in part, as follows:
The Judicial Conference position is based on a thoughtful and reasoned concern

regarding the impact cameras could have on trial proceedings. [Public broadcast]
has the potential to undermine the fundamental rights of citizens to a fair trial. It
could jeopardize court security and the safety of trial participants, including
judges, U.S. attorneys, trial counsel, U.S. marshals, court reporters, and
courtroom deputies. The use of cameras in the trial courts could also raise
privacy concerns and produce intimidating effects on litigants, witnesses, and
jurors, many of whom have no direct connection to the proceeding.
* * *
Because cameras in trial courts could profoundly and negatively impact the trial
process, the Judicial Conference strongly opposes any legislation that would
allow the use of cameras in the United States district courts.
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Cameras in the Courtroom: The “Sunshine in the Courtroom Act of 2007,” H.R. 2128: Hr’g
Before the H. Comm. on the Judiciary, 110th Cong. (Sept. 27, 2007) (statement of The
Honorable John R. Tunheim, Judge, United States District Court for the District of Minnesota
and Chair of the Court Administration and Case Management Committee of the Judicial
Conference), available at http://www.uscourts.gov/testimony/ Tunheim_cameras092707.pdf.
2. The Position of the Ninth Circuit Judicial Council
Shortly after the Judicial Conference of the United States adopted its policy against the
broadcast of federal district court proceedings, the Judicial Council of the Ninth Circuit followed
suit, “vot[ing] to adopt the policy of the Judicial Conference of the United States regarding the
use of cameras in courtrooms on May 24, 1996.” See Resolution 1: Instituting a Circuit Rule
Permitting Photographing, Recording and Broadcasting in Non-Jury, Civil Cases Before the
District Courts at 1 (copy submitted to the Judicial Conference of the United States on May 7,
2009) (attached as part of Exhibit A) at 3.
In July 2007, the Ninth Circuit Judicial Conference adopted a resolution recommending
that the Judicial Conference of the United States change its policy to permit the broadcast of
civil, non-jury trials. Id. at 2. The Ninth Circuit Judicial Conference also recommended that, “to
the extent permitted by Judicial Conference [of the United States] procedures, this Circuit should
adopt a Rule that would allow the photographing, recording, and broadcasting of non-jury, civil
proceedings before the District Courts in the Ninth Circuit.” Id. Despite these
recommendations, no action was taken by the Ninth Circuit Judicial Council for nearly two
years.
Finally, in May 2009, the Ninth Circuit Judicial Council forwarded the recommendation
to the Judicial Conference of the United States. See Letter from Cathy A. Catterson to The
Honorable John R. Tunheim (May 7, 2009) (attached as Exhibit A at 1). During the interim,
“[t]he Ninth Circuit Judicial Council [had] considered the resolution at a number of meetings
following the 2007 Judicial Conference but deferred action to await possible developments at the
national level.” Id. For reasons left unstated, the Ninth Circuit Judicial Council decided in May
2009 “that it is appropriate to forward the resolution now and ask that it [be] considered by [the
Committee of the Judicial Conference of the United States on Court Administration and Case
Management] at its June meeting.” Id.
As noted above, the Judicial Conference of the United States has not retreated from its
policy against the use of cameras in federal district court proceedings. Indeed, as recently as July
2009, the Judicial Conference of the United States strongly reiterated its concern about cameras
in the courtroom in a letter to Congress. The Conference again stressed that “[t]he Federal
Judiciary is . . . very concerned that the effect of cameras in the courtroom on participants would
be to impact negatively on the trial process and thereby interfere with a fair trial.” Letter from
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James C. Duff to Senators Patrick J. Leahy and Jeff Sessions (July 23, 2009) (attached as Exhibit
B) at 2. Among many other concerns, the Judicial Conference again emphasized its considered
judgment that “[t]elevision cameras can intimidate litigants, witnesses, and jurors, many of
whom have no direct connection to the proceeding and are involved in it through no action of
their own. Witnesses might refuse to testify or alter their stories when they do testify if they fear
retribution by someone who may be watching the broadcast.” Id.
On December 17, 2009, the Ninth Circuit issued a press release announcing that the
Ninth Circuit Judicial Council “has approved, on an experimental basis, the limited use of
cameras in federal district courts within the circuit.” See News Release, Ninth Circuit Judicial
Council Approves Experimental Use of Cameras in District Courts, available at
http://www.ce9.uscourts.gov/cm/articlefiles/137-Dec17_Cameras_Press%20Relase.pdf. The
press release provided no details as to how the program will be implemented other than to state
that “[c]ases to be considered for the pilot program will be selected by the chief judge of the
district court in consultation with the chief circuit judge.” Id. Nor has the Ninth Circuit adopted
a Circuit Rule allowing the broadcast of non-jury civil trials as recommended by the 2007 Ninth
Circuit Judicial Conference resolution. According to the Office of the Circuit Executive (the
contact listed on the press release), there is no resolution, order, or other publicly available
information setting forth the policies and procedures that will govern the new pilot program. Nor
has the Ninth Circuit Judicial Council taken any action to abrogate this Court’s Local Rule 77-3.
And it has not yet provided notice and the opportunity to comment concerning the program.
In these circumstances, it is clear that this Court’s Local Rule 77-3 “has the force of law,”
Weil v. Neary, 278 U.S. 160, 169 (1929), and therefore remains binding on this Court. See, e.g.,
United States v. Yonkers Bd. of Education, 747 F.2d 111, 112 (2d Cir. 1984) (“So long as [local
rule prohibiting television broadcasting of judicial proceedings] do[es] not conflict with rules
prescribed by the Supreme Court, congressional enactments, or constitutional provisions, [it has]
the force of law. Accordingly, [such local rule is] binding on the district judges until properly
amended or repealed.”) (citations omitted); United States v. Hastings, 695 F.2d 1278, 1279 nn.4-
5 (11th Cir. 1983) (district court “was bound by” local rule “prohibit[ing] television cameras in
the courtroom”).
This Court is, of course, authorized to amend its local rules, but Congress has provided
by law that “[a]ny rule prescribed by a court, other than the Supreme Court, under subsection (a)
shall be prescribed only after giving appropriate public notice and an opportunity for comment.”
28 U.S.C. § 2071(b); see also FED. R. CIV. P. 83(a)(1) (“After giving public notice and an
opportunity for comment, a district court, acting by a majority of its district judges, may adopt
and amend rules governing its practice.”). This Court’s own rules are to the same effect. See
Local Rule 83-1 (“The local rules of this Court may be modified or amended by a majority vote
of the active Judges of the Court in accordance with the procedures set forth in this rule.”); Local
Rule 83-3(a) (“Before becoming effective, any proposed substantive modification of the local
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rules shall be subject to public comment in accordance with FRCivP 83.”). This Court must also
first “appoint an advisory committee for the study of the rules of practice … of such court,”
which “shall make recommendations to the court concerning such rules.” 28 U.S.C. § 2077(b);
see also Local Rule 83-1 (“Any proposed substantive modification or amendment of these local
rules must be submitted to a Local Rules Advisory Committee for its review ….”).
The circuit judicial council is authorized to modify or abrogate a district court’s local
rules. See 28 U.S.C. § 2071(c)(1); FED. R. CIV. P. 83(a)(1). But its authority to do so is limited
in two significant respects. First, the Judicial Council is authorized to abrogate this Court’s rules
only if the Council determines that the rule is “inconsistent” with the Federal Rules of Civil
Procedure. Congress has specified that “[e]ach judicial council shall periodically review the
rules which are prescribed under section 2071 of this title by district courts within its circuit for
consistency with rules prescribed under section 2072 of this title [i.e., the Federal Rules]. Each
council may modify or abrogate any such rule found inconsistent in the course of such a review.”
28 U.S.C. § 332(d)(4). Obviously, this Court’s Local Rule 77-3 is entirely consistent with the
Federal Rules – indeed, it adopts and applies the policy adopted by the Judicial Conference of
the United States.
Second, even if the Ninth Circuit Judicial Council had the substantive authority to
abrogate this Court’s Local Rule 77-3, Congress has prescribed specific procedures that must be
followed:
Any general order relating to practice and procedure shall be made or amended
only after giving appropriate public notice and an opportunity for comment. Any
such order so relating shall take effect upon the date specified by such judicial
council. Copies of such orders so relating shall be furnished to the Judicial
Conference and the Administrative Office of the United States Courts and be
made available to the public.
28 U.S.C. § 332(d)(1); see also In re Sony BMG Music Entertainment, 564 F.3d 1, 8 (1st Cir.
2009) (holding that notice and opportunity to comment are not required when circuit judicial
council review did not result in resolution “to modify or abrogate any local rule but, rather,
endorsed existing practice in the districts within the circuit”).
Because none of these procedures has been followed (indeed, the Ninth Circuit Judicial
Council has not as yet even purported to abrogate Local Rule 77-3), the Local Rule remains in
force and binding on this Court. In similar circumstances, the First Circuit recently issued a writ
of mandamus overturning an order entered by the District Court of Massachusetts permitting a
webcast of a trial. See In re Sony BMG Music Entertainment, 564 F.3d 1 (1st Cir. 2009). As in
this case, the governing Local Rule barred the broadcast. See id. at 10 (reprinting rule). The trial
court had sought to read into the text discretionary authority to deviate from the rule, but the
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First Circuit rejected that effort. In so holding, the Court of Appeals emphasized the importance
of the policy adopted by the Judicial Conference of the United States based on its conclusion that
“ ‘the intimidating effect of cameras’ in the courtroom presented ‘cause for concern.’ ” Id. at 7
(quoting JCUS-SEP 94, p. 46, available at http://www.uscourts.gov/judconf/94-Sep.pdf). The
First Circuit held that “the Judicial Conference’s unequivocal stance against the broadcasting of
civil proceedings (save for those few exceptions specifically noted in the policy itself), is entitled
to substantial weight.” Id. The Court stressed its belief that “the district court, institutionally,
would construe its rule to avoid a head-on clash with the national standard.” Id.1 See also In re
Complaint Against District Judge Billy Joe McDade, No. 07-09-90083 (7th Cir. Sept. 28, 2009)
(Easterbrook, C.J.) (finding that district court judge “engaged in conduct prejudicial to the
effective and expeditious administration of the business of the courts” by permitting live
broadcast of a civil trial with the agreement of the parties).
3. The Judicial Conference’s Fair Trial Concerns Apply With Great Force in This Case
Publicly televising the proceedings in this case would give rise to the Judicial
Conference’s consistent and oft-repeated concerns “that the effect of cameras in the courtroom
on participants would be to impact negatively the trial process and thereby interfere with a fair
trial.” Letter from James C. Duff to Senators Patrick J. Leahy and Jeff Sessions (July 23, 2009)
(attached as Exhibit B) at 2. Most importantly, given the highly contentious and politicized
nature of Proposition 8 and the issue of same-sex marriage in general, the possibility of
compromised safety, witness intimidation, and/or harassment of trial participants is very real.
Indeed, lead counsel for Plaintiffs has acknowledged that “widespread economic reprisals
against financial supporters of . . . Proposition 8” resulted from public disclosure of the names of
donors during the campaign. Doc #187-1 at 6-7.
And the record of other forms of harassment against Proposition 8 supporters is well
documented. See Doc #s 187-1, 187-2 at ¶¶ 10-12; 187-9 at ¶¶ 6-8; 187-9 at 12-15; 187-11; 187-
12 at ¶¶ 5-6; 187-13 at ¶ 8; see also Thomas M Messner, The Price of Prop 8, The Heritage
Foundation, available at www.heritage.org/Research/Family/bg2328.cfm (“expressions of
support for Prop 8 have generated a range of hostilities and harms that includes harassment,
intimidation, vandalism, racial scapegoating, blacklisting, loss of employment, economic
hardships, angry protests, violence, at least one death threat, and gross expressions of anti-
1
The Sony Court also found support in the 1996 resolution of the First Circuit Judicial
Council embracing the position taken by the Judicial Conference. See Sony BMG, 564 F.3d at 7-
8. The Ninth Circuit Judicial Council adopted a similar resolution in 1996, and has not as yet
issued an order or resolution formally rescinding it, though the December 17 press release does
indicate that the Council has taken a different stance. As demonstrated above, the press release
standing alone is insufficient to override this Court’s Local Rule and the policy adopted by the
Judicial Conference of the United States.
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religious bigotry”). This campaign of harassment and reprisal has often been “targeted and
coordinated,” id., and the retaliation has often been quite serious. See, e.g., Doc # 187-11 at 81
(Brad Stone, Disclosure, Magnified on the Web, N.Y. Times (Feb. 8, 2009) (“Some donors to
groups supporting the measure have received death threats and envelopes containing a powdery
white substance….”).
Relatedly, as the Judicial Conference has emphasized, televising the trial would impinge
upon the privacy interests of witnesses, “some of whom are only tangentially related to the case,
but about whom very personal and identifying information might be revealed.” Letter from
James C. Duff to Senators Patrick J. Leahy and Jeff Sessions (July 23, 2009) (attached as Exhibit
B) at 2. Already, one website “takes the names and ZIP codes of people who donated to the
ballot measure … and overlays the data on a Google map.” Doc # 187-11 at 81. Another
website was set up with the name, hometown, home phone numbers, workplace, workplace
contact information, and pictures of Prop 8 supporters so that “whenever someone Googles them
this [website] will come up.” Id. at 55, 62, 65-66, 73, 77.
With this background, it is not surprising that potential witnesses have already expressed
to Proponents’ counsel their great distress at the prospect of having their testimony televised.
Indeed, some potential witnesses have indicated that they will not be willing to testify at all if the
trial is broadcast or webcast beyond the courthouse.
Finally, permitting the recording and broadcast of these proceedings over Proponents’
objections would be particularly unfair in view of the fact that the governing rules unequivocally
forbade cameras in the courtroom at the time Proponents voluntarily intervened in this case.
For these reasons, Proponents must respectfully object to any departure from this Court’s
Rule 77-3 and the policy of the Judicial Conference of the United States.
Sincerely,
Charles J. Cooper
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EXHIBIT A
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EXHIBIT B
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JO'DIClALCONlFERENCEOFTHE 1[JNKTEDSTATES
WASHINGTON, D.C. 20544

THE CHIEF pJSTICE lAMES C DUFF
OF THE UNITED STATES Secrelary
Presiding
July 23, 2009
Honorable Patrick J. Leahy

Chairman
Committee on the Judiciary
United States Senate
Washington, DC 20510
Honorable Jeff Sessions

Ranking Member
Dear Mr. Chairman and Senator Sessions:
The Judicial Conference of the United States strongly opposes the "Sunshine in the
Courtroom Act of2009," S. 657 (11 ph Cong.), because it provides for the use of cameras
in federal trial court proceedings. Cameras can affect behavior in court proceedings.
Cameras can even affect whether a case goes to trial. Cameras can also affect courtroom
security ofjudges, witnesses, employees, and U.S. marshals. This is of particular concern
in light of recent increased threats to federal judges. The Judicial Conference believes
that these and other negative affects of cameras in trial court proceedings far outweigh
any potential benefit. The Judicial Conference also opposes the legislation because it
would empower any appellate court panel to permit cameras in their courtroom rather
than retain that power within the management of each circuit.
The Judicial Conference bases its policy and opposition to the use of cameras in
the federal trial court proceedings on decades of experience and study. The Conference
considered the issue in a number of different situations and contexts including a pilot
project - and concluded that the presence of cameras in federal trial court proceedings is
not in the best interest ofjustice. Federal judges must preserve each citizen's right to a
fair and impartial trial. Of course, federal trials have long been open to the media and
public. But it is the studied judgment ofthe Judicial Conference that cameras can
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interfere with a fair and impartial trial. Thus, the use of cameras in trial courts would
differ substantially from the impact of their use in legislative, administrative, or
ceremonial proceedings.
Cameras can interfere with a fair trial in numerous ways. First, broadcasting
proceedings can affect the way trial participants behave. Television cameras can
'intimidate litigants, witnesses, andjurors, many of whom have no direct connection to the
proceeding and are involved in it through no action of their own. Witnesses might refuse
to testi1J or alter their stories when they do testi1J if they fear retribution by someone who
may be watching the broadcast.
Second, and similarly, camera coverage can create privacy concerns for many
individuals involved in the trial, such as witnesses and victims, some of whom are only
tangentially related to the case but about whom very personal and identifYing information
might be revealed. For example, efforts to discredit a witness frequently involve the
revelation of embarrassing personal information. Disclosing embarrassing facts or
accusations in a courtroom already creates challenges in court proceedings. Those
challenges would be multiplied enormously if that information were aired on television
with the additional possibility of taping and replication. This concern can have a material
effect on a witness's testimony or on his or her willingness to testifY at all.
Third. and as a consequence of the aforementioned points, camera coverage could

also become a potent negotiating tactic in pretrial settlement discussions. Parties may
choose not to exercise their right to trial because of concerns regarding possible camera
coverage. Thus, allowing cameras could cause a "chilling effect" on civil rights
litigation; plaintiffs who have suffered sex or age discrimination may simply decide not to
file suit if they learn that they may have to relive the incident and have that description
broadcast to the public at large. Or, parties litigating over medical issues may not wish to
reveal their personal medical history and conditions to a broad audience.
Fourth, the presence of cameras in a trial court will encourage some participants to
become more dramatic, to pontificate about their personal views, to promote commercial
interests to a national audience, or to lengthen their appearance on camera. Such
grandstanding is disruptive to the proceedings and can delay the trial.
The Federal Judiciary is therefore very concerned that the effect of cameras in the
courtroom on participants would be to impact negatively the trial process and thereby
interfere with a fair trial.
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Page 3
In addition to affecting the fairness of a trial, the presence of cameras in a trial

courtroom also increases security and safety issues. Broadcasting the images ofjudges
and court employees, such as court reporters, courtroom deputies, and'law clerks, makes
them more easily identified as targets by those who would attempt to influence the .
outcome of the matter or exact retribution for an unpopular court ruling. Threats against
judges, lawyers, and other participants could increase even beyond the current disturbing
level. Cameras create similar security concerns for law enforcement personnel present in
, the courtroom, including U.S. marshals and U.S. attorneys and their staffs.
Finally, regarding the courts of appeals, in 1996 the Judicial Conference adopted
the position that each circuit may decide for hselfwhether to permit photographic, radio,
and television coverage of appellate arguments, subject to any restrictions in statutes,
national and local rules, and such guidelines as the Conference may adopt. This policy
ensures consistency within each circuit. The Sunshine in the Courtroom Act of 2009
would allow panels within the circuits to determine whether cameras will be allowed at
their proceedings, rather than leaving the initial decision to the circuit's management.
This will result in differing treatment of litigants within each circuit. Currently, the
circuit-wide policies avoid piecemeal and ad hoc resolutions of the issue among the
various panels convened within a court of appeals, and that approach is therefore better
than the proposed legislative change.
* * *
For the foregoing reasons, the Judicial Conference of the United States strongly
opposes legislation that allows the use of cameras in federal trial court proceedings and
permits individual panels to use of cameras in all courts of appeals instead of deferring to
each circuit's rules on such use.
Thank you for the opportunity to provide the position of the Judicial Conference
on this legislation. The legislation raises issues of vital importance to the Judiciary. If we
may be of additional assistance to you, please do not hesitate to contact our Office of
Legislative Affairs at 202-502-1700.
Sincerely,
(j~tV
James C. Duff
Secretary
cc: Members, Senate Judiciary Committee
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6
I
Case: ID: 7187906 DktEntry:
REpORT OF THE PROCEEDINGS

OF THE JUDICIAL CONFERENCE
OF THE UNITED STATES
March 12, 1996
The Judicial Conference of the United States convened in Washington, D.C.,

on March 12, 1996, pursuant to the call of the Chief Justice of the United States issued
under 28 U.S.C. § 331. The Chief Justice presided, and the following members of the
Conference were present:
First Circuit:
Chief Judge Juan R. Torruella
Chief Judge Joseph L. Tauro,
District of Massachusetts
Second Circuit:
Chief Judge Jon O. Newman
Chief Judge Peter C. Dorsey,
District of Connecticut
Third Circuit:
Chief Judge Dolores K. Sloviter

Chief Judge Edward N. Cahn,
Eastern District of Pennsylvania
Fourth Circuit:
Chief Judge 1. Harvie Wilkinson, III

Judge W. Earl Britt,
Eastern District of North Carolina
Fifth Circuit:
Chief Judge Henry A. Politz

Chief Judge William H. Barbour,
Southern District of Mississippi
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March 12, 1996
CAMERAS IN THE COURTROOM
I courts The Judicial Conference agreed to authorize each court of appeals to decide for
's itself whether to permit the taking of photographs and radio and television coverage of
appellate arguments, subject to any restrictions in statutes, national and local rules, and
icial such guidelines as the Judicial Conference may adopt. The Conference further agreed
ourt of to-
les for
ledule. a. Strongly urge each circuit judicial council to adopt an order reflecting the
Judicial Conference's decision to authorize the taking of photographs and radio
and television coverage of court proceedings in the United States courts of
appeals; and
;:ess
b. Strongly urge each circuit judicial council to adopt an order pursuant to
a
28 U.S.C. § 332 (d)(l), reflecting the September 1994 decision of the Judicial
Conference (JCUS-SEP 94, pp. 46-47) not to permit the taking of photographs
~P and radio and television coverage of court proceedings in the United States
district courts. In addition, the Judicial Conference agreed to strongly urge the
te; it judicial councils to abrogate any local rules of court that conflict with this
decision, pursuant to 28 U.S.C. § 2071{cXI).
ttee
ents
COMMITIEE ON CRIMINAL LAW
UNIVERSAL PRETRIAL DRUG TESTING
In December 1995, President Clinton directed the Attorney General to develop

uit
a "... universal policy providing for drug testing of all federal arresteesoefore decisions
en
are made on whether to release them into the community pending triaL" In February
of
1996, the Attorney General submitted a pretrial drug testing proposal to the Executive
mce
Committee, which referred the matter to the Committee on Criminal Law for
recommendation to the March Judicial Conference. Reporting on the proposal to the
Conference, the Criminal Law Committee recommended that the issue be referred back
ciary to that Committee. The Judicial Conference voted to refer the Attorney General's
dified proposal regarding universal pretrial drug testing to the Criminal Law Committee for
nd (b) expeditious consideration and report to the Executive Committee, which is authorized
;ertain to act on the matter on behalf of the Conference.
17
Exhibit 16
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0B Cooper & Kirk

Lawyers
1B

December 29, 2009

Chief Judge
Re: Perry v. Schwarzenegger, No. C-09-2292 VRW (N.D. Cal.)
I write on behalf of Defendant-Intervenors (“Proponents”) to supplement my letter of

yesterday (Doc. No. 324), regarding the Media Coalition’s request to televise the proceedings in
this case beyond the confines of the courthouse.
In yesterday’s letter, we stated that broadcast or webcast of the trial proceedings in this
case outside the confines of the courthouse would violate this Court’s Local Rule 77-3. We have
today discovered that this Court posted a Notice on its website dated December 23, 2009, that
purports to amend Local Rule 77-3, effective December 22, 2009, to create an exception that
would permit a judge to allow photographic or video depiction of the trial proceedings “for
participation in a pilot or other project authorized by the Judicial Council of the Ninth Circuit.”
See Notice Concerning Revisions of Civil Local Rule 77-3, at
http://www.cand.uscourts.gov/CAND/FAQ.nsf/60126b66e42d004888256d4e007bce29/1922d32
e34847a5588257695007f5f75?OpenDocument. We apologize for any inconvenience to the
Court or to Plaintiffs arising from our failure to discover this new notice prior to submission of
yesterday’s letter.
It does not appear that the Court provided an opportunity for the public to comment on
this purported amendment of Local Rule 77-3; nor does the December 23 notice indicate that the
amendment was submitted to the Court’s advisory committee for review between the time of the
Ninth Circuit’s press release on December 17 and the effective date of the amendment,
December 22. As indicated in yesterday’s letter, the Court may amend a local rule “only after
giving appropriate public notice and an opportunity for comment.” 28 U.S.C. § 2071(b); see
also FED. R. CIV. P. 83(a)(1); Local Rule 83-3(a). Moreover, Congress has directed the Court to
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December 29, 2009
Page 2 of 2
“appoint an advisory committee for the study of the rules of practice … of such court,” which
“shall make recommendations to the court concerning such rules,” 28 U.S.C. § 2077(b), and this
Court’s rules state that “[a]ny proposed substantive modification or amendment of these local
rules must be submitted to a Local Rules Advisory Committee for review, except that
amendments for form, style, grammar or consistency may be made without submission to an
advisory committee.” Local Rule 83-1. Because the Court did not provide notice of the
amendment prior to its effective date, did not provide an opportunity for comment, and does not
indicate that it submitted the proposed amendment to an advisory committee for review, we
respectfully submit that the amendment cannot properly authorize the broadcast or webcast of
proceedings in this case.
For these reasons, and for the other reasons stated in yesterday’s letter, Proponents must
respectfully object to any departure from this Court’s preexisting Rule 77-3 and the policy of the
Judicial Conference of the United States.
Sincerely,
Charles J. Cooper
Exhibit 17
http://www.cand.uscourts.gov/CAND/FAQ.nsf/60126b66e42d004888256d4e007bce29/1922d32e34847a5588257695007f5f75?OpenDocument
Public Notice
Subject: Contact: Date Posted:
Notice Concerning Proposed 12/31/2009
Revision of Civil Local Rule
77-3
The United States District Court for the Northern District of California has approved for
public comment a revision of Civil Local Rule 77-3.
77-3. Photography and Public Broadcasting.Unless allowed by a Judge or a Magistrate Judge with
respect to his or her own chambersor assigned courtroom for ceremonial purposes or for participation
in a pilot or other projectauthorized by the Judicial Council of the Ninth Circuit, the taking of
photographs, publicbroadcasting or televising, or recording for those purposes in the courtroom or its
environs, inconnection with any judicial proceeding, is prohibited. Electronic transmittal of
courtroomproceedings and presentation of evidence within the confines of the courthouse is
permitted, ifauthorized by the Judge or Magistrate Judge. The term “environs,” as used in this rule,
means allfloors on which chambers, courtrooms or on which Offices of the Clerk are located, with
theexception of any space specifically designated as a Press Room. Nothing in this rule is intendedto
restrict the use of electronic means to receive or present evidence during Court proceedings.
File for Download:

File Type: Adobe Acrobat
File Size: 36 KBytes
12/31/2009 6:25 PM
NOTICE CONCERNING PROPOSED REVISION OF

CIVIL LOCAL RULE 77-3
The United States District Court for the Northern District of California has
approved for public comment a revision of Civil Local Rule 77-3.
A copy of the revised rule appears below.
All comments and suggestions regarding the content of the revised rule
should be sent as soon as convenient and, in any event, no later than January 8,
2010 to the following:
Hon. Phyllis Hamilton

Chair of the Rules Committee
United States Courthouse
1301 Clay Street
Oakland, CA 94612
Hon. Vaughn W alker

Chief Judge
450 Golden Gate Avenue
77-3. Photography and Public Broadcasting.
Unless allowed by a Judge or a Magistrate Judge with respect to his or her own chambers
or assigned courtroom for ceremonial purposes or for participation in a pilot or other project
authorized by the Judicial Council of the Ninth Circuit, the taking of photographs, public
broadcasting or televising, or recording for those purposes in the courtroom or its environs, in
connection with any judicial proceeding, is prohibited. Electronic transmittal of courtroom
proceedings and presentation of evidence within the confines of the courthouse is permitted, if
authorized by the Judge or Magistrate Judge. The term “environs,” as used in this rule, means all
floors on which chambers, courtrooms or on which Offices of the Clerk are located, with the
exception of any space specifically designated as a Press Room. Nothing in this rule is intended
to restrict the use of electronic means to receive or present evidence during Court proceedings.
Exhibit 18
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Cooper & Kirk

Lawyers
1523 New Hampshire Avenue, N.W.
Charles J. Cooper Washington, D.C. 20036 (202) 220-9600
ccooper@cooperkirk.com Fax (202) 220-9601
January 4, 2009

Chief Judge of the United States District Court
for the Northern District of California
Re: Perry v. Schwarzenegger, et al., N.D. Cal. Case No. C-09-2292 VRW
I write on behalf of Defendant-Intervenors and in response to the Court’s order dated December
30, 2009. The order states that “the court is considering seeking approval from Chief Judge Kozinski to
record or webcast the January 6 hearing” concerning the issue of whether to televise further proceedings
in this case. Doc # 332 at 2. For the reasons previously submitted to the Court, see Doc #s 218, 324,
326, Defendant-Intervenors respectfully object to the recording or webcasting of the January 6 hearing.
Moreover, the Court’s December 30 order cites as authority “the … amendment of Civil LR 77-3.” Doc
# 332 at 2. During the afternoon of December 31, however, notice of the amendment was removed from
the Court’s website. In its place was posted a “Notice Concerning Proposed Revision of Civil Local
Rule 77-3.” Accordingly, it appears that, as of today, this Court’s current Local Rules still prohibit the
recording or public broadcast of proceedings in the courthouse. Defendant-Intervenors thus respectfully
submit that the Court is obliged to abide by this prohibition.
Respectfully submitted,

Charles J. Cooper
Cc: Counsel of Record

Exhibit 19
http://www.cand.uscourts.gov/
Text Only Site Map
Vaughn R. Walker, Chief Judge.......... ..........Richard W. Wieking, Clerk of Court
PUBLIC ANNOUNCEMENTS COURT

xxxINFORMATIONxxx
CASES Address & Jurisdiction
Perry v. Schwarzenegger - C09-2292 VRW (Challenge to Accessibility
Proposition 8) ADR Magistrate Judge
Attorney Lounge
FTC v. Pricewert LLC dba 3fn.net, et al. C09-2407 RMW Attorney Status
USA v. Bonds 3:07-cr-00732 California state site
Plata/Coleman v. Schwarzenegger (Prison Overcrowding) Current Interest
Bextra and Celebrex Electronic Case Filing
Federal Judiciary
RULES & ORDERS Extern Application
Fee Schedule
Notice Concerning Revision of Civil Local Rule 77-3
Filing Guidelines
Local Rules Changes - Effective 12/01/09 FirstGov Website
Revised General Order 56 Getting Docket Info
Local Rules Notice Concerning Revisions of Civil Local Rule, 3-2 and 5-1 Historical Society
General Orders Standing Order for All Judges of the Northern District of Magistrate Judge Profiles
Media Info California Effective 3/1/07 Seminars Disclosure
Library of Congress
Local Rules
CLERK'S NOTICES Naturalization
Job Announcement - Deputy Chief Pretrial Services Officer (Type Practice Program
II) Pro Se Handbook
Revised Forms 12/09: Bill of Costs, Summons in a Civil Action T-bill Rate for Judgment
and Summons on Third-Party Complaint
San Jose Help Desk Revised RFP: Grant Amount $75,000
Announcement re Reappointment of Magistrate Judge Howard R.
Lloyd
Media Conference: New Media in the Courtroom, November 4,
2009
Notice re: Judge Hamilton's Relocation to Oakland
Clerk's Office Now Accepting Payments By Credit Card
New Federal Magistrate Judge Appointments
Notice Concerning Relocation of Judges
Judicial Misconduct and Disability
GENERAL NOTICES
RFQ Audio / Video Recording Project - Due January 5, 2010
RFQ for Mailing Juror Questionnaires for fiscal year 2010 -
Due January 8, 2010
Submitting Matters to the ADR Magistrate Judge
Notice Regarding Surveys Sent from this Court
Pro Bono Project Guidelines
Legal Help Center Open to Assist Pro Se Litigants
Pro Se Handbook - Now in Spanish & Chinese Translations
Courtroom Technology Upgrades
Teleconferencing Guidelines
Please drop us
an email at:
1/5/2010 5:13 PM
http://www.cand.uscourts.gov/
Web-CAND@cand.uscourts.gov
1/5/2010 5:13 PM
NOTICE CONCERNING REVISION OF

CIVIL LOCAL RULE 77-3
The United States District Court for the Northern District of California
Court has approved a revision of Civil Local Rule 77-3, effective December 22,
2009.
Unless allowed by a Judge or a Magistrate Judge with respect to his or her own chambers
or assigned courtroom for ceremonial purposes or for participation in a pilot or other project
authorized by the Judicial Council of the Ninth Circuit, the taking of photographs, public
broadcasting or televising, or recording for those purposes in the courtroom or its environs, in
connection with any judicial proceeding, is prohibited. Electronic transmittal of courtroom
proceedings and presentation of evidence within the confines of the courthouse is permitted, if
authorized by the Judge or Magistrate Judge. The term “environs,” as used in this rule, means all
floors on which chambers, courtrooms or on which Offices of the Clerk are located, with the
exception of any space specifically designated as a Press Room. Nothing in this rule is intended
to restrict the use of electronic means to receive or present evidence during Court proceedings.
The revised rule was adopted pursuant to the “immediate need”

provision of Title 28 U.S.C. Sec. 2071(e). All comments and suggestions
regarding the content of the revised rule should be sent as soon as convenient
and, in any event, no later than January 8, 2010 to:
Hon. Phyllis Hamilton

Chair of the Rules Committee
1301 Clay Street
Oakland, CA 94612
Hon. Vaughn W alker

Chief Judge
450 Golden Gate Avenue
Exhibit 20
available at: www.uscourts.gov/testimony/Tunheim_cameras092707.pdf
JUDICIAL CONFERENCE OF THE UNITED STATES
STATEMENT OF
THE HONORABLE JOHN R. TUNHEIM
JUDGE, UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MINNESOTA
FOR THE
COMMITTEE ON THE JUDICIARY
OF THE
UNITED STATES HOUSE OF REPRESENTATIVES
HEARING ON CAMERAS IN THE COURTROOM:

THE “SUNSHINE IN THE COURTROOM ACT OF 2007,” H.R. 2128
September 27, 2007
Administrative Office of the U.S. Courts, Office of Legislative Affairs

Thurgood Marshall Federal Judiciary Building, Washington, DC 20544, 202-502-1700.
SUMMARY OF STATEMENT OF JUDGE TUNHEIM

ON BEHALF OF THE JUDICIAL CONFERENCE OF THE UNITED STATES
September 27, 2007
The Judicial Conference of the United States strongly opposes H.R. 2128 to the
extent that it allows the use of cameras in the federal trial courts. The Conference also
opposes the bill’s provisions permitting each appellate panel to decide whether to allow
cameras, believing instead that the existing Conference policy – which requires that
decision to be made by the entire court of appeals – is appropriate.
This opposition is not based on a knee-jerk reaction against increased publicity for
the federal courts. In fact, the Federal Judiciary is arguably one of the most publicly
accessible government institutions. Nearly every hearing, trial, appellate argument,
filing, decision, and opinion is open and available to the public. And, over the past
decade, the Judicial Conference has dramatically expanded that openness by making its
entire filing system electronically available to the public through the Internet. This major
initiative has put the Judiciary at the forefront of public access.
The Judicial Conference position is based on a thoughtful and reasoned concern

regarding the impact cameras could have on trial proceedings. This legislation has the
potential to undermine the fundamental right of citizens to a fair trial. It could jeopardize
court security and the safety of trial participants, including judges, U.S. attorneys, trial
counsel, U.S. marshals, court reporters, and courtroom deputies. The use of cameras in
the trial courts could also raise privacy concerns and produce intimidating effects on
litigants, witnesses, and jurors, many of whom have no direct connection to the
proceeding. In addition, appearing on television could lead some trial participants to act
more dramatically, to pontificate about their personal views, to promote commercial
interests to a national audience, or to increase their courtroom actions so as to lengthen
their appearance on camera. Finally, camera coverage could become a negotiating tactic
in pretrial settlement discussions or cause parties to choose not to exercise their right to
have a trial.
Unlike congressional hearings or sessions, a courtroom trial takes place to

determine individuals’ rights and to administer justice. Private livelihoods, property, and
even personal liberty and human life itself are among the crucial matters at stake. The
right to have these matters decided in a fair and impartial trial sets the court proceedings
apart from the oft-televised legislative, administrative, or ceremonial proceedings.
The paramount question in determining whether cameras should be used in federal

courts should not be whether more openness would be enjoyed by the public and media.
Virtually all court proceedings are public and open today with very limited exceptions
(such as of those related to juveniles). Rather, the Judicial Conference believes the
question is whether the presence of cameras has the potential to deprive citizens of their
ability to have a claim or right fairly resolved in United States district courts. Although
the legislation gives the presiding judge the discretion to deny the use of cameras, the
potential for compromising a citizen’s right to a fair trial may not become evident until a
televised trial is underway. Therefore, the Conference has taken the position that any
perceived benefit from allowing cameras is outweighed by the potential for harm to an
individual involved in the litigation process.
Because cameras in the trial courts could profoundly and negatively impact the
trial process, the Judicial Conference strongly opposes any legislation that would allow
the use of cameras in the United States district courts.
STATEMENT OF JUDGE JOHN R. TUNHEIM

ON BEHALF OF THE JUDICIAL CONFERENCE OF THE UNITED STATES
September 27, 2007
Mr. Chairman and Members of the Committee, my name is John R. Tunheim.
I am a United States District Judge in the District of Minnesota and Chair of the Court
Administration and Case Management Committee of the Judicial Conference. I have
been asked to testify today on behalf of the Judicial Conference regarding the issue of
cameras in the courtroom and the pending legislation, H.R. 2128, the “Sunshine in the
Courtroom Act of 2007.” As a preliminary point, I want to emphasize that the Judicial
Conference does not speak for the Supreme Court regarding the bill’s application to that
Court.
The Judicial Conference strongly opposes H.R. 2128 to the extent that it allows the
use of cameras in the federal trial courts. The Conference also opposes the bill’s
provisions allowing the use of cameras by any panel in all courts of appeals, rather than
allowing that decision to be made by each court of appeals as a whole, which is the
present practice.
I. Background
The Federal Judiciary has reviewed the issue of whether cameras should be
permitted in the federal courts for more than six decades, both in case law and through
Judicial Conference consideration. The Judicial Conference, in its role as the policy-
making body for the Federal Judiciary, has consistently expressed the view that camera
coverage can do irreparable harm to a citizen’s right to a fair and impartial trial. The
Conference believes that the intimidating effect of cameras on litigants, witnesses, and
Statement of the Judicial Conference of the United States 2
jurors has a profoundly negative impact on the trial process. In both civil and criminal
cases, cameras can intimidate defendants who, regardless of the merits of the case, might
prefer to settle or plead guilty rather than risk damaging accusations in a televised trial.
Cameras can also create security and privacy concerns for many individuals, many of
whom are not even parties to the case, but about whom very personal information may be
revealed at trial.
These concerns are far from hypothetical. Since the infancy of motion pictures,
cameras have had the potential to create a spectacle around trial court proceedings.
Examples include the media frenzies that surrounded the 1935 Lindbergh baby kidnaping
trial, the murder trial in 1954 of Dr. Sam Sheppard, the Menendez brothers and O.J.
Simpson trials, as well as the more recent hearings relating to the death of Anna Nicole
Smith. We have avoided such incidences in the federal courts due to the long-standing
bar of cameras in the trial courts, which H.R. 2128 now proposes to overturn.
I want to emphasize that our opposition to this legislation is not based on a knee-
jerk reaction against new technologies. In fact, the federal courts have shown strong
leadership in the continuing effort to modernize the litigation process. This has been
particularly true of the Judiciary’s willingness to embrace new technologies, such as
electronic case filing and access to court files, videoconferencing, and electronic evidence
presentation systems. Indeed, some courts, such as the district court here in the District of
Columbia, have set up special media rooms for high visibility trials, allowing reporters to
provide continual and contemporaneous reports on the conduct of a trial to the public. In
addition, many of the appellate courts provide recordings of oral arguments on their web
sites. And this policy to promote openness in the courtroom continues. For example,
earlier this year, on the recommendation of the Committee that I chair, the Judicial
Conference approved a pilot program to make digital audio recordings of proceedings in
district and bankruptcy courts in which the official record is taken using digital recording
devices available on the Internet. Our opposition to this legislation, therefore, is not, as
some may suggest, based on a desire to stem technology or access to the courts. Rather,
the Judicial Conference opposes the broadcasting of federal trial court proceedings
because it believes it to be contrary to the interests of justice, which it is our most basic
duty to uphold.
Today I will discuss some of the Judicial Conference’s specific concerns with this
legislation, as well as with the issues of cameras in the trial courtroom, generally. Before
addressing those concerns, however, I would like to provide you with a brief history of
the Conference’s consideration of the cameras issue, which will demonstrate the time and
effort it has devoted to understanding this issue over the years.
II. Background on Cameras in the Federal Courts
Whether to allow cameras in the courtroom is far from a novel question for the
Federal Judiciary. Electronic media coverage of criminal proceedings in federal courts
has been expressly prohibited under Federal Rule of Criminal Procedure 53 since the
criminal rules were adopted in 1946. That rule states that “the court must not permit the
taking of photographs in the courtroom during judicial proceedings or the broadcasting of

judicial proceedings from the courtroom.” And, in 1972, the Judicial Conference adopted
a prohibition against “broadcasting, televising, recording or taking photographs in the
courtroom and areas immediately adjacent thereto. . . .” The prohibition applied to both
criminal and civil cases.
Since then, the Conference has, however, repeatedly studied and considered the
issue. In 1988, Chief Justice Rehnquist appointed an Ad Hoc Committee on Cameras in
the Courtroom, which recommended that a three-year experiment be established
permitting camera coverage of certain proceedings in selected federal courts. In 1990, the
Judicial Conference adopted this recommendation and authorized a three-year pilot
program allowing electronic media coverage of civil proceedings in six district and two
appellate courts, which commenced July 1, 1991.1
The Federal Judicial Center (FJC) conducted a study of the pilot project and
submitted its results to a committee of the Judicial Conference. After reviewing the FJC’s
report, the Conference decided in September 1994 that the potentially intimidating effect
of cameras on some witnesses and jurors was cause for considerable concern in that it
could impinge on a citizen’s right to a fair and impartial trial. Therefore, the Conference
concluded that it was not in the interest of justice to permit cameras in federal trial courts.
Two years later, at its March 1996 session, the Judicial Conference again
considered the issue and urged each circuit judicial council to adopt, pursuant to its
1
The courts that volunteered to participate in the pilot project were the U.S. Courts of Appeals for the
Second and Ninth Circuits, and the U.S. District Courts for the Southern District of Indiana, District of
Massachusetts, Eastern District of Michigan, Southern District of New York, Eastern District of Pennsylvania, and
Western District of New York.
rulemaking authority set forth in 28 U.S.C. § 332(d)(1), an order reflecting the
Conference’s September 1994 decision not to permit the taking of photographs or radio
and television coverage of proceedings in U.S. district courts. The Conference also voted
strongly to urge circuit judicial councils to abrogate any local rules that conflict with this
decision, pursuant to 28 U.S.C. § 2071(c)(1).
Interestingly, however, the Conference distinguished between camera coverage for
appellate and district court proceedings. Because an appellate proceeding does not
involve witnesses and juries, the concerns of the Conference regarding the impact of
camera coverage on the litigation process were reduced. Therefore, the Conference in
1996 “agreed to authorize each court of appeals to decide for itself whether to permit the
taking of photographs and radio and television coverage of appellate arguments, subject
to any restrictions in statutes, national and local rules, and such guidelines as the Judicial
Conference may adopt.”
The current policy, as published by the Administrative Office of the U.S. Courts in
the Guide to Judiciary Policies and Procedures, states:
A judge may authorize broadcasting, televising, recording, or taking

photographs in the courtroom and in adjacent areas during investitive,
naturalization, or other ceremonial proceedings. A judge may authorize
such activities in the courtroom or adjacent areas during other proceedings,
or recesses between such other proceedings, only:
(a) for the presentation of evidence;

(b) for the perpetuation of the record of the proceedings;
(c) for security purposes;
(d) for other purposes of judicial administration; or
(e) for the photographing, recording, or broadcasting of appellate

arguments.
When broadcasting, televising, recording, or photographing in the

courtroom or adjacent areas is permitted, a judge should ensure that it is
done in a manner that will be consistent with the rights of the parties, will
not unduly distract participants in the proceeding, and will not otherwise
interfere with the administration of justice.
Guide, Vol. 1, Ch. 3, Part E. 3.
Presently, two of the 13 appellate courts, the Second and Ninth Circuits, have
decided to permit camera coverage in appellate proceedings. This decision was made by
the judges of each court. As for cameras in district courts, most circuit councils have
either adopted resolutions prohibiting cameras in the district courts or have acknowledged
that the district courts in that circuit already have such a prohibition.
Finally, it may be helpful to describe the state rules regarding cameras in the
courtroom. While it is true that most states permit some use of cameras in their courts,
such access by the media is not unlimited. The majority of states have imposed
restrictions on the use of cameras in the court or have banned cameras altogether in
certain proceedings. Although it is somewhat difficult to obtain current information, it
appears that approximately 31 states that permit cameras have restrictions of some kind
written into their authorizing statutes, such as allowing coverage only in certain courts,
prohibiting coverage of certain types of proceedings or of certain witnesses, and/or
requiring the consent of the parties, victims of sex offenses, and witnesses. Thirteen
states, including the District of Columbia, do not allow coverage of criminal trials. In
nine states, cameras are allowed only in appellate courts. The District of Columbia
prohibits cameras altogether. Utah allows only still photography at civil trials. In fact,
only 19 states appear to provide the presiding judge with the type of broad discretion over
the use of cameras contained in this legislation. It is clear from the widely varying
approaches to the use of cameras that the state courts are far from being of one mind in
the approach to, or on the propriety and extent of, the use of cameras in the courtroom.
III. Judicial Conference Concerns Regarding H.R. 2128, As Applied to Trial Courts
I would now like to discuss some of the specific concerns the Judicial Conference
has with H.R. 2128, as well as the more general issue of media coverage in trial
courtrooms.
A. Cameras Have the Potential to Negatively Impact the Trial Process
Supporters of cameras in the courtroom assert that modern technology has made
cameras and microphones much less obvious, intrusive or disruptive, and that therefore
the Judiciary need not be concerned about their presence during proceedings. The
Conference respectfully argues that this is not the paramount concern. While covert
coverage may reduce the bright lights and tangle of wires that were made famous in the
Simpson trial, it does nothing to reduce the significant and measurable negative impact
that camera coverage can have on the trial participants themselves.
Proponents of cameras in the courtroom also argue that media coverage would
benefit society because it would enable people to become more educated about the legal
system and particular trials. The Judiciary strongly endorses educational outreach but
believes it could better be achieved through increased and targeted community outreach
programs. The Judicial Conference also believes, however, that this increased public
education should not interfere with the Judiciary’s primary mission, which is to
administer fair and impartial justice to individual litigants in individual cases.
While judges are accustomed to balancing conflicting interests, weighing any
potential “positive” effects of cameras against the degree of harm that this type of
coverage could have on a particular proceeding would be difficult, if not impossible.
This includes the impact the camera and its attendant audience would have on the
attorneys, jurors, witnesses, and even judges. For example, a witness telling facts to a
jury will often act differently if he or she is aware that a television audience is watching
and listening. Media coverage could exacerbate any number of human emotions in a
witness from bravado and over-dramatization, to self-consciousness and under-reaction.
These changes in a witness’s demeanor could have a profound impact on a jury’s ability
to accurately assess the veracity of that witness. In fact, according to the FJC study
(which is discussed in more detail later in this statement), 64 percent of the participating
judges reported that, at least to some extent, cameras make witnesses more nervous. In
addition, 46 percent of the judges believed that, at least to some extent, cameras make
witnesses less willing to appear in court, and 41 percent found that, at least to some
extent, cameras distract witnesses. Such effects could severely compromise the ability of
jurors to assess the veracity of a witness and, in turn, could prevent the court from being
able to ensure that the trial is fair and impartial.

B. H.R. 2128 Inadequately Protects the Right to a Fair Trial
The primary goal of this legislation is to allow radio and television coverage of
federal court cases. While there are several provisions aimed at limiting coverage (i.e.,
allowing judges the discretion to allow or decline media coverage, authorizing the
Judicial Conference to develop advisory guidelines regarding media coverage, requiring
courts to disguise the face and voice of a witness upon his or her request, and barring the
televising of jurors), the Conference is convinced that camera coverage could, in certain
cases, so indelibly affect the dynamics of the trial process that it would impair a citizen’s
ability to receive a fair trial.
For example, Section 2(b)(1) and 2(b)(2) of the bill would allow the presiding
judge to decide whether to allow cameras in a particular proceeding before that court. If
this legislation were enacted, I am sure that all federal judges would use extreme care and
judgment in making this determination. Nonetheless, we are not clairvoyants. Even the
most straightforward, “run of the mill” cases have unforseen developments. Obviously a
judge never knows how a lawyer will proceed or how a witness or party will testify. And
these events can have a tremendous impact on the trial participants. Currently, courts
have recourse to instruct the jury to disregard certain testimony or, in extreme situations,
to declare a mistrial if the trial process is irreparably harmed. If camera coverage is
allowed, however, witnesses or litigants may be tempted to speak to the larger television
audience, and there is no opportunity to rescind these remarks. This concern is of such
importance to the Conference that it opposes legislation that would give a judge
discretion to evaluate in advance whether television cameras should be permitted in
particular cases.
The Judicial Conference is also concerned about the impact of the legislation on
witnesses. Although the bill provides witnesses with the right to request that their faces
and voices may be obscured, anyone who has been in court knows how defensive
witnesses can be. Frequently, they have a right to be. Witnesses are summoned into
court to be examined in public. Sometimes they are embarrassed or even humiliated.
Providing them the choice of whether to testify in the open or blur their image and voice
would be cold comfort given the fact that their name and their testimony will be broadcast
to the community. It would not be in the interest of the administration of justice to
unnecessarily increase the already existing pressures on witnesses.
These basic concerns regarding witnesses were eloquently described by Justice
Clark in Estes v. Texas, 381 U.S. 532 (which I discuss more fully at the end of my
statement):
The quality of the testimony in criminal trials will often be impaired.

The impact upon a witness of the knowledge that he is being viewed by a
vast audience is simply incalculable. Some may be demoralized and
frightened, some cocky and given to overstatement; memories may falter,
as with anyone speaking publicly, and accuracy of statement may be
severely undermined. Embarrassment may impede the search for the truth,
as may a natural tendency toward overdramatization. Furthermore,
inquisitive strangers and “cranks” might approach witnesses on the street
with jibes, advice or demands for explanation of testimony. There is little
wonder that the defendant cannot “prove” the existence of such factors.
Yet we all know from experience that they exist.
Estes, 381 U.S. at 547. It is exactly these concerns that cause the Judicial Conference of
the United States to oppose enactment of H.R. 2128.
C. Threat of Camera Coverage Could be Used as a Trial Tactic
Cameras can provide a strong temptation for both attorneys and witnesses to state
their cases in the court of public opinion rather than in a court of law. Therefore,
allowing camera coverage would almost certainly become a potent negotiating tactic in
pretrial settlement negotiations. For example, in a high-stakes case involving millions of
dollars, the simple threat that the president of a defendant corporation could be forced to
testify and be cross-examined, for the edification of the general public, might well be a
real disincentive to the corporation in exercising its right to a public trial.
D. Cameras Can Create Security Concerns
Although the bill includes language allowing a witness to request that his or her
image be obscured, the bill does not address security concerns or make similar provision
regarding other participants in judicial proceedings. The presence of cameras in the trial
courtroom is likely to heighten the level and the potential of threats to judges. The
number of threats against judges has escalated over the years, and widespread media
exposure could exacerbate the problem. Witnesses, jurors, and United States Marshals
Service personnel might also be put at risk with this increased exposure and notoriety.
Finally, national and international camera coverage of trials, especially those
relating to terrorism, could place federal courthouses and their occupants at greater risk
and may require increased personnel and funding to adequately protect participants in
such court proceedings.

E. Cameras Can Create Serious Privacy Concerns
There is a rising tide of concern among Americans regarding privacy rights and
the Internet. Numerous bills have been introduced in both the Congress and state
legislatures to protect the rights of individual citizens from the indiscriminate
dissemination of personal information that once was, to use a phrase coined by the
Supreme Court, hidden by “practical obscurity,”2 but now is available to anyone at any
time because of the advances of technology.
The Judiciary takes these concerns very seriously. In fact, the Committee that I
chair, the Court Administration and Case Management Committee, has spent the last
eight years ensuring that the Judiciary’s electronic case files system provides adequate
privacy safeguards to protect sensitive and personal information, such as Social Security
numbers, financial account numbers, and the names of minor children from the general
public, while at the same time providing the public with access to court files.
Broadcasting of trials presents many of the same concerns about privacy as does
the indiscriminate dissemination of information on the Internet that was once only
available at the courthouse. Witnesses and counsel frequently discuss very sensitive
information during the course of a trial. Often this information relates to individuals who
are not even parties to the case but about whom personal information may be revealed.
The reality is that many of the trials the media would be interested in televising are those
2
United States Department of Justice v. Reporters Committee for the Freedom of the Press, 489
U.S. 749, 764 (1989).
that involve testimony of an extremely private nature, revealing family relationships and
personal facts, including medical and financial information. While this type of
information is presented in open court, televising these matters could sensationalize and
provide these details to a much larger audience, which again raises significant and
legitimate privacy concerns.
Involvement in a federal case can have a deep and long-lasting impact on all its
participants – parties to the case as well as witnesses – most of whom have neither asked
for nor sought publicity. In this adversarial setting, reputations can be compromised and
relationships can be damaged. In fact, according to the FJC study on live courtroom
media coverage, 56% of the participating judges felt that electronic media coverage
violates a witness’s privacy. This is not to say that the Conference advocates closed
trials; far from it. Nevertheless, there is a common-sense distinction between a public
trial in a public courtroom – typically filled with individuals with a substantive interest in
the case – and its elevation to an event that involves the wider television audience.
The issue of privacy rights is one that has not been adequately considered or
addressed by those who would advocate the broadcasting of trials. This heightened
awareness of and concern for privacy rights is a relatively new and important
development that further supports the position of the Judicial Conference to prohibit the
use of cameras in the courtroom.

F. H.R. 2128 Does Not Address the Complexities Associated with Camera
Coverage in the Trial Courts
Televised coverage of a trial would have a significant impact on that trial process.
Major policy implications as well as administration issues may arise, many of which are
not addressed in the proposed legislation. For example, televising a trial makes certain
court orders, such as the sequestration of witnesses, more difficult to enforce and could
lead to tainted testimony from witnesses. In addition, more technical issues would have
to be addressed, including advance notice to the media and trial participants, limitations
on coverage and camera control, coverage of the jury box, and sound and light criteria.
Finally, I should note that H.R. 2128 includes no funding authorization for its
implementation, and there is no guarantee that such funds would be appropriated. The
costs associated with allowing cameras, however, could be significant, such as retrofitting
courtrooms to incorporate cameras while minimizing their actual presence to the trial
participants. Also, to ensure that a judge’s orders regarding coverage of the trial were
followed explicitly (e.g., not filming the jury, obscuring the image and voice of certain
witnesses, or blocking certain testimony), a court may need to purchase its own
equipment, as well as hire technicians to operate it. Large courts might also feel
compelled to create the position of media coordinator or court administrative liaison to
administer and oversee an electronic media program on a day-to-day basis. Such liaison’s
duties might include receiving applications from the media and forwarding them to
presiding judges, coordinating logistical arrangements with the media, and maintaining
administrative records of media coverage. Thus, the cost of this legislation could be
significant.
G. There is No Constitutional Right to have Cameras in the Courtroom
Some have asserted that there is a constitutional “right” to bring cameras into the
courtroom and that the First Amendment requires that court proceedings be open in this
manner to the news media. The Judicial Conference responds to such assertions by
stating that today, as in the past, federal court proceedings are open to the public;
however, nothing in the First Amendment requires televised trials.
The seminal case on this issue is Estes v. Texas, 381 U.S. 532 (1965). In Estes,
the Supreme Court directly faced the question of whether a defendant was deprived of his
right under the Fourteenth Amendment to due process by the televising and broadcasting
of his trial. The Court held that such broadcasting in that case violated the defendant’s
right to due process of law. At the same time, a majority of the Court’s members
addressed the media’s right to telecast as relevant to determining whether due process
required, in general, excluding cameras from the courtroom. Justice Clark’s plurality
opinion and Justice Harlan’s concurrence indicated that the First Amendment did not
extend the right to the news media to televise from the courtroom. Similarly, Chief
Justice Warren’s concurrence, joined by Justices Douglas and Goldberg, stated:
[n]or does the exclusion of television cameras from the courtroom in any
way impinge upon the freedoms of speech and the press. . . . So long as the
television industry, like the other communications media, is free to send
representatives to trials and to report on those trials to its viewers, there is
no abridgement of the freedom of press.
Estes, 381 U.S. at 584-85 (Warren, C.J., concurring).
In the case of Westmoreland v. Columbia Broadcasting System Inc., 752 F.2d 16
(2d Cir. 1984), the Second Circuit was called upon to consider whether a cable news
network had a right to televise a federal civil trial and whether the public had a right to
view that trial. In that case, both parties had consented to the presence of television
cameras in the courtroom under the close supervision of a willing court, but a facially
applicable court rule prohibited the presence of such cameras. The Second Circuit denied
the attempt to televise that trial, saying that no case has held that the public has a right to
televised trials. As stated by the court, “[t]here is a long leap. . . between a public right
under the First Amendment to attend trials and a public right under the First Amendment
to see a given trial televised. It is a leap that is not supported by history.” Westmoreland,
752 F.2d at 23.
Similarly, in United States v. Edwards, 785 F.2d 1293 (5th Cir. 1986), the court
discussed whether the First Amendment encompasses a right to cameras in the courtroom,
stating: “No case suggests that this right of access includes a right to televise, record, or
otherwise broadcast trials. To the contrary, the Supreme Court has indicated that the First
Amendment does not guarantee a positive right to televise or broadcast criminal trials.”
Edwards, 785 F.2d at 1295. The court went on to explain that while television coverage
may not always be constitutionally prohibited, that is a far cry from suggesting that
television coverage is ever constitutionally mandated.
These cases forcefully make the point that, while all trials are public, there is no
constitutional right of media to broadcast federal district court or appellate court
proceedings.
H. The Teachings of the FJC Study
Proponents of cameras legislation have previously indicated that the legislation is
justified in part by the FJC study referred to earlier. The results of that study, however,
were part of the basis for the Judicial Conference’s opposition to cameras in the
courtroom. Given this apparent inconsistency, it may be useful to highlight several
important findings and limitations of the study. (I should also note that the
recommendations included in the FJC report were proposed by its research project staff,
but were not reviewed by its Board.)
First, the study only pertained to civil cases. This legislation, if enacted, would
allow camera coverage in both civil and criminal cases. One could expect that most of
the media requests for coverage would be in sensational criminal cases, where the
problems for witnesses, including victims of crimes, and jurors are most acute.
Second, the Conference believes that the study’s conclusions downplay a large
amount of significant negative statistical data. For example, the study reports on attorney
ratings of electronic media effects in proceedings in which they were involved. Among
these negative statistics were the following:
• 32% of the attorneys who responded felt that, at least to some extent, the cameras
distract witnesses;
• 40% felt that, at least to some extent, the cameras make witnesses more nervous
than they otherwise would be;
• 19% believed that, at least to some extent, the cameras distract jurors;
• 21% believed that, at least to some extent, the cameras cause attorneys to be
more theatrical in their presentations;
• 27% believed that, at least to some extent, the cameras have the effect of
distracting the attorneys; and
• 21% believed that, at least to some extent, the cameras disrupt the courtroom
proceedings.
When trial judges were asked these same questions, the percentages of negative
responses were even higher:
• 46% believed that, at least to some extent, the cameras make witnesses less
willing to appear in court;
• 41% found that, at least to some extent, the cameras distract witnesses;
• 64% reported that, at least to some extent, the cameras make witnesses more
nervous than they otherwise would be;
• 17% responded that, at least to some extent, cameras prompt people who see the
coverage to try to influence juror-friends;
• 64% found that, at least to some extent, the cameras cause attorneys to be more
theatrical in their presentations;
• 9% reported that, at least to some extent, the cameras cause judges to avoid
unpopular decisions or positions; and
• 17% found that, at least to some extent, cameras disrupt courtroom proceedings.
For the appellate courts, an even larger percentage of judges who participated in
the study related negative responses:
• 47% of the appellate judges who responded found that, at least to some extent,
the cameras cause attorneys to be more theatrical in their presentations;
• 56% found that, at least to some extent, the cameras cause attorneys to change
the emphasis or content of their oral arguments;
• 34% reported that, at least to some extent, cameras cause judges to change the
emphasis or content of their questions at oral arguments; and
• 26% reported that, at least to some extent, the cameras disrupt courtroom
proceedings.
These negative statistical responses from judges and attorneys involved in the pilot
project dominated the Judicial Conference debate and were highly influential in the
Conference’s conclusion that the intimidating effect of cameras on witnesses and jurors
was cause for alarm. Since a United States judge’s paramount responsibility is to seek to
ensure that all citizens enjoy a fair and impartial trial, and since cameras may compromise
that right, allowing cameras would not be in the interest of justice. For these reasons, the
Judicial Conference rejected the conclusions made by the FJC study with respect to
cameras in district courts.
IV. Conclusion
When one thinks of cameras in the trial courtroom today, the O.J. Simpson case
inevitably comes to mind and how the presence of cameras in that courtroom impacted
the conduct of the attorneys, witnesses, jurors, and the judge. Admittedly, few cases will
have this notoriety, but the inherent effects of the presence of cameras in the courtroom
are, in some respects, the same, whether or not it is a high-publicity case. Furthermore,
there is a legitimate concern that if the federal courts were to allow camera coverage of
cases that are not sensational, it would become increasingly difficult to limit coverage in
the high-profile and high-publicity cases where such limitation, almost all would agree,
would be warranted.
This is not a debate about whether judges would have personal concerns regarding
camera coverage. Nor is it a debate about whether the federal courts are afraid of public
scrutiny or about increasing the educational opportunities for the public to learn about the
federal courts or the litigation process. Open hearings are a hallmark of the Federal
Judiciary.
Rather, this is a question about how individual Americans – whether they are
plaintiffs, defendants, witnesses, or jurors – are treated by the federal judicial process. It
is the fundamental duty of the Federal Judiciary to ensure that every citizen receives his
or her constitutionally guaranteed right to a fair trial. For the reasons discussed in this
statement, the Judicial Conference believes that the use of cameras in the trial courtroom
would seriously jeopardize that right. It is this concern that causes the Judicial
Conference of the United States to oppose enactment of H.R. 2128 as applied to federal
trial courts. As the Supreme Court stated in Estes, “[w]e have always held that the
atmosphere essential to the preservation of a fair trial – the most fundamental of all
freedoms – must be maintained at all costs.” 381 U.S. at 540.

Exhibit 21
available at: http://www.gpo.gov/fdsys/pkg/CHRG‐106shrg1029/html/CHRG‐
106shrg1029.htm
http://www.gpo.gov/fdsys/pkg/CHRG-106shrg1029/html/CHRG-106shrg1029.htm
Case: 10-70063 01/08/2010 Page: 2 of 73
PANEL CONSISTING OF HON. EDWARD R. BECKER, CHIEF JUDGE, U.S.
ID: 7187906 DktEntry: 1-5
COURT OF APPEALS FOR THE THIRD CIRCUIT, PHILADELPHIA, PA, ON
BEHALF OF THE JUDICIAL CONFERENCE OF THE UNITED STATES; HON.
NANCY GERTNER, JUDGE, U.S. DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS, BOSTON, MA; AND HON. HILLER B. ZOBEL, ASSOCIATE
JUSTICE, SUPERIOR COURT DEPARTMENT, MASSACHUSETTS TRIAL COURT,
BOSTON, MA
STATEMENT OF HON. EDWARD R. BECKER
Judge Becker. Thank you, Senator Grassley. On behalf of the

Judicial Conference, I thank you for the opportunity to present
our views on S. 721. My oral statement is somewhat longer than
5 minutes, but in light of the importance of the issues to the
Federal judiciary, I respectfully request your indulgence to
complete my remarks which will not exceed 10 minutes.
Senator Grassley. Granted.
Judge Becker. Thank you, sir.
Although the Conference strongly opposes the bill, before I
explain why it is important to state that the Conference shares
the sponsors' desire for improving public education about the
Federal judiciary. But Federal courts are already fully open,
and the wisdom of S. 721 therefore turns on whether it will
advance public knowledge without damage to court processes. The
Judicial Conference believes that the answer is no.
I will begin with what we perceive to be harm to the
judicial process, but must first state two baseline premises.
First, if this proposal can result in real and irreparable harm
to a citizen's right to a fair and impartial trial, it is
unacceptable to say that the harm is not great or that it is
outweighed by the public good of televised court proceedings.
We cannot tolerate in the Federal courts even a little bit of
unfairness because that would be inconsistent with our sacred
trust.
If one thing is clear to me after 30 years on the Federal
bench, it is that balancing the positive effects of media
coverage against the degree of damage that camera coverage
would bring is not proper. Our mission is to administer the
highest possible quality of justice to each and every litigant,
not to provide entertaining backdrop for news reporters.
A second baseline point is that there can be a level of
unfairness in a trial that does not amount to a constitutional
deprivation. I speak here not as a decisionmaker in an
individual case, but on behalf of a policymaking body which
wants to ensure that no level of unfairness creeps into Federal
courtrooms.
I will begin with the question of perceived harms. The
Judicial Conference maintains that camera coverage would have a
notably adverse effect on court proceedings. First, we believe
that a witness telling facts to a jury will often act
differently when he or she knows, or even believes that
thousands of people are watching and listening to the story.
This change in the witness' demeanor could have a profound
effect on the jury's ability to accurately assess the veracity
of that witness. Media coverage could exacerbate any number of
human emotions in a witness, including bravado and over-
dramatization.
What, you may ask, is the basis for my conclusion? It is
the 1994 evaluation by the Federal Judicial Center of the 3-
year pilot program of electronic media coverage of Federal
civil proceedings in six district courts and two courts of
appeals. Anyone who has cited that study in support of the bill
has overlooked its most salient findings.
For example, 64 percent of the participating trial judges
and 40 percent of the participating attorneys reported that at
least to some extent cameras make witnesses more nervous than
they otherwise would be. In addition, 46 percent of the trial
judges believed that at least to some extent cameras make
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the trial judges and 32 percent of the attorneys found that at
least to some extent cameras distract witnesses. Just imagine
what the findings would be if criminal cases or truly high-
profile cases had been piloted. These are disquieting figures
indeed.
But other findings of the FJC study bear on the ability of
the courts to administer a fair trial in a televised case.
Sixty-four percent of the trial judges found that at least to
some extent the cameras caused attorneys to be more theatrical
in their presentations. Forty-three percent of the appellate
judges found the same syndrome at work.
Seventeen percent of the trial judges responded that at
least to some extent cameras prompt people who see the coverage
to try to influence their juror friends. These statistics are
based on exit interviews with jurors. Seventeen percent of the
trial judges and 21 percent of the attorneys found that at
least to some extent cameras disrupt courtroom proceedings. The
report by appellate judges was even higher--26 percent. Twenty-
seven percent of the attorneys reported that the cameras
distracted them, and 19 percent of the attorneys believed that
at least to some extent the cameras distracted jurors.
There are also disturbing reports about the effect of the
cameras on judges. Nine percent of the trial judges reported
that at least to some extent the cameras caused judges to avoid
unpopular decisions or positions. Fifty-six percent if the
appellate judges found that, to some extent or greater, cameras
cause attorneys to change the emphasis or content of their oral
arguments. And 34 percent reported that at least to some extent
cameras cause judges to change the emphasis or content of their
questions at oral argument.
One more finding bears particular mention. Fifty-six
percent of the trial judges reported their belief that media
coverage violates witness privacy. Now, we appreciate S. 721's
sensitivity to this issue, but we are concerned about the
provision that would require courts to disguise the face and
voice of a witness upon his or her request.
Anyone who has been in court knows how defensive witnesses
can be. Frequently, they have a right to be. They are summoned
into court to be examined in public. Sometimes, they are
embarrassed or even humiliated. Providing them with the choice
whether to testify in the open or blur their image and voice
would be cold comfort indeed.
Sections 1(a) and (b) of the bill would allow the presiding
judge of an appellate or district court to decide whether to
allow cameras in a particular proceeding. If this legislation
were to be enacted, I am sure that all Federal judges would use
extreme care and judgment in making this determination.
Nonetheless, Federal judges are not clairvoyants. You never
know what is going to happen in a trial. I sat on the trial
bench for 11 years and I know that. Even the most
straightforward or run-of-the-mill cases have unforeseen
developments. Obviously, a judge never knows how a lawyer will
proceed or how a witness or party will testify. The notion of
conferring discretion upon the trial judge to decide on cameras
in advance does not eliminate our concerns.
Now, there are a number of other harms that are detailed in
my statement that I do not have the time to discuss here, but I
mention them briefly and refer the committee to my prepared
statement for supporting arguments in detail.
First, cameras can create security concerns. I note in this
regard that there is a greater risk in Federal courts in this
respect than in State courts. The number of threats against
Federal judges and Federal facilities has escalated
tremendously in recent years, and widespread media exposure
could exacerbate this problem.
Second, S. 721 seems to assume that camera coverage will be
without cost to the Federal judiciary. But that, I respectfully
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likely be required not only for equipment and retrofitting
facilities, but also in hiring and training of media
coordinators in each of the Federal courts. The media
representatives surveyed by the FJC represented that a media
coordinator was essential to the program.
Now, finally, let me turn to the other part of the putative
equation, the supposed educational benefit of cameras in the
courtroom. The proponents of cameras rely, of course, on the
supposed benefits of public education and understanding court
processes, but it has yet to be proven that cameras in the
courtroom will significantly further them.
The FJC study sought to analyze the results achieved during
the pilot project. The main approach to the issue lay in a
content analysis of evening news broadcasts using footage
obtained during the pilot program. The 90 stories analyzed
presented an average of 56 seconds of courtroom footage per
story. There is, I respectfully submit, precious little
educational content in 56 seconds.
Moreover, 63 percent even of that courtroom footage was
voiced over by a reporter's narration. Thus, the witnesses,
parties and attorneys spoke on camera for just over one-third
of the air time. The information about the nature of the case
was provided by the reporters or anchors.
The FJC report concluded on this point that the vast
majority of the stories did not even identify the proceeding as
a civil matter. Seventy-seven percent of the stories failed
even to identify the type of proceeding involved. The point is
that the stories did not provide a high level of detail about
the legal process in the cases covered. The analysis revealed
that increasing the proportion of courtroom footage used in a
story did not significantly increase the information given
about the legal process.
In view of the foregoing, I suggest that the benefits of
televised coverage of courtroom proceedings are greatly
overrated and are certainly far outweighed by the detriments I
have described. Television news coverage appears ofttimes
simply to use the courtroom for a backdrop or a visual image
for the news story which, like most stories on television, are
delivered in short sound bites.
Two final points very briefly. The other vehicle for
transmission of courtroom proceedings are the cable networks,
but they do not alter the balance. First, they are not free.
Moreover, cable networks rarely provide gavel-to-gavel
coverage. What they do is to package limited trial excerpts
with commentary, often interspersed with frequent commercial
breaks. What results is not education into court processes, but
entertainment.
In conclusion, I note, Mr. Chairman, that the Federal
judiciary acknowledges that more needs to be done to improve
the general understanding by the public of the Federal
judiciary and its processes. But we believe that this goal can
best be achieved by active, judicially-sponsored community
outreach programs.
Federal courts have in the past few years begun to play an
active role in this area through a variety of judicial outreach
programs. We believe that this will provide true education
about the courts and that any funds available are better spent
on community outreach programs than a cameras in the courtroom
project.
Mr. Chairman, I thank you for allowing me to testify and,
of course, at the appropriate point will be pleased to answer
any questions that you may have.
[The prepared statement of Judge Becker follows:]
Prepared Statement of Hon. Edward R. Becker
The Judicial Conference of the United States, which is the policy-

ki b d f h f d l l f
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721, a bill that would `àllow media coverage of court proceedings'' in
the federal courts. The Conference has thoroughly studied this issue
and has taken the position that permitting cameras in the federal trial
courts is not in the best interests of justice because it may threaten
a citizen's right to a fair trial.
Among those reasons supporting the Conference's position are the
following.
<bullet> The intimidating effect of cameras on litigants,
witnesses, and jurors has a profoundly negative impact on the trial
process.
<bullet> Allowing camera coverage of court trials could interfere
with a citizen's right to a fair trial, even though judges would be
provided discretion in permitting cameras.
<bullet> Permitting camera coverage would almost certainly become a
potent negotiating tactic in pretrial settlement negotiations.
<bullet> Allowing cameras in federal courts can create security
concerns and heighten the level and potential of threats to judges.
<bullet> Cameras can create privacy concerns for countless numbers
of persons, many of whom are not even parties to the case, but about
whom very personal information may be revealed.
<bullet> The negative responses in a 1994 Federal Judicial Center
report reviewing a pilot program on cameras in the federal courts led
the Conference to conclude that the intimidating effect of cameras on
witnesses and jurors at trial was cause for alarm.
<bullet> Permitting cameras in the courtroom will not significantly
further public education and understanding of court processes.
Open proceedings have been a hallmark of the federal judiciary, and
the federal courts are leaders in the use of technology to promote
access to and use of the federal courts. In addition, the judiciary has
developed community outreach programs throughout the country to promote
education about the judicial process. But a judge's paramount
responsibility is to ensure that all citizens enjoy a fair and
impartial trial. It is the mission of the federal judiciary to
administer the highest possible quality of justice to each and every
litigant, and not even some unfairness resulting from media coverage
can be tolerated. Because cameras in court proceedings could compromise
a citizen's right to a fair trial, the Judicial Conference opposes S.
721.
i. introduction
Mr. Chairman, and Members of the Subcommittee, my name is Edward R.
Becker. I am presently Chief Judge of the United States Court of
Appeals for the Third Circuit, having served on the court for over 18
years. Prior to that I was a judge of the United States District Court
for the Eastern District of Pennsylvania for over 11 years. I will
observe my 30th anniversary on the federal bench on December 11, 2000.
I am appearing before you today in my capacity as a member of the
Executive Committee of the Judicial Conference of the United States. On
behalf of the Judicial Conference, I appreciate the invitation to
testify. We hope that the testimony provided here is useful to you.
As you requested, this statement will comment on S. 721, a bill
that would `àllow media coverage of court proceedings.'' The Judicial
Conference strongly opposes this measure.
The federal judiciary has examined the issue of whether cameras
should be permitted in the federal courts for more than six decades,
both through case law and Judicial Conference consideration. The
Judicial Conference in its role as the policy-making body for the
federal judiciary has consistently expressed the view that camera
coverage can do irreparable harm to a citizen's right to a fair and
impartial trial. We believe that the intimidating effect of cameras on
litigants, witnesses, and jurors has a profoundly negative impact on
the trial process. Moreover, in civil cases cameras can intimidate
civil defendants who, regardless of the merits of their case, might
prefer to settle rather than risk damaging accusations in a televised
trial. Cameras can also create security concerns in the federal courts.
Finally, cameras can create privacy concerns for countless numbers of
persons, many of whom are not even parties to the case, but about whom
very personal information may be revealed at trial.
Th f f h th ti l Si th i f f
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motion pictures, cameras have had the potential to create a spectacle
around court proceedings. Obvious examples include the media frenzies
that surrounded the 1935 Lindbergh baby kidnapping trial, the murder
trial in 1954 of Dr. Sam Sheppard, and the more recent Menendez
brothers and O.J. Simpson trials. We have avoided such incidence in the
federal courts due to the present bar of cameras in the trial courts,
which S. 721 now proposes to overturn.
The federal courts have shown strong leadership in the continuing
effort to modernize the litigation process. This has been particularly
true of the federal judiciary's willingness to embrace new
technologies, such as electronic case filing and access,
videoconferencing, and electronic evidence presentation systems. The
federal courts have also established community outreach programs in
which several thousand students and teachers nationwide have come to
federal courthouses to learn about court proceedings. Our opposition to
this legislation, therefore, is not, as some may suggest, borne of a
desire to stem technology or access to the courts. We oppose the
broadcasting of federal court proceedings because it is contrary to the
interests of justice, which it is our most solemn duty to uphold.
Today I will discuss some of the Judicial Conference's specific
concerns with this legislation, as well as with the issues of cameras
in the courtroom, generally. However, before addressing those concerns,
I would like to provide you with a brief review of the Conference's
experience with cameras, which will demonstrate the time and effort it
has devoted to understnading this issue over the years. I must
emphasize at the threshold that today, as in the past, the federal
courts are at all times open to the public.
ii. background on cameras in the federal courts
Whether to allow cameras in the courtroom is far from a novel
question for the federal judiciary. Electronic media coverage of
criminal proceedings in federal courts has been expressly prohibited
under Federal Rule of Criminal Procedure 53 since the criminal rules
were adopted in 1946. That rule states that ``[t]he taking of
photographs in the courtroom during the progress of judicial
proceedings or radio broadcasting of judicial proceedings from the
courtroom shall not be permitted by the court.''
In 1972, the Judicial Conference adopted a prohibition against
``broadcasting, televising, recording or taking photographs in the
courtroom and areas immediately adjacent thereto. . . .'' The
prohibition applied to criminal and civil cases. The Conference has,
however, repeatedly studied and considered the issue since then.
In 1988, Chief Justice William Rehnquist appointed an Ad Hoc
Committee on Cameras in the Courtroom, which recommended that a three-
year experiment be established permitting camera coverage of certain
proceedings in selected federal courts. In 1990, the Judicial
Conference adopted this recommendation, and authorized a three-year
pilot program allowing electronic media coverage of civil proceedings
in six district and two appellate courts, which commenced July 1, 1991.
The courts that volunteered to participate in the pilot project were
the U.S. Courts of Appeals for the Second and Ninth Circuits, and the
U.S. District Courts for the Southern District of Indiana, District of
Massachusetts, Eastern District of Michigan, Southern District of New
York, Eastern District of Pennsylvania, and Western District of New
York.
The Federal Judicial Center (FJC) conducted a study of the pilot
project and submitted its results to a committee of the Judicial
Conference in September 1994.\1\ The research project staff made a
recommendation that the Conference `àuthorize federal courts of
appeals and district courts nationwide to provide camera access to
civil proceedings in their courtrooms. . . .'' It is important to note
that the recommendations included in the report were reviewed within
the FJC but not by its Board.
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\1\ In 1994, the Federal Judicial Center published a report
entitled Electronic Media Coverage of Federal Civil Proceedings: An
Evaluation of the Pilot Program in Six District Courts and Two Courts
of Appeals. The period used by the Federal Judicial Center for its
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The Conference disagreed with the conclusions drawn by the FJC
staff and concluded that the potentially intimidating effect of cameras
on some witnesses and jurors was cause for considerable concern. The
paramount responsibility of a United States judge is to uphold the
Constitution, which guarantees citizens the right to a fair and
impartial trial. Taking into account this considerable responsibility
placed upon judges, the Conference concluded that it was not in the
interest of justice to permit cameras in federal courtrooms.
Two years later, at its March 1996 session, the Judicial Conference
again considered the issue. At that session, the Conference voted to
strongly urge each circuit judicial council to adopt, pursuant to its
rulemaking authority articulated in 28 U.S.C. Sec. 332(d)(1), an order
reflecting the Conference's September 1994 decision not to permit the
taking of photographs or radio and television coverage of proceedings
in U.S. district courts. The Conference also voted to strongly urge
circuit judicial councils to abrogate any local rules that conflict
with this decision, pursuant to 28 U.S.C. Sec. 2071(c)(1).
The Conference, however, made a distinction between camera coverage
for appellate and district court proceedings. Because an appellate
proceeding does not involve witnesses and juries, the concerns of the
Conference regarding the impact of camera coverage on the litigation
process were reduced. Therefore, the Conference adopted a resolution
stating that ``[e]ach court of appeals may decide for itself whether to
permit the taking of photographs and radio and television coverage of
appellate arguments, subject to any restrictions in statutes, national
and local rules, and such guidelines as the Conference may adopt.''
The current policy, as published in the Guide to Judiciary Policies
and Procedures states:
A judge may authorize broadcasting, televising, recording, or

taking photographs in the courtroom and in adjacent areas
during investigative, naturalization, or other ceremonial
proceedings. A judge may authorize such activities in the
courtroom or adjacent areas during other proceedings, or
recesses between such proceedings, only: (a) for the
presentation of evidence; (b) for the perpetuation of the
record of the proceedings; (c) for security purposes; (d) for
other purposes of judicial administration; or (e) in accordance
with pilot programs approved by the Judicial Conference of the
United States.
Presently, only two of the 13 appellate courts, the Second and

Ninth Circuits, have decided to permit camera coverage in appellate
proceedings. This decision was made by the judges of each court. As for
cameras in district courts, most circuit councils have either adopted
resolutions prohibiting cameras in the district courts or acknowledged
that the district courts in that circuit already have such prohibition.
Finally, it may be helpful to describe the state rules regarding
cameras in the courtroom. While it is true that most states permit some
use of cameras in their courts, such access by the media is not
unlimited. The majority of states have imposed restrictions on the use
of cameras in the court or have banned cameras altogether in certain
proceedings. Although it is somewhat difficult to obtain current
information, it appears that approximately 20 states that permit
cameras have restrictions of some kind written into their authorizing
statutes, such as prohibiting coverage of certain proceedings or
witnesses, and/or requiring the consent of the parties, victims of sex
offenses, and witnesses. Eleven states do not allow coverage of
criminal trials. In eight states cameras are allowed only in appellate
courts. Mississippi, South Dakota, and the District of Columbia
prohibit cameras altogether. Utah allows only still photography at
civil trials, and Nebraska allows only audio coverage in civil trials.
In fact, only 16 states provide the presiding judge with the type of
broad discretion over the use of cameras contained in this legislation.
It is clear from the widely varying approaches to the use of cameras
that the state courts are far from being of one mind in the approach
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courtroom.
iii. judicial conference concerns regarding s. 721
I would now like to discuss some of the specific concerns the
Judicial Conference has with S. 721, as well as the more general issue
of media coverage in the courtroom.
A. Cameras Negatively Impact the Trial Process
Supporters of cameras in the courtroom assert that modern
technology has made cameras and microphones much less obvious,
intrusive or disruptive, and that therefore the judiciary need not be
concerned about their presence during proceedings. That is not the
issue. While covert coverage may reduce the bright lights and tangle of
wires that were made famous in the Simpson trial, it does nothing to
reduce the significant and measurable negative impact that camera
coverage can have on the trial participants themselves.
Proponents of cameras in the courtroom argue that media coverage
would benefit society because it would enable people to become more
educated about the legal system and particular trials. But even if this
is true, and we take up this question later in the testimony, increased
public education cannot be allowed to interfere with the judiciary's
primary mission, which is to administer fair and impartial justice to
individual litigants in individual cases. While judges are accustomed
to balancing conflicting interests, balancing the positive effects of
media coverage against an external factor such as the degree of
impairment of the judicial process that camera coverage would bring is
not the kind of thing judges should balance. Rather, our mission is to
administer the highest possible quality of justice to each and every
litigant. We cannot tolerate even a little bit of unfairness (based on
media coverage), notwithstanding that society as a whole might in some
way benefit, for that would be inconsistent with our mission.
The Conference maintains that camera coverage would indeed have a
notably adverse impact on court proceedings. This includes the impact
the camera and its attendant audience would have on the attorneys,
jurors, witnesses, and judges. We believe, for example, that a witness
telling facts to a jury will often act differently when he or she knows
that thousands of people are watching and listening to the story. This
change in a witness' demeanor could have a profound impact on a jury's
ability to accurately assess the veracity of that witness. Media
coverage could exacerbate any number of human emotions in a witness
from bravado and over dramatization, to self-consciousness and under
reaction. In fact, even according to the FJC study (which is discussed
in more detail later in this statement), 64 percent of the
participating judges reported that, at least to some extent, cameras
make witnesses more nervous. In addition, 46 percent of the judges
believed that, at least to some extent, cameras make witnesses less
willing to appear in court, and 41 percent found that, at least to some
extent, cameras distract witnesses.
Such effects could severely compromise the ability of jurors to
assess the veracity of a witness and, in turn, could prevent the court
from being able to ensure that the trial is fair and impartial.
Likewise, television cameras could have a profound impact on the
deliberations of a jury. The psychological pressures that jurors are
already under would be unnecessarily increased by the broader exposure
resulting from the broadcasting of a trial and could conceivably affect
a juror's judgment to the detriment of one of the parties.
B. S. 721 Inadequately Protects the Right to a Fair Trial
The primary goals of this legislation is to allow radio and
television coverage of federal court cases. While there are several
provisions aimed at limiting coverage (i.e., allowing judges the
discretion to allow or decline media coverage; authorizing the Judicial
Conference to develop advisory guidelines regarding media coverage; and
requiring courts to disguise the face and voice of a witness upon his
or her request), the Conference is convinced that camera coverage
could, in certain cases, so indelibly affect dynamics of the trial
process that it would impair citizens' ability to receive a fair
trial.\2\
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\2\ We recognize that the legislation would sunset the authority
for district court judges to permit cameras three years after the date
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of enactment of the Act. There is no comparable sunset provision for
the appellate courts.
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For example, Section 1(a) and (b) of the bill would allow the
presiding judge of an appellate or district court to decide whether to
allow cameras in a particular proceeding before that court. If this
legislation were to be enacted, we are confident that all federal
judges would use extreme care and judgment in making this
determination. Nonetheless, federal judges are not clairvoyants. Even
the most straightforward or ``run of the mill'' cases have unforeseen
developments. Obviously a judge never knows how a lawyer will proceed
or how a witness or party will testify. And these events can have a
tremendous impact on the trial participants. Currently, courts have
recourse to instruct the jury to disregard certain testimony or, in
extreme situations, to declare a mistrial if the trial process is
irreparably harmed. If camera coverage is allowed, however, there is no
opportunity to later rescind remarks heard by the larger television
audience. This concern is of such importance to the Conference that it
opposes legislation that would give a judge discretion to evaluate in
advance whether television cameras should be permitted in particular
cases.
We also are concerned about the provision that would require courts
to disguise the face and voice of a witness upon his or her request.
Anyone who has been in court knows how defensive witnesses can be.
Frequently they have a right to be. Witnesses are summoned into court
to be examined in public. Sometimes they are embarrassed or even
humiliated. Providing them the choice of whether to testify in the open
or blur their image and voice would be cold comfort given the fact that
their name and their testimony will be broadcast to the community. It
would not be in the interest of the administration of justice to
unnecessarily increase the already existing pressures on witnesses.
These basic concerns regarding witnesses were eloquently described
by Justice Clark in Estes v. Texas, 381 U.S. 532:
The quality of the testimony in criminal trials will often be

impaired. The impact upon a witness of the knowledge that he is
being reviewed by a vast audience is simply incalculable. Some
may be demoralized and frightened, come cocky and given to
overstatement; memories may falter, as with anyone speaking
publicly, and accuracy of statement may be severely undermined.
Embarrassment may impede the search for the truth, as may a
natural tendency toward over dramatization. Furthermore,
inquisitive strangers and `cranks' might approach witnesses on
the street with jibes, advice or demands for explanation of
testimony. There is little wonder that the defendant cannot
`prove' the existence of such factors. Yet we all know from
experience that they exist. . . .
Estes, 381 U.S. at 547.

It is these concerns that cause the Judicial Conference of the
United States to oppose enactment of S. 721.
C. Threat of Camera Coverage Could Be Used as a Trial Tactic
Cameras provide a very strong temptation for both attorneys and
witnesses to try their cases in the court of public opinion rather than
in a court of law. Allowing camera coverage would almost certainly
become a potent negotiating tactic in pretrial settlement negotiations.
For example, in a high-stakes case involving millions of dollars, the
sample threat that the president of a defendant corporation could be
forced to testify and be cross examined, for the edification of the
general public, might well be a real disincentive to the corporation's
exercising its right to a public trial.
Although the bill includes language allowing witnesses who testify
to be disguised, the bill does not address security concerns or make
similar provision regarding other participants in judicial proceedings.
The presence of cameras in the courtroom is likely to heighten the
level and the potential of threats to judges. The number of threats
against judges has escalated over the years and widespread media
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exposure could exacerbate the problem. Additionally, all witnesses,
furors, and United States Marshals Service personnel may be put at risk
because they would no longer have a low public profile.
Also, national and international camera coverage of trials in
federal courthouses, would place these buildings, and all in them at
greater risk from terrorists, who tend to choose targets for
destruction that will give their ``messages'' the widest exposure. Such
threats would require increased personnel and funding to adequately
protect participants in court proceedings.
There is a rising tide of concern among Americans regarding privacy
rights and the Internet. Numerous bills have been introduced in both
the Congress and state legislatures to protect the rights of individual
citizens from the indiscriminate dissemination of personal information
that once was, to use a phrase coined by the Supreme court, hidden by
``practical obscurity,'' \3\ but now is available to anyone at any time
because of the advances of technology. The judiciary is studying this
issue carefully with respect to court records, and Congress has before
it a bipartisan proposal to create a Privacy Study Commission to look
at a number of issues, including public records.
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\3\ United States Department of Justice v. Reporters Committee for
the Freedom of the Press, 489 U.S. 749, (764 (1989).
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Broadcasting of trials presents many of the same concerns about
privacy as does the indiscriminate dissemination of information on the
Internet that was once only available at the courthouse. Witnesses and
counsel frequently discuss very sensitive information during the course
of a trial. Often this information relates to individuals who are not
even parties to the case, but about whom personal information may be
revealed. Also, in many criminal and civil trials, which the media
would most likely be interested in televising, much of the evidence
introduced may be of an extremely private nature, revealing family
relationships and personal facts, including medical and financial
information. This type of information provided in open court, is
already available to the public through the media. Televising these
matters sensationalizes these details for no apparent good reason.
Involvement in a federal case can have a deep and long-lasting
impact on all of its participants, most of whom have neither asked for
nor sought publicity. In this adversarial setting, reputations can be
compromised and relationships can be damaged. In fact, according to the
FJC study on live courtroom media coverage, 56 percent of the
participating judges felt that electronic media coverage violates a
witness's privacy. This is not to say that the Conference advocates
closed trials; far from it. Nevertheless, there is a common-sense
distinction between a public trial in a public courtroom--typically
filled with individuals with a real interest in the case--and its
elevation to an event that allows and encourages thousands to become
involved intimately in a case that essentially concerns a small group
of private people or entities.
The issue of privacy rights is one that has not been adequately
considered or addressed by those who would advocate the broadcasting of
trials. This heightened awareness of and concern for privacy rights is
a relatively new and important development that further supports the
position of the Judicial Conference to prohibit the use of cameras in
the courtroom.
F. S. 721 Does Not Address the Complexities Associated With Camera
Coverage
Media coverage of a trial would have a significant impact on that
trial process. There are major policy implications as well as many
technical rules issues to be considered, none of which are addressed in
the proposed legislation. For example, televising a trial makes certain
court orders, such as those sequestering witnesses, more difficult to
enforce. In a typical criminal trial, most witnesses are sequestered at
some point. In addition, many related technical issues would have to be
addressed, including advance notice to the media and trial
participants, limitations on coverage and camera control, coverage of
the jury box, and sound and light criteria
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Finally, S. 721 includes no funding authorization for
implementation of its mandates. Regardless of whether funding is
authorized, there is no guarantee that needed funds would be
appropriated. The cost associated with allowing cameras, however, could
be significant. For example, costs would be incurred to retrofit
courtrooms to incorporate cameras while minimizing their actual
presence to the trial participants. Also, to ensure that a judge's
orders regarding coverage of the trial were followed explicitly (e.g.,
not filming the jury, obscuring the image and voice of certain
witnesses, or blocking certain testimony), a court may need to purchase
its own equipment, as well as hire technicians to operate it. When
considering that these expenses may have to be incurred in each of the
94 districts, the potential cost could be significant. An additional
considerable cost would be creation of the position of media
coordinator or court administrative liaison to administer and oversee
an electronic media program on a day-to-day basis. According to the FJC
report, the functions of the media liaisons included receiving
applications from the media and forwarding them to presiding judges,
coordinating logistical arrangements with the media, and maintaining
administrative records of media coverage.
G. There Is No Constitutional Right To Have Cameras in the Courtroom
Some have asserted that there is a constitutional ``right'' to
bring cameras into the courtroom and that the First Amendment requires
that court proceedings be open to this manner to the news media. The
Judicial Conference responds to such assertions by stating that today,
as in the past, federal court proceedings are open to the public;
however, nothing in the First Amendment requires televised trials.
The seminal case in this issue is Estes v. Texas, 381 U.S. 532
(1965). In Estes, the Supreme Court directly faced the question whether
a defendant was deprived of his right under the Fourteenth Amendment to
due process by the televising and broadcasting of his trial. The Court
held that such broadcasting in that case violated the defendant's right
to due process of law. At the same time, a majority of the Court's
members addressed the media's right to telecast as relevant to
determining whether due process required excluding cameras from the
courtroom. Justice Clark's plurality opinion and Justice Harlan's
concurrence indicated that the First Amendment did not extend the right
to the news media to televise from the courtroom. Similarly, Chief
Justice Warren's concurrence, joined by Justices Douglas and Goldberg,
stated:
[n]or does the exclusion of television cameras from the

courtroom in any way impinge upon the freedoms of speech and
the press. . . . So long as the television industry, like the
other communications media, is free to send representatives to
trial and to report on those trials to its viewers, there is no
abridgement of the freedom of press.

In the case of Westmoreland v. Columbia Broadcasting System, Inc.,
752 F.2d 16 (2d Cir. 1984), the Second Circuit was called upon to
consider whether a cable news network had a right to televise a federal
civil trial and whether the public had a right to view that trial. In
that case, both parties had consented to the presence of television
cameras in the courtroom under the close supervision of a willing
court, but a facially applicable court rule prohibited the presence of
such cameras. The Second Circuit denied the attempt to televise that
trial, saying that no case has held that the public has a right to
televise trials. As stated by the court, ``[t]here is a long leap . . .
between a public right under the First Amendment to attend trials and a
public right under the First Amendment to see a given trial televised.
It is a leap that is not supported by history.'' Westmoreland, 752 F.2d
at 23.
Similarly, in United States v. Edwards, 785 F.2d 1293 (5th Cir.
1986), the court discussed whether the First Amendment encompasses a
right to cameras in the courtroom, stating: ``No case suggests that
this right of access includes a right to televise, record, or otherwise
broadcast trials. To the contrary, the Supreme Court has indicated that
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the First Amendment does not guarantee a positive right to televise or
broadcast criminal trials.'' Edwards, 785 F.2d at 1295. The court went
on to explain that while television coverage may not always be
constitutionally prohibited, that is a far cry from suggesting that
television coverage is ever constitutionally mandated.
These cases forcefully make the point that, while all trials are
public, there is no constitutional right of media to broadcast federal
district court or appellate court proceedings.
Proponents of S. 721 have indicated that the legislation is
justified in part by the FJC study referred to earlier. The Judicial
Conference based, in part, its opposition to cameras in the courtroom
on the same study. Given this apparent inconsistency, it may be useful
to highlight several important findings and limitations of the study.
As I noted earlier in the statement, the recommendations included in
the FJC report, which were proposed by the research project staff, were
reviewed within the FJC but not by its Board.
First, the study only pertained to civil cases. This legislation,
if enacted, would allow camera coverage in both civil and criminal
cases. As this Subcommittee is acutely aware, the number of criminal
cases in the federal courts continues to rise. One could expect that
most of the media requests for coverage would be in sensational
criminal cases, where the problems for witnesses, including victims of
crimes, and jurors are most acute.
Second, the study's conclusions ignore a large amount of
significant negative statistical data. For example, the study reports
on attorney ratings of electronic media effects in proceedings in which
they were involved. Among these negative statistics were the following:
<bullet> 32 percent of the attorneys who responded felt that, at
least to some extent, the cameras distract witnesses;
<bullet> 40 percent felt that, at least to some extent, the cameras
make witnesses more nervous than they otherwise would be;
<bullet> 19 percent believed that, at least to some extent, the
cameras distract jurors;
cameras cause attorneys to be more theatrical in their presentations;
cameras have the effect of distracting the attorneys; and
cameras disrupt the courtroom proceedings.
When trial judges were asked these same questions, the percentages
of negative responses were even higher:
cameras make witnesses less willing to appear in court;
<bullet> 41 percent found that, at least to some extent, the
cameras distract witnesses;
<bullet> 64 percent reported that, at least to some extent, the
cameras make witnesses more nervous than they otherwise would be;
<bullet> 17 percent responded that, at least to some extent,
cameras prompt people who see the coverage to try to influence juror-
friends;
cameras cause attorneys to be more theatrical in their presentations;
cameras cause judges to avoid unpopular decisions or positions; and
<bullet> 17 percent found that, at least to some extent, cameras
disrupt courtroom proceedings.
These negative statistical responses from judges and attorneys
involved in the pilot project dominated the Judicial Conference debate
and were highly influential in the Conference's conclusion that the
intimidating effect of cameras on witnesses and jurors was cause for
alarm. Since a United States judge's paramount responsibility is too
seek to ensure that all citizens enjoy a fair and impartial trial, and
cameras may compromise that right, allowing cameras would not be in the
interest of justice. For these reasons, the Judicial Conference
rejected the conclusions made by the FJC study with respect to cameras
in district courts.
For the appellate courts, an even larger percentage of judges who
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participated in the study related negative responses:
<bullet> 47 percent of the appellate judges who responded found
that, at least to some extent, the cameras cause attorneys to be more
cameras cause attorneys to change the emphasis or content of their oral
arguments;
<bullet> 34 percent reported that, at least to some extent, cameras
cause judges to change the emphasis or content of their questions at
oral arguments; and
cameras disrupt courtroom proceedings.
While the Conference did allow each United States court of appeals
to determine whether to permit the use of cameras in that circuit,
these high negative responses give us a very real indication as to why
only two out of 13 courts of appeals have allowed their proceedings to
be televised. The two courts that do allow camera coverage are the
Second and Ninth Circuits, which voluntarily participated in the pilot
project.
Carefully read, the FJC study does not reach the firm conclusions
for which it is repeatedly cited. The negative responses described
above undermine such a reading. When considering legislation affecting
cameras in the courtroom with such permanent and long-range
implications for the judicial process, the negative responses should be
fully considered. Certainly that is what the Conference focused on. In
reality the recommendations of the study reflect a balancing exercise
which may seem proper to social scientists but which is unacceptable to
judges who cannot compromise the interests of the litigants, jurors,
and witnesses, even for some amorphous public good. We turn to that
issue now.
iv. the putative educational benefit of cameras in the courtroom
The proponents of cameras in the courtroom rely, of course, on the
putative benefits of public education and understanding of court
processes. The Judicial Conference supports that goal but does not
agree that cameras in courtrooms will significantly further it. The FJC
study analyzed the results achieved during the pilot project. The main
approach to the issue lay in a content analysis of evening news
broadcast using footage obtained during the pilot program.\4\ The
content analysis is disquieting. The ninety stories analyzed presented
a total of one hour and twenty-five minutes of courtroom footage, with
an average of fifty-six seconds of courtroom footage per story. There
is not too much educational content in 56 seconds. Moreover, most of
the courtroom footage was voiced over by a reporter's narration. On
average, reporters narrated 63 percent of all courtroom footage. Thus,
the witnesses, parties, and attorneys spoke on camera for just over
one-third of the total air time. In at least one-half of the cases
photographed, information on the nature of the case was provided by
reporters or anchors without relying on the participants.
---------------------------------------------------------------------------
\4\ This analysis was conducted by the Center for Media and Public
Affairs under contract with the FJC. Content analysis is the objective
and systematic description of communicative material. The content
analysis performed for this study proceeded in two phases. First, a
qualitative analysis was used to identify the symbols, stylistic
devices, and narrative techniques shaping the form and substance of the
news stories; this allowed the researchers to develop analytic
categories based on the actual content of the stories rather than
imposing priori categories. Second, the analytic categories that were
developed and pre-tested formed the basis of a quantitative analysis,
which involved the systematic coding of story content into discrete
categories.
---------------------------------------------------------------------------
The FJC report also sought to determine specifically the extent to
which the stories provided basic educational information about the
legal system, examining whether five pieces of information were
conveyed to the viewer: (1) identification of the case as a civil
matter; (2) identification of the type or proceeding, such as a hearing
or trial; (3) statements about whether a jury was present; (4)
1/1/2010 1:52 PM
( )Case: 10-70063 01/08/2010 Page: j y 14 ofp 73 ID: 7187906
( ) DktEntry: 1-5
descriptions of the proceedings on a given day; and (5) discussion of
the next step in the legal process. The report concluded as follows:
The vast majority of stories (95 percent of non-first day

stories) did not identify the proceeding covered as a civil
matter. In addition, 77 percent of the stories failed to
identify the type of proceeding involved. Almost three-quarters
(74 percent) of all stories did not provide information about
whether a jury was present, including half of the stories that
identified the covered proceedings as a trial.
Most stories (74 percent) did explain what transpired in
court on a particular day, such as who testified or what
evidence was presented. In multiple-day cases, 90 percent of
the stories explained the daily proceedings, compared to 63
percent in single-day stories. Seventy-six percent of the daily
proceedings in a story were explained by a combination of
reporter narration and participant discussion. Only 29 percent
of stories mentioned the next step in the litigation process in
the case.
Thus, the stories did not provide a high level of detail
about the legal process in the cases covered. In addition, the
analysis revealed that increasing the proportion of courtroom
footage used in a story did not significantly increase the
information given about the legal process.
In view of the foregoing, we suggest that the benefits of televised

coverage of courtroom proceedings are overrated (and are certainly far
outweighed by the detriments described above). Television news coverage
oftentimes appears simply to use the courtroom for a backdrop or a
visual image for the news story which, like many of such stories on
television, are delivered in short sound bites and not in depth.
The FJC study also reported that Court TV covered 28 cases under
the program and that C-SPAN covered 7 cases. However, it does not
appear from records available to us that these proceedings were
broadcast either in their entirety or continuously. The paucity of
cases selected by C-SPAN--seven in two years--suggests that the
tediousness, technicality, and sheer length of trials are obstacles to
comprehensive media transmission, except in the sensational kinds of
cases where the harms described previously are the greatest.
v. a better vehicle for public education
The federal judiciary acknowledges that more needs to be done to
improve the general understanding by the public of the federal
judiciary and its processes. We believe that this goal can best be
achieved by active federal judicial involvement. Federal courts have,
in the past few years, begun to play an active role in this area
through community outreach programs. Under the aegis of these programs,
thousands of students, teachers, and other members of the public have
come into federal courts to learn more about the federal courts and to
engage in dialogue with judges, attorneys and court personnel. National
initiatives to increase public understanding of the federal court
system are underway in pilot programs in two circuits. In addition,
over the last two years, the federal judiciary has conducted Law Day
programs for high school seniors, during which mock trials were
broadcast to 2,000 students at over 30 participating courthouses
nationwide.
Additionally, plans are underway for federal courts to assist
school personnel in planning curriculums designed to instruct about the
federal judiciary, culminating in court visits (or visits by judges to
schools). The positive results of these kinds of programs are self-
evident. We believe that it would be preferable to expend the monies
that would be necessary to support a cameras in the courtroom project
on these community outreach programs.
vi. conclusion
When almost anyone in this country thinks of cameras in the
courtroom today, they inevitably think of the Simpson case. I sincerely
doubt anyone believes that the presence of cameras in that courtroom
did not have an impact on the conduct of the attorneys, witnesses,
jurors, and judge--almost universally to the detriment of the trial
1/1/2010 1:52 PM
process. Admittedly, few cases are Simpson-like cases, but the inherent
effects of the presence of cameras in the courtroom are, in some
respects, the same, whether or not it is a high-publicity case.
Furthermore, there is a legitimate concern that if the federal courts
were to allow camera coverage of cases that are not sensational, it
would become increasingly difficult to limit coverage in the high-
profile and high-publicity cases where such limitation, almost all
would agree, would be warranted.
This is not a debate about whether judges would be discomfited with
camera coverage. Nor is it a debate whether the federal courts are
afraid of public scrutiny. They are not. Open hearings are a hallmark
of the federal judiciary. It is also not about increasing the
educational opportunities for the public to learn about the federal
courts or the litigation process. The judiciary strongly endorses
educational outreach, which could better be achieved through increased
and targeted community outreach programs.
Rather, this is a decision about how individual Americans--whether
they are plaintiffs, defendants, witnesses, or jurors--are treated by
the federal judicial process. It is the fundamental duty of the federal
judiciary to ensure that every citizen receives his or her
constitutionally guaranteed right to a fair trial. For the reasons
discussed in this statement, the Judicial Conference believes that the
use of cameras in the courtroom could seriously jeopardize that right.
It is this concern that causes the Judicial Conference of the United
States to oppose enactment of S. 721. As the Supreme Court stated in
Estes, ``[w]e have always held that the atmosphere essential to the
preservation of a fair trial--the most fundamental of all freedoms--
must be maintained at all costs.'' 381 U.S. at 540.
Mr. Chairman, thank you again for the opportunity to testify and
present these views. I will be pleased to answer any questions you or
the other members of the Subcommittee may have.
1/1/2010 1:52 PM
STATEMENT OF CHIEF JUDGE EDWARD R. BECKER

ON BEHALF OF
THE JUDICIAL CONFERENCE OF THE UNITED STATES
I. Introduction
Mr. Chainnan, and Members of the Subcommittee, my name is Edward R. Becker. I am
presently Chief Judge of the United States Court of Appeals for the Third Circuit, having served on
the court for over 18 years. Prior to that I was a judge of the United States District Court for the
Eastern District of Pennsylvania for over 11 years. I will observe my 30th anniversary on the
federal bench on December 11, 2000. I am appearing before you today in my capacity as a
member of the Executive Committee of the Judicial Conference of the United States. On behalf of
the Judicial Conference, I appreciate the invitation to testify. We hope that the testimony provided
here is useful to you.
As you requested, this statement will comment on S. 721, a bill that would "allow media
coverage of court proceedings." The Judicial Conference strongly opposes this measure.
The federal judiciary has examined the issue of whether cameras should be pennitted in the
federal courts for more than six decades, both through case law and Judicial Conference
consideration. The Judicial Conference in its role as the policy-making body for the federal
judiciary has consistently expressed the view that camera coverage can do irreparable hann to a
citizen's right to a fair and impartial trial. We believe that the intimidating effect of cameras on
litigants, witnesses, and jurors has a profoundly negative impact on the trial process. Moreover, in
civil cases cameras can intimidate civil defendants who, regardless of the merits of their case,
might prefer to settle rather than risk damaging accusations in a televised trial. Cameras can also
create security concerns in the federal courts. Finally, cameras can create privacy concerns for
countless numbers of persons, many of whom are not even parties to the case, but about whom very
Statement for the Judicial Conference Page 2
personal infonnation may be revealed at trial.
These concerns are far from hypothetical. Since the infancy of motion pictures, cameras
have had the potential to create a spectacle around court proceedings. Obvious examples include
the media frenzies that surrounded the 1935 Lindbergh baby kidnapping trial, the murder trial in
1954 of Dr. Sam Sheppard, and the more recent Menendez brothers and O.J. Simpson trials. We
have avoided such incidences in the federal courts due to the present bar of cameras in the trial
courts, which S. 721 now proposes to overturn.
The federal courts have shown strong leadership in the continuing effort to modernize the
litigation process. This has been particularly true of the federal judiciary's willingness to
embrace new technologies, such as electronic case filing and access, videoconferencing, and
electronic evidence presentation systems. The federal courts have also established community
outreach programs in which several thousand students and teachers nationwide have come to
federal courthouses to learn about court proceedings. Our opposition to this legislation, therefore,
is not, as some may suggest, borne of a desire to stem technology or access to the courts. We
oppose the broadcasting of federal court proceedings because it is contrary to the interests of
justice, which it is our most solemn duty to uphold.
Today I will discuss some of the Judicial Conference's specific concerns with this
legislation, as well as with the issues of cameras in the courtroom, generally. However, before
addressing those concerns, I would like to provide you with a brief review of the Conference's
experience with cameras, which will demonstrate the time and effort it has devoted to
understanding this issue over the years. I must emphasize at the threshold that today, as in the past,
the federal courts are at all times open to the public.
Whether to allow cameras in the courtroom is far from a novel question for the federal
judiciary. Electronic media coverage of criminal proceedings in federal courts has been expressly
prohibited under Federal Rule of Criminal Procedure 53 since the criminal rules were adopted in
1946. That rule states that "[t]he taking of photographs in the courtroom during the progress of
judicial proceedings or radio broadcasting of judicial proceedings from the courtroom shall not be
permitted by the court."
In 1972, the Judicial Conference adopted a prohibition against "broadcasting, televising,
recording or taking photographs in the courtroom and areas immediately adjacent thereto .... "
The prohibition applied to criminal and civil cases. The Conference has, however, repeatedly
studied and considered the issue since then.
In 1988, Chief Justice William Rehnquist appointed an Ad Hoc Committee on Cameras in
the Courtroom, which recommended that a three-year experiment be established permitting camera
coverage of certain proceedings in selected federal courts. In 1990, the Judicial Conference
adopted this recommendation, and authorized a three-year pilot program allowing electronic media
coverage of civil proceedings in six district and two appellate courts, which commenced July 1,
1991. The courts that volunteered to participate in the pilot project were the u.s. Courts of
Appeals for the Second and Ninth Circuits, and the U.S. District Courts for the
Southern District of Indiana, District of Massachusetts, Eastern District of Michigan, Southern
District of New York, Eastern District of Pennsylvania, and Western District of New York.
The Federal Judicial Center (FJC) conducted a study of the pilot project and submitted its
results to a committee of the Judicial Conference in September 1994. I The research project staff
made a recommendation that the Conference "authorize federal courts of appeals and district
courts nationwide to provide camera access to civil proceedings in their courtrooms .... " It is
important to note that the recommendations included in the report were reviewed within the FJC
but not by its Board.
The Conference disagreed with the conclusions drawn by the FJC staff and concluded that
the potentially intimidating effect of cameras on some witnesses and jurors was cause for
considerable concern. The paramount responsibility of a United States judge is to uphold the
Constitution, which guarantees citizens the right to a fair and impartial trial. Taking into account
this considerable responsibility placed upon judges, the Conference concluded that it was not in
the interest of justice to permit cameras in federal courtrooms.
Two years later, at its March 1996 session, the Judicial Conference again considered the
issue. At that session, the Conference voted to strongly urge each circuit judicial council to adopt,
pursuant to its rulemaking authority articulated in 28 U.S.c. § 332(d)(1), an order reflecting the
Conference's September 1994 decision not to permit the taking of photographs or radio and
television coverage of proceedings in U.S. district courts. The Conference also voted to strongly
urge circuit judicial councils to abrogate any local rules that conflict with this decision, pursuant to
28 U.S.C. § 2071(c)(1).
The Conference, however, made a distinction between camera coverage for appellate and
lIn 1994, the Federal Judicial Center published a report entitled Electronic Media Coverage ofFederal
Civil Proceedings: An Evaluation of the Pilot Program in Six District Courts and Two Courts ofAppeals. The
period used by the Federal Judicial Center for its study was July 1, 1991, to June 30, 1993.
Statement for the Judicial Conference PageS
district court proceedings. Because an appellate proceeding does not involve witnesses and
juries, the concerns of the Conference regarding the impact of camera coverage on the litigation
process were reduced. Therefore, the Conference adopted a resolution stating that "[ e]ach court of
appeals may decide for itself whether to permit the taking of photographs and radio and television
coverage of appellate arguments, subject to any restrictions in statutes, national and local rules,
and such guidelines as the Conference may adopt."
The current policy, as published in the Guide to Judiciary Policies and Procedures
states:
A judge may authorize broadcasting, televising, recording, or taking photographs in

the courtroom and in adjacent areas during investigative, naturalization, or other
ceremonial proceedings. A judge may authorize such activities in the courtroom or
adjacent areas during other proceedings, or recesses between such proceedings,
only: (a) for the presentation of evidence; (b) for the perpetuation of the record of
the proceedings; (c) for security purposes; (d) for other purposes of judicial
administration; or (e) in accordance with pilot programs approved by the Judicial
Conference ofthe United States.
Presently, only two of the 13 appellate courts, the Second and Ninth Circuits, have decided
to permit camera coverage in appellate proceedings. This decision was made by the judges of
each court. As for cameras in district courts, most circuit councils have either adopted
resolutions prohibiting cameras in the district courts or acknowledged that the district courts in that
circuit already have such a prohibition.
Finally, it may be helpful to describe the state rules regarding cameras in the courtroom.
While it is true that most states permit some use of cameras in their courts, such access by the
media is not unlimited. The majority of states have imposed restrictions on the use of cameras in
the court or have banned cameras altogether in certain proceedings. Although it is somewhat
difficult to obtain current information, it appears that approximately 20 states that permit cameras
have restrictions of some kind written into their authorizing statutes, such as prohibiting coverage
of certain proceedings or witnesses, and!or requiring the consent of the parties, victims of sex
offenses, and witnesses. Eleven states do not allow coverage of criminal trials. In eight states
cameras are allowed only in appellate courts. Mississippi, South Dakota, and the District of
Columbia prohibit cameras altogether. Utah allows only still photography at civil trials, and
Nebraska allows only audio coverage in civil trials. In fact, only 16 states provide the presiding
judge with the type of broad discretion over the use of cameras contained in this legislation. It is
clear from the widely varying approaches to the use of cameras that the state courts are far from
being of one mind in the approach to, or on the propriety and extent of, the use of cameras in the
courtroom.
III. Judicial Conference Concerns Regarding S. 721
I would now like to discuss some of the specific concerns the Judicial Conference has with
S. 721, as well as the more general issue of media coverage in the courtroom.
Supporters of cameras in the courtroom assert that modem technology has made cameras
and microphones much less obvious, intrusive or disruptive, and that therefore the judiciary need
not be concerned about their presence during proceedings. That is not the issue. While covert
coverage may reduce the bright lights and tangle of wires that were made famous in the Simpson
trial, it does nothing to reduce the significant and measurable negative impact that camera coverage
can have on the trial participants themselves.

Proponents of cameras in the courtroom argue that media coverage would benefit society
because it would enable people to become more educated about the legal system and particular
trials. But even if this is true, and we take up this question later in the testimony, increased public
education cannot be allowed to interfere with the judiciary's primary mission, which is to
administer fair and impartial justice to individual litigants in individual cases. While judges are
accustomed to balancing conflicting interests, balancing the positive effects of media coverage
against an external factor such as the degree of impairment of the judicial process that camera
coverage would bring is not the kind of thing judges should balance. Rather, our mission is to
administer the highest possible quality of justice to each and every litigant. We cannot tolerate
even a little bit of unfairness (based on media coverage), notwithstanding that society as a whole
might in some way benefit, for that would be inconsistent with our mission.
The Conference maintains that camera coverage would indeed have a notably adverse
impact on court proceedings. This includes the impact the camera and its attendant audience
would have on the attorneys, jurors, witnesses, and judges. We believe, for example, that a
witness telling facts to a jury will often act differently when he or she knows that thousands of
people are watching and listening to the story. This change in a witness's demeanor could have a
profound impact on ajury's ability to accurately assess the veracity of that witness. Media
coverage could exacerbate any number of human emotions in a witness from bravado and over
dramatization, to self-consciousness and under reaction. In fact, even according to the FJC study
(which is discussed in more detail later in this statement), 64 percent of the participating judges
reported that, at least to some extent, cameras make witnesses more nervous. In addition, 46
percent of the judges believed that, at least to some extent, cameras make witnesses less willing to
appear in court, and 41 percent found that, at least to some extent, cameras distract witnesses.
Such effects could severely compromise the ability of jurors to assess the veracity of a
witness and, in turn, could prevent the court from being able to ensure that the trial is fair and
impartial. Likewise, television cameras could have a profound impact on the deliberations of a
jury. The psychological pressures that jurors are already under would be unnecessarily increased
by the broader exposure resulting from the broadcasting of a trial and could conceivably affect a
juror's judgment to the detriment of one of the parties.
The primary goal of this legislation is to allow radio and television coverage of federal
court cases. While there are several provisions aimed at limiting coverage (i.e., allowing judges
the discretion to allow or decline media coverage; authorizing the Judicial Conference to develop
advisory guidelines regarding media coverage; and requiring courts to disguise the face and voice
of a witness upon his or her request), the Conference is convinced that camera coverage could, in
certain cases, so indelibly affect the dynamics of the trial process that it would impair citizens'
ability to receive a fair triaF
For example, Section lea) and (b) of the bill would allow the presiding judge of an
appellate or district court to decide whether to allow cameras in a particular proceeding before
that court. If this legislation were to be enacted, we are confident that all federal judges would use
extreme care and judgment in making this determination. Nonetheless, federal judges are not
clairvoyants. Even the most straightforward or "run of the mill" cases have unforseen
2We recognize that the legislation would sunset the authority for district court judges to permit cameras
three years after the date of enactment of the Act. There is no comparable sunset provision for the appellate
courts.
developments. Obviously a judge never knows how a lawyer will proceed or how a witness or
party will testify. And these events can have a tremendous impact on the trial participants.
Currently, courts have recourse to instruct the jury to disregard certain testimony or, in extreme
situations, to declare a mistrial if the trial process is irreparably harmed. If camera coverage is
allowed, however, there is no opportunity to later rescind remarks heard by the larger television
audience. This concern is of such importance to the Conference that it opposes legislation that
would give a judge discretion to evaluate in advance whether television cameras should be
permitted in particular cases.
We also are concerned about the provision that would require courts to disguise the face
and voice of a witness upon his or her request. Anyone who has been in court knows how
defensive witnesses can be. Frequently they have a right to be. Witnesses are summoned into
court to be examined in public. Sometimes they are embarrassed or even humiliated. Providing
them the choice of whether to testify in the open or blur their image and voice would be cold
comfort given the fact that their name and their testimony will be broadcast to the community. It
would not be in the interest of the administration of justice to unnecessarily increase the already
existing pressures on witnesses.
These basic concerns regarding witnesses were eloquently described by Justice Clark in
Estes v. Texas, 381 U.S. 532:
The quality of the testimony in criminal trials will often be impaired. The impact
upon a witness of the knowledge that he is being viewed by a vast audience is
simply incalculable. Some may be demoralized and frightened, some cocky and
given to overstatement; memories may falter, as with anyone speaking publicly, and
accuracy of statement may be severely undermined. Embarrassment may impede
the search for the truth, as maya natural tendency toward over dramatization.
Furthermore, inquisitive strangers and 'cranks' might approach witnesses on the

street with jibes, advice or demands for explanation of testimony. There is little
wonder that the defendant cannot 'prove' the existence of such factors. Yet we all
know from experience that they exist. ...
Estes, 381 U.S. at 547.
It is these concerns that cause the Judicial Conference of the United States to oppose
enactment ofS. 721.
Cameras provide a very strong temptation for both attorneys and witnesses to try their
cases in the court of public opinion rather than in a court of law. Allowing camera coverage
would almost certainly become a potent negotiating tactic in pretrial settlement negotiations. For
example, in a high-stakes case involving millions of dollars, the simple threat that the president of
a defendant corporation could be forced to testify and be cross examined, for the edification of the
general public, might well be a real disincentive to the corporation's exercising its right to a
public trial.
Although the bill includes language allowing witnesses who testify to be disguised, the bill
does not address security concerns or make similar provision regarding other participants in
judicial proceedings. The presence of cameras in the courtroom is likely to heighten the level and
the potential of threats to judges. The number of threats against judges has escalated over the
years, and widespread media exposure could exacerbate the problem. Additionally, all witnesses,
jurors, and United States Marshals Service personnel may be put at risk because they would no
longer have a low public profile.
Also, national and international camera coverage of trials in federal courthouses, would
place these buildings, and all in them at greater risk from terrorists, who tend to choose targets for
destruction that will give their "messages" the widest exposure. Such threats would require
increased personnel and funding to adequately protect participants in court proceedings.
There is a rising tide of concern among Americans regarding privacy rights and the
Internet. Numerous bills have been introduced in both the Congress and state legislatures to
protect the rights of individual citizens from the indiscriminate dissemination of personal
information that once was, to use a phrase coined by the Supreme Court, hidden by "practical
obscurity,"3 but now is available to anyone at any time because ofthe advances oftechnology. The
judiciary is studying this issue carefully with respect to court records, and Congress has before it a
bipartisan proposal to create a Privacy Study Commission to look at a number of issues, including
public records.
Broadcasting of trials presents many of the same concerns about privacy as does the
indiscriminate dissemination of information on the Internet that was once only available at the
courthouse. Witnesses and counsel frequently discuss very sensitive information during the course
of a trial. Often this information relates to individuals who are not even parties to the case, but
about whom personal information may be revealed. Also, in many criminal and civil trials, which
the media would most likely be interested in televising, much of the evidence introduced may be of
an extremely private nature, revealing family relationships and personal facts, including medical
and financial information. This type of information provided in open court, is already available to
3United States Department of Justice v. Reporters Committee for the Freedom of the Press, 489 U.S.
749,764 (1989).
the public through the media. Televising these matters sensationalizes these details for no apparent
good reason.
Involvement in a federal case can have a deep and long-lasting impact on all its
participants, most of whom have neither asked for nor sought publicity. In this adversarial setting,
reputations can be compromised and relationships can be damaged. In fact, according to the FJC
study on live courtroom media coverage, 56% of the participating judges felt that electronic media
coverage violates a witness's privacy. This is not to say that the Conference advocates closed
trials; far from it. Nevertheless, there is a common-sense distinction between a public trial in a
public courtroom-typically filled with individuals with a real interest in the case-and its
elevation to an event that allows and encourages thousands to become involved intimately in a
case that essentially concerns a small group of private people or entities.
The issue of privacy rights is one that has not been adequately considered or addressed by
those who would advocate the broadcasting of trials. This heightened awareness of and
concern for privacy rights is a relatively new and important development that further supports the
position of the Judicial Conference to prohibit the use of cameras in the courtroom.
F. s. 721 Does Not Address the Complexities Associated with Camera Coverage
Media coverage of a trial would have a significant impact on that trial process. There are
major policy implications as well as many technical rules issues to be considered, none of which
are addressed in the proposed legislation. For example, televising a trial makes certain court
orders, such as those sequestering witnesses, more difficult to enforce. In a typical criminal trial,
most witnesses are sequestered at some point. In addition, many related technical issues would
have to be addressed, including advance notice to the media and trial participants, limitations on
coverage and camera control, coverage of the jury box, and sound and light criteria.
Finally, S. 721 includes no funding authorization for implementation of its mandates.
Regardless of whether funding is authorized, there is no guarantee that needed funds would be
appropriated. The costs associated with allowing cameras, however, could be significant. For
example, costs would be incurred to retrofit courtrooms to incorporate cameras while minimizing
their actual presence to the trial participants. Also, to ensure that a judge's orders regarding
coverage of the trial were followed explicitly (e.g., not filming the jury, obscuring the image and
voice of certain witnesses, or blocking certain testimony), a court may need to purchase its own
equipment, as well as hire technicians to operate it. When considering that these expenses may
have to be incurred in each of the 94 districts, the potential cost could be significant. An
additional considerable cost would be creation of the position of media coordinator or court
administrative liaison to administer and oversee an electronic media program on a day-to-day
basis. According to the FJC report, the functions of the media liaisons included receiving
applications from the media and forwarding them to presiding judges, coordinating logistical
arrangements with the media, and maintaining administrative records of media coverage.
Some have asserted that there is a constitutional "right" to bring cameras into the
courtroom and that the First Amendment requires that court proceedings be open in this manner to
the news media. The Judicial Conference responds to such assertions by stating that today, as in
the past, federal court proceedings are open to the public; however, nothing in the First
Amendment requires televised trials.

The seminal case on this issue is Estes v. Texas, 381 U.S. 532 (1965). In Estes, the
Supreme Court directly faced the question whether a defendant was deprived of his right under the
Fourteenth Amendment to due process by the televising and broadcasting of his trial. The Court
held that such broadcasting in that case violated the defendant's right to due process oflaw. At the
same time, a majority of the Court's members addressed the media's right to telecast as relevant to
determining whether due process required excluding cameras from the courtroom. Justice Clark's
plurality opinion and Justice Harlan's concurrence indicated that the First Amendment did not
extend the right to the news media to televise from the courtroom. Similarly, Chief Justice
Warren's concurrence, joined by Justices Douglas and Goldberg, stated:

[nJor does the exclusion of television cameras from the courtroom in any way
impinge upon the freedoms of speech and the press. . .. So long as the television
industry, like the other communications media, is free to send representatives to
trials and to report on those ttja1s to its viewers, there is no abridgement of the
freedom of press.
Estes, 381 U.S. at 584-85 (Warren, c.J., concurring).
In the case of Westmoreland v. Columbia Broadcasting System. Inc., 752 F.2d 16 (2d Cir.
1984), the Second Circuit was called upon to consider whether a cable news network had a right
to televise a federal civil trial and whether the public had a right to view that trial. In that case,
both parties had consented to the presence of television cameras in the courtroom under the close
supervision of a willing court, but a facially applicable court rule prohibited the presence of such
cameras. The Second Circuit denied the attempt to televise that trial, saying that no case has held
that the public has a right to televised trials. As stated by the court, "[tJhere is a long leap ...
between a public right under the First Amendment to attend trials and a public right under the First
Amendment to see a given trial televised. It is a leap that is not supported by history."
Westmoreland, 752 F.2d at 23.

Similarly, in United States v. Edwards, 785 F.2d 1293 (5th Cir. 1986), the court discussed
whether the First Amendment encompasses a right to cameras in the courtroom, stating: "No case
suggests that this right of access includes a right to televise, record, or otherwise broadcast trials.
To the contrary, the Supreme Court has indicated that the First Amendment does not guarantee a
positive right to televise or broadcast criminal trials." Edwards, 785 F.2d at 1295. The court
went on to explain that while television coverage may not always be constitutionally prohibited,
that is a far cry from suggesting that television coverage is ever constitutionally mandated.
These cases forcefully make the point that, while all trials are public, there is no
constitutional right of media to broadcast federal district court or appellate court proceedings.
H. The Teachings ofthe FJC Study
Proponents of S. 721 have indicated that the legislation is justified in part by the FJC study
referred to earlier. The Judicial Conference based, in part, its opposition to cameras in the
courtroom on the same study. Given this apparent inconsistency, it may be useful to highlight
several important findings and limitations of the study. As I noted earlier in the statement, the
recommendations included in the FJC report, which were proposed by the research project staff,
were reviewed within the FJC but not by its Board.
First, the study only pertained to civil cases. This legislation, if enacted, would allow
camera coverage in both civil and criminal cases. As this Subcommittee is acutely aware, the
number of criminal cases in the federal courts continues to rise. One could expect that most of
the media requests for coverage would be in sensational criminal cases, where the problems for
witnesses, including victims of crimes, and jurors are most acute.

Second, the study's conclusions ignore a large amount of significant negative statistical
data. For example, the study reports on attorney ratings of electronic media effects in proceedings
in which they were involved. Among these negative statistics were the following:
• 32% of the attorneys who responded felt that, at least to some extent, the cameras distract
witnesses;
• 40% felt that, at least to some extent, the cameras make witnesses more nervous than they
otherwise would be;
• 21 % believed that, at least to some extent, the cameras cause attorneys to be more
• 27% believed that, at least to some extent, the cameras have the effect of distracting the
attorneys; and
• 21 % believed that, at least to some extent, the cameras disrupt the courtroom proceedings.
When trial judges were asked these same questions, the percentages of negative responses
were even higher:
• 46% believed that, at least to some extent, the cameras make witnesses less willing to
appear in court;
• 41 % found that, at least to some extent, the cameras distract witnesses;
• 64% reported that, at least to some extent, the cameras make witnesses more nervous than
they otherwise would be;
• 17% responded that, at least to some extent, cameras prompt people who see the coverage
to try to influence juror-friends;
• 64% found that, at least to some extent, the cameras cause attorneys to be more theatrical in
their presentations;
• 9% reported that, at least to some extent, the cameras cause judges to avoid unpopular
decisions or positions; and
• 17% found that, at least to some extent, cameras disrupt courtroom proceedings.
These negative statistical responses from judges and attorneys involved in the pilot project
dominated the Judicial Conference debate and were highly influential in the Conference's
conclusion that the intimidating effect of cameras on witnesses and jurors was cause for alarm.
Since a United States judge's paramount responsibility is to seek to ensure that all citizens enjoy a
fair and impartial trial, and cameras may compromise that right, allowing cameras would not be in
the interest of justice. For these reasons, the Judicial Conference rejected the conclusions made by
the FJC study with respect to cameras in district courts.
For the appellate courts, an even larger percentage of judges who participated in the study
related negative responses:
• 47% of the appellate judges who responded found that, at least to some extent, the cameras
cause attorneys to be more theatrical in their presentations;
• 56% found that, at least to some extent, the cameras cause attorneys to change the emphasis
or content of their oral arguments;
• 34% reported that, at least to some extent, cameras cause judges to change the emphasis or
content of their questions at oral arguments; and
• 26% reported that, at least to some extent, the cameras disrupt courtroom proceedings.
While the Conference did allow each United States court of appeals to determine whether
to permit the use of cameras in that circuit, these high negative responses give us a very real
indication as to why only two out of 13 courts of appeals have allowed their proceedings to be
televised. The two courts that do allow camera coverage are the Second and Ninth Circuits,
which voluntarily participated in the pilot project.
Carefully read, the FJC study does not reach the firm conclusions for which it is repeatedly
cited. The negative responses described above undermine such a reading. When considering
legislation affecting cameras in the courtroom with such permanent and long-range implications for
the judicial process, the negative responses should be fully considered. Certainly that is what the
Conference focused on. In reality the recommendations of the study reflect a balancing exercise
which may seem proper to social scientists but which is unacceptable to judges who cannot
compromise the interests of the litigants, jurors, and witnesses, even for some amorphous public
good. We turn to that issue now.
IV. The Putative Educational Benefit of Cameras in the Courtroom
The proponents of cameras in the courtroom rely, of course, on the putative benefits of
public education and understanding of court processes. The Judicial Conference supports that goal
but does not agree that cameras in courtrooms will significantly further it. The FJC study analyzed
the results achieved during the pilot project. The main approach to the issue lay in a content
analysis of evening news broadcast using footage obtained during the pilot program. 4 The content
analysis is disquieting. The ninety stories analyzed presented a total of one hour and twenty-five
minutes of courtroom footage, with an average of fifty-six seconds of courtroom footage per story.
There is not too much educational content in 56 seconds. Moreover, most of the courtroom footage
was voiced over by a reporter's narration. On average, reporters narrated 63% of all courtroom
4rhis analysis was conducted by the Center for Media and Public Affairs under contract with the FJC.
Content analysis is the objective and systematic description of communicative material. The content analysis
performed for this study proceeded in two phases. First, a qualitative analysis was used to identify the symbols,
stylistic devices, and narrative techniques shaping the form and substance of the news stories; this allowed the
researchers to develop analytic categories based on the actual content of the stories rather than imposing priori
categories. Second, the analytic categories that were developed and pre-tested formed the basis of a quantitative
analysis, which involved the systematic coding of story content into discrete categories.
footage. Thus, the witnesses, parties, and attorneys spoke on camera for just over one-third of the
total air time. In at least one-half of the cases photographed, information on the nature of the case
was provided by reporters or anchors without relying on the participants.
The FJC report also sought to determine specifically the extent to which the stories
provided basic educational information about the legal system, examining whether five pieces of
information were conveyed to the viewer: (1) identification of the case as a civil matter;
(2) identification of the type or proceeding, such as a hearing or trial; (3) statements about whether
a jury was present; (4) descriptions of the proceedings on a given day; and (5) discussion of the
next step in the legal process. The report concluded as follows:
The vast majority of stories (95% of non-first day stories) did not identify
the proceeding covered as a civil matter. In addition, 77% of the stories failed to
identify the type of proceeding involved. Almost three-quarters (74%) of all
stories did not provide information about whether a jury was present, including half
of the stories that identified the covered proceedings as a trial.
Most stories (74%) did explain what transpired in court on a particular day,
such as who testified or what evidence was presented. In multiple-day cases, 90%
of the stories explained the daily proceedings, compared to 63% in single-day
stories. Seventy-six percent of the daily proceedings in a story were explained by
a combination of reporter narration and participant discussion. Only 29% of
stories mentioned the next step in the litigation process in the case.
Thus, the stories did not provide a high level of detail about the legal
process in the cases covered. In addition, the analysis revealed that increasing the
proportion of courtroom footage used in a story did not significantly increase the
information given about the legal process.
In view of the foregoing, we suggest that the benefits of televised coverage of courtroom
proceedings are overrated (and are certainly far outweighed by the detriments described above).
Television news coverage oftentimes appears simply to use the courtroom for a backdrop or a
visual image for the news story which, like many of such stories on television, are delivered in
Statementfor the Judicial Conference Page 20
short sound bites and not in depth.
The FJC study also reported that Court TV covered 28 cases under the program and that C-
SPAN covered 7 cases. However, it does not appear from records available to us that these
proceedings were broadcast either in their entirety or continuously. The paucity of cases selected
by C-SPAN-seven in two years-suggests that the tediousness, technicality, and sheer length of
trials are obstacles to comprehensive media transmission, except in the sensational kinds of cases
where the harms described previously are the greatest.
V. A Better Vehicle for Public Education
The federal judiciary acknowledges that more needs to be done to improve the general
understanding by the public of the federal judiciary and its processes. We believe that this goal
can best be achieved by active federal judicial involvement. Federal courts have, in the past few
years, begun to play an active role in this area through community outreach programs. Under the
aegis of these programs, thousands of students, teachers, and other members of the public have
come into federal courts to learn more about the federal courts and to engage in dialogue with
judges, attorneys and court personnel. National initiatives to increase public understanding of the
federal court system are underway in pilot programs in two circuits. In addition, over the last two
years, the federal judiciary has conducted Law Day programs for high school seniors, during
which mock trials were broadcast to 2,000 students at over 30 participating courthouses
nationwide.
Additionally, plans are underway for federal courts to assist school personnel in planning
curriculums designed to instruct about the federal judiciary, culminating in court visits (or visits by
judges to schools). The positive results of these kinds of programs are self-evident. We believe
that it would be preferable to expend the monies that would be necessary to support a cameras in
the courtroom project on these community outreach programs.
VI. Conclusion
When almost anyone in this country thinks of cameras in the courtroom today, they
inevitably think ofthe Simpson case. I sincerely doubt anyone believes that the presence of
cameras in that courtroom did not have an impact on the conduct of the attorneys, witnesses, jurors,
and judge-almost universally to the detriment of the trial process. Admittedly, few cases are
Simpson-like cases, but the inherent effects of the presence of cameras in the courtroom are, in
some respects, the same, whether or not it is a high-publicity case. Furthermore, there is a
legitimate concern that if the federal courts were to allow camera coverage of cases that are not
sensational, it would become increasingly difficult to limit coverage in the high-profile and
high-publicity cases where such limitation, almost all would agree, would be warranted.
This is not a debate about whether judges would be discomfited with camera coverage.
Nor is it a debate about whether the federal courts are afraid of public scrutiny. They are not.
Open hearings are a hallmark of the federal judiciary. It is also not about increasing the
educational opportunities for the public to learn about the federal courts or the litigation process.
The judiciary strongly endorses educational outreach, which could better be achieved through
increased and targeted community outreach programs.
Rather, this is a decision about how individual Americans-whether they are plaintiffs,
Statementfor the Judicial Conference Page 22
defendants, witnesses, or jurors-are treated by the federal judicial process. It is the fundamental
duty of the federal judiciary to ensure that every citizen receives his or her constitutionally
guaranteed right to a fair trial. For the reasons discussed in this statement, the Judicial Conference
believes that the use of cameras in the courtroom could seriously jeopardize that right. It is this
concern that causes the Judicial Conference of the United States to oppose enactment of S. 721. As
the Supreme Court stated in Estes, "[w]e have always held that the atmosphere essential to the
preservation of a fair trial-the most fundamental of all freedoms-must be maintained at all
costs." 381 U.S. at 540.
Mr. Chairman, thank: you again for the opportunity to testify and present these views. I will
be pleased to answer any questions you or the other members ofthe Subcommittee may have.
Exhibit 22
http://judiciary.house.gov/hearings/pdf/Richter070927.pdf.
STATEMENT OF
JOHN C. RICHTER
UNITED STATES ATTORNEY
WESTERN DISTRICT OF OKLAHOMA
ON BEHALF OF THE DEPARTMENT OF JUSTICE
BEFORE THE

CONCERNING
H.R. 2128
THE “SUNSHINE IN THE COURTROOM ACT OF 2007”
PRESENTED
SEPTEMBER 27, 2007

TESTIMONY OF
THE HONORABLE JOHN C. RICHTER
UNITED STATES ATTORNEY
WESTERN DISTRICT OF OKLAHOMA
ON BEHALF OF THE DEPARTMENT OF JUSTICE
REGARDING
H.R. 2128, THE “SUNSHINE IN THE COURTROOM ACT OF 2007”
SEPTEMBER 27, 2007
MR. CHAIRMAN, RANKING MEMBER SMITH, MEMBERS OF THE
COMMITTEE, MY NAME IS JOHN RICHTER. I PRESENTLY SERVE AS
THE UNITED STATES ATTORNEY FOR THE WESTERN DISTRICT OF
OKLAHOMA. IT IS MY PRIVILEGE TO SPEAK TO YOU TODAY ON
BEHALF OF THE DEPARTMENT OF JUSTICE TO EXPRESS THE DEEP
CONCERNS WE HAVE ABOUT H.R. 2128, THE “SUNSHINE IN THE
COURTROOM ACT OF 2007.” AS THIS COMMITTEE KNOWS, H.R. 2128
WOULD AUTHORIZE THE CHIEF JUSTICE OF THE UNITED STATES
SUPREME COURT, ANY PRESIDING JUDGE IN THE 13 COURTS OF
APPEALS, OR A JUDGE IN ANY DISTRICT COURT AT HIS OR HER
DISCRETION TO PERMIT THE PHOTOGRAPHING, BROADCASTING, OR
TELEVISING OF COURT PROCEEDINGS OVER WHICH THAT JUDGE
WOULD BE PRESIDING. THE BILL ALSO WOULD DIRECT THE
JUDICIAL CONFERENCE OF THE UNITED STATES TO PROMULGATE

GUIDELINES WITH RESPECT TO THE MANAGEMENT AND
ADMINISTRATION OF SUCH LIVE COVERAGE.
IN PURSUING CASES, IT IS THE DUTY OF THE UNITED STATES TO
SEE THAT JUSTICE IS DONE. 1 IN EXAMINING THE IMPLICATIONS OF
THIS BILL, THEREFORE, THE DEPARTMENT OF JUSTICE LOOKS AT
THIS BILL WITH AN EYE TOWARD WHETHER IT WILL CONTRIBUTE OR
DETRACT FROM THE CAUSE OF JUSTICE. TO BEGIN, COURT
PROCEEDINGS ARE HELD FOR THE SOLEMN PURPOSE OF SEEKING TO
ASCERTAIN THE TRUTH, WHICH IS THE FUNDAMENTAL BASIS FOR A
FAIR TRIAL. OVER MANY YEARS, BASED ON THE FOUNDATION LAID
BY OUR FOUNDING FATHERS, AMERICAN COURTS HAVE DEVISED
CAREFUL SAFEGUARDS BY RULE AND OTHERWISE TO PROTECT AND
FACILITATE THE PERFORMANCE OF THAT HIGH FUNCTION. THE
FEDERAL JUDICIARY HAS ALWAYS HELD THAT THE ATMOSPHERE
ESSENTIAL TO THE PRESERVATION OF A FAIR TRIAL MUST BE
MAINTAINED AT ALL COSTS. 2
1
See Berger v. United States, 295 U.S. 88 (1935).
2
See Estes v. Texas, 381 U.S. 532, 540 (1965).
-3-
WHEN CONSIDERING NEW LAWS, WE GENERALLY LOOK AT
WHETHER THE POTENTIAL BENEFIT TO BE GAINED BY THE
LEGISLATION OUTWEIGHS THE POTENTIAL HARM IT WILL CAUSE.
WITH APOLOGIES TO JUDGE LEARNED HAND, THE FATHER OF COST-
BENEFIT ANALYSIS 3 , IN CONSIDERING THE EFFICACY OF H.R. 2128
AND THE BROADCAST OF COURT PROCEEDINGS, WE MUST WEIGH
THREE VARIABLES: (1) THE LIKELIHOOD OR PROBABILITY OF HARM
TO THE CAUSE OF JUSTICE AS A RESULT OF THE MEASURE; (2) THE
SEVERITY OF SUCH HARM; AND (3) THE ABILITY TO OR BURDEN OF
AVOIDING THAT HARM THROUGH DENIAL OF THE PROPOSED
MEASURE.
SEEN IN THIS LIGHT, MY TESTIMONY TODAY ON BEHALF OF
THE DEPARTMENT OF JUSTICE WILL FOCUS ON THE THREE
PERTINENT FACTORS THAT SHOULD BE WEIGHED IN CONSIDERING
3
See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947) (Learned
Hand, J. (the seminal case in which Judge Hand described the utilitarian instrumentalist standard
as applied to tort liability).
-4-
H.R. 2128 AND THE LIVE COVERAGE OF FEDERAL COURT
PROCEEDINGS. I WILL SET FORTH THE POTENTIAL HARMS TO OUR
FEDERAL JUSTICE SYSTEM THAT THE DEPARTMENT OF JUSTICE
BELIEVES H.R. 2128 MAY HAVE. I WILL ALSO DESCRIBE THE
LIKELIHOOD AND SEVERITY OF THOSE HARMS, AS WELL AS
EXAMINE SOME ASSERTED BENEFITS TO THE BROADCAST OF CASES.
I CONCLUDE THAT THE HARMS THIS LEGISLATION COULD CAUSE TO
THE JUSTICE SYSTEM GREATLY OUTWEIGH ANY PURPORTED
BENEFIT TO BE GAINED BY THE MEASURE.
AS ATTORNEYS FOR THE UNITED STATES, WE, IN THE
DEPARTMENT OF JUSTICE, HAVE GRAVE CONCERNS ABOUT THE
POTENTIAL HARM THAT THIS BILL AND LIVE COVERAGE OF FEDERAL
COURT PROCEEDINGS MAY HAVE ON KEY PARTICIPANTS IN THE
TRUTH-SEEKING PROCESS. WE SHARE THE CONCERN OF THE
JUDICIAL CONFERENCE, MANY FEDERAL JUDGES, AND MANY
DEFENDERS THAT CAMERA COVERAGE MAY NEGATIVELY IMPACT
JUDICIAL DECISION-MAKING. THE LATE CHIEF JUSTICE REHNQUIST
AND OTHERS HAVE ARGUED THAT THE INVASIVE PRESENCE OF
-5-
CAMERAS MAY CREATE A ACHILLING EFFECT ON JUDGES AND CAUSE
THEM TO FEEL RESTRAINED FROM ASKING POINTED QUESTIONS FOR
FEAR OF PUBLIC MISPERCEPTION ON THEIR STANCE ON A
PARTICULAR ISSUE.@ 4 SIMILARLY, AT THE TRIAL LEVEL, THERE IS A
RISK THAT JUDGES COULD, EVEN UNINTENTIONALLY, SHAPE THEIR
BEHAVIOR OR RULINGS UNDER THE HOT GLARE OF THE CAMERAS.
LIKEWISE, THE PRESENCE OF THE CAMERA, NO MATTER HOW
UNOBTRUSIVE, MAY AFFECT THE BEHAVIOR OF THE LAWYERS, THE
WITNESSES, AND THE JURORS. ONE FEDERAL JUDGE HAS OBSERVED:
A[CAMERAS] AFFECT PEOPLES= PERFORMANCE AND MANNER OF
BEHAVING B AND IT=S NOT ALWAYS FOR THE GOOD.@ 5 AFTER ALL,
YOU DO NOT HAVE TO GO FAR BACK IN HISTORY TO FIND CRIMINAL
4
See Charlie Rose Interview with Chief Justice William Rehnquist (PBS television
broadcast Feb. 16, 2001).
5
See Dan Horn, U.S. Judges Camera-Shy in Courtroom, Cincinnati Enquirer, Jan. 29,
2006 at 1B (quoting Federal District Court Chief Judge Sandra Beckwith of the Southern District
of Ohio).
-6-
TRIALS THAT WERE TELEVISED WHERE GRANDSTANDING AND THE
GLARE OF LIGHTS CREATED A ACIRCUS ATMOSPHERE.@ 6
JUST AS THE CAMERA=S INCRIMINATING EYE AFFECTS THE
JUDGES AND PARTIES, IT ALSO AFFECTS JURORS. EVEN IF THE
JURORS THEMSELVES ARE NOT DEPICTED, AS THIS BILL WOULD
REQUIRE, THE PRESENCE OF CAMERAS IN THE COURTROOM
ESCALATES THE SENSATIONAL ASPECTS OF THE TRIAL AND THE
COVERAGE MAY AFFECT JURORS’S PERCEPTIONS OF THEIR ROLE. 7
OTHERWISE QUALIFIED JURORS MAY NOT WANT TO SERVE UNDER
THE GLARING SCRUTINY OF LIVE COVERAGE. MOST TROUBLING,
THE MORE SENSATIONALIZED COVERAGE AS A RESULT OF THE
CAMERAS MAY PRESSURE JURORS, UNCONSCIOUSLY OR
6
See, e.g., John Broder, Clinton Says Televising Simpson Trial Led To ACircus
Atmosphere.@ L.A. Times, Sept. 22, 1995 (discussing President Clinton=s criticism); see also,
George Will, Circus of the Century, Washington Post, Oct. 4, 1995 at A25.
7
See, e.g., Joseph F. Flynn, Prejudicial Publicity In Criminal Trials: Bring Shepard v.
Maxwell Into The Nineties, 27 New Eng. L. Rev. 857, 866 (1993); Kenneth B. Nunn, When
Juries Meet The Press: Rethinking The Jury=s Representative Function In Highly Publicized
Cases, 22 Hastings Const. L.Q. 405, 430 (1995).
-7-
CONSCIOUSLY, TO BASE THEIR DECISION ON COMMUNITY DESIRES
INSTEAD OF THE FACTS OF THE CASE. 8
WE ALSO SHARE THE CONCERNS MANY IN THE DEFENSE BAR
HAVE ABOUT TELEVISION’S EFFECT ON A WITNESS=S WILLINGNESS
TO TESTIFY, OR EVEN THAT THE SUBSTANCE OF HIS TESTIMONY
WILL BE ALTERED AND HARM THE FAIRNESS OF THE JUDICIAL
PROCESS. EVEN WITNESSES WHO PARTICIPATE VOLUNTARILY MAY
GIVE ALTERED TESTIMONY, EITHER BECAUSE THEY HAVE LISTENED
TO OTHER TESTIMONY ON TELEVISION AGAINST A JUDGE=S ORDER,
OR MERELY BECAUSE THE IDEA OF THEIR WORDS BEING
BROADCAST TO AN AUDIENCE OF THOUSANDS OR MILLIONS IS
FRIGHTENING OR UNNERVING.
AS AN ASSISTANT DISTRICT ATTORNEY, AN ASSISTANT U.S.
ATTORNEY, AND NOW AS A UNITED STATES ATTORNEY, I HAVE
CALLED ON MANY COOPERATING WITNESSES TO TESTIFY AS TO
8
See Sheppard v. Maxwell, 384 U.S. 333, 353 (1966); see also, Estes, 381 U.S. at 545-
46.
-8-
INCIDENTS AND CONDUCT THAT IS HUMILIATING, EMBARRASSING,
AND ILLEGAL. I CAN TELL YOU FROM FIRST-HAND EXPERIENCE
THAT IT IS HARD ENOUGH TO GAIN THAT COOPERATION AND
CRITICAL TESTIMONY WITHOUT HAVING TO BATTLE THE SPECTER
WEIGHING ON THE WITNESS=S MIND THAT HER TESTIMONY WILL BE
BROADCAST TO A WIDER AUDIENCE THAN JUST THE PERSONS WHO
ARE PRESENT IN THE COURTROOM.
CONSIDER ALSO THE INCREASED LIKELIHOOD AND POTENTIAL
FOR HARM TO THE ABILITY OF OUR FEDERAL COURTS TO EXERCISE
CONTROL OVER THE WITNESSES OUTSIDE OF THE COURTROOM
DURING A TRIAL. IT IS THE NORM FOR A COURT TO ORDER THE
SEQUESTRATION OF WITNESSES OR TO ENTER AN ORDER
EXCLUDING WITNESSES FROM HEARING OTHER EVIDENCE DURING A
TRIAL THAT MAY AFFECT THEIR TESTIMONY. 9 UNDER THE PRESENT
RULES IN FEDERAL COURT, THE ONLY WAY A WITNESS OUTSIDE THE
COURTROOM CAN HEAR THE TESTIMONY IS THROUGH A THIRD
9
See Fed. R. Evid. 615.
-9-
PARTY WHO WAS IN THE COURTROOM TELLING HIM. WITH A LIVE
BROADCAST, HOWEVER, THE RISK NECESSARILY IS INCREASED
THAT, NOTWITHSTANDING THE ORDER, THE WITNESS NONETHELESS
MAY HEAR THE ACTUAL LIVE TESTIMONY, WHICH UNDOUBTEDLY
CARRIES A HIGHER ABILITY TO INFLUENCE WHAT THE WITNESS
WILL SAY LATER IN THE TRIAL.
THIS CAN BE ALL THE MORE SERIOUS IF THE TESTIMONY TO
WHICH THE WITNESS IS EXPOSED WAS IMMUNIZED TESTIMONY.
COMPARE, FOR EXAMPLE, THE EFFECT IMMUNIZED CONGRESSIONAL
TESTIMONY THAT WAS BROADCAST NATIONWIDE ULTIMATELY HAD
ON THE CRIMINAL TRIAL OF LIEUTENANT COLONEL OLIVER NORTH
IN THE IRAN-CONTRA CASE. 10 PRIOR TO HIS PROSECUTION BY THE
INDEPENDENT COUNSEL, CONGRESS, IN FULL ANTICIPATION OF
NORTH=S FUTURE PROSECUTION, GRANTED NORTH ADERIVED USE@
IMMUNITY TO TESTIFY REGARDING HIS ROLE IN THE IRAN-CONTRA
10
See United States v. North, 910 F.2d 843 (D.C. Cir. 1990), opinion withdrawn and
superseded in part on rehearing by United States v. North, 920 F.2d 940 (D.C. Cir. 1990) (per
curiam).
- 10 -
MATTER. 11 NETWORK TELEVISION AND RADIO CARRIED THE
TESTIMONY LIVE TO A RIVETED NATIONAL AUDIENCE. THE
INDEPENDENT COUNSEL, WHO BROUGHT THE CASE, TRIED TO AVOID
THE EXPOSURE TO THE TESTIMONY AND DID NOT USE THE
IMMUNIZED TESTIMONY AT TRIAL. MANY OF THE WITNESSES
CALLED BY THE INDEPENDENT COUNSEL, HOWEVER, HAD SEEN THE
TESTIMONY ON THEIR OWN.
UPON CONVICTION, NORTH APPEALED ARGUING THAT THE
INDEPENDENT COUNSEL VIOLATED NORTH=S GRANT OF ADERIVED
USE@ IMMUNITY WHEN HE RELIED ON A WITNESS WHOSE TESTIMONY
WAS SHAPED, DIRECTLY OR INDIRECTLY, BY COMPELLED
TESTIMONY, REGARDLESS OF HOW OR BY WHOM HE WAS EXPOSED
TO THAT COMPELLED TESTIMONY. THE COURT OF APPEALS AGREED.
IN OVERTURNING NORTH=S CONVICTION, THE COURT EXPRESSED ITS
CONCERN THAT THE MEMORY OF THE WITNESS WOULD BE
11
See Kastigar v. United States, 406 U.S. 441 (1972) (in which the Court held that
Aderived use immunity@ was sufficient in scope to exempt a witness from harm flowing from
court-ordered testimony in violation of his Fifth Amendment right against compelled self-
incrimination).
- 11 -
IMPERMISSIBLY REFRESHED BY HIS EXPOSURE TO IMMUNIZED
TESTIMONY, WHICH MIGHT SERVE TO ENHANCE THE CREDIBILITY OF
THAT TESTIMONY AT TRIAL. 12
SIMILAR TO THE SPILL-OVER EFFECTS SEEN IN THE NORTH
CASE, WITNESS EXPOSURE TO TELEVISED EVIDENCE OF OTHER
WITNESSES CARRIES THE SAME SORT OF RISK OF ADERIVED
INFLUENCE@ CORRUPTION ON THE TRUTH-SEEKING FUNCTION OF A
TRIAL. WITNESSES WHO ARE EXPOSED TO THE TESTIMONY OF
OTHERS MAY BE ABLE TO ENHANCE THEIR TESTIMONY BY
TESTIFYING IN CONFORMITY WITH WHAT THEY HAVE HEARD
ELSEWHERE OR IN CONTRADICTING PREVIOUS TESTIMONY, GIVEN
THAT THEY MAY HAVE THE BENEFIT OF A PREVIEW FROM A
BROADCAST IN STYLING THEIR REMARKS.
12
See North, 920 F.2d at 944& 994 n.4 (D.C. Cir. 1990) (per curiam); see also, North,
910 F.2d at 866-867.
- 12 -
WE ARE ALSO CONCERNED ABOUT THE SPILL-OVER EFFECTS IN
CASES WHERE CO-CONSPIRATORS ARE TRIED SEPARATELY AND THE
BROADCAST OF THE TRIAL OF ONE CO-CONSPIRATOR THREATENS TO
CORRUPT THE POTENTIAL JURY POOL FOR THE TRIAL OF THE OTHER
CO-CONSPIRATOR. 13
IN WEIGHING THE HARM OF CAMERAS IN THE COURTROOM, IT
IS IMPORTANT TO RECOGNIZE THAT THE POTENTIAL FOR HARM
DOES NOT STOP WHEN THE TRIAL ENDS. BROADCAST TESTIMONY
LIVES ON LONG AFTER A TRIAL HAS ENDED. PABLO FENJVES, WHO
TESTIFIED IN THE O.J. SIMPSON MURDER TRIAL, REPORTED THAT
AFTERWARDS HE HAD STRANGERS APPROACH HIM IN THE
SUPERMARKET AND RECEIVED DEATH THREATS. 14
13
See, e.g., WALB-TV, Inc. v. Gibson, 501 S.E.2d 821, 822-23 (Ga. 1998).
14
Jill Smolowe, TV Cameras On Trial: The Unseemly Simpson Spectacle Provokes A
Backlash Against Televised Court Proceedings, Time, July 24, 1995, at 38.
- 13 -
THIS RAISES ANOTHER SUBSTANTIAL CONCERN: THE SAFETY
AND PRIVACY OF THE TRIAL PARTICIPANTS. MOST TRIAL
PARTICIPANTS REALIZE THAT THEY MUST SACRIFICE SOME LEVEL
OF PRIVACY BY TESTIFYING AT A PUBLIC TRIAL. THEIR SACRIFICE,
HOWEVER, IS UNNECESSARILY MAGNIFIED WHEN CAMERAS
PROVIDE EXPOSURE TO THE NATIONAL, RATHER THAN JUST THE
LOCAL COMMUNITY. FURTHERMORE, THAT UNNECESSARY
SACRIFICE IS INCREASED EXPONENTIALLY TODAY BECAUSE THE
ADVANCES IN BROADCAST TECHNOLOGY MAKE THE BROADCASTS
AVAILABLE NOT JUST WHEN THEY ARE FIRST AIRED BUT
POTENTIALLY FOREVER ON THE WORLD-WIDE WEB.
UNITED STATES DISTRICT COURT JUDGE LEONIE BRINKEMA
DESCRIBED THIS EXPONENTIAL LOSS OF PRIVACY AND INCREASED
SECURITY RISK POSED TO WITNESSES IN AN ORDER SHE ISSUED IN
THE ZACARIAS MOUSSAOUI CASE IN THE EASTERN DISTRICT OF
VIRGINIA:
ADVANCES IN BROADCAST
TECHNOLOGY,..., HAVE...CREATED NEW
THREATS TO THE INTEGRITY OF THE FACT
- 14 -
FINDING PROCESS. THE TRADITIONAL

PUBLIC SPECTATOR OR MEDIA
REPRESENTATIVE WHO ATTENDS A
FEDERAL CRIMINAL TRIAL LEAVES THE
COURTROOM WITH HIS OR HER MEMORY
OF THE PROCEEDINGS AND ANY NOTES HE
OR SHE MAY HAVE TAKEN. THESE
SPECTATORS DO NOT LEAVE WITH A
PERMANENT PHOTOGRAPH. HOWEVER,
ONCE A WITNESS=S TESTIMONY HAS BEEN
TELEVISED, THE WITNESS=S FACE HAS NOT
JUST BEEN PUBLICLY OBSERVED, IT HAS
ALSO BECOME ELIGIBLE FOR
PRESERVATION BY VCR OR DVD
RECORDING, DIGITIZING BY THE NEW
GENERATION OF CAMERAS OR
PERMANENT PLACEMENT ON INTERNET
WEB SITE AND CHAT ROOMS. TODAY, IT IS
NOT SO MUCH THE SMALL, DISCRETE
CAMERAS OR MICROPHONES IN THE
COURTROOM THAT ARE LIKELY TO
INTIMIDATE WITNESSES, RATHER, IT IS
THE WITNESS=S KNOWLEDGE THAT HIS OR
HER FACE OR VOICE MAY BE FOREVER
PUBLICLY KNOWN AND AVAILABLE TO
ANYONE IN THE WORLD. 15
H.R. 2128 FAILS TO ENSURE THAT ATTORNEY-CLIENT
CONVERSATIONS AND CONFIDENCES ARE PROTECTED. THE BILL
ALSO FAILS TO PRECLUDE EVEN ATHE AUDIO PICKUP OR
15
See United States v. Moussaoui, 205 F.R.D. 183, 186-87 (E.D. Va. 2002).
- 15 -
BROADCAST@ OF CONFERENCES IN A COURT PROCEEDING BETWEEN
ATTORNEYS AND DEFENDANTS AND BETWEEN CO-COUNSEL.@ 16
THE DEPARTMENT=S CONCERNS REGARDING THE EFFECT OF
H.R. 2128 EXTEND BEYOND THE CONFINES OF THE TRIAL PROCESS OR
THE COURTROOM. FOR EXAMPLE, THE BILL CONTAINS NO
SAFEGUARDS TO PROTECT WITNESSES WHO PARTICIPATE IN THE
DEPARTMENT=S WITNESS SECURITY PROGRAM FROM THE
UNNECESSARY EXPOSURE CAUSED BY A BROADCAST.
IT IS CRITICAL WE ENSURE THAT WITNESSES UNDER THE
PROTECTION OF THE U.S. GOVERNMENT NOT FACE GREATER RISK OF
HARM BY THE BROADCASTING AND POTENTIAL RECORDING FOR
ALL POSTERITY THEIR CURRENT APPEARANCE OR VOICE.
PROPONENTS CONTEND THAT THIS CONCERN CAN BE ADDRESSED
BY OBSCURING A WITNESS=S IMAGE AND VOICE DURING THE
16
See, e.g., S.C. App. Ct. R. 605(f)(2)(ii).
- 16 -
BROADCAST. SUCH PRECAUTIONS, HOWEVER, MAY STILL NOT BE
ENOUGH. THE DEPARTMENT IS AWARE OF DEVICES AND
TECHNOLOGY THAT MAY BE ABLE TO AUNOBSCURE@ SUCH IMAGES
AND VOICES.
OUR CONCERN ALSO EXTENDS BEYOND ISSUES ABOUT IMAGE
AND VOICE. OFTEN, THE FACTUAL INFORMATION ALONE PROVIDED
BY A WITNESS CAN GIVE AWAY IDENTITY. THE INCREASED
POTENTIAL FOR PLACING FACTUAL INFORMATION RELAYED BY A
WITNESS IN THE WITSEC PROGRAM ON THE INTERNET RAISES EVEN
GREATER DIFFICULTIES FOR THE DEPARTMENT IN PROTECTING
THAT INDIVIDUAL.
ON THE SECURITY FRONT, WE ALSO ARE CONCERNED THAT
CAMERAS IN THE COURTROOM COULD HINDER THE ABILITY OF THE
UNITED STATES MARSHALS SERVICE TO PROTECT TRIAL
PARTICIPANTS. AS THIS COMMITTEE IS WELL AWARE, THREATS TO
FEDERAL JUDGES AND THEIR FAMILIES ARE EVER PRESENT. ANY
PROPOSAL THAT WOULD RESULT IN MAKING JUDGES MORE READILY
- 17 -
IDENTIFIABLE HOLDS THE POTENTIAL FOR INCREASING THEIR
VULNERABILITY.
LIKEWISE, THE INTERESTS OF JUSTICE WOULD NOT BE
ADVANCED BY THE WIDE DISSEMINATION OF THE IDENTITY OF
WITNESS SECURITY PERSONNEL OR UNDERCOVER AGENTS WHO
MAY HAVE TO RETURN TO SUCH DUTIES IN ANOTHER CITY OR STATE
TO HAVE THEIR IMAGE FOREVER IMPRINTED ON THE INTERNET.
THE DEPARTMENT IS ALSO VERY CONCERNED ABOUT A RANGE
OF OTHER POTENTIAL HARMS THAT ARE LEFT COMPLETELY
UNADDRESSED BY H.R. 2128. FOR EXAMPLE, H.R. 2128 DOES NOT
PROTECT AGAINST THE TELEVISING OF EVIDENCE THAT SHOULD
NOT BE DISSEMINATED EXCEPT TO THE LIMITED DEGREE
NECESSARY TO ENSURE DUE PROCESS AND A FAIR TRIAL. AT A TIME
WHEN WE ARE FIGHTING TERRORISM, WE SHOULD BE CAREFUL
ABOUT INTRODUCING RULES THAT WOULD EXPAND THE
DISSEMINATION OF INFORMATION THAT WOULD BE PRESENTED AT
TRIAL, PARTICULARLY IF THAT INFORMATION IS DECLASSIFIED
- 18 -
INFORMATION. AFTER ALL, EVEN IF WE HAVE TO DECLASSIFY
NATIONAL SECURITY INFORMATION IN ORDER TO SUCCESSFULLY
PROSECUTE A TERRORIST OR TERRORIST SUPPORTER, WE STILL
SHOULD DO ALL WE CAN TO KEEP THE INFORMATION FROM BEING
BROADCAST INTO EVERY DARK CORNER OF THE WORLD WITH
INTERNET CAPABILITY.
THE SERIOUS SHORTCOMINGS OF H.R. 2128 ARE APPARENT IN
OTHER AREAS OF CRITICAL IMPORTANCE TO THE PUBLIC. THE BILL
DOES NOT ACCOUNT FOR THE INCREASED HARM CAUSED BY WIDER-
THAN-NECESSARY DISSEMINATION OF SENSITIVE LAW
ENFORCEMENT TECHNIQUES WHEN DISCLOSED IN OPEN COURT.
FOR EXAMPLE, LAST YEAR IN MY DISTRICT, WE BEGAN
INVESTIGATING THE WALNUT GANGSTER CRIPS, A CRIMINAL GANG
DEDICATED TO DRUG TRAFFICKING AND VIOLENCE. THE
DEFENDANTS WE INVESTIGATED WERE SOPHISTICATED CRIMINALS,
REGULARLY SWITCHING THEIR TELEPHONES AND OTHER MEANS OF
COMMUNICATION IN ORDER TO AVOID LAW ENFORCEMENT
- 19 -
DETECTION. THERE WERE SOME MEANS OF COMMUNICATION,
HOWEVER, THAT THEY THOUGHT WE WERE STILL UNABLE
TECHNICALLY TO INTERCEPT AND SO THEY RELIED PARTICULARLY
ON THOSE METHODS OF COMMUNICATION. AS PART OF THE
INVESTIGATION, WE SOUGHT AND OBTAINED COURT-AUTHORIZED
WIRETAPS NOT ONLY ON THEIR TELEPHONES, BUT ON THEIR OTHER
METHODS OF COMMUNICATION IN ORDER THAT WE COULD
INTERCEPT THESE GANGSTERS=S PLANS TO DELIVER DRUGS AND
KILL RIVAL GANG MEMBERS. I AM PLEASED TO REPORT THAT IN
LARGE PART BECAUSE OF OUR USE OF THESE COURT-AUTHORIZED
WIRETAPS, WHICH ARE VERY SENSITIVE LAW ENFORCEMENT
TECHNIQUES, WE WERE SUCCESSFUL IN GATHERING THE
NECESSARY EVIDENCE TO DISMANTLE THIS VIOLENT CRIMINAL
GANG. OF COURSE, AS PART OF THE DISCOVERY PROCESS IN THE
CASES THAT FLOWED FROM THAT INVESTIGATION, WE NECESSARILY
HAD TO REVEAL TO DEFENSE COUNSEL AND THE DEFENDANTS THAT
WE WERE ABLE TO INTERCEPT NOT ONLY THEIR TELEPHONE CALLS
BUT THEIR OTHER COMMUNICATIONS ON THE DEVICES THEY
THOUGHT WE COULD NOT INTERCEPT. BUT, AS PART OF DISCOVERY
- 20 -
AND THE JUDICIAL PROCESS WE ONLY HAD TO TELL THESE
DEFENDANTS AND THOSE PERSONS PRESENT IN OPEN COURT WHEN
THE TECHNIQUES WERE DISCUSSED. WE DID NOT HAVE TO TELL
EVERYONE ANYWHERE. IT IS HARD ENOUGH TO STAY AHEAD OF
THE BAD GUYS FROM A TECHNOLOGICAL STANDPOINT WITHOUT
EVERY TECHNIQUE BEING POTENTIALLY BROADCAST NOT JUST TO
THE MEMBERS OF THE PUBLIC AND TRIAL PARTICIPANTS IN THE
COURTROOM BUT ALSO ACROSS THE WORLD.
H.R. 2128 ALSO FAILS TO ADDRESS THE UNNECESSARY HARM
TO VICTIMS WHO MUST TESTIFY. AS A PROSECUTOR WHO HAS
WORKED FIRST-HAND WITH VICTIMS OF VIOLENCE, I KNOW THAT
REQUIRING VICTIMS OF DOMESTIC VIOLENCE AND CHILD SEXUAL
EXPLOITATION TO RELIVE THEIR EXPERIENCES BY TESTIFYING IN
OPEN COURT IS DIFFICULT ENOUGH UNDER THE CURRENT RULES.
LIVE BROADCAST OF THAT TESTIMONY WOULD ONLY ADD TO THEIR
TRAUMA AND INVASION OF PRIVACY.
- 21 -
FURTHERMORE, THE FAILURE OF THE BILL TO ADDRESS THE
HARMS RESULTING FROM INCREASED INVASIONS OF PRIVACY IS
NOT LIMITED TO JUST VICTIMS IN CRIMINAL CASES. IN MEDICAL
MALPRACTICE AND TORT CASES, FOR EXAMPLE, A PLAINTIFF’S
MEDICAL HISTORY, PSYCHOLOGICAL HISTORY, FAMILY HISTORY,
AND PHYSICAL AND EMOTIONAL DISTRESS ARE OFTEN AT ISSUE.
UNDER THIS BILL, PLAINTIFFS, WHO MAY ALREADY HAVE BEEN
HARMED THROUGH NEGLIGENCE, MAY FIND THAT THEY WILL INCUR
ADDITIONAL HARM FROM A WIDESPREAD DISSEMINATION OF
DEEPLY PERSONAL TESTIMONY AND EVIDENCE BECAUSE OF THE
SENSATION SUCH INFORMATION WILL HAVE IN TODAY’S REALITY
TV WORLD.
FURTHER, THE BILL DOES NOT ACCOUNT FOR THE
IMPLICATIONS THAT TELEVISING JUDICIAL PROCEEDINGS WOULD
HAVE ON THE GOVERNMENT=S ABILITY TO USE INFORMATION THAT
IS PROTECTED BY THE PRIVACY ACT. 17 AT PRESENT, THE BALANCE
17
See 5 U.S.C. § 552a (Privacy Act of 1974).
- 22 -
STRUCK BY CONGRESS ALLOWS THE UNITED STATES TO USE
INFORMATION OTHERWISE PROTECTED BY THE PRIVACY ACT IN
COURT. THE POTENTIAL FOR DISSEMINATION OF SUCH
INFORMATION VIA FULL-SCALE MEDIA COVERAGE, HOWEVER,
CHANGES THE BALANCE THAT HAS BEEN STRUCK BETWEEN
PRIVACY PROTECTION AND THE GOVERNMENT=S ABILITY TO USE
THAT INFORMATION TO ENSURE THAT JUSTICE IS DONE IN A COURT
OF LAW. THE PRIVACY CONSIDERATIONS THAT ROUTINELY ARISE IN
LITIGATION WOULD BECOME MORE SERIOUS AND THE BALANCE
MIGHT BE STRUCK MORE OFTEN ON THE SIDE OF THE GOVERNMENT
NOT BEING ABLE TO USE THE INFORMATION IF THAT USE RESULTED
IN WIDE-SPREAD MEDIA EXPOSURE WITH NO CONTROL OVER ITS
FUTURE USE. THIS WOULD BE OF PARTICULAR CONSEQUENCE TO
OUR CIVIL LITIGATION IN CRITICAL AREAS LIKE EMPLOYMENT
LITIGATION AND DISCRIMINATION CASES.
THE LENGTHY LIST OF HARMS I HAVE IDENTIFIED TODAY ARE
NOT JUST EPHEMERAL. THESE HARMS ARE LIKELY TO OCCUR. EVEN
ASSUMING THE BEST, COURT PROCEEDINGS ARE THE PRODUCT OF
- 23 -
HUMAN BEINGS, JUDGES, LAWYERS, PARTIES, WITNESSES, AND
JURORS, WHO ARE ALL FALLIBLE. WE DO NOT JUST HAVE TO RELY
ON THE EDUCATED SURMISE THAT THESE HARMS ARE LIKELY TO
OCCUR UNDER THE GLARE OF THE CAMERA.
ACCORDING TO THE ADMINISTRATIVE OFFICE OF THE U.S.
COURTS, THE FEDERAL JUDICIARY HAS REPEATEDLY LOOKED AT
THIS ISSUE OVER MORE THAN SIX DECADES WITHOUT FINDING A
BASIS FOR THE KIND OF SWEEPING CHANGE THAT IS PROPOSED IN
H.R. 2128. IN THE 1990'S, A PILOT PROGRAM IN CIVIL CASES WAS
ESTABLISHED IN SIX UNITED STATES DISTRICT COURTS AND ALSO IN
A NUMBER OF THE COURTS OF APPEALS. THE RESULTS OF
INTRODUCING CAMERAS INTO THE FEDERAL COURTS WERE
DOCUMENTED AND ANALYZED. THESE JUDGES REPORTED THAT
EVEN IN CIVIL CASES CAMERAS LED TO WITNESSES WHO WERE
NERVOUS, DISTRACTED, AND LESS WILLING TO APPEAR IN COURT. 18
18
Cameras in the Courtroom: Hearing Before the S. Comm. on the Judiciary, 109th Cong.
83 (statement of Judge Jan E. Dubois of the Eastern District of Pennsylvania) (expressing
concern that 64% of the participating judges found that cameras made witnesses more nervous;
41% of the judges found that cameras led to witnesses who were distracted; 46% of judges
thought the cameras made witnesses less willing to appear; and 56% of judges found that
- 24 -
AS ONE OF THE JUDGES WHO PARTICIPATED IN THE PILOT PROGRAM
STATED, ATHE CAMERA IS LIKELY TO DO MORE THAN REPORT THE
PROCEEDING B IT IS LIKELY TO INFLUENCE THE PROCEEDING. 19 THE
NEGATIVE REPERCUSSIONS TO JUSTICE CAUSED BY CAMERAS IN
CRIMINAL CASES, WHERE LIBERTY IS AT STAKE, WOULD BE EVEN
MORE SEVERE. AT THE END OF THE DAY, THEREFORE, THE FEDERAL
JUDICIARY DETERMINED THAT IN THE INTERESTS OF JUSTICE, THE
BETTER COURSE WAS TO ALLOW THE EXPERIMENT TO END WITHOUT
MAKING ANY CHANGES TO FEDERAL PROCEDURE THAT HAS STOOD
IN PLACE SINCE 1946 REGARDING CAMERAS IN TRIALS. 20
IF THESE HARMS MATERIALIZE, AS THIS PILOT PROGRAM
SHOWED, THEY ARE SEVERE. INFLUENCING A JUDGE=S RULING, A
WITNESS=S TESTIMONY, AND A JURY=S VERDICT REPRESENT HARM
TO OUR PROCESS OF THE MOST SEVERE KIND, PARTICULARLY WHEN
cameras violated witnesses=s privacy).

19
See id. at 86-87 (emphasis added).
20
See Fed. R. Crim. P. 53 (prohibiting courtroom photographing and broadcasting).
- 25 -
THE HARMS ARE NOT ALWAYS EASILY MEASURED, DETECTED, OR
REMEDIED.
PROPONENTS OF CAMERAS IN THE COURTROOM DISCOUNT
THESE HARMS OR THEIR LIKELIHOOD. THEY ALSO CONTEND THAT
JUDICIAL PROCEDURES CAN BE PUT IN PLACE TO PROVIDE
ADEQUATE SAFEGUARDS. PROPONENTS ASSERT THAT STATE RULES
ALLOWING FOR BROADCASTING IN CASES HAVE BEEN IN USE FOR
MANY YEARS, AND ONLY IN RARE INSTANCES HAS IT BEEN
SUCCESSFULLY SHOWN THAT BROADCASTING AFFECTED THE
OUTCOME OF THE CASE.
THE DEPARTMENT BELIEVES SUCH ASSERTIONS MISS THE
POINT. FIRST, GIVEN THE LIKELIHOOD AND SEVERITY OF THE
HARMS TO THE JUDICIAL PROCESS, AS EVIDENCED RATHER
NOTORIOUSLY IN NUMEROUS SENSATIONAL TRIALS OVER THE
YEARS AND THE JUDICIARY=S PILOT PROJECT, THE ALLEGED
AMELIORATIVE EFFECTS OF THESE SAFEGUARDS ARE SIMPLY
- 26 -
INADEQUATE TO MAKE THIS BILL WORTH THE POTENTIAL HARM IT
MAY HAVE TO THE CAUSE OF JUSTICE AT THE FEDERAL LEVEL.
SECOND, ANY RISK TO JUDICIAL DECISION-MAKING, FAIRNESS
OF JURY DELIBERATIONS, AND ACESS TO AND ACCURACY OF
WITNESS TESTIMONY THAT CAN BE SO EASILY AVOIDED SIMPLY IS
NOT A RISK WORTH TAKING. ALTERING OUTCOMES TO SATISFY THE
APPETITE AND HUNGER FOR INCREASED ENTERTAINMENT,
SENSATIONAL FOOTAGE, AND REALITY TELEVISION SIMPLY IS NOT
GOOD PUBLIC POLICY.
LASTLY, MANY OF THE MOST INSIDIOUS HARMS CAUSED BY
CAMERAS IN THE COURTROOM CANNOT BE MITIGATED OR
REMEDIED BY ANY REGULATIONS THAT MIGHT BE PROMULGATED
BY THE JUDICIAL CONFERENCE. IN THE FIRST INSTANCE, IT IS
IMPORTANT TO UNDERSTAND THAT THE HARMS TO JUSTICE CANNOT
BE MEASURED SIMPLY BY LOOKING TO REVERSALS OF JUDGMENTS
AND CONVICTIONS. FOR EXAMPLE, EVEN IF JURORS ARE NOT
DEPICTED, WE WOULD NEVER KNOW HOW EVEN THE SIMPLE
- 27 -
PRESENCE OF THE BROADCASTS INFLUENCED A JUROR=S THINKING
OR AFFECTED THE JURY=S SECRET DELIBERATIONS. EVEN IF ONLY
THE JUDGE’S VOICE COULD BE HEARD DURING THE PROCEEDING, WE
WOULD NEVER KNOW HOW THE POTENTIAL FACT THAT HIS WORDS
MIGHT END UP LINKED ON BLOGS INFLUENCED THE JUDGE=S
THINKING. SINCE NO REGULATION COULD EVER FULLY MITIGATE
ALL EFFECTS OF THE CAMERA, IF THAT COVERAGE INFLUENCED
JUDGES, WITNESSES, OR JURORS TO THE EXTENT THAT IT LED TO AN
ACQUITTAL IN A CRIMINAL CASE THERE WOULD BE NO RIGHT FOR
THE UNITED STATES TO APPEAL. LIKEWISE, IF THE COVERAGE
INFLUENCED A COURT TO MAKE EVIDENTIARY RULINGS AGAINST
THE GOVERNMENT, WHICH ARE RARELY APPEALABLE, THE
NEGATIVE EFFECT OF SUCH INFLUENCE WOULD NEVER BE
MEASURABLE OR REMEDIED.
MOREOVER, IT IS NOT JUST THE GOVERNMENT THAT FACES THE
POTENTIAL FOR UNQUANTIFIABLE HARM, NOTWITHSTANDING ANY
GOOD FAITH ATTEMPT TO MITIGATE HARM THROUGH JUDICIAL
REGULATION. AS THE LAW PRESENTLY STANDS, A DEFENDANT
- 28 -
CARRIES A HIGH BURDEN OF SHOWING THAT THE COVERAGE
RENDERED HIS TRIAL UNFAIR. 21 HE CARRIES THE BURDEN ON
APPEAL OF SHOWING THE PREJUDICE AFTER THE RULINGS HAVE
BEEN MADE, AFTER THE WITNESSES DEMEANOR AND EXPRESSION
HAVE BEEN WITNESSED BY THE JURY, AFTER THE LAWYERS HAVE
ALREADY MADE THEIR ARGUMENTS TO THE JURY, AND AFTER THE
JURORS HAVE FOUND HIM GUILTY AND BEEN DISMISSED. 22
BECAUSE, AS DESCRIBED ABOVE, THE INFLUENCE AND EFFECT SUCH
COVERAGE WOULD HAVE ON THE PROCESS WOULD SO OFTEN BE
IMPOSSIBLE TO MEASURE OR DETECT AND, THEREFORE, NOT
POSSIBLE TO REGULATE, THIS WOULD BE A VERY HIGH BURDEN FOR
A DEFENDANT TO OVERCOME ON APPEAL.
WHAT PRICE DO WE PAY AS A SOCIETY TO AVOID ALL OF
THESE HARMS TO OUR JUSTICE SYSTEM? WHAT DO WE GIVE UP?
21
See Chandler v. Florida, 449 U.S. 560, 575 (1981) .
22
See, e.g., State v. Hauptman, 115 N.J.L. 412, 180 A. 809 (N.J. 1935), cert. denied 296
U.S. 649 (1935).
- 29 -
PROPONENTS OF CAMERAS IN THE COURTROOM MAKE TWO MAJOR
ARGUMENTS. FIRST, THEY ARGUE THAT BY BROADCASTING THE
PROCEEDINGS, THE MEDIA, AS A SURROGATE FOR THE PUBLIC, CAN
ACT AS A CHECK BY “SHINING” THE “SUN” ON THE JUDICIAL
BRANCH. SECOND, THEY ARGUE THAT THE EXPANSION OF THE
ABILITY TO BROADCAST COURTROOM PROCEEDINGS WOULD
PROVIDE A VALUABLE EDUCATIONAL OPPORTUNITY TO ALL
AMERICAN CITIZENS.
THE FIRST ARGUMENT WAS PROBABLY STRONGEST IN THE
FIRST CENTURY OF OUR REPUBLIC, AS FEAR OF THE ENGLISH STAR
CHAMBER WAS STILL IN CITIZENS=S MINDS. IN THE PRESENT DAY,
HOWEVER, IT IS HARD TO SEE HOW THE MEDIA REALLY NEEDS A
GREATER PRESENCE IN ORDER TO ADEQUATELY MONITOR AND
CHECK THE JUDICIARY. AFTER ALL, THE SUN IS ALREADY SHINING
BRIGHTLY. DESPITE THE PRESENT RULES PROHIBITING BROADCASTS
IN FEDERAL COURTS, COURTROOM DRAMA STILL DOMINATES MUCH
OUR NEWS COVERAGE TODAY. AND, AS THE RULES AT THE FEDERAL
LEVEL OPERATE TODAY, THE PRINT AND BROADCAST MEDIA STILL
- 30 -
HAVE THE EXACT SAME DEGREE OF ACCESS TO COURT
PROCEEDINGS AS THE GENERAL PUBLIC. THE BRIGHT LIGHTS OF
THE CAMERA ARE ON THE STEPS OF THE COURTHOUSE.
JOURNALISTS ARE ALREADY IN THE COURTROOM FERRYING
INFORMATION IMMEDIATELY TO CAMERAS AND FROM THERE TO
THE PUBLIC. AS IT IS, THE LISTENING AND VIEWING PUBLIC IS
GIVEN ALMOST INSTANT ACCESS TO INFORMATION ABOUT THE
PROCEEDINGS. IN SHORT, WE GIVE UP VIRTUALLY NOTHING.
THE SECOND ARGUMENT, WHILE CARRYING SUPERFICIAL
APPEAL, IS NOT PARTICULARLY WELL-SUPPORTED FROM AN
EMPIRICAL PERSPECTIVE. IN A 2002 ARTICLE IN THE HARVARD
JOURNAL OF INTERNATIONAL PRESS/POLITICS, PROFESSORS C.
DANIELLE VINSON AND JOHN S. ERTTER REVIEWED TELEVISED
COVERAGE OF CASES, INCLUDING BOTH CASES IN WHICH CAMERAS
HAD BEEN PERMITTED AND THOSE IN WHICH THEY HAD NOT. THEY
- 31 -
ALSO REVIEWED TELEVISION AND NEWSPAPER COVERAGE OF THE
SAME CASES. 23
ONE OF THE MOST INTERESTING COMPARISONS WAS BETWEEN
THE CASES OF JOHN BOBBITT AND LORENA BOBBITT. YOU MAY
RECALL THAT MR. BOBBITT WAS CHARGED WITH ALLEGEDLY
RAPING HIS WIFE. MRS. BOBBITT WAS CHARGED WITH
MULTILATING HER HUSBAND FOLLOWING THE ALLEGED RAPE. THE
UNDERLYING FACTS IN THE CASES WERE THE SAME. UNDER
VIRGINIA LAW, MR. BOBBITT=S CASE WAS CONSIDERED A SEXUAL
ASSAULT CASE AND, THEREFORE, CAMERAS WERE NOT PERMITTED
IN THE COURTROOM. IN CONTRAST, MRS. BOBBITT=S CASE WAS NOT
CONSIDERED A SEXUAL ASSAULT AND SO CAMERAS IN THE
COURTROOM WERE PERMITTED.
THE PROFESSORS FOUND THAT THE IMPACT OF THE CAMERAS
DRAMATICALLY AFFECTED THE SUBSTANCE OF THE REPORTING ON
23
C. Danielle Vinson and John S. Ertter, Entertainment or Education: How Do Media
Cover The Courts?, The Harvard International Journal of Press/Politics (2002) at 80.
- 32 -
THE TWO CASES. IN MR. BOBBITT=S TRIAL, WHERE CAMERAS WERE
NOT PERMITTED, THE COVERAGE CONTAINED RATHER CLINICAL
DESCRIPTIONS OF THE EVENTS AS DESCRIBED BY THE WITNESSES
AND THEN FOCUSED ON THE LARGER IMPLICATIONS OF THE TRIAL B
DOMESTIC ABUSE AND THE CALLS FOR THE NEED TO CHANGE
MARITAL RAPE LAWS. THE EDUCATIONAL VALUE OF THE REPORTS
FROM THE MEDIA WHO MERELY OBSERVED THE PROCEEDINGS WAS
ARGUABLY GREATER THAN THE SENSATIONAL DRAMA OF THE
CAMERA COVERAGE.
NOT SURPRISING, THE DRAMA PRESENTED IN BROADCASTS
FROM THE CAPTURED LIVE TESTIMONY IN THE CASE AGAINST MRS.
BOBBIT FOCUSED NARROWLY AND GRAPHICALLY ON THE BRUTAL
MUTILATION, THE EMOTIONS OF THE WITNESSES, AND THE
ASTRATEGIC GAME BETWEEN THE TWO SIDES.@ NONE OF THE
STORIES ON MRS. BOBBITT=S CASE RAISED THE LARGER QUESTIONS
OF DOMESTIC ABUSE OR THE POLICY ISSUES RELATING TO MARITAL
RAPE.
- 33 -
THESE PROFESSORS ALSO COMPARED TELEVISION AND
NEWSPAPER COVERAGE OF A DIFFERENT CASE IN WHICH CAMERAS
WERE PERMITTED IN THE COURTROOM. 24 THEY CONCLUDED THAT
THE NEWSPAPER COVERAGE COVERED MORE DETAILS OF THE
INCIDENT, THE ACTUAL JUDICIAL PROCESS, THE SUBSTANCE OF THE
DEFENSE, AND THE LARGER SOCIETAL IMPACT OF THE CASE THAN
THE TELEVISION COVERAGE, WHICH FOCUSED PRIMARILY ON THE
MORE DRAMATIC ASPECTS OF THE EVENTS IN THE COURTROOM.
ALTHOUGH THESE PROFESSORS DID NOT GENERALIZE THESE CASES
TO ALL COVERAGE, AND NEITHER DOESTHE DEPARTMENT OF
JUSTICE, THEIR FINDINGS CLEARLY RAISE LEGITIMATE QUESTIONS
ABOUT WHETHER ARGUMENTS SUGGESTING CAMERAS WOULD AID
EDUCATION ARE REALLY ACCURATE. THEIR STUDY MAY SUGGEST
THAT CAMERAS IN THE COURTROOM ACTUALLY MAY UNDERMINE
THE PUBLIC EDUCATION ABOUT THE JUDICIAL PROCESS AND
DEGRADE SUPPORT FOR AND TRUST IN OUR COURTS. REGARDLESS,
THIS STUDY=S FINDINGS AND SUGGESTIONS SHOULD NOT BE
24
See id. at 92.
- 34 -
LIGHTLY DISREGARDED, PARTICULARLY WHEN THE INTEREST OF
JUSTICE IS AT STAKE.
MR. CHAIRMAN, I WANT TO THANK THIS COMMITTEE FOR
INVITING ME TO TESTIFY AND ALLOWING ME TO PRESENT THE
DEPARTMENT’S VIEWS ON H.R. 2128. AS I HAVE BRIEFLY SET FORTH
TODAY, THE POTENTIAL HARMS TO FAIR TRIALS AND THE CAUSE OF
JUSTICE ARE MANY, ARE LIKELY, AND WOULD BE SEVERE. IN
CONTRAST, THE BENEFITS, IF ANY, WOULD BE SMALL. I WILL END,
THEREFORE, AS I BEGAN: THE POTENTIAL HARMS OF THIS
LEGISLATION TO THE CAUSE OF JUSTICE GREATLY OUTWEIGH ANY
PURPORTED BENEFIT TO BE GAINED BY THE MEASURE. THEREFORE,
THE DEPARTMENT OF JUSTICE STRONGLY OPPOSES H.R. 2128. I
WOULD BE PLEASED TO ANSWER ANY QUESTION YOU AND YOUR
FELLOW COMMITTEE MEMBERS MAY HAVE.
THANK YOU.
- 35 -
Exhibit 23
U.S. Department of Justice

Office of the Inspector General
Evaluation and Inspections Division
Review of the Protection of the Judiciary and

the United States Attorneys
December 2009
Redacted - For mtblic Release

REDACTED - FOR PUBLIC RELEASE
EXECUTIVE DIGEST
Threats and inappropriate communications to federal judges,

U.S. Attorneys, and Assistant U.S. Attorneys (AUSA)have increased
dramatically during the past several years, growing from 592 in fiscal year
(FY) 2003 to 1,278 in FY 2008. Overall, during this 6-year period, there
were 5,744 threats directed at these federal officials.
United States Marshals Service (USMS) district offices have primary

responsibility for ensuring the safety and security of federal judicial
proceedings and protecting the more than 2,000 federal judges and
approximately 5,250 other federal court officials, including U.S. Attorneys
and AUSAs.
Three other Department of Justice components - the Executive Office

for United States Attorneys (EOUSA),United States Attorneys' Offices
(USAO),and the Federal Bureau of Investigation (FBI)- are also involved in
responding to these threats. EOUSA provides oversight, guidance, and
support to USAOs on threats and related matters, and coordinates
interactions between USAOs and other Department components. The
USAOs are responsible for reporting threats against U.S. Attorneys, AUSAs,
and their families to the USMS and EOUSA, and the USAOs also provide
some protective measures in response to threats.2 In addition, the FBI is
responsible for conducting criminal investigations of threats against federal
judges, U.S. Attorneys, and AUSAs.
The Office of the Inspector General (OIG) conducted this review to

examine the USMS's response to threats made against federal judges and
the USMS's, EOUSA's, and USAOs' handling of threats against
U.S. Attorneys and AUSAs. This is the third OIG review to examine the
1 According to USMS Directive 10.3.G. 12, Protective Investigations, 2007, a threat is

any action or communication, explicit or implied, of intent to assault, resist, oppose,
impede, intimidate, or interfere with any member of the federal judiciary, or other USMS
protectee, including members of their staffs or family. According to USMS Directive
10.3.G.5, Protective Investigations, 2007, an inappropriate communication is any
communication directed to a USMS protectee or employee that warrants further
investigation. In this report, we use the term "threat" to encompass both threats and
inappropriate communications.
2 The USAOs report threats against USAO personnel to EOUSA via Urgent Reports.
The Urgent Report contains a brief synopsis of the facts and a concise summary of the
event.

protection of federal court officials.3 In this review, we examined the role

and responsibilities of USMS district offices, procedures that USMS district
offices employ to assess and respond to threats, and the roles of EOUSA and
the USAOs in the protection of the U.S. Attorneys and AUSAs. Our review
examined the 1,587 threats reported during FY 2007 and FY 2008. In
addition, we conducted a detailed examination of 26 threats in four judicial
districts that we visited.
RESULTS IN BRIEF
Our review found deficiencies in the response to threats by the USMS
and EOUSA. As a threshold matter, we found that threats against judges,
U.S. Attorneys, and AUSAs are not consistently and promptly reported.
Moreover, when threats are reported the USMS does not consistently
provide an appropriate response for the risk level posed by the threat. In
addition, the USMS does not fully or effectively coordinate with other law
enforcement agencies to respond to threats against federal judicial officials.
We also found that threatened USAO personnel may not receive

sufficient protection because EOUSA and USAO staff providing protective
measures lack threat response expertise and training similar to that of the
USMS's judicial security staff, who are specifically trained in threat
response procedures. EOUSA and USAO staff are also responsible for
numerous security-related duties, which limits the time they have to devote
to threat response. In addition, coordination on threat responses among
EOUSA, the USAOs, and the USMS is inconsistent. Moreover, EOUSA is
not consistently notified of threats against U.S. Attorneys and AUSAs and
often lacks important information about threats and protective responses
taken in response. These deficiencies prevent EOUSA from providing
emergency support or tracking trends in threats against USAO personnel.
The following sections of this Executive Digest describe these findings

in more detail.
Federal Judges, U.S. Attorneys, and AUSAs do not consistently and

promptly report threats.
For the USMS to most effectively protect federal judges,

U.S. Attorneys, AUSAs, and their families from harm, protectees must
promptly notlfy the USMS when they receive threats. In our interviews and
3 The OIG's prior reports are described in Appendix I.
U.S.Department of Justice
surveys most federal judges, U.S. Attorneys, and AUSAs told the OIG that
they reported every threat made to them, but some said they did not.
Although we could not determine the number of unreported threats, our
interviews and surveys indicate that as many as 25 percent of all threats
were not reported to the USMS. We also found that even when the judges
and AUSAs reported threats, they often did not do so promptly. In about
one-quarter of the reported threats made in FY 2007 and FY 2008, 2 or
more days elapsed between receipt of the threat by the judge or AUSA and
when they reported the threat to the USMS.
USMS district managers are required to ensure that protectees are

aware of the importance of reporting threats. However, according to USMS
directives, federal judges receive the USMS security handbook containing
the guidance on reporting threats only after they receive a threat. Moreover,
the handbook does not emphasize the consequences of delays or failures to
report all threats immediately. The USMS told u s that it instructs all
Judicial Security Inspectors to provide the security handbook to all
members of the judiciary a s part of the USMS ongoing efforts to protect the
judges.
U.S. Attorneys and AUSAs have other potential sources of guidance

on threat reporting, such a s the U.S. Attorneys' Manual. However, we found
these sources do not require that all threats be reported to the USMS and
do not include guidance that all threats should be reported promptly.
The USMS does not consistently provide an appropriate response for

the risk level posed by the threat.
USMS district offices are required to conduct a risk assessment

of each threat to iden* whether the risk level qualifies a s low,
potential, or high. The USMS is then required to implement protective
measures corresponding to the identified risk level.
In conducting our review of 26 threat cases involving

25 protectees at the 4 districts we visited, we found that the USMS
did not record the risk level ratings for any of these threats in its
threat database. Because the USMS had not recorded the ratings, we
were unable to determine whether the protective measures
implemented by the USMS were commensurate with the risk level
rating.
Therefore, we sought to determine whether the 25 threatened

judges and AUSAs we interviewed had received at least 4 of the
protective measures prescribed by the USMS for threats assessed as

low risk. Under the USMS protocol, these protective measures should
be provided in response to every threat. Through our interviews and a
database review, however, we found that only one protectee received
all four protective measures. In addition, five protectees were not
provided any of the low risk level protective measures they should
have received.
The USMS does not fully or effectively coordinate with other law
enforcement agencies to respond to threats against federal judicial
officials.
The USMS does not consistentlv track threat referrals to the FBI.
According to USMS policy, the USMS must not]@ the appropriate FBI
field office when it learns of a threat against a protectee. We examined the
threats against judges, U.S. Attorneys, and AUSAs in the USMS threat
database that were reported during FY 2007 and FY 2008, and we found
that 639 (40 percent) of the 1,587 threats in the database contained no
information regarding FBI n 0 ~ c a t i o n . 4We also examined the 26 threats
we selected for review in the 4 districts to determine whether USMS records
indicated that the FBI was notified of the threat. We found that 5 of the 26
threats (19 percent) contained no information regarding FBI notilkation.
Coordination between the USMS and the FBI is inconsistent among

districts, and there are no formal protocols for coordination.
USMS and FBI policies state that the two agencies should work
together closely to respond to threats against judicial officials. USMS and
FBI personnel we interviewed at two of the four sites we visited said they
coordinate with each other on the protective and criminal investigations in
response to threats. However, at the other two sites we visited USMS
personnel stated that the FBI does not communicate or share information
concerning its criminal investigations, although FBI personnel said the
components were coordinating.
No formal or informal agreement between the USMS and FBI defines

their respective roles and responsibilities for threat response. As a result,
personnel from both components told u s that their working relationship
and, more speciilcally, their communication on investigations depend on
4 Because the USMS threat database does not distinguish between threats and
inappropriate communications, our analysis may include both.

personalities in each of the offices. They stated that a formal memorandum

of understanding between the FBI and the USMS is needed.
The USMS districts fail to effectivelv coordinate with local law enforcement
agencies
- for notification of emergencv responses to judges'
- residences.
USMS policy requires district offices to send letters to the local law
enforcement agencies in the jurisdictions where federal judges reside
requesting that the USMS be notified whenever a police agency responds to
any emergency call at a judge's residence. Three of the four sites we visited
had sent such letters that included 24-hour/7-day-a-week USMS contact
numbers. USMS officials at the fourth site told u s they had not sent the
letters because the judges in the district refused to allow the USMS to
provide their home addresses to local law enforcement agencies.
We tested the USMS contact numbers provided in the three letters to

the local law enforcement agencies. In two districts, when we called the
contact numbers we received a recording that they were not working
numbers. In the third district, our test call connected first to the
courthouse communications office and then was re-directed to a USMS duty
officer.
USAO staff who provide protective measures for threatened

U.S. Attorneys and AUSAs lack sufficient expertise and training in
threat response, and coordination among these entities is inconsistent.
USAO personnel lack expertise in threat response.
While EOUSA and the USAOs have implemented measures to protect

USAO personnel against threats, we determined that EOUSA and USAOs
lack threat response expertise and training similar to that of the USMS's
judicial security staff. Deputy Marshals involved in ensuring the safety of
protectees generally have extensive law enforcement training, along with
specific training in determining and implementing threat response
procedures. Although some USAO staff may have prior law enforcement
experience, many do not, and the training available to EOUSA and USAO
personnel in security and personal protection is limited. In particular, they
do not receive formal training in determining the protective measures that
are appropriate for each threat that is equivalent to the training that USMS
staff receive.
The Assistant Director and the Threat Management Specialist of

EOUSA's Security Programs Staff are responsible for providing guidance to

help the USAOs respond to a threat and for providing funding for the
protective measures that are implemented. However, the two individuals in
those positions during FY 2007 and FY 2008 did not have backgrounds
comparable to that of USMS judicial security staff in responding to threats
against individuals. The Assistant Director had prior physical security
experience in other agencies, but is responsible for numerous
security-related duties and therefore has limited time to devote to threat
response or to develop more specialized expertise in the area.
EOUSA relies primarily on the USAOs' District Office Security

Managers to provide a protective response in the field. However, at the four
locations we visited none of the District Office Security Managers had law
enforcement or other experience in threat response. Moreover, the District
Office Security Managers told u s that they were responsible for numerous
other security-related functions in addition to responding to threats.
Additionally, training opportunities for District Office Security Managers are
limited, and this is problematic for staff with little or no experience in threat
response.
Coordination between the USMS and USAOs is inconsistent and is not

guided bv formal protocols for coordination.
We found that USMS and USAO staff responsible for threat response
did not share important information about threats and were not clear on
each other's roles and responsibilities regarding protective response. For
example, in one district we visited we found that USAO staff did not believe
the USMS was required to provide USAO personnel with any protective
measures other than in response to the highest
level threats. In that district - even though the courthouse and the USAO's
building are adjacent and joined by a common hallway - the USMS district
office did not provide USAO building security staff with threat information
that had been distributed to courthouse security staff.
Similarly, we found that USMS staff did not regularly advise USAOs
about or monitor protective measures implemented by EOUSA and the
USAOs. During our site visits we found instances in which EOUSA and the
USAOs implemented protective measures without the USMS's knowledge.
There is no agreement or memorandum of understanding between the
USMS and EOUSA, or between the USMS and any USAOs we visited, which
addresses the sharing of information about threats against U.S. Attorneys
and AUSAs and coordination of protective measures.
EOUSA is not consistently notified of threats against U.S. Attorneys

and AUSAs and often lacks important information about threats and
protective responses.
Some USAOs failed to submit required Urgent Reports to EOUSA on threats,

and the submitted Urgent Reports fi-equentlv lack important information.
We found that threats against USAO personnel are generally not

reported to EOUSA. When we compared the threats reported by the USAOs
and the USMS districts in FY 2007 and FY 2008, we found that USAOs had
reported fewer than half the number of threats reported by the USMS. In
each of the four districts we visited, we found that the USAOs sent fewer
Urgent Reports to EOUSA than the number of threats recorded in the USMS
threat database.5 Additionally, when we reviewed the 165 Urgent Reports
that District Office Security Managers submitted to EOUSA in FY 2007 and
FY 2008 for threats against USAO personnel, we found that 75 percent of
the reports were missing key information such as the date the threat
occurred and whether the USMS and FBI were notified.
EOUSA is not kept informed of actions taken to protect threatened

U.S. Attornevs and AUSAs.
At the time of our fieldwork, the USAOs did not routinely inform
EOUSA of the USMS's protective responses to mitigate threats and protect
threatened AUSAs. We analyzed the Security Programs Staff threat
management database and Urgent Reports submitted by District Office
Security Managers about threats and found the USAOs had submitted only
16 updates to the 165 initial Urgent Reports submitted to EOUSA. EOUSA
personnel told us that they may receive updates via telephone, e-mails, or
updated Urgent Reports. However, EOUSA was unaware of the protective
measures provided by the USAO or the USMS, the initiation of a n FBI
investigation, or the progress of the FBI investigation.
EOUSA told u s that it planned to improve the collection of information

from USAOs by providing a web-based Urgent Report program in December
2009 or January 20 10 so that District Office Security Managers can submit
their reports directly to the threat management database, and these web-
based forms will include the key information EOUSA needs.
5 The USAOs report threats against USAO personnel to EOUSA via Urgent Reports.
The Urgent Report contains a brief synopsis of the facts and a concise summary of the
event.

RECOMMENDATIONS
As a result of our review, we made 1 4 recommendations to:

improve the understanding of federal judges, U.S. Attorneys,
and AUSAs of the need for prompt reporting of threats and the
consequences of delays or failure to report;
ensure that the USMS provides protectees with protective
measures that are commensurate with the risk level of the
threat;
ensure that the USMS collects information that will enable it to
monitor the performance of its response to threats against
protectees;
ensure the USMS coordinates effectively with the FBI and local
law enforcement agencies to keep the protectees safe;
better prepare EOUSA and USA0 personnel for responding to
threats and to ensure better cooperation between the USMS and
the USAOs; and
ensure that EOUSA receives more complete and timely
information to manage its threat response program and ensure
the safety of the U.S. Attorneys and AUSAs.
U.S. Department of Justice Viii

TABLE OF CONTENTS
INTRODUCTION ........................................................................... 1
BACKGROUND .............................................................................4
RESULTS OF THE REVIEW .........................................................14
CONCLUSION AND RECOMMENDATIONS ....................................40
APPENDIX I: PREVIOUS OIG REPORTS ON THE JUDICIAL

SECURITY PROCESS ...........................................................43
APPENDIX 11: METHODOLOGY OF THE OIG REVIEW .................45
APPENDIXIn: RESULTS OF OIG SURVEY OF

U.S. ATTORNEYS AND ASSISTANT U.S. ATTORNEYS ............48
APPENDIX IV: THE UNITED STATES MARSHALS SERVICE'S
RESPONSE ...........................................................................78
APPENDIX V: OIG'S ANALYSIS OF THE UNITED STATES
MARSHALS SERVICE'S RESPONSE ......................................83
APPENDIX VI: THE EXECUTIVE OFFICE FOR UNITED STATES
ATTORNEYS' RESPONSE ......................................................
-89
APPENDIX VII: OIG'S ANALYSIS OF THE EXECUTIVE OFFICE

FOR UNITED STATES ATTORNEYS' RESPONSE .93 ...................

INTRODUCTION
Introduction
Threats against federal judges, U.S. Attorneys, Assistant

U.S. Attorneys (AUSA),and other court officials investigated by the
U.S. Marshals Senrice (USMS) have more than doubled during the past
several years, increasing fi-om 592 in fiscal year (FY) 2003 to 1,278 in
FY 2008.6 Overall, during this 6-year period, there were 5,744 threats
directed at these federal court officials. Figure 1 presents the number of
threats investigated each fiscal year.
Figure 1: Number of Threats Against Federal Court Officials

Investigated by the USMS, FY 2003 Through FY 2008
1 77R
1400
0
w
* 1200
,G
-
4-
$ 1000
>
800
4-
V)
600
x
400
0
n 200
3 0 ,
z
2003 2004 2005 2006 2007 2008
Fiscal Year
Y
Sources: USMS FY 2008 Budget and www.ExpectMore.gov.
6 According to USMS Directive 10.3.G. 12, Protective Investigations, 2007, a threat is

any action or communication, explicit or implied, of intent to assault, resist, oppose,
impede, intimidate, or interfere with any member of the federal judiciary, or other USMS
protectee, including members of their staffs or family. According to USMS Directive
10.3.G.5, Protective Investigations, 2007, an inappropriate communication is any
communication directed to a USMS protectee or employee that warrants further
investigation. In this report, we use the term "threat" to encompass both threatening and
U S . Department of Justice 1
Job-related threats to federal judges, U. Attorneys, and AUSAs

include physical assaults, verbal assaults, an( threateAg letters posted on
the Internet. In a 2008 Department of Examples of Threatening Letters
Justice (Department) Office of Inspector
General (OIG) survey, 7 percent of threatened
U.S. Attorneys and AUSAs reported incidents Example 1: 'Go to d ,-,,.
that went beyond written and verbal threats. [REDACTED] court and get g~ictures
of him and his staff. Look for ways
In those incidents, the threats included to follow each of them after vvork.
attempts to physically intimidate the Get hang outs, and glet phon a
G
U.S. Attorneys and AUSAs. For example, two numbers too -we- mt recor.ds -
AUSAs reported being physically attacked, now this is du ----- I1
VCLY ulegal ancd against
31'
thek : very careful.. .".

one reported that an alleged "contract hit"
was put out on him, and another AUSA
reported being followed by a family member
aple ;
I
: ue you
aomg'? Don't rnrrur we wonK lsicj KIU
._1_. .-...
of a defendant. you amd your smarten
up."
Media reports also highlight the nature - -
Example 3: -tioa wants me
of threats faced by federal judges and AUSAs. this. This is what he wants I
For example, in one incident, a speaker at a He wants me to destroy the 1
rally in Washington, D.C., urged the crowd to that jiudge is evil - hc:wants-:
find the home of an AUSA who was get rid of her "
prosecuting a domestic terrorist and locate
where his children attended school. In Source: USMS documents.
another incident, a white supremacist wrote
on an online blog that three narned federal juc es deserved to die. The blog
post included the judges' narnes, work addres IS, and telephone numbers,
as well a s photos of the judges and a map sho ing the location of the
courthouse in which they worked.
Purpose
This is the third OIG review to examine the protection of federal court
officials. The f r s t review examined the USMS's protection of federal judges,
focusing on measures applied during high-threat trials. The second review
examined the USMS headquarters threat assessment process and the
USMS's progress in establishing a protective intelligence function.7
7 The previous OIG reviews were both titled Review of the United States Marshals
Seruice Judicial Security Process and were issued in March 2004 (Evaluation and
Inspections Report 1-2004-004)and September 2007 (Evaluation and Inspections Report
1-2007-010). The prior reports are described in Appendix I.

We conducted this review to examine the USMS's and the Executive

Office for United States Attorneys' (EOUSA)response to threats made
against federal judges, U.S. Attorneys, and AUSAs. Specifically, we
examined the:
1. role and responsibilities of the USMS district offices in the

protection of federal judges, U.S. Attorneys, and AUSAs;
2. procedures that USMS district offices employ to assess and
respond to threats and incidents against federal judges,
U.S. Attorneys, and AUSAs; and
3. role of EOUSA in the protection of the U.S. Attorneys and AUSAs.
Scope
The USMS's district offices are primarily responsible for protecting

federal judges, U.S. Attorneys, and AUSAs. Accordingly, we examined how
those offices hIffled the USMS's mission to provide protection when federal
judges, U.S. Attorneys, and AUSAs were threatened. Because EOUSA
coordinates the relationships between United States Attorneys' Offices
(USAO)and other Department components, we also examined its role in the
protection of U.S. Attorneys and AUSAs.8 Our review encompassed threats
that occurred during FY 2007 and FY 2008.
Additionally, although the USMS threat response consists of two
functions that occur simultaneously - the protective response and the
protective investigation - in this review we focused on the protective
response portion of the process.
A detailed description of the methodology of the review is contained in

Appendix 11.
8 We did not review the USMS district offices' actions related to protecting other
members of the judicial community, such as probation officers, court reporters, court
clerks, or jurors.

BACKGROUND
In this section, we identlfir the primary organizations that have a role

in responding to threats against federal court officials. These organizations
include the USMS district offices, the Federal Bureau of Investigation (FBI),
EOUSA, USAOs, and the Administrative Office of the U.S. Courts. We also
describe the USMS and EOUSA threat response processes.
USMS
The USMS is responsible for ensuring the safe and secure conduct of
federal judicial proceedings and for protecting more than 2,000 federal
judges and approximately 5,250 U.S. Attorneys and AUSAs and other court
officials at more than 400 court facilities in all 94 federal judicial districts.
Protecting the judiciary is one of the primary missions of the USMS and a
strategic objective of the Department.9 The USMS budget for judicial
security was $343 million in FY 2007 and $344 million in FY 2008. lo
USMS district offices identlfir potential threats or have threats

reported to them and are responsible for determining the protective
measures needed to ensure the safety of the protectee. The USMS refers to
this as the "protective response." USMS district office staff is also
responsible for conducting a "protective investigation" into a threat. The
judicial security hnctions performed by USMS personnel are detailed below.
Judicial Securitv Ins~ectors
Judicial Security Inspectors are senior-level Deputy Marshals in the

districts who oversee protective investigations conducted by District Threat
Investigators. They also implement protective measures, such as
conducting residential security surveys and security briefings for threatened
9 28 U.S.C. 566(e)(I)(A).
10 Additionally, the Court Security Improvement Act of2007 authorized $20 million
for each fiscal year from 2007 through 20 11 for the USMS to supplement its judicial
security operations. However, according to USMS headquarters officials, none of the
authorized funding has been appropriated to the USMS.
1 1 According to USMS Directive 10.3.G.9, Protective Investigations, 2007, a

protective investigation is the collection and assessment of information to determine a
suspect's true intent, motive, and ability to harm a USMS protectee. The objective of this
type of investigation is to eliminate or mitigate any potential risk of harm to the protectee.

federal judges, U.S. Attorneys, and AUSAs. 12 As of February 2009,

113Judicial Security Inspectors were assigned to the USMS's 94 districts.
District Threat Investigators

Threat
In consultation with the Judicial mA U received
~ severa prota
Security Inspectors, the District Threat Wed voicemails from an individ
Investigators conduct protective who was previously arrested for
investigations into threats against threatening the President of the
United ! The US1vlS work
USMS protectees. Their primary goal is with us ding see!urityofl
to implement a threat management +-
w -
--
.a -11-.. +L-m -..+ad
plCIICVGl1L U 1 G L c u l G 1 ll U l l l GIICC;I I
strategy to mitigate potential risks to the USA0 building. A s a strate&to

threatened protectees. The District mitigate the threat, wht:n the USMS
rd----uk.
Threat Investigator duty is designated District Threat 11lveaugi 3hr
interviewed the individual, the
as a collateral duty for Deputy investigator warned him that he
U.S. Marshals, although some District would be arrested if he attempted to
Threat Investigators performed those harass or intimidate any court
duties on a full-time basis, while others
performed the duties on a part-time or
source: USMS aocuments.
as-needed basis.
Protective Intelligence Investigators
The Protective Intelligence Investigator is a recently created full-time

position responsible for conducting complex protective investigations.
Protective Intelligence Investigators report directly to the Chief Deputy U.S.
Marshal or Assistant Chief Deputy U.S. Marshal. They are also responsible
for proactively i d e n w g , mitigating, and managing potential threats to
USMS protectees. Protective Intelligence Investigators provide expertise to
the District Threat Investigators during protective investigations and ensure
they are adequately trained. As of August 3, 2009, there were 34 Protective
Intelligence Investigators in USMS district offices.
12 Residential security surveys identify areas of vulnerability and provide on-site

safety and security recommendations. The residential security survey also provides
information and guidance about emergency preparedness and general off-site safety and
security. Security briefings provide the protectees with personal security awareness
information such as keeping doors to their residences locked and being aware of their
surroundings. Judges are given booklets containing this information.

Federal Bureau of Investigation
The FBI is responsible for conducting criminal investigations of

threats against federal judges, U.S. Attorneys, and AUSAs. According to
USMS policy, USMS District Threat Investigators must not@ the
appropriate FBI field office when they learn of a threat against a USMS
protectee.13 Likewise, when the FBI learns of a threat against a USMS
protectee the FBI has responsibility for informing the USMS of the threat.
When a criminal investigation into a threat is initiated, the FBI case agent
should work jointly with the District Threat Investigator.
Executive OMce for U.S. Attorneys
EOUSA's primary mission is to provide general executive assistance

and supervision to the 94 USAOs, including coordinating and directing the
relationships of the USAOs with other components of the Department and
providing overall management oversight and technical and direct support to
the USAOs in the area of security programs. When U.S. Attorneys or AUSAs
are threatened, EOUSA provides financial assistance and guidance to help
the USAOs respond to the threat.
Within EOUSA, the Security Programs Staff of the Operations Branch

is responsible for providing assistance and advice to the USAOs. According
to EOUSA, the Security Programs Staff provides policy and procedural
assistance to USAOs for the implementation and conduct of all aspects of
security programs and ensures compliance with all national and
Department security policies and regulations. The Security Programs Staff
also provides general and specialized security training for personnel
responsible for security and emergency management or preparedness
related duties. The Security Programs Staff supports USAO security
education and awareness efforts, including conferences, briefings, videos,
brochures, and other materials. It provides budgetary and facilities
management support to facilitate the design, procurement, and installation
of all security-related equipment, services, and systems. Additionally, the
Security Programs Staff oversees the Threat Management program to assist
USAOs during threat situations, providing emergency and contingency
planning and emergency security support in response to reported threats
and natural disasters, as well as a structured methodology for analyzing the
overall security practices of each USAO.
13 USMS Directive 10.3.E.1.c, Protective Investigations, 2007.

The Security Programs Staff is headed by a n Assistant Director and

includes a Chief of the Regional Security Program, who oversees 22 Regional
Security Specialists located in some USAOs, and a Threat Management
Specialist, who collects threat-related information to provide emergency
support and security to the USAOs.
U.S. Attorneys' Offices
The USAOs are responsible for reporting threats against

U.S. Attorneys, AUSAs, and their families to the USMS. According to the
District Offie Security Manager's Handbook, the District Office Security
Manager is the principal security officer in each USAO and is responsible for
relaying to EOUSA and the USMS all threats against AUSAs that are
reported in the District. There are 93 District Office Security Managers in
the 94 USAOs. 14
According to the District Offie Security Manager's Handbook, the

District Office Security Manager advises the U.S. Attorney on all security
matters and is assisted by other individuals a s required. In addition to
relaying threats reported by the attorneys to the USMS district office, the
District Office Security Manager's duties include:
coordinating the actions of personnel who are assigned security

functions;
analyzing the overall security needs of the USAO and recommending
necessary security systems, equipment, and services to reduce
vulnerabilities and risks;
implementing and overseeing the Physical, Information, Personnel,
Computer, and Communications Security programs, a s well a s the
Security Education and Awareness, Loss Prevention, and Safety and
Health programs;
developing the District Office Security Plan and all contingency and
emergency plans;
preparing budget estimates for implementing office security programs
and coordinating with the Security Programs Staff; and
preparing and submitting Urgent Reports and Security Incident
Reports. 15
14 One District Office Security Manager oversees both the Guam a n d Northern
Mariana Islands USAOs.
15 Urgent Reports are submitted on significant events of interest or concern to the

Attorney General and Deputy Attorney General. Such events include threats against USAO
Cont'd.

Evaluation a n d Inspections Division
Figure 2 presents the number of threats made against USAO

personnel. l6
Figure 2: Number of Threats Against USAO Personnel,

FY 2005 Through FY 2008
250
'0
w
CI
.-%
CI
V)
200
w
>
-c
CI
V)
150
162
m
2
z
+ 100
rC
ti
E
Z
0 I
2005 2006 2007 2008

Fiscal Year
Sources: Data from D W Report on the Security of Federal

Prosecutors for FY 2005 and FY 2006,and data from USMS threat
database for F Y 2007 and FY 2008.
Administrative Office of the U.S. Courts
Under the s u p e ~ s i o n
and direction of the Judicial Conference of the
United States, the Administrative Office of the U.S. Courts monitors and
provides some funding for the USMS's implementation of the judicial
facilities security program to provide security inside federal courthouses.
Additionally, the Administrative Office of the U.S. Courts has worked with
the USMS to obtain supplemental hnding for the USMS to install intrusion
detection systems in the residences of federal judges. To date,
approximately 1,600judges have had the systems installed in their
residences.
personnel, bomb threats that directly involve a USAO, and any emergency that affects the
continued operation of a n office.
16 The USMS threat database does not distinguish between attorneys and other
USAO personnel. For this analysis, we used Urgent Reports and USMS threat records for
all USAO personnel during F Y 2007 and FY 2008.
U.S. Department of Justice 8

The Threat Response Process
The USMS district offices receive reports of threats from a variety of

sources. Typical sources include judges and their staffs; defense attorneys
reporting threats made by their clients; the Federal Bureau of Prisons
reporting threats made by inmates; and confidential informants. Threats
against U.S. Attorneys and AUSAs may be reported to the USMS by the
USA0 District Office Security Manager or the attorney being threatened.
Figure 3 shows the threat reporting and response process according to
policy.
Initial USMS District Res~onse
When a threat is reported to the USMS, the District Threat

Investigator or the Protective Intelligence Investigator initially determines
whether the communication meets the standard of an "inappropriate
communication," that is, if it is a legitimate threat. If it does, the District
Threat Investigator or the Protective Intelligence Investigator notifies the FBI
to determine whether a criminal investigation is warranted.
The District Threat Investigator then completes a form, USM-550

Preliminary Threat Report, in the USMS's threat database. The report
contains information about the target of the threat, the type of threat, the
delivery method, the suspect, other agencies that have been notified, and a
brief synopsis of the threat. District Threat Investigators update the case
using a form USM- 1 1 Report of Investigation a s more information becomes
available.
Determining- the Threat Risk Level
The District Threat Investigator and the Protective Intelligence

Investigator, in consultation with the Judicial Security Inspector, assess the
risk to the protectee. The risk assessment is a n initial examination of the
suspect's intent, motive, and ability to carry out the threat. To determine
the risk to the protectee, the District Threat Investigator and Protective
Intelligence Investigator consider how, where, and to whom the threat was
delivered, whether identities of the victim of the threat and any suspects are
known, whether any suspect is incarcerated, whether additional victims
were named, and how the suspect intends to carry out the threat. Based on
this information, the District Threat Investigator and the Protective
Intelligence Investigator categorize the threat a s a low, potential, or high risk
threat.
U.S.Department of Justice 9
Figure 3: Threat Response Process

~
Figure 3: Threat Response Process (Continued)

Recommending
- the Appropriate Response
Based on the risk assessment, the District Threat Investigator and the
Protective Intelligence Investigator recommend an appropriate protective
response to the Judicial Security Inspector and the management of the
USMS district office. USMS directives establish a progressive protective
response based on each of the three risk levels. The protective measures
corresponding to these risk levels are considered to be the minimum
protective measures that should be implemented for the threat level rating.
Risk levels and the associated protective measures are detailed on pages
18 and 19 of this report. Additional protective measures may be
implemented if deemed necessary by the District Threat Investigator or
Protective Intelligence Investigator.
- the Protective Investigation

Conducting
The District Threat Investigator or the Protective Intelligence

Investigator also conducts a protective investigation to develop further
information about the suspect's intent, motive, and likelihood of carrying
out the threat, and to mitigate the risk of harm to the protectee.17 If the
protective investigation indicates that a threat is likely to be carried out, the
District Threat Investigator or the Protective Intelligence Investigator, in
consultation with the Judicial Security Inspector, determines an appropriate
investigative response to mitigate the threat.
USMS Headquarters Role
Entering the Preliminary Threat Report into the threat database

notifies the Threat Management Center within the Office of Protective
Intelligence at USMS headquarters of the threat. '8 Using information from
the report, the Office of Protective Intelligence conducts background checks
of law enforcement databases, including the threat database, to determine
whether any data exists on any suspect or previous threats. The Office of
Protective Intelligence then makes investigative recommendations and
provides its report to the USMS district office within 1 business day after
the threat is reported. The Office of Protective Intelligence also conducts a
17 The protective measures and the protective investigation are initiated

simultaneously.
18 The USMS opened the Threat Management Center (TMC)at USMS headquarters
in September 2007. Duty inspectors are available to respond to the districts' questions and
receive reports of threats 24 hours a day.

computer-based analysis, referred to a s a comparative analysis, using the
Threats Against U.S. Attornevs and AUSAs
The District Office Security Managers in the USAOs are responsible

for reporting threats received by U.S. Attorneys and AUSAs. A District
Office Security Manager may learn of a threat directly fi-om the threatened
attorney, a supervisor, or from any other source. When the District Office
Security Manager learns of a threat, the Security Manager is required to
not@ the USMS, the local FBI office, and EOUSA. The District Office
Security Manager notifies EOUSA of a threat by e-mailing an Urgent Report
to the EOUSA Security Programs Staff. The Urgent Report contains a one-
paragraph synopsis of the facts and a concise summary of the situation
surrounding the event.
EOUSA Emergencv Support
The Threat Management Specialist at EOUSA receives and reviews

Urgent Reports to determine if details about the threat, the protective
measures implemented by the USMS, or any other pertinent facts were
omitted from the report. If information was omitted, the Threat
Management Specialist contacts the USAO's District Office Security
Manager to request additional information.
After reviewing a n Urgent Report, EOUSA may provide emergency

security support to the USAO, including a review of the district's security
measures and advice and assistance to threatened individuals on dealing
with the threat. EOUSA also compiles and coordinates threat-related
information with the USMS, the FBI, and other sources to determine the
nature of the emergency security support required by the USAO or
individual to adequately address the risk posed by the threat. During the
threat response process, the Threat Management Specialist maintains
contact with the District Office Security Manager to monitor changes in the
status of the threat. In addition, the Threat Management Specialist acts a s
a liaison with the USMS to obtain any further information that it may have
about the threat against a U.S. Attorney or AUSA.
19 A comparative analysis compares the case's known characteristics with the

characteristics of previous threat cases maintained in the USMS's threat database. The
result of the comparative analysis is expressed as a score that indicates how closely the
characteristics of the case being assessed match those of prior cases.

RESULTS OF THE REVIEW
We found deficiencies in several critical areas of the USMS

threat response program. Federal judges, U.S. Attorneys, and
AUSAs do not consistently and promptly report threats they
receive. Moreover, we found that when threats are reported,
the USMS protective response is not fully or effectively
coordinating with other law enforcement agencies to respond
to threats against federal court officials. In addition, we found
that USA0 personnel without sufficient expertise and training
are providing some protective measures for threats against
U.S. Attorneys and AUSAs. Moreover, when U.S. Attorneys and
AUSAs are threatened, USAOs do not typically provide EOUSA
with the information it needs to provide emergency security
support to the USAOs and the threatened U.S. Attorneys and
AUSAS.
Judges, U.S. Attorneys, and AUSAs do not consistently and promptly

report threats.
Judges,
- U.S. Attornevs, and AUSAs do not report all threats.
Although we could not determine the number of unreported threats, our

s surveys indicate that a s many as a quarter of all threats were
i n t e ~ e w and
not reported to the USMS. Most federal judges, U.S. Attorneys, and AUSAs told
u s that they reported every threat made to them, but others said they did not
report all threats they received. Table 1 summarizes the reporting and non-
reporting of threats by judges, U.S. Attorneys, and AUSAs i n t e ~ e w e dor
surveyed by the OIG.

Table 1: Threat Reporting by Protectees

Interviewees Survey Respondents
Reported All Did Not Report Reported AU Did Not Report
Protectee Threats AU Threats Threats AU Threats
Judges 8 (73%) 3 (27%) 174 (78%) 48 (22%)
U.S. Attorneys
11 (79%) 3 (21%) 47 (77%) 14 (23%)
and AUSAs
Note: The OIG surveyed the federal judges in 2006 and the U.S. Attorneys and AUSAs in 2008.
Sources: OIG i n t e ~ e w and
s surveys.
The federal judges, U.S. Attorneys, and AUSAs who did not report all
threats to the USMS said they did not do so because they believed the threats
were not serious. For example, one judge stated that he reported physical or
anonymous threats to the USMS, but did not report threats he viewed as vague
or indirect. Additionally, one AUSA stated that he did not immediately report a
threat he received because he did not take it seriously. A day or two later, he
casually mentioned it to a supervisor who then reported it.
Federal iudges,
- U.S. Attornevs, and AUSAs delayed reporting threats to the
USMS.
We found that even when judges, U.S. Attorneys, and AUSAs reported
threats they did not always promptly not@ the USMS of the threats. According
to the USMS threat database, during FY 2007 and FY 2008 judges,
U.S. Attorneys, and AUSAs reported 1,368 threats.20 Of 766 threats reported
by the protectees in FY 2007, 196 (26 percent) were reported to the USMS 2 or
more days after the threats were received (Figure 4). Of 602 threats reported in
FY 2008, 138 (23 percent) were similarly delayed. In fact, one threat was not
reported until 363 days after it was received. Although the number of delayed
threat reports decreased from FY 2007 to FY 2008, untimely reporting of
threats remains a problem a s it prevents the USMS from immediately ensuring
the safety of the protectees.
20 We excluded from this analysis threats that were brought to the attention of the
protectee or the USMS by a n informant because there may have been a delay between the date
the threat was made and the date the informant reported the threat. We also counted threats
that were made to multiple protectees by one threatener on a single date and were reported to
the USMS on a single date as one threat.

Figure 4: Number o f Threats Reported After 2 or More Days
120
3 100
I
3H
60
8 FY07
1z 40
20
FY08
0
2-7 Days 8-30 days More than 30
days
Number of Days to Report
?
Source: USMS database.
Federal iudges,
- U.S. Attorneys. and AUSAs receive insufficient guidance on
reporting threats.
We believe that the USMS must ensure that judges, U.S. Attorneys,
AUSAs, and court personnel are aware of the importance of reporting threats to
the USMS. For federal judges, guidance is contained in a security handbook
that instructs judges to contact the USMS district office if they receive a threat.
However, the USMS is only required to provide the handbook containing the
guidance on reporting threats after the judge is threatened. Moreover, our
review of the handbook found that it does not emphasize the consequences of
delays or failures to report all threats immediately for the judicial security
program to operate most effectively. The USMS told u s that it instructs all
Judicial Security Inspectors to provide the off-site security handbook to all
members of the judiciary as part of its ongoing efforts to protect the judges.
U.S. Attorneys and AUSAs do not receive the USMS's security handbook.
Instead, they refer to the U.S. Attorneys' Manual,which establishes
requirements for what must be done only after a threat has been reported to
the District Office Security Manager. The manual does not provide USA0 staff
with guidance on what to do when they receive a threat, and it does not require
that all threats must be reported to the District Office Security Manager. The
District Office Security Managers we interviewed stated that they only briefly
discuss the need to report with the U.S. Attorneys and AUSAs in their offices.
The importance of reporting threats is not being effectively communicated, a s

demonstrated by our 2008 survey results showing that 6 of the 36

U.S. Attorneys and AUSAs who received training and were threatened did not
report the threats.
When judges, U.S. Attorneys, and AUSAs do not promptly report to the
USMS all threats they receive, the USMS cannot provide timely protection or
take other actions to prevent suspects from harming the protectees.
Additionally, failure to report all threats makes it more difficult for the USMS to
detect patterns of behavior that might indicate a suspect may escalate a threat
to a violent attack. Consequently, the ability of the USMS to protect federal
judges, U.S. Attorneys, and AUSAs can be compromised.
Conclusion and Recommendations
To improve the understanding of federal judges, U.S. Attorneys, and

AUSAs of the need for prompt reporting of threats and the consequences of
delays or failure to report, we recommend that:
1. the USMS clearly explain to protectees the detrimental effect that

delays or the failure to report has on the security provided.
2. the USMS update its security handbook to emphasize both the

importance of immediately reporting threats to the USMS and the
consequences of delays or failures to report.
3. EOUSA amend the U.S. Attorneys' Manual to clearly instruct the

AUSAs that all threats must be reported promptly to the District
Office Security Manager. Such instruction should include an
explanation of the detrimental effect that delays or the failure to
report has on the security provided.
4. the USMS review trends in reporting timeliness annually and provide

the results of that analysis to the Administrative Office of the
U.S. Courts and EOUSA for their use in judicial conferences and
attorney training seminars.

The USMS does not consistently provide an appropriate response for the
risk level posed by the threat.
The USMS did not consistentlv use its risk levels in assessing- threats.
Determining whether the USMS implemented a protective response

that was commensurate with the risk to the protectee requires a
comparison of the implemented protective measures to the identified risk
level of a threat.21 The minimum protective response is the response
required by USMS directives, but the districts may implement other
protective measures to ensure the safety of the protectee. The minimum
protective response is dependent on the risk level determined by the
District Threat Investigator. The following is a description of the risk
levels and minimum protective measures for each level:
Low risk - Risk of injury or death is assessed as unlikely and it is

determined that the suspect does not appear to currently pose a
credible, imminent risk to the protectee. Minimum protective
measures to be taken are:
21 In this section, we use the term "threat" to encompass both threatening and
Cont'd.

Potential risk - Risk of injury or death to the protectee is assessed

a s possible, but not imminent. These measures are implemented in
addition to the protection provided for low level risks.
High risk - Risk of injury or death to the protectee is assessed a s

likely. These measures are implemented in addition to the protection
provided for low and potential level risks.
We examined the USMS threat database and interviewed USMS

personnel to assess whether they determined the risk levels. However, we
found no risk level ratings recorded in the threat database for any of the
26 threats we reviewed during our site visits.25 Moreover, District Threat
Investigators at the four sites we visited did not consistently use the risk levels
as the minimum standard for determining the protective measures they
provided to threatened judges, U.S. Attorneys, or AUSAs. Only one of four
District Threat Investigators we interviewed said that he performed the risk
assessments, although he said he did not document the levels in the threat
database.26 He said he did document "potential" and "high" risk level ratings in
written threat assessments.27 Although it was his responsibility to do so, a
second District Threat Investigator said he does not perform risk assessments.
25 One of the 25 protectees we interviewed during our site visits had 2 threats, which
made the total number of threats we reviewed 26.
26 According to USMS Directive 10.14.E. 1, Protection Details, 2006, a risk assessment

determines the appropriate level of protective response.
27 According to USMS Directive 10.3.G. 11, Protective Investigations, 2007, a threat

assessment is a determination that a suspect either poses a threat or does not pose a threat to
a USMS protectee.


Instead, he said that the Judicial Security Inspector performed them. The only
time the third District Threat Investigator said that he performed a risk
assessment was to determine whether a protectee needed a protective detail.
The fourth District Threat Investigator said he depended upon his experience
and knowledge and that he relied on the risk levels only for guidance. None of
these three District Threat Investigators documented the risk levels in the
threat database.
The USMS does not ensure that districts consistentlv provide the minimum
protective measures that are reauired for each threat.
Although risk levels were not recorded for any of the threats we reviewed,
for every threat received by its protectees, the USMS is required to provide at
least the protective measures for the low risk level.28 However, we found that
the USMS threat database did not contain documentation to show that the
minimum required protective measures had been provided to the protectees.
Therefore, we sought to determine through i n t e ~ e w whether

s the USMS
had provided 25 judges and AUSAs at the sites we visited with at least four of
the low risk level protective measures in response to the threats they
received.29 Only 1 of the 25 protectees we i n t e ~ e w e drecalled receiving all
four protective measures required for a low risk level threat. In addition, 5 of
the 25 protectees (4judges and 1 AUSA) did not recall receiving any of the
required protective measures, and the USMS database did not indicate that
they had received any. Figure 5 below presents the results of our analysis.
28 According to USMS Directive 10.3.E.1.b, Protective Investigations, 2007, "when

district management receives a report of a threat/inappropriate communication, involving a
protectee, steps will be taken immediately to ensure the protectee's safety."
29 As noted previously, we did not include in our analysis the office facility security
survey protective measure.

Figure 5: Number of Protective Measures Provided

to 25 Protectees Who Received Threats
0
25 ,
8
C,
20
8
C,
15
- 2
1 10
'ij 5 :
5
3
L
E 0 L---
rjZ 0 1 2 3
Number of Low Risk Protective Measures Received
4
Sources: OIG interviews and USMS database.
Conclusion and Recommendation
The USMS does not ensure that the protective measures provided to
protectees are commensurate with the threat because the risk assessments are
not consistently performed or documented. In addition, the evidence did not
show that the USMS was consistently implementing even the minimum
protective measures required for the lowest risk threats. We recommend that:
5. the USMS implement controls to ensure that required risk

assessments are completed and documented in the USMS threat
database, including the assignment of risk levels, and that the
protective measures provided in response to each threat also be
documented in the USMS threat database.

The USMS does not fully or effectively coordinate with other law
enforcement agencies to respond to threats against federal judicial
officials.
The USMS does not consistentlv track threat referrals to the FBI.
We examined the threats against judges, U.S. Attorneys, and AUSAs in

the USMS threat database reported during FY 2007 and FY 2008 to determine
whether the USMS reported them to the FBI.30 Because the USMS threat
management database does not distinguish between threats and inappropriate
communications, our analysis may include both. We found that 639
(40 percent) of the 1,587 threats in the database contained no information
regarding FBI notifications. Figure 6 displays the notification information for
the threats by fiscal year.
Figure 6: FBI Threat Notifications in the USMS Threat Database

for FY 2007 and F Y 2008
900
800
I
700 336
2h
=
600 38%
303
500
43% II
z
100
0 -0
FY 2007
.Notification in Database
ONoMication Not in Database
Source: USMS threat database.
We also examined whether USMS records indicated that the FBI had
been notified of the 2 6 threats we selected for review at the four sites we
visited. We found that only 2 1 of the 26 threat entries in the database
30 In this section, we use the term "threat" to encompass both threats and

(81 percent) showed that the FBI had been notified. The remaining 5 entries
(19 percent) contained no information in the "Date Notified" field regarding FBI
notification.
The USMS threat database is the only written record that informs USMS
headquarters of whether or not the FBI h a s been informed of threats, and only
the district offices can enter this information based on their actions. If the data
fields are blank, the only way that USMS headquarters can venfl that the FBI
has been notified of threats is to call the districts and rely on the memory of
district personnel.
7
Coordination between the USMS An Example of Inconsistent Statements

abou
and the FBI is inconsistent among
districts, and there are no formal n slt a r ~ WIUI
y LCU UIC GI uwu tO
protocols for coordination. harass a n AUSA who was prosecuting a

domestic terrorist, berating him and telling
the crowd to find where the AUSA lived
USMS and FBI policies state i ked, whcere his c went to
that the two agencies should work 5
closely together to respond to
threats against judicial officials.31
.--,.-
Wnen m e AUM learnea 01 u s rauy, ne.. .
informed the USMS, the USA0 IIistrict
We i n t e ~ e w e dDistrict Threat 088ce Security Manager, and thle FBI. 'I?he
Investigators and FBI Special USMS and the FBI investigated , anrl
Agents at each of the four sites we monitored the case, but according to the
visited to determine the extent of USMS, the FBI took 7 days to respond with
coordination between the USMS its case information. Without the FBI's
investigzitive results, t h e was unsible
and FBI. At two sites, we found t:o deterrnine wh,ether ar ion of
that the USMS and FBI coordinate I~rotectiv lres w a ary.
the protective and criminal I ;I stated that it
--.-.a
investigations. 1 JSMS's 1 faction

I lation sl
However, we received Sources: News articles and inte with
inconsistent statements from the the USMS and the FBI.
USMS and the FBI about the level
of coordination at the other two sites we visited. At both of those sites, the
USMS District Threat Investigators stated that the FBI does not communicate
31 When the FBI opens a criminal investigation regarding a threat, the District Threat
Investigator should work jointly with the FBI case agent. According to the USMS Guide to
Protective Investigations and Contemporary Threat Management, joint investigations with the
FBI must be full partnerships, with complete sharing of information and sources, but the
district should not delay conducting a protective investigation in deference to the FBI's criminal
investigation. The FBI Manual of Investigative Operations and Guidelines states that when the
FBI institutes a criminal threat investigation, close liaison should be established with the
USMS office responsible for the protectee.

or share information concerning its criminal investigations. In contrast, the

FBI Special Agents said the components were coordinating. The FBI agent at
one site stated that he considers himself and the District Threat Investigator to
be partners in the investigation. The FBI agent at the other site told us that
once the FBI is notified of a threat, the FBI provides all the information it has
to the USMS.
We also found there is no formal or informal agreement between the

USMS and FBI that defines the roles and responsibilities of USMS District
Threat Investigators and FBI agents. District Threat Investigators and FBI
agents we i n t e ~ e w e dtold u s that communication between the USMS and the
FBI regarding their respective investigations and their working relationships
depend on personalities. They stated that a formal memorandum of
understanding between the FBI and the USMS is needed.
The USMS districts fail to effectivelv coordinate with local law enforcement
agencies
- for notification of emergencv resDonses to iudges' residences.
USMS policy requires district offices to send letters to local law

enforcement agencies that provide coverage to a n area in which a federal judge
resides, requesting that the USMS be notified whenever an agency responds to
any emergency call from a judge's residence.32 The letter must also provide the
local law enforcement agency with a local USMS district office 24-hour number
for the notification. Upon being notified of a local law enforcement agency
response to a potential emergency at a judge's residence, the USMS district
office can assess the incident in the context of any current threats and
determine whether the incident may be related.
At the four sites we visited, we asked Judicial Security Inspectors

whether the district offices had sent the letters to local law enforcement
agencies and whether the Judicial Security Inspectors tracked their districts'
responses to notifications of emergencies at federal judges' residences. Three
of the four sites we visited had sent letters, but USMS officials at the fourth site
told u s they had not done so because the judges refused to allow information
regarding where they resided to be provided to the local law enforcement
agencies.
When we examined the letters, we found that those sent by two of the
three sites provided the telephone number of a USMS duty officer to contact in
the event of a response to a n emergency. The letters sent by the third site
32 For ease of reference in this report, any call from a federal judge's residence that
results in a local law enforcement agency response is considered an emergency call.

included no telephone number for the duty officer, but did provide a contact
number for the letters' recipients to call if they had questions about the
USMS's request to be notified.
We tested the 24-hour USMS contact numbers provided to the local law
enforcement agencies.33 In one district, the USMS contact number had been
disconnected. In another district, our call was never answered and did not
connect to voicemail or a message; a second number provided in this district's
letter to local law enforcement agencies was "temporarily out of service." In a
third district, our test call during business hours connected to the
communications office at the federal courthouse, which was staffed not by
Deputy U.S. Marshals but by Court Security Officers. We called again after
normal business hours and our call connected to the Federal Protective Service
instead of the USMS duty officer. In both instances (during business hours
and after), we were re-directed to a USMS duty officer. In sum, none of the
four districts we visited provided local law enforcement agencies with telephone
numbers that would let the agencies not@ the USMS directly in the event of a
response to an emergency at a federal judge's residence.
Also, none of the districts we visited had a system for tracking the
number of times local law enforcement agencies had notified them of
emergency responses at judges' residences. At three of the districts, the
Judicial Security Inspectors we interviewed were able to provide only anecdotal
estimates, such as "less than a handful of times" and "at least six times." The
fourth district we visited has one of the largest number of federal judges of any
of the 94 districts. At the judges' request, this district did not ask local law
enforcement agencies to not@ the USMS of emergency responses at judges'
residences. Not surprisingly, the Judicial Security Inspector in this district
stated he had never been notified by a local law enforcement agency of a n
emergency response to a judge's residence.
The failure to ensure timely coordination with local law enforcement

agencies can hinder the USMS in obtaining information that could enable it to
swiftly determine whether USMS personnel should initiate a threat
investigation and implement protective measures. Further, failing to gather
this information prevents the USMS from iden-g patterns of activity that
could warn of would-be attackers' attempts to test or probe defenses.
33 The OIG made these calls on July 20, 2009.

The USMS lacks the full range of information it needs to most effectively
manage its threat response program. For approximately 40 percent of the
threats reported in FY 2007 and FY 2008, the USMS's database does not show
that the FBI was notified of the threats. Further, based on our site visits to
four districts, the coordination and communication between the USMS and the
FBI about threats to protectees are inconsistent and dependent upon
personalities instead of a formal process or memorandum of understanding.
We also found that the USMS is not coordinating effectively with local
law enforcement agencies. None of the four districts we visited had sent
notification letters that would enable local law enforcement agencies to directly
not@ the USMS when they respond to an emergency at a federal judge's
residence.
To ensure that the USMS collects information that will enable it to

monitor the performance of its response to threats against protectees, and to
ensure the USMS coordinates effectively with the FBI and local law
enforcement agencies to keep the protectees safe, we recommend that the
USMS:
6. establish internal controls at USMS headquarters to ensure that the

USMS threat database contains full and accurate information,
including ensuring that district offices regularly enter data in the "FBI
Notified" and notification date fields.
7. coordinate with the FBI to establish a memorandum of understanding
to formalize the coordination of protective and criminal investigations.
8. develop a mechanism to track the USMS district office responses to
emergency notifications from local law enforcement agencies regarding
emergency responses to federal judges' residences.
9. ensure that all districts send the required notification letters to local
law enforcement agencies and that the letters contain a working
contact number that connects directly to the local USMS duty officer.

USAO staff who provide protective measures for threatened U.S. Attorneys
and AUSAs lack sufficient expertise and training in threat response, and
coordination among these entities is inconsistent.
USAO personnel lack expertise in threat response.
EOUSA and the USAOs have implemented measures to protect USAO

personnel against threats, but we determined that EOUSA and the USAOs lack
training and expertise in the threat response process similar to that of the
USMS's judicial security staff. Deputy Marshals involved in ensuring the safety
of protectees generally have extensive law enforcement training, along with
specific training in determining and implementing threat response procedures.
In contrast, while some USAO staff may have prior law enforcement experience,
many do not, and the training available to EOUSA and USAO personnel to
develop their expertise in security and personal protection is limited.
During our site visits, we interviewed 14 AUSAs who had been

threatened. We determined that EOUSA or the USAOs provided many
protective measures to the 14 threatened AUSAs.34 In total, nine types of
protective measures were provided to the AUSAs - three solely provided by
EOUSA and the USAOs, and three provided by the USMS as well a s EOUSA
and the USAOs.35 Figure 7 below presents the comparison of the protective
measures provided by the USMS and EOUSA and the USAOs to the AUSAs.
- 34 We asked the AUSAs and reviewed documentation from the USMS and EOUSA
threat databases to determine the source of protective measures. In our interviews, we asked
the attorneys about the protective measures associated with each of the risk levels (see pages
18 and 19 for a description) and whether EOUSA and the USAO, or the USMS had provided
those measures. We also included other protective measures such as
when we were able to identify which component provided it.
35 Two other protective measures
7-
implemented by the USMS. The remaining protective measure,
involvement of both the USMS and EOUSA. The USMS does
EOUSA submits a request and verifies that
were only
, requires the
, but on1 after

Figure 7: Protective Measures Provided by EOUSA/USAOs

and USMS Districts
Sources: EOUSA Security Programs Staff database, USMS threat database, and AUSA
inte~ews.
We next examined the expertise and duties of the staff providing these
measures.
EOUSA. Two persons within EOUSA's Security Programs Staff are

involved in threat response: the Assistant Director of the Security Programs
Staff and the Threat Management Specialist. The Assistant Director is
responsible for numerous security-related duties, including overseeing security
training for USA0 personnel responsible for security-related duties and
budgetary and facilities management support for security-related equipment,
services, and systems. The Assistant Director's background includes prior
physical security experience in other agencies, but no direct training or
experience equivalent to that of USMS judicial security personnel. Moreover,
because of his other duties, we believe the Assistant Director has limited time
to devote to threat response and to develop more specialized expertise in the
area.
The Threat Management Specialist at the time of our review was more
focused on the threat response. She was responsible for collecting, recording,
and distributing threat information for 94 USAOs; developing contacts with the
USAOs to update information regarding the threats; and maintaining contacts
with the USMS to ensure that EOUSA is aware of every threat to the
U.S. Attorneys and AUSAs. Finally, both the Assistant Director and the Threat
Management Specialist had been on board at EOUSA only since 2007 and
lacked institutional knowledge for dealing with the varying circumstances that
each threat presents.

USAOs. EOUSA relies on the USAOs' District Office Security Managers

in the field to provide protective responses. However, at the four locations we
visited, none of the District Office Security Managers had law enforcement
experience involving threat response. Moreover, the District Office Security
Managers told u s that they were responsible for numerous other
security-related functions in addition to responding to threats.36 The
U.S. Attorneys' Manual recommends that District Office Security Manager
responsibilities be assigned to Supervisory Assistant U.S. Attorneys a s a
collateral duty to their primary function a s
attorneys. As of September 2008 a large Example of a Delay in Protective
Measures Provided by a USAO
number of District Office Security
Managers, 40 of 94 (43percent), were In one district in which EOUSA funded
AUSAs. At two of the USAOs we visited, two residential security systems for
the position was held by AUSAs, but in threatened attorneys, the installations
one of those districts a full-time security were delayed. In both instances, the
delays occurred when the USAO
specialist performed the District Office District Omce Security Manager did
Security Manager duties. The other two not follow up with EOUSA to ensure
USAOs had full-time, non-AUSA District that the paperwork was completed and
Office Security Managers. that the security systems were
installed in a timely fashion. As a
result, there was a Zmonth delay in
Moreover, training opportunities are the installation of each home security
limited for District Office Security system. USAO staff told us that the
Managers, which is particularly lapse occurred because the District
problematic for those with little or no Omce Security Manager was
experience in threat response. EOUSA res~onsiblefor a large number of
, I addition to responding to
offers a training conference for District threats.
Office Security Managers at the
Department's training center, the National Source: Interviews with USAO staff.
Advocacy Center, every 18 months.37
36 The District Office Security Managers we spoke with told us they were responsible
for physical security, personnel security (e.g., background investigations),Sensitive
Compartmented Information Facility control, communications security, office safety (e.g.,
employee accidents and fire drills), managing the Special Security Officers contract, and
building parking, along with the Critical Incident Response Plans and Teams, Continuity of
Operations Plans, and Continuity of Government plans.
'3 According to the former Director of EOUSA, if a District Office Security Manager is
appointed when a conference is not to be held for another 18 months, the departing District
Office Security Manager might train the new recruit. Additionally, if the District Office Security
Manager requests it, EOUSA will send someone from another USAO to train the individual.

However, in the past that training has included only a 1-hour session on threat
response.38 In addition, the guidance available to the District Office Security
Managers is not sufficiently comprehensive to give them the tools to provide a n
effective threat response. Neither the U.S. Attorneys' Manual nor the District
Offtce Security Manager's Handbook explains the role and duties of a District
Office Security Manager. The U.S. Attorneys' Manual simply states that the
District Office Security Manager notifies the USMS and the FBI of the threat,
and serves as a coordinator for protective measures. It does not explain how
the District Office Security Manager is to cany out these duties to provide a n
effective response. The District Offtce Security Manager's Handbook
concentrates on the roles of the USMS and EOUSA, and only directs the
District Office Security Manager to contact the Security Programs Staff when
requesting a home alarm installation.
Coordination between the USMS and USAOs is inconsistent and is not guided
-
bv formal protocols for coordination.
In our i n t e ~ e w swe
, found that the USMS and USAO staff did not share
key information regarding protective responses and were not clear on each
other's roles and responsibilities regarding the response to a threat against a
U.S. Attorney or AUSA. Regarding information sharing, we found that USMS
staff did not regularly advise or monitor - and in some cases did not even know
about - protective measures implemented by EOUSA and the USAOs. During
our site visits we found instances in which EOUSA and the USAOs
implemented protective measures without the USMS knowing about them. For
example, in one district we found that two USAO employees performed
residential security surveys without the assistance of the USMS, and one of
-
these employees initiated the installation of residential security systems
without giving the USMS the opportunity to advise on the need for, or the
configuration of, the system.
We also found instances in which USMS and USAO staff expressed

confusion over each other's roles and responsibilities in threat protection for
USAO staff. For example, in one of the districts, we found that the USAO staff
did not believe the USMS was required to provide any protective measures
other than in response to the highest level threats. A
USAO official in that district told u s the USMS's threat response program was
focused exclusively on judges. In that same district, when the lives of a n AUSA
and her child were threatened, the AUSA reported the threats to the USAO, and
38 At the March 2009 District Office Security Manager Conference, the 1-hour training
in threat response was provided by an Assistant Chief and a Senior Inspector from the USMS
Office of Protective Intelligence.

she said she was never contacted by the USMS. In fact, when a protective
response was provided, it was provided by the Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF),where the AUSA's husband was employed a s a
Special Agent. Managers in the USMS district office said the USAO did not
not@ the USMS of the threat until 6 days after learning of it. A USMS
manager said he felt "pretty okay" with ATF having provided a threat
assessment and a residential security survey.
We also found in the same district that the USMS district office did not
provide USAO building security staff with threat information that had been
distributed to courthouse security staff, even though the courthouse and the
USAO's building were adjacent and joined by a common hallway. At the time
of our visit, the USMS district office was putting together points of contact for
both the courthouse and the USAO building. USMS officials said they had no
set policy for disseminating information to USAO building security staff about
individuals who made threats. USAO staff told us the security personnel
guarding that building had expressed fmstration over not receiving notices
about individuals who made threats.
There is no agreement or memorandum of understanding between the

USMS and EOUSA, or between the USMS and any USAOs we visited, which
addresses the sharing of information about threats against U.S. Attorneys and
AUSAs or about protective responses. Figure 8 shows the lack of coordinated
policy among the USMS, EOUSA, and the USAOs. While a USMS directive
instructs district offices to provide information about protective investigations
to the protectees involved, no policy directs USMS staff to provide information
to the USAOs or EOUSA or to collect information about protective measures
the USAOs or EOUSA implement.

Figure 8: USMS and EOUSA Policy Regarding

the Protection of Threatened U.S. Attorneys and AUSAs
EOUSA and USAOs have relatively few personnel performing personal

security functions and, for the most part, they lack sufficient expertise in
threat response a n d have limited training opportunities to prepare them to
provide for the safety of U.S. Attorneys and AUSAs who have been threatened.
In addition, USMS and USAO staff do not share key information and are not
clear about their respective roles and responsibilities. Their efforts are not
guided by formal protocols to help ensure there are no lapses in coverage and
to avoid duplicative protective responses. To better prepare EOUSA and USAO
personnel for responding to threats and to ensure better cooperation between
the USMS and the USAOs, we recommend that:

10. EOUSA provide, in consultation with the USMS, sufficient training to

EOUSA and USA0 staff assigned threat response duties.
11. the USMS and EOUSA sign a memorandum of understanding that

defines their roles and responsibilities in protecting U.S. Attorneys and
AUSAs who receive threats.

EOUSA is not consistently notified of threats against U.S. Attorneys

and AUSAs and often lacks important information about threats and
protective responses.
Some USAOs failed to submit required Urgent R e ~ o r t son threats to EOUSA.
We found that threats against USAO personnel are generally not

reported to EOUSA. The USAOs' District Office Security Managers are
required by the U.S. Attorneys' Manual to n o w EOUSA by submitting an
Urgent Report via e-mail of any threats made to USAO personnel.39
However, we found that threats against USAO personnel are generally not
reported to EOUSA. When we compared the threats reported by the USAOs
and the USMS districts in FY 2007 and FY 2008, we found that USAOs had
reported fewer than half the number of threats reported by the USMS (see
Table 2).
Table 2: USMS District and USAO Reporting

of Threats, FY 2007 and FY 2008
In 14 districts.
USMS and
In 67 districts, In 13 districts, UsAOs
USMS reported USAOs reported reported an
more threats more threats equal number
than USAOs than USMS of threats Total
Component Number of threats reported
USMS 402 14 8 424
USA0 129 28 8 165
Sources: USMS and EOUSA documents.
We also found that the USAOs in each of the four districts we visited
sent fewer Urgent Reports to EOUSA than the number of threats recorded in
the USMS threat database (Figure 9).
39 U.S.Attorneys' Manual,Chapter 3-15.160.

Figure 9: Number of Threats Reported b y USAO and the

USMS in Visited Districts
1 2 3 4
District Visited
UThreats reported by USAO ElThreats reported by USMS district
Sources: USMS and EOUSA documents.
When we asked USAO employees in the four districts why they were
not no-g EOUSA of threats, employees in three USAOs told u s that they
thought they had submitted all the required Urgent Reports. The District
Office Security Manager for the fourth USAO (District 1 in Figure 9), which
is one of the largest USAOs in the country, stated that EOUSA's role in
threat management was not clearly defined and that he did not rely on
EOUSA for assistance in protecting threatened USAO employees. As a
result, that USAO had not sent any Urgent Reports to EOUSA for the 25
threats against its personnel that we identified in the USMS threat
database.
In addition, we found that EOUSA Security Programs Staff did not use
the information in the threat management database to determine whether it
was notified of all threats against USAO employees. In fact, the Security
Programs Staff was unaware that some USAOs were not submitting Urgent
Reports on all threats until we informed them of our findings.
EOUSA employees told u s that they have taken steps to ensure that
they are notified of threats reported to the USMS. In July 2008, EOUSA
established a liaison with the USMS headquarters to share threat
notifications. The EOUSA Threat Management Specialist told u s she
requests Urgent Reports from the USAOs when she learns from the USMS
liaison of previously unreported threats. However, she stated that the

USAOs do not always respond to her requests. For example, we found that
the USAOs had submitted only 5 Urgent Reports corresponding to the
50 threat notifications that the Threat Management Specialist had received
from the USMS from July through September 2008.
Because the USAOs do not consistently not@ EOUSA of threats made

against USAO personnel, EOUSA does not have accurate information about
the actual number or severity of all threats despite the notifications shared
by the USMS liaison.40 Unless EOUSA is aware of threats, it cannot fund
protective measures, efficiently allocate resources, or assess the overall cost
and performance of its security program.
Urgent Reports frequentlv lack relevant information needed for an effective

response.
When we reviewed the 165 Urgent Reports that District Office Security
Managers submitted to EOUSA in FY 2007 and FY 2008 for threats against
USAO personnel, we found that 123 (75 percent) reports did not include key
information, such as:
the name and position of the targeted employee,

the date the threat occurred,
the date the Urgent Report was prepared, and41
whether the USMS and FBI were notified.
All but 1 of the 165 reports included the targeted employee's name,
but 73 (44 percent) failed to inform EOUSA whether the FBI had been
notified of the threat, and 10 reports (6 percent) failed to indicate whether
the USMS had been notified. Also, 46 reports (28 percent) failed to include
the date the threat occurred, and 65 (39 percent) omitted the date the
Urgent Report was prepared.
Because the Urgent Report template does not include these elements
and the USAOs do not always include this information, EOUSA generally
lacks initial threat information necessary to ensure the USMS and FBI have
40 The USMS notification does not always include detailed information about the
threat. Some notifications merely note that a threat has occurred against a specific
attorney and provide no details.
41 The Urgent Report template does include a field for the date of the Urgent Report.
That field is automatically updated with the current date each time the document is
accessed rather than retaining the date the report was created.

been notified, to begin monitoring the response to the threat, and to

determine the funding needed to provide protective measures to the
threatened attorney.
EOUSA is not kept informed of actions taken to protect threatened

U.S. Attornevs and AUSAs.
We also found that USAOs are not routinely informing EOUSA of the
USMS's protective responses to mitigate threats and protect threatened
AUSAs. We analyzed the Security Programs Staff threat management
database and Urgent Reports submitted by District Office Security
Managers and found few entries beyond the initial Urgent Reports about the
threats. EOUSA personnel told u s that they may receive updates via
telephone, e-mails, or updated Urgent Reports. However, as of January
2009, the USAOs had submitted only 16 updates via Urgent Reports to the
165 initial Urgent Reports submitted to EOUSA during FY 2007 and
FY 2008. We also found that EOUSA's Security Programs Staff did not
always receive updated information from the USAOs on the progress of the
protective measures provided by the USAO or the USMS, the initiation of a n
FBI investigation, or the progress of the FBI investigation. For example, in
January 2008 a n attorney who had been threatened by a n inmate who was
EOUSAs Security programs Staff did not have a record of these protective
Having complete information would enable EOUSA to better manage

its security program by:
coordinating the components' threat response actions,

tracking trends in the types of threats against U.S. Attorneys and
AUSAs,
expanding USAO and District Office Security Manager training
based on actual recent threats,
better informing threatened U.S. Attorneys and AUSAs about the
protective measures the USMS can provide to them,
42 EOUSA staff sometimes receives information on the response to threats through

means other than Urgent Reports, such as e-mails, but in our review of the EOUSA
database we saw only limited instances of this information being entered into the threat
records of the database.

guiding USAOs in improving proactive security and reacting more

efficiently to threats, and
basing procedures, such a s residential security systems,
deputations, and district security plans, on broad threat
knowledge.
EOUSA's Security Programs Staff told us that they planned to improve

the collection of information from USAOs. In June 2009, EOUSA informed
us that it was designing a web-based Urgent Report program that would
enable District Office Security Managers to submit their reports directly to
the Security Programs Staff threat management database. The new
web-based reporting system will be designed to provide a consistent method
of communicating events to EOUSA. According to EOUSA, it will have the
capability to track threats made against the AUSAs, iden* the activities
and protective measures provided, calculate the budget required for those
protective measures, set automatic reminders that protective measures be
reviewed to ensure they are still necessary, and develop aggregate reports
about the number and type of events that have occurred. Also, according to
the Assistant Director of the Security Programs Staff, the web-based forms
will include names, dates, and protective measures provided and the
automated database will track data fi-om the reports of threats and other
incidents. EOUSA expected to begin using the web-based Urgent Report
program in December 2009 or January 2010. The OIG believes that
speclfylng these data elements in the template will help EOUSA ensure
receipt of consistent information fi-om the USAOs.
The USAOs do not consistently no* EOUSA of threats made against

USAO personnel or provide fundamental information EOUSA needs to
monitor the District Office Security Managers' actions. Without knowing
what protective measures the USMS and the USAOs intend to implement,
EOUSA cannot assist in i d e n w g additional security support. EOUSA
also needs to be aware of USAO contact with the USMS and the FBI to fulfill
its coordinating role. Without complete and current information on the
response to threats, EOUSA is limited in its ability to track trends in threats
against USAO personnel and the efforts to mitigate the threats.
We recommend that:
12. EOUSA provide guidance and periodic reminders to USAOs of the

requirement to submit Urgent Reports immediately when a U.S.
Attorney or AUSA is threatened.

13. EOUSA revise the Urgent Report template so that it includes a

requirement to provide at least the following information:
name and position of targeted employee;

name and location of the person making the threat, if
known;
date the threat was made, or date the target was made aware
of the threat;
date the District Office Security Manager was informed of the
threat;
date the USMS and FBI were notified; and
date the USAO submitted the Urgent Report to EOUSA.
14. EOUSA establish guidance to require the District Office Security

Managers to send updated information via Urgent Reports at
regular intervals to inform EOUSA of the status of USAO, USMS,
and FBI actions to protect the threatened AUSA.
CONCLUSION AND RECOMMENDATIONS
The USMS threat response program has deficiencies in several critical

areas that affect the USMS's ability to protect federal judges, U.S. Attorneys,
and AUSAs from harm. Our review found that federal judges,
U.S. Attorneys, and AUSAs are not consistently reporting threats on a timely
basis, and in some instances are not reporting threats at all. When
protectees do not report all threats, the USMS is unable to provide a
comprehensive protective response.
However, once a threat has been reported, the USMS does not
consistently use risk levels in assessing threats or provide at least the
minimum required protective measures. Moreover, the USMS cannot venfy
that it has notified the FBI of all known threats against federal judicial
officers.
The lack of coordination between the USMS and other law

enforcement agencies also limits the USMS's ability to ensure the safety of
its protectees. We found that coordination and communication between the
USMS and the FBI regarding their respective investigations are inconsistent
from district to district, and there are no formal or informal protocols for
coordination. The USMS also is not coordinating effectively with local law
enforcement agencies concerning notification of emergency responses to
judges' residences, which prevents the USMS from obtaining information
that might enable it to initiate a threat investigation and implement
protective measures.
We also found that USAO personnel performing personal security

functions did not have sufficient expertise and training to prepare them to
provide for the safety of U.S. Attorneys and AUSAs who have been
threatened. Moreover, USAO and USMS staff do not share key information
and do not have clearly defined roles and responsibilities, which may result
in lapses in, or duplicative, protective responses. Further, USAOs do not
typically supply EOUSA with fundamental threat information, which
prevents EOUSA from providing emergency security support or tracking
trends in threats against USAO personnel.
As a result of our review, we make the following 14 recommendations.
To improve the understanding of federal judges, U.S. Attorneys, and

AUSAs of the need for prompt reporting of threats and the consequences of
delays or failure to report, we recommend that:
1. the USMS clearly explain to protectees the detrimental effect that

delays or the failure to report has on the security provided.
2. the USMS update its security handbook to emphasize both the
importance of immediately reporting threats to the USMS and the
consequences of delays or failures to report.
3. EOUSA amend the U.S. Attorneys' Mmuaf to clearly instruct the
AUSAs that all threats must be reported promptly to the District
Office Security Manager. Such instruction should include a n
explanation of the detrimental effect that delays or the failure to
report has on the security provided.
4. the USMS review trends in reporting timeliness annually and
provide the results of that analysis to the Administrative Officeof
the U.S. Courts and EOUSA for their use in judicial conferences
and attorney training seminars.
To ensure that the USMS provides protectees with protective
measures that are commensurate with the risk level of the threat, we
recommend that:
5. the USMS implement controls to ensure that required risk
assessments are completed and documented in the USMS threat
database, including the assignment of risk levels, and that the
protective measures provided in response to each threat also be
documented in the USMS threat database.
To ensure that the USMS collects information that will enable it to
monitor the performance of its judicial security program, and to ensure the
USMS coordinates effectively with the FBI and local law enforcement
agencies to keep the protectees safe, we recommend that the USMS:
6. establish internal controls at USMS headquarters to ensure that
the USMS threat database contains h l l and accurate information,
including ensuring that district offices regularly enter data in the
"FBI Notified" and notification date fields.
7. coordinate with the FBI to establish a memorandum of
understanding to formalize the coordination of protective and
criminal investigations.
8. develop a mechanism to track the USMS district office responses to
emergency notifications from local law enforcement agencies
regarding emergency responses to federal judges' residences.
9. ensure that all districts send the required notification letters to
local law enforcement agencies and that the letters contain a

working contact number that connects directly to the local USMS

duty officer.
To better prepare EOUSA and USAO personnel for responding to
threats and to ensure better cooperation between the USMS and the USAOs,
we recommend that:
10. EOUSA provide, in consultation with the USMS, sufficient
training to EOUSA and USAO staff assigned threat response
duties.
11. the USMS and EOUSA sign a memorandum of understanding
that defines their roles and responsibilities in protecting U.S.
Attorneys and AUSAs who receive threats.
To ensure that EOUSA receives more complete and timely information
to manage its threat response program and ensure the safety of the U.S.
Attorneys and AUSAs, we recommend that:
12. EOUSA provide guidance and periodic reminders to USAOs of the
requirement to submit Urgent Reports immediately when a U.S.
Attorney or AUSA is threatened.
13. EOUSA revise the Urgent Report template so that it includes a
requirement to provide at least the following information:
name and location of the person making the threat, if
known;
date the threat was made, or date the target was made aware
of the threat;
date the District Office Security Manager was informed of the
threat;
14. EOUSA establish guidance to require the District Office Security
Managers to send updated information via Urgent Reports at
regular intervals to inform EOUSA of the status of USAO, USMS,
and FBI actions to protect the threatened AUSA.

APPENDIX I: PREVIOUS OIG REPORTS ON THE JUDICIAL SECURITY

PROCESS
In March 2004, the Office of the Inspector General (OIG)reported on

the USMS's efforts since September 11, 2001, to improve its protection of
the federal judiciary.43 We focused specifically on the USMS's ability to
assess threats and determine appropriate measures to protect members of
the federal judiciary during high-threat trials and while they are away fiom
the courthouse.
We found that since September 11, 200 1, the USMS had placed
greater emphasis on judicial security by hiring 106 Court Security
Inspectors and increasing courthouse security. However, the USMS's
assessments of threats against members of the federal judiciary were often
untimely and of questionable validity. Further, the USMS had limited
capability to collect and share intelligence fiom USMS districts, the FBI's
Joint Terrorism Task Forces (Jl'TF),and other sources on potential threats
to the judiciary. In addition, the USMS lacked adequate standards for
determining the appropriate protective measures that should be applied to
protect the judiciary against identified potential risks (risk-based standards)
during high-threat trials and when they are away from the courthouse.
The USMS concurred with all six of the recommendations in that

report and during the next 2 years reported to the OIG the steps it had
taken to implement them. The USMS stated that it had revised its
established time frames for assessing threats; updated the historical threat
database; increased the number of liaisons with other law enforcement and
intelligence agencies and requested additional resources to increase
representation on the J'ITFs; established an Office of Protective Intelligence;
increased the number of Top Secret security clearances and the amount of
secure communications equipment in the districts; and issued revised
judicial security directives that included risk-based standards and after
action reports. The OIG has closed all of the recommendations.
In September 2007, the OIG released a follow-up to its March 2004

report examining the USMS's assessment of reported threats made against
federal judges or other USMS protectees; the development of a protective
intelligence capability to identlfy potential threats; and recent measures the
43 Department of Justice, Office of the Inspector General, Review of the United

States Marshals Seruice Judicial Security Process, Evaluation and Inspections Report
1-2004-004. March 2004.

USMS had taken to improve judicial security and to enhance its capability
to respond to judicial security incidents.44
The OIG found that USMS efforts to improve its capabilities to assess
reported threats and idenbfy potential threats languished from the issuance
of the March 2004 report to early 2007. We found that threat assessments
took longer to complete, resulting in a backlog of 1,190 "pending" threat
assessments as of October 1, 2006. Further, the USMS did not implement
an effective program to develop protective intelligence that identified
potential threats against the judiciary.
To improve the USMS's capacity to protect the federal judiciary, the

OIG made six new recommendations. Since September 2007, the USMS
has reported to the OIG the steps it has taken to implement them. For
example, the USMS developed plans to improve its threat assessment
process and for implementing a protective intelligence function to idenbfy
potential threats, including objectives, tasks, milestones, and resources.
The USMS created a Guidefor Offie of Protective Intelligence Personnel to
Coordinate Protective Investigations, which describes a comprehensive
strategy for handling protective investigations and is in the process of
modlfylng its inappropriate communication Threat Module of the Justice
Detainee Information System (JDIS)to produce more user-friendly reports.
Also, the USMS is finalizing policies for Technical Operations Group support
concerning protective operations and investigations for Judicial Security
Rapid Deployment Teams. The OIG has closed four of the six
recommendations.
44 Department of Justice, Office of the Inspector General, Review of the United

States Marshals Seruice Judicial Security Process, Evaluation and Inspections Report
1-2007-0104, September 2007.
APPENDIX 11: METHODOLOGY OF THE OIG REVIEW
The methodology used in this review included interviews with USMS,

EOUSA, and FBI personnel, as well a s site visits to four federal judicial
districts where we interviewed federal judges, USMS personnel, AUSAs, and
other USAO personnel. In addition, we conducted a survey of a stratified
random sample of AUSAs and performed document reviews and database
analyses.
Interviews at USMS Headquarters and EOUSA
To determine the role and responsibilities of the USMS and the role of
EOUSA in the protection of federal judges, U.S. Attorneys, and AUSAs, we
interviewed 10 individuals: 4 from USMS headquarters at the Judicial
Security Division and 6 from EOUSA. At USMS headquarters, we
interviewed the Chiefs of the Office of Protective Operations, the Office of
Protective Investigations, the Office of Court Security, and the Threat
Management Center. At EOUSA, we interviewed the Director of EOUSA, the
Chief of the Security Programs Staff, a Threat Management Specialist, a
Physical Security Specialist, a Program Assistant for the Mission Assurance
Team, and a Program Assistant for Physical Security.
Site Visits
We conducted site visits at four judicial districts. We chose the

districts based on the number and severity of threats received by federal
judges, U.S. Attorneys, and AUSAs in the districts, the number of
prosecutors in the districts, and geographic location.
During these site visits, we conducted interviews and reviewed

documents a t four USAOs and four USMS district offices. At each USAO,
we interviewed the U.S. Attorney, the Regional Security Specialist, the
District Office Security Manager, and four AUSAs. At each USMS district
office, we interviewed the U.S. Marshal, the Judicial Security Inspector, and
at least one District Threat Investigator. We also interviewed at least two
federal judges in each district to determine their experiences with protective
measures provided after the judge received a threat. At three of the sites,
we interviewed the judge who served as the Chair of the Court Security
Committee for that district.
At each site, we also interviewed an FBI Special Agent who performed

criminal investigations of threats against federal judges and AUSAs to

determine how the FBI and USMS coordinate their simultaneous

investigations. In total, we interviewed 60 individuals in the field. When we
report the percentage of site visit interviewees who held a particular opinion
in our findings sections, we based the percentage on the number of people
who answered a specific question on that topic instead of on the total
number of i n t e ~ e w e e s .
Survev
We conducted a web-based survey of a stratified random sample of

U.S. Attorneys and AUSAs to assess how they perceived the extent of the
security provided to them in response to the threats they received. We also
sought to determine what security measures were provided in response to
threats received, as well a s what security training was provided by the
USMS and their respective USAOs. Using demographic data supplied by
EOUSA about current AUSAs, we assigned the attorneys to different subsets
and selected a random sample within each subset. The subsets were
defined by three demographic factors: gender, length of service as a federal
prosecutor, and the number of personnel working at the USAO.
We sent an invitation to participate in the web-based survey to the

688 U.S. Attorneys and AUSAs. We received 383 responses, a 56-percent
response rate.
Some survey questions required respondents to select from pre-

determined responses, while other questions allowed respondents to
respond in their own words. In choosing the respondents' comments
included in the body of this report, we selected those that were the most
representative of the opinions expressed by the respondents.
Appendix I11 contains a copy of the survey and the results.
Document and Database Review
To determine the role and responsibilities of the USMS headquarters

and the district offices in the protection of federal judges, U.S. Attorneys,
and AUSAs and the response to threats received by those individuals, we
reviewed the USMS's mission, directives, policies, and manuals;
performance measures; budget documents; federal laws; and threat data
from the Threat Management Center.
To determine the number and types of threats received by federal

judges, U.S. Attorneys, and AUSAs in various districts, we reviewed USM- 1 1

Report of Investigation forms and USM-550 Preliminary Threat Report forms

from the USMS Threat Management Center database.45 We also used the
database to assist in determining:
the sites to visit based on the number and severity of threats per
district;
the federal judges, U.S. Attorneys, and AUSAs to interview
regarding their experiences in receiving threats;
the average time for the USMS to respond to a threat;
the risk levels assessed to each threat by the USMS; and
the protective measures that were provided to threatened federal
judges and AUSAs in response to various threats.
To examine the role and responsibilities of EOUSA in the protection of

U.S. Attorneys and AUSAs, we reviewed EOUSA's mission, policies,
procedures and manuals; training materials; budgets for protective
measures; Urgent Reports submitted by the USAOs when a threat was
received; and the EOUSA threat database.
To determine the role of the USAOs in the protection of U.S. Attorneys

and AUSAs, we reviewed office security plans; Urgent Reports generated
when a threat was received by a n attorney; security training materials;
position descriptions for security-related positions; and budget requests
pertaining to security for each of the four districts we visited.
45 USM- 11s and USM-550s contain a summary of the threat event, information on
the suspect, and a report of investigation containing a synopsis of the protective
investigation.

APPENDIX 111: RESULTS OF OIG SURVEY OF U.S. ATTORNEYS AND

ASSISTANT U.S. ATTORNEYS
We conducted a web-based survey of a stratified random sample of

U.S. Attorneys and Assistant U.S. Attorneys (AUSA) to assess how they
perceived the extent of the security provided to them in response to the
threats they received. We sent invitations to participate in the web-based
survey to the 688 members of the chosen sample. Three hundred eighty-
three attorneys in 30 districts responded to the survey.
Note: When percentages do not add to 100,it is because of rounding.
Background Questions
1) Are you a U.S. Attorney or a n AUSA?
Attorney Type Number Percentage

U.S. Attorney 8 2%
AUSA 375 98%
Total 383 1OO0h
2) Are you male or female?
Gender Number Percentage

Female 139 36%
Male 244 64%
Total 383 1OO0h
3) What district do you work in?
I District I Number I Percentage I

r - mstrict I Number I Percentage I
1 Total I 383 1 100% I

4) How many attorneys are in your district office?
I Attorneys
Per m c e
I Number I percentage
I
30-99 132 35%
loo+ 172 45%
Total 383 1OO0h
5) Since January 1, 2006, what type of matters do you primarily handle?
Matter Type Number Percentage

Civil 75 20%
Criminal 308 80%
Total 383 100%

6) How many years' experience do you have as a n AUSA or U.S. Attorney?

(Include all the years you worked at any USA0 as a n attorney.)
Years' Number Percentage

Experience
Less than 1 year 45 12%
1 to 3 years 49 13%
4 to 9 years 73 19%
10 to 14 years 83 22%
15+ years 133 35%
Total 383 1OO0h
7) What type of case do you believe poses the greatest risk of receiving
threats?
Case Type Number Percentage

Drugs 100 26%
Gangs 171 45%
Pro se (criminal defendant) 24 6%
Pro se (civil party) 33 9%
Public corruption 2 1%
Terrorism 13 3%
Tax (civil) 5 1%
Tax (criminal) 10 3%
Other 25 7%
Total 383 100%
Twenty-five respondents chose "Other" and provided answers in their

own words. The OIG categorized information within their answers as
follows:

I Category I Number of Responses I

Irate family members 1
Judgment debtors 1
Liberty & property 1
Organized crime 3
Violent crime 1
White collar 2
Don't know 2
Total 25
N=25
N represents the number of respondents.
8) If you answered "Other" to the previous question, please spec@

whether the case was civil or criminal.
Number of
Civil or Criminal Case
Responses
Criminal 19
Civil 2
Civil & criminal 1
Respondent answered forfeiture but did not classlfy the cases as 1
civil or criminal
Respondent answered risk was not case-related but rather was
dependent on the defendant's tendency toward violence and 1
mental history
Respondent answered that he did not know what type of case
posed the greatest risk, but then also answered criminal when 1
asked to spec* a civil or criminal case
Total 25
9) Do you know what procedures to follow in the event you, or a family

member, receive a work-related threat?
Yes/No Number Percentage

Yes 308 80.4%
No 74 19.3%
No answer 1 0.3%
Total 383 100%

10) Have you, or a n immediate family member, personally received a threat

since January 2006 related to your employment at the USAO? (Please
answer "yes" to this question only if you believe the threat was related
to your employment at the USAO.)

Yes 61 16%
No 322 84%
Total 383 1OO0h
11) If you answered "Yes" to the previous question, please speclfy how
many threats you received since January 2006.
I One Number of threats I Number of responses I

threat 37
Two threats 11
Three threats 6
More than three threats 1
I Total I 55 1
N=55
Only 55 of 61 respondents who reported receiving threats
in Question 10 answered this question.
One of the 55 respondents to this question reported
receiving over 1,000threats.
12) What types of work-related threats have you received? (Check all that
apply-1
Threat Type I Number Of Responses
E-mail 3
Face-to-face 15
Letter 12
Telephone call 12
Other 29
I Total I 71 1
Respondents could select more than one response.
Twenty-nine respondents chose "Other" and provided answers in their

own words. The OIG categorized information within their answers a s
follows:
Origin of Threat Number of Responses

Third party (e.g., informant) 18
Person followed family member 1
w r i t t e n threat 4
Discovered by investigators 1
Physical attack 2
Reported 1
I n a ~ ~ r o ~ r icontact
a t e with defendant's significant other 1
I Alleged contract hit I 1
1 Total I 29
13) For any threats that you or an immediate family member received since
January 2006, was the threat related to a specific case to which you
were assigned?

Yes 51 84%
No 8 13%
Don't know 2 3%
Total 61 100%
14) Please spec@ the type of case to which you were assigned. (Check all
that apply.)
N=51
Respondents could select more than one response.
Twenty-five respondents chose "Other" and provided answers in their

own words. The OIG categorized information within their answers a s
follows:

Case Type Number of Responses

Armed bank robbery 1
Assault/civil rights 1
Child exploitation 1
Civil rights violation 2
Collection 1
Drugs & gangs 1
Espionage & violent crime 1
Extortion 1
Felon in possession 2
Firearms 1
Firearms & child pornography 1
Foreign request for assistance 1
Fraud 1
Identity theft 1
Immigration 1
Postal 1
Project safe neighborhoods 1
stalking 1
Violent crime 2
White collar 2
Total 24
N=25
One respondent answered with a number, not a case type.
15) If you answered "Other" to the previous question, please speclfy

whether the case was civil or criminal.
I Civil/criminal I Number of Responses I

I civil
Only 2 1 of 25 respondents who reported handling a n

"Other" case type in Question 14 answered this question.

16) Have you reported any threat(s) made against you personally or against
a member of your family during your time as a U.S. Attorney or AUSA
since January 20061

Yes 51 84%
No 10 16%
Total 61 100%
17) Of the times that you, or a member of your family, were threatened
since January 2006, how often did you report those threats? (Select
one.)
Threat Reported Number Percentage

Every time 47 92%
Most of the time - half or more than half of the times you 4 8%
were threatened
Some of the time - less than half of the times you were 0 0%
threatened
Never 0 0%
Total 51 100%
18) If you only reported the threats most of the time or some of the time,
what was/were your reason(s) for not reporting a threat? (Check all
that apply.)
Reason Not Reported Number Percentage

I did not think the threat posed a real
3 75%
danger
I was not familiar with the reporting 0%
0
procedures
Threat reporting procedures were too 0 0%
cumbersome or inconvenient
I did not want additional protection 0 0%
I did not feel that the protection provided
would be adequate based on previous 1 25%
experience with the protection that was
provided
Other (please specify) 0 0%
Total 4 100%

19) If you never reported any threat(s) you received, why not? (Check all
that apply.)
See Question 17. All of the survey respondents stated that they
reported threats they received all or most of the time.
20) Since January 2006, when you reported your threat(s), to whom, and
how often, did you report them? (Check all that apply.)
I
Entity Reporting To
I ~ o s of
the m e
t I Some of
the m e
I
Frequency of Reporting Threats to Entity
I
District Office Security Manager 32 4 - 15
Other USA0 managers 42 2 - 7
USMS 31 - 3 17
FBI 19 2 2 28
State or local law enforcement 8 1 3 39
Other - - 1 -
Missing column values indicate that no respondents chose that answer.
One respondent reported the threat to ATF.
21) Please explain why you reported your threat(s) to the entity(s)you
checked.
Number of
Reason Reported to Entity Responses
Regulation 15
S U D ~ M S O ~ /ofCcommand
~~~II 7
Protection/safety of self and family 4
I
Third party government employee informed I d I
threatenee I *
-
Re~ortedto case a e n t 1
Described how the threats occurred 1 5
No answer 4
Miscellaneous 11
Total I 51
N=51

22) Once your threat was reported, was a threat assessment done?

Yes 34 67%
No 4 8%
Don't know 13 25%
Total 51 1OO0h
23) Were you given the results of the threat assessment?

Yes 24 71%
No 9 26%
Don't recall 1 3%
Total 34 100%
24) Please explain below why you believe that the threat assessment was or
was not accurate or useful.
N=22
Only 22 of 24 respondents who reported receiving the
results of the threat assessment in Question 23 answered
this question.
One respondent provided more than one response.

25) After you reported the threat(s), what was the longest response time for
each of the following entities? (Check all that apply.)
0-3 3-12 12-24 1-3 Don't

Responding Entity know
hours hours hours days
I District Office Security Manager I 22 5 0 2 22
Other USA0 managers 33 5 0 2 11
USMS 22 3 4 5 17
FBI 9 2 1 3 36
State or local law enforcement 6 1 1 1 42
Other 2 0 0 1 0
Three respondents chose "Other" and provided answers in their own

words. The OIG categorized information within their answers as
follows:
I Other Responding Entities 1 Number of Responses

I
Customs and Border Patrol 1
Federal authorities not involved 1
Total 4
N=4
One respondent did not answer "Other" in Question 25, but responded to this question.
26) If other entities who are not listed in Question 25 responded to your
threat, please speclfy which entities responded and their longest
response time.
Of the three respondents who indicated a n entity, two reported that the
ATF responded within zero to three hours and the other respondent
reported that Customs and Border Patrol responded within one to three
days.

27) Since January 2006, when you reported the threat(s) that you or your
family received, were you afforded any protective measures?
Response Number Percentage

Never 29 57%
Some of the time 5 10%
Most of the time 2 4%
AU of the time 15 30%
Total 51 100%
28) Since January 2006, when you reported the threat that you or your
family received, what were you or your family
offered? (Check all that apply.)
I ~ o t e c t i v Measure
e I Not Offered I t d I

I
-
Case: 10-70063 01/08/2010 Page: 17 of 62
29) If you were offered

other than those listed above,

please speclfy what those measures were and whether you accepted or
declined them.
Other Protective Measures Offered I Number of R ~ S D O ~ S ~1 S
30) Please indicate whether the investigation(s) and the protective

measures provided by the U.S. Marshals Service in response to the
threat(s) were appropriate.
I USMS Measures
Appropriate
I Number I Percentage
I
31) Please explain why you believe that the investigation and protective
measures provided by the U.S. Marshal Service were or were not
appropriate.
Appropriateness of
USMS Response

32) Please indicate whether the investigation(s) and the protective

measures provided by the EOUSA in response to the threat(s) were
appropriate.
33) Please explain why you believe that the investigation and protective
measures provided by the EOUSA were or were not appropriate.
R e a s o n s W h y EOUSA R e s p o n s e
Was Or Was N o t A D ~ K O D X ~ ~ ~R~~ S D O I I S ~ S I

-
Case: 10-70063 01/08/2010 Page: 19 of 62
34) If you believe any of the

in Question 28 or
Question 29 needed improvement, please explain below.
Protective Measures That Need

Improvement
Number of
Responses
35) If you did not receive protective measures in response to a threat and
you believe that you should have, please explain below.
Reason Respondent Should Have

Received Protective Measures I Number of
Responses I
Daily Security Measures Provided
36) Where is your office located?
I Location I Number I Percentage 1


37) If your office is NOT in a federal courthouse or federal building, which
of the following are used for building security?
(Check all that apply or check "don'tknow" if you are not familiar with
the security measures used in your building.)
Non-Federal Facility I
I Building Security
Feature I Number I Percentage
(of 1291 I
Non-Federal Facility
Number of
Additional Security Measures Responses

38) How useful do you find the following building security measures?
(Check N/A if you are not aware that your building has a particular
measure)
Not Somewhat
Security Measures
Useful Useful
39) If you are aware of other building security measures not mentioned
above, please specify what those measures are and whether you find
them useful.
Did Not
Other Building Security Not Somewhat Very Specify
Neutral
Measures Useful Useful useful ~sefulnes
s


REDACTED
40) If you checked any of the building

as not useful, please explain.
-
Case: 10-70063 01/08/2010 Page: 23 of 62
Reasons Building Security

Measures Are Not Useful
- FOR PUBLIC RELEASE
Number of
in Question 38
41) If your office IS in a federal courthouse or federal building, which of the

following security measures are used for building security? (Check all
that apply or check "don't know" if you are not familiar with the
security measures used in your building.)
Federal Facility
I security
Feature

Federal Facility
I Other Security Measures I Number of Responses I
42) How useful do you find the following building (Check

N/A if you are not aware that your building has a particular measure)
Federal Facility
Security Feature
I Useful
I Useful
I Neutral 1 Useful 1 GL I N/A I

43) If you are aware of other building not mentioned

above, please spec* what those measures are and whether you found
them useful.
Federal Facility
I zk: I I I 1 zG 1 1
I
Other Building Did Not
Security ' O z E Neutral UseM Specify
Measures Usefulness
44) If you checked any of the building security measures in Question 42 a s

not useful, please explain.
Federal Facility
Reasons Building Security Measures Are Number of
Not Useful
45) Are there any other you believe should be taken in terms of
building security? Please explain below.
Needed Building Security Measures I Number of

Responses I
46) Does your office provide parking?
Location of Parking
I Responses
Of I
47) W h a t features does the parking facility have? (Check all that apply.)
Number of
Parking Security Features

! and provided answers in their own

words. The OIG categorized information within their answers as
follows:
I Other Parking Security Measures 1 ~~~s~~ I
48) If you think the security of your office's parking facility needs
improvement, please explain below.
I Needed Parkine Im~rovements I Number of Responses 1

49) Are there any other y o u believe should be taken in terms

of parking facility security? Please explain below.
I Additional Parking
Measures Needed I Responses
Of I
50) Do you have a
51) Do you believe that should be offered as a routine

protective measure?
I S / N O I Number I Percentage I

52) Please explain why you believe that should or should not
be offered as a routine protective measure.
Reasons Should Be a Routine Number of Responses

Protective Measure
Reasons Should Not Be a Number of Responses

Routine Protective Measure
Security Training
53) Have you received personal security training at the USA0 (either in
person, by Powerpoint presentation, or other means)?
Security Training Number Percentage

Received security training 29 1 76%
Did not receive security training 55 14%
Don't recall if received security training 37 10%
Total 383 100%

54) How long after you were initially employed at the USA0 did you receive
the security training (either in person or by other means)?
Elapsed Time From Initial Employment Number Percentage

to Security Training
Within the first month 71 24%
Within the fust 3 months 6 2%
Within the fust 6 months 19 7%
Within the first year 26 9%
Sometime after the first year of employment 53 18%
Don't remember when training received 116 40%
Total 291 100°?
55) As part of your initial security training, did you receive instructions to
follow if you receive a threat?

Yes 220 76%
No 12 4%
Don't know 59 20%
Total 291 100%
56) Have you received subsequent personal security training as a refresher

(either in person, by Powerpoint presentation, or by other means)?

Yes 217 75%
No 47 1 6%
Don't know 27 9%
Total 291 100%

57) Did your security training address any of the following topics? (Check
all that apply.)
I Security Training Topic I Number of Responses

I Percentage
(out of 291) I
Home security 122 42%
Work-related travel 195 67%
Driving 124 43%
Commuting 128 44%
Emergency contact numbers 199 83%
Other 21 7%
I
I I
None of the above 41 1 14%
Twenty-one respondents chose 'Other' and provided answers in their

own words. The OIG categorized information within their answers as
follows:
I Other T o ~ i c sCovered in Securitv Training I Number of R ~ S D O ~ S ~I S
Courtroom security 3
Additional aspects of work-related travel 1
I t s I 2 I
Don't recall 7
Total 23
N=21
Some respondents provided more than one response.

58) How useful did you find the security training provided in the following
areas? (Check "N/A" if you did not receive training in an area.)
Not 'Ornewhat Vev

Neutral Useful N/A
Useful Useful Usefd
Home security 15 19 24 73 19 141
Work-related
16 28 29 107 27 84
traveling
Driving 12 22 24 76 19 138
Commuting 13 26 25 69 17 141
24-hour emergency
7 16 22 108 72 66
contact numbers
Initial security
10 25 32 119 37 68
briefing
Subsequent
10 20 34 104 36 87
refresher training
Training on threat
6 25 32 124 38 66
procedures
N=291
59) If you think any of the security training or briefings provided in your
office need improvement, please explain below.
Security Topics That Need Improvement Number of Responses

Residential and commuting topics 18
Refresher training 11
Overall training content 14
Parkine information 3
I Miscellaneous I 8 I
I
I Total I 56 I
I
N=54
Some respondents provided more than one response.

60) Are there any other measures you believe the training should address
in terms of personal safety? Please explain below.
61) Does the District Office Security Manager make websites, brochures, or
videotapes on security topics easily available to you?

Yes 136 36%
No 68 18%
Don't know 179 47%
Total 383 1OO0h
62) Do you find these websites, brochures, or videotapes on security topics

useful?
Usefulness of Websites, Number Percentage

Brochures, or Videotapes
Not useful 6 4%
Somewhat useful 22 16%
Neutral 43 32%
Useful 57 42%
Very useful 8 6%
Total 136 100%

63) Please explain below why you find these resources to be usehl or not
usehl.
Reasons Resources
Are or Are Not Useful
I Number of Responses
Information is too general in
7
nature
Information is useful and
8
relevant
DOSM provides current security
4
information to the USA0
Information is a good refresher 4
Comments discuss topics
covered in the training
Have not reviewed the materials
Materials not always consulted
Useful once received training as
a U.S. Attorney
Have to request materials in
order to review them
Too much information provided
Total
N=30
Some respondents provided mor than one response.

APPENDIX IV: THE UNITED STATES MARSHALS SERVICE'S

RESPONSE
U.S. Dcpartmcnt of Justice

llnited Sates Marshals Service
MEMORANIXIM TO. M i ~ i ~ nDr.l 13ulledge

Assisant Inspector General
Associate Director
SUBJECT: d
Response Rzgarding the Revi of the Protection o f the Judiciary
and the llnifed States Atlomevs, Assilnment Numbcr A-2008-006
This is in rcsponsc to your corrcsp>ndcnccsccking cmmcnl on thc draft subjcrt rcport.

Attached please find tlie USMS rcsponse lo the zpplicable recommcndaticms.
Should yau haw any questions, please contact Ms. Isabel Howell, Audit Liaiso~,at
202-307-6444.
Attachment
c : Isribel Howcll
External Audit Liaisur~
United Sates Marshals Service
Richard P. Theis
Assistant Dircctnr. Audit [.isiron Group
Justice Management Division

USMS Response to Draft Recrrmmeodvriionv

Recommendatiao 1) The USMS clm~lyerpiaio to pmtectees the detrimeotal effect that
delays or the failure to report hns an the security provided
Response: Concur
The LSMS constantly interacts with protectees and emphasizes the need for ~mmcdialc
reporti~lgof threats. inappropriate communtcarions, and other security issues. The USMS dso
ernphasiza to its employees the irnportaruce of communication with, and support of, federal
prosecutors who receive inappropriate communications m&o+threats. Specifically, Protective
Intelligence Invcstigniors (Plls), District +firedInvcst~gators(DTls). and Judicial Security
Inspators (JSls) receive training that explains the mlc of (he District Office Security Manager
(DOSM) within the United States Attorneys Office (USAO), and f i e r emphasizes h e
significance of mintaining a close working relationship with the DOSM. Tbe USMS also
regularly provides training to the court family. to include USAO, on issues that ii~clu&off-site
sccurily, personal security, and llrnsily threat rtzporting. That training sessions utilize a nurnber
ofresources, including USMS Publication 94, O f 3 i t e Securityfor judge.^, United Stdc.s
A/torneys, and Their-Furnidks, USMS Publication 6, PersonaI Security Ilandbook, and a
Department of Justice, National Institute of Justice (DOJNIJ) publication, Protective
Intelligence and Threat Assessment inveseigations.
Through coordination with the Administrative Ofice of the United Shtes Courts
(AOUSC), the USMS also provides security presentations during Judicial Nomince Bricfings
and New Chief J udge Onentat~ons,During these presentations, the USMS s h = security
issues and provides copies of USMS Publications 6 and 94. When Judges update Form USM 50.
Judicial Personnel Profile, the USMS emphasizes tlhe importance of reporting threats and
inappinpriate communications. 'Ihc USMS has also begun emphasizing thc imporlmw of thrcat
reporting through prcscntations at magistrate judgcs mnferenws, judicial confcremca, and at
Judicial Security Committee meetings.
The USMS wiU continue to emphasize the need for immediate reporting of Uucats,
inappropriate cornn~unications,and security i s ~ u c twhcne~~r
s opportunity &S.CS.
Receonmemdation 2) The USMS update its saurfty handbook to emphasize both the
importance of immediately reporting threats to the USMS and the consequences of delays
or failures to report.
Kespanse: Concur
USMS Publication 94 is widely distributed both to the Judiciary and USAOs.

Publication 94 was last edited and updated h r distribution in December 2008. The USMS is
currently cbllecting informlion to make necessary edits for n future edition. Future revisions to
Publication 94 will include verbiage emphasizing the importance of immediately reporting
threats and inappmpriate communications to the USMS,as well as the consequences of delaying
or failing to report these issues.

Recommendation 3) EOUSA
Rmmmendation 4) The USMS review1trends ie reporting timeliness annually and provide

results of that analysis to the Administrative Olfice of thc U.S. Courts (AOUSC) and the
EOUSA for their use in judicial eonfcrences and attorney conferences.
Response: Concur
The USMS will review trends in reporting timeliness annually and provide results of that
analysis to AOUSC and EOUSA for use in judicial and attorney conferences.
Recommendation 5) The USMS implement controls to ensure that required risk

assessments are complctea3 and documented in the USMS tbreat database, including the
assignment of risk levels, s n d that the pn~tectivemeasures provided in response to each
threat also be documented in the USMS threat database.
Response: Concur
The USMS conducts protective invtstigations using the behavior b a d ttppmwh to

assess the threat and assign a risk level. Dl!ls/Plls En the field noti@ the UShlS Threat
Management Center (TMC')and receive support in the fonn of recommendations and analysis.
For low and potential risk cases, the case is designated as "standard." For high risk cases, the
DTIIdPIls assign the priority raling of "expedite" to the Form USM 550, Preliminary Threat
Report to idcntify the urgcncy for analysis. As the protective investigation progresses, thu facts
and behavior that are developed may change, and are documented on a Form USM-I 1,
investigative Report. Because the risk level changes during the investigation, either escalating or
deesdating, no fixed risk level is entered into the Justice Dctainee Information Syslcm (JDIS).
The District Judicial Security Inspector (JS1) is responsible for rccornmending and
coordinating thc protective response. The PSI and the DTI/PII then consult with district
management to identie the appropriate protective measures and the protective response.The SSI
frequently coordinates the protective response with USMS Headquarters.
As a rcsult ~pfthis process, risk lcveils are communicated between the DTIPII, the JSI,
and district management so that protective responses help ensure the safety of our protectees.
Unfortunately there is no way to quantify how many attacks have been prevented through this
process.
'he USMS i s revising the Guide to Pruftctive Investigations and Contemporary Threal
~M'anagemenr,a working guide and instruction manual for DTIs/YIIs that was last %vised in
2008. The USMS is also revising its Policy Directive 10, Judiciial and Court Security. This
policy directive was last revised in 2006. Following these revisions, both docunicnts &11
provide consistent ims~mctionand guidance concerning risk assessments and the assignment of
risk levels.

Recommendation (6) Establish internal contmis at USNS Headquarters to ensure that the
US.MS database contains full and accurate infomattion, incllading ensuring that district
offices regularly enter data in the "FBI notified" and 4bNotificationDaten Gelds.
Response: Concur
The USMS will strengthen existing internal controls at USMS Headquarters to cnsm
that the USMS database, the Justiix Detainee Information System (JDIS), contains full and
accmlt: informalion.
The USMS will adjust JDIS to reflati both notification of the FBI (dale, location, and
Special Agent) on a threat, as well as non-notification of the FBI when an i nappropiate
comunication has been reported but does not rise to the level of prosecutorial investigation.
The current database only allows the district to report when and where notification of the FBI
firas accomplished, and does not take into account the numerous cases that have no prosecutorial
merit, including nuisme calls, repetitive pro se filing, inappropriate amction, and c~thers,
The current internal canuols consist of personnel in the 'l+hrcatManagement h t c r

(TMC) reviewing all cases as they are entered into JDIS by the district. Once the change
discussed above is tmade in the JDIS database, the USMS will provide additional direction to the
field, as well as additional training for TMC personnel, to ensure each case is thoroughly
completed.
Per USMS Direc~ivc1 0.3, Protective Investigdions, all threats are inappropriate
communications, but not all inappropriate communications are threats. In this review, the OIG
used the term threat to encompass both threats and inappropriate communications, and did not
differentiate between the two. Per USMS Di~ective10.3, section E. l .c.,"Report lo Ofice of
Protective Intelligcncc (OPI) Duty hsk: In the event of a t h a t or inappropriate
communication, district managers will ~mmediatellyreport the situation to the OPI duty desk and
the local oficc of the FBI (if the inappropriate communication contaitns a threat). .."
7)Coordinate wilh the FBI to establish a tmemorandum of understanding

Re~o~mmendation
to formalize the coordimation of protective and criminal investigations..
Response: Concur
Thie USMS will consult with the FBI about establishing a memorandum of understanding
to formalize the coordination of protcctive and criminal investigations.
Recommendation 8)Develop a mechanism Lo trick the USMS district office responses to

emergency notifications fmm local law enforcement agencies regarding emergency
responses tu federal judges' residences.
Response :Concur

Office of t h e Inspector General
The USMS is developing a mechanism to track USMS district ofice responses to

emergency notifications h m local law enforcement agencies regding emergency responses to
fsderal judges' residlcnces.
Recommendntion 9) Ensure tbat all districts send tbe required notification letters lo I d
law enforcement agencies amd that the letters contain a working contact number that
connect.direcrtty to the local USMS duty officer.
The USMS requires that all districts send notification letters to local law enforcement
agencies, This is tracked within a USMS database that lists all federal judges, A new
memorandum will be issued that clearly explains that the notification letters contain a workiug
contact number that connects directly to the local USMS office. After business hou~s,the USMS
answering service, which is often an area law enforcement agency, will contact the USMS
Duty Officer. As USMS Duty (5fficers rotate frequently, it is impracticd and unnecessary to
havc rhe number connect "directly to the local USMS duly offtcer" as they may Ibc transferred,
on vacation, or on leave.
It is believed that this finding of non-working n u r n h was primarily driven by the:

issuamce of a "working contact number that connects directly lo the load USMS duty officer."
The problem w u l d continue if contact mumbas were issued in this fashion, and we canno%
suppori it.
The USMS agrees that it is critically important that the notification letter must list a
working contact number for the local USMS office, and havc conncdivity to thc local USMS
Duty Ofticer at all times.
Recommenditt.ionLO) EUUSA
Rccomm~ndrtionL1) The IISMS and EOUSA sign a MOU that defines their roles and
responsibilities in protecting U.S. Attarneys and AUSAs who recekc threats.
Hespunset Concur
The USMS will consult with EOUSA about establishing a memorandum of

understanding that defines their roles a d responsibilities in pmtccting United States Attorneys
and Assistant United States Attorneys who rcceivc threats.
Recommendation 12) EOUSA
Retoinmendation 13) EOUSA

Recemmendation 1 4) EOliSA

APPENDIX V: OIG'S ANALYSIS OF THE UNITED STATES

MARSHALS SERVICE'S RESPONSE
The Office of the Inspector General provided a draft of this report to

the United States Marshals Service (USMS) for its comment. The report
contained 14 recommendations: Recommendations 1, 2, 4, and 5
through 9 are directed to the USMS. Recommendations 3, 10, 12, 13,
and 14 are directed to the Executive Office for United States Attorneys
(EOUSA). Recommendation 11 is directed to both the USMS and EOUSA.
The USMS's response is included in Appendix IV to this report. The

OIG's analysis of the USMS's response and the actions necessary to close
the recommendations are discussed below.
Recommendation 1. The USMS clearly explain to protectees the

detrimental effect that delays or the failure to report has on the security
provided.
Status. Resolved - open.
Summary o f USMS Response. The USMS concurred with this

recommendation. According to the USMS, it already emphasizes to
protectees the need for immediate reporting of threats, inappropriate
communications, and other security issues. The USMS stated that it
regularly provides training to federal court officials, including United States
Attorney's Office (USAO) staff, on issues that include off-site security,
personal security, and timely threat reporting.
The USMS further stated in its response that through coordination

with the Administrative Office of the U.S. Courts (AOUSC),it provides
security presentations during Judicial Nominee Briefings and New Chief
Judge Orientations. According to the USMS, it stresses security issues
during these presentations and provides copies of USMS security
publications. The USMS stated that when judges update their judicial
personnel profiles, the USMS emphasizes the importance of reporting
threats and inappropriate communications. According to the USMS, it has
also begun emphasizing the importance of threat reporting through
presentations at magistrate judges' conferences, judicial conferences, and
Judicial Security Committee meetings. The USMS stated that it will
continue to emphasize the need for immediate reporting of threats,
inappropriate communications, and security issues whenever an
opportunity arises.

OIG Analysis. The actions taken by the USMS are partially

responsive to our recommendation. The USMS has described the training it
provides to the judges, but did not mention training for attorneys. Please
provide the OIG, by March 1, 20 10, with copies of the security presentations
from Judicial Nominee Briefings, New Chief Judge Orientations, magistrate
judges' conferences, judicial conferences, and a sample of the presentations
from the Judicial Security Committee meetings for fiscal year (FY)2009.
Also please provide a list of the training provided to the other federal court
officials, including the attorneys, and copies of the training presentations.
Recommendation 2. The USMS update its security handbook to

emphasize both the importance of immediately reporting threats to the
USMS and the consequences of delays or failures to report.

recommendation and stated that it is currently collecting information to edit
its security handbook, Onsite Securityfor Judges, United States Attorneys
and their Families, which was last updated in December 2008. The USMS
stated in its response that future revisions to this handbook will emphasize
the importance of immediately reporting threats and inappropriate
communications to the USMS, a s well as the consequences of delaying or
failing to report these incidents.
OIG Analysis. The actions proposed by the USMS are responsive to

our recommendation. Please provide the OIG with a n updated copy of the
security handbook or a status report of the edits to the handbook by March
1, 2010.
Recommendation 4. The USMS review trends in reporting timeliness

annually and provide the results of that analysis to the Administrative Office
of the U.S. Courts and EOUSA for their use in judicial conferences and
attorney training seminars.
Summary of USMS Response. The USMS concurred with this

recommendation. The USMS stated that it will review trends in reporting
timeliness annually and provide the results of that analysis to AOUSC and
EOUSA for use in judicial and attorney conferences.


our recommendation. Please provide the results of the analysis of the
timeliness of threat reporting and the methods used to obtain the results by
March 1,2010.
Recommendation 5. The USMS implement controls to ensure that

required risk assessments are completed and documented in the USMS
threat database, including the assignment of risk levels, and that the
protective measures provided in response to each threat also be documented
in the USMS threat database.
Summary of USMS response. The USMS concurred with this

recommendation. However, the USMS stated that the risk level may change
during the investigation and therefore no fked risk level is entered into the
threat database. According to the USMS, risk levels are communicated
between the District Threat Investigator, the Protective Intelligence
Investigator, the Judicial Security Inspector, and district management. The
USMS is revising the Guide to Protective Investigations and Contemporary
Threat Management, which is a working guide and instruction manual for
District Threat Investigators and Protective Intelligence Investigators that
was last revised in 2008. The USMS is also revising its Policy Directive 10,
Judicial and Court Security, which was last revised in 2006. The USMS
stated that following these revisions both documents will provide consistent
instruction and guidance concerning risk assessments and the assignment
of risk levels.
OIG Analysis. The intent of this recommendation was to ensure that

the risk level and the protective measures are documented in the USMS
threat database. If the risk level changes during the course of the threat
response process, this change can be updated in the database. Without
documentation of the risk level or the protective measures provided, the
only way USMS headquarters can venfy that the appropriate protective
measures have been taken is to contact the districts and rely on the
memory of district personnel.
In addition, in its response the USMS did not speclfy what instruction
and guidance concerning risk assessments and the assignment of risk levels
would be provided in the revision of the USMS directive and the instruction
manual. Please provide a copy of the revised directive and instruction
manual that shows that the risk level and protective measures provided are

to be documented in the USMS threat database or a status report on the

progress of the revisions by March 1, 20 10.
Recommendation 6. Establish internal controls at USMS headquarters to

ensure that the USMS threat database contains full and accurate
information, including ensuring that district offices regularly enter data in
the "FBI Notified" and notification date fields.

recommendation and stated that it will strengthen existing internal controls
at USMS headquarters to ensure that the threat database contains full and
accurate information. The USMS will adjust the threat database to reflect
both notification of the Federal Bureau of Investigation (FBI) of a threat,
including the date, location, and Special Agent notified, as well as non-
notification of the FBI when a n inappropriate communication has been
reported b u t does not rise to the level of a criminal investigation. Once the
database is modified, the USMS will provide additional direction to the field,
as well as additional training for headquarters personnel, to ensure each
case is thoroughly completed.

our recommendation. Please provide, by March 1, 2010, a screen capture of
the threat database showing the changes made to the database, showing
notification of the FBI of a threat, including the date, location, and Special
Agent notified, as well as non-notification of the FBI when a n inappropriate
communication has been reported b u t does not rise to the level of a
criminal investigation. In addition, please provide the internal controls to be
implemented to ensure that this data is recorded.
Recommendation 7. Coordinate with the FBI to establish a memorandum

of understanding to formalize the coordination of protective and criminal
investigations.
Summary of USMS Response. The USMS concurred with the

recommendation and stated that it will consult with the FBI about
establishing a memorandum of understanding to formalize the coordination
of protective and criminal investigations.

OIG Analysis. The action proposed by the USMS is responsive to our

recommendation. Please provide a copy of the memorandum of
understanding between the USMS and the FBI formalizing the coordination
of protective and criminal investigations, or a status report of the progress
in establishing the memorandum, by March 1, 20 10.
Recommendation 8. Develop a mechanism to track the USMS district

office responses to emergency notifications from local law enforcement
agencies regarding emergency responses to federal judges' residences.
Summary of USMS Response. The USMS concurred with our

recommendation and stated that it is developing a mechanism to track
USMS district office responses to emergency notifications from local law
enforcement agencies.
OIG Analysis. The action proposed by the USMS is responsive to our

recommendation. Please provide a description of the mechanism that the
USMS will use to track its district office responses to emergency
notifications from local law enforcement agencies, or a status report on the
creation of this mechanism, by March l , 2 0 10.
Recommendation 9. Ensure that all districts send the required

notification letters to local law enforcement agencies and that the letters
contain a working contact number that connects directly to the local USMS
duty officer.
Summary of USMS Response. The USMS concurred in part with

this recommendation. In its response, the USMS stated that it requires all
districts to send notification letters to local law enforcement agencies and
tracks in its database whether this notification is done. The USMS will
issue a new memorandum that clearly explains that the notification letters
are to contain a working contact number that connects directly to the local
USMS office. After business hours, the USMS answering service, which is
often a n area law enforcement agency, will receive the calls and contact the
USMS duty officer. The USMS stated that because USMS duty officers
rotate frequently, it is impractical and unnecessary to have the number
connect directly to them as they may be transferred, on vacation, or on
leave. The USMS also stated that it believed that the OIG finding of non-
working numbers was primarily driven by the past issuance of a working

contact number that connected directly to the local USMS duty officer.
According to the USMS, the problem would continue if contact numbers
were issued in this fashion, and it cannot support the part of the OIG
recommendation to require that the letters contain a working contact
number that connects directly to the local USMS duty officer. However, the
USMS agreed that it is critically important that the notification letter list a
working contact number for the local USMS office and have connectivity to
the local USMS duty officer at all times.
OIG Analysis. The intent of this recommendation is to ensure that

the USMS is notified promptly if a n emergency occurs at a judge's residence.
The USMS has provided a viable explanation for its partial non-concurrence
with this recommendation, and we accept the proposed alternative
procedure. Please provide the OIG, by March 1, 20 10, a copy of the new
memorandum that clearly explains that the notification letters must contain
a working contact number that connects directly to the local USMS office or
the USMS answering service after business hours. Please also provide the
OIG some copies of letters the districts send to the local law enforcement
agencies in their districts that contain a working number that connects
directly to the local USMS office or the USMS answering service after
business hours.
Recommendation 11. The USMS and EOUSA sign a memorandum of

understanding that defines their roles and responsibilities in protecting
U.S. Attorneys and AUSAs who receive threats.
Summary o f USMS Response. The USMS concurred with the

recommendation. The USMS will consult with EOUSA about establishing a
memorandum of understanding that defines their roles and responsibilities
in protecting United States Attorneys and AUSAs who receive threats.
OIG Analysis. The actions planned by the USMS are responsive to

our recommendation. Please provide the OIG with a copy of the
memorandum of understanding that describes the roles and responsibilities
of EOUSA, USAOs, USMS headquarters, and USMS district offices by
March 1, 2010.

APPENDIX VI: THE EXECUTIVE OFFICE FOR UNITED STATES

ATTORNEYS' RESPONSE
U.S. Npartment of Justice
Mnh J h r e Budding. Rum 2261

9jL P ~ I I K T ~ PAvrew
W ~ NW
II'~i~m~t#an.DC 2033?
DATE: December I 1,2009
and Inspections
FROM:
~xecuiiveOffice for United ~t&es 4ttomeys
SgBJEC'T: Reswnsz lo OIG's Reeort Entitled: Review ofthr Pralrcrion efrhz Jzidiciarp u ~ d
{he United .StzIes Altovrevs, A-2008-006
lXis memorandum is submittd by the Executive Office for LTnitd States AItomep
(EOUSA) ia icspo~tscto thc audit rcporl by the Office of 11q~caui Gciju-a](OIG) cnt~tlcd.
"Review ofthe Protection of fheJudiciarv a d the United Stare1 Attorneys, " Rcporl No. A-2008-
006.
T ~ safety
E md security of each and evzry emplovee within the United Slates Attorneys'
OMces (USAOs), and within EOUSA, are of pam'tlount imporlance to EOUSA end the USAOs.
EOUSA wclcomcs and apprecia~csthis rcvicw regarding thc proccdurcs uscci to hclp protect
United States Attorneys md Assistant United States Allomeys. We believe the recorrmendations
from (he reporl wii hake a posit:ve impact on the USAO community.
Asthe report makes clcar. the number of threa~to USAO pcmnnel have hen increasing
since 2006. EOUSA currendy has in place an effective anc relatively eficient system for
learning about, mdcing, and hehing to respond to threats t~ United Stat%Attorneys and
Assistmt lJnitcd States Attmeys. The system is hnsed upon a threat reporting struchlre thnt
starts with a reyrt of a threat to the District Office Security Manager (DOSIC1) in a USAO. TIaee
DOSM then reporu the thmt to EUUSA, the Uniled States Marsha's Service, and the ml,as
approjriate.
Uf course, thc UOSM cai only report threats of which he or she .s aware. As the wport
clear. nnl nil thre~tsme beingrppnrted to the I W S N s . in par( perhaps because the
lr~kea
ttaatened individual does not consicer the th-eat to be serious. As noted below in response to
mmmmendatlon No. 3, t U V S A wll continue to not@ all U S A 0 employees to promptly notlfy

the DOSM of any t hrcnt, regardless of whether ~ h cmploycc

c considers thc ahrco~to bc scrious.
Kcpns of non-scrious threats rve siill important in helping EOUSA coordinate with the USMS
and FBI, md in giving thssc egencbcs a conrcxt and pattcm to invcstigatc any f~lurcrhreals, Thr:
rcport of non-serious threat mny be critical in helping to prosecute a later. serious threat lo the
same or another cnnployee,
Thc OlG rcport also notcs that when rcpons of rhrcal arc madc. they do no1 always
inc tudc full md complete informatiron regarding the threat, and that tracking follow-up activities
undcrlakcn rn respansc to ~ p o n c dlhreats corlld be improved, Even prior to the OIO repofl
rcc(ommendation on this issue, EOUSA had undertaken to conven the current Urgent Report
system to a web-based repcaning system. We expect that a web-bascd systcrn will improve the
completeness and t lmelin&s of both initial rcparls of threat and follow-up reports.
The repon also suggests additional training for both DOSMs and EOUSA personnel.
EOUSA always welcomes and emurages additional training. We note our continued
d~ssgreement,however, with the charactcri-ation, an pages ii, v, and 27, rcgardingrhe level of
cxpcrtiw tteld by the cuncnt EOUSA security personnel. Unlike thc DOSM positions in the
US AOs, which are collateral duty posikions and may properly be fillcd by persons with varying
degrees of security experience, [he security personnel at EOUSA, including the Assistant
Director for Security Programs,have and propdy should have extensive security-related
backgrounds. We also strongly disagrte with the statement on page 28 that the Assistant
Director has limited time to devote to threat response and related mining. Thc safety tlnd
security of USA0 employees is always the Assistant Director's top priorily.'
'EOUSh's Assistant Director has 29 )van of federal securiry relaled experience with the
United States t h y , the Drug Enforcement Adrninistraiion, and other agencies. Both as a
~ounterinkiiigemTechnician (Special Agent) for the Department of the Amy and later as
Supervisory Physical Security Specialist with the DEA, he has undertaken residential security
evaluations of individuals following their rtcdpt of a t h a . His evaluations included an
assessment of the h e a t of criminal activity, such as burglaries, as well as more sophisticated
intrusions such as electronic eavesdropping. As a Physical Security Specialist with the DEA,he
developed designed, and implemented intrusion detection, access control, and surveillance
systems for both commercial end residemial locations. Me has served as lm instructor with the
US Army, DEA, the Department of Defense, and EOUSA an security-reltued topics, including
physical security and risk management. He has oitmded, each yenr for the pas1 10 ycats, thc
Anrerican Society for Industrial Security (MIS) m u d conference. which i s a 40 hour annual
b n i n g t v m t in rariotts security disciplines. In addition, we note liut the current Theat
hhmgc-1 Specialist at EOUSA is former Commander of the Technical Investtgations
Section of ahe Maryland State Police. in t b t role k supemsed 20 investiptots and annlpts.
Recommendations
'The ~camrnendationsbclow arc numbered according to thc numbcrs given thcm in thc
repon.
EiOUSA amend rhe US Anovm~s'~Manirulro cleuri'y inslntcr the A USAs rhar all ftlncirs
mmt be reportedprom& to the District OHce Senirtty ~ k u g e r Stich . insrrucrion
shtotrltt inciude an expkmulion of~hedetnmendal eflecf r h r clrluys or thefailure ro report
hrir on the sscwiry grovided
EOUSA o g m to implement this recommendation EOUSA has already, pnor to a formal
amendment of lke USAM, issued a manorandm to ail1 United Staces Attorneys r e m i n d i ~thcm
that it is incumbent upon each h i s t a n t Unital States Attomc?; d each USA0 e r n p l o ) ~to
notify the Dismt Offkct Secmily Manager in their dlsbitx of any a d all threats, e\vn t f they do
not believe that the threat is a d o u s ow. Tihe wemaMndum notes m u tk ~wrt~fthmt play3
a critical mle in helping the USMS a s s s the p e r n and context of f u t w h a a s EOUSA IS
providing 01G wiab a cop) of that m c m o d m under sqamte c o w In addrt~on,EOUSA wil
~ t i fO yCC ~ k !h n USAM ha& k e n fdrmdty armmded.
10 BOUU provide, rn consuIt&ion with the USndS n@crnenl rrruinJng ro EOUU and
slcaJassigned rlveot response.
W U S A agrees to implement *is tecammendatron. EOUSA will consuls with Lhe USMS
on the training cuPriculum.
11. The USMS and EOUSA sign o n c e m o r d i ~ m~Jundcrs~undilngtitor alc/Ines Orsir roles and
responsibiliries in protecting US.Aftore)ps and A USAS wkr) recehs threats
EOUSA agrees lo implement this recarnrncndafion. While EOUSA and the USM S have
a cmperativc and cffoctivc relationship. a formal rnemorialization of the rolcs nrad
ucsponsibilities belween EOUSA and the USMS when a thren~is received by a USAO cmployce
ns appropriate. EOUSA will consult with USMS to pwducc thc memorandum of undcrsmding.
12 EOUSA provide guidmce cmdpc~ricldicremindcm lo U~AOJ of fltlro r$qtrlremmr ro srrbmil

Urgenf Repurls immediately ~vlrcnu U,
S A rtomncy or A USA i,v rkrccrrenecl.
EOUSA agrees to implement this recommendation, As ~lotedabove. EOUSh has elmdy

issued a memorandum to all United States Altomeys remindiny all USAO employees to ITIO~IQ
their DOSM and ofice management when a threat is received.

13 EOUSA rcwlse tho Urgonf Report templuac so rhar ir lrocludes a requirenienr to provide ar
least thefbli~wingi ~ i ~ r n a ~ i ~ l t !
name and poslrion n/rargeted emp/oyco;
name and Incurlon olrha persorr muRJrtg rhu I ~ C B U iJho~vn,
~,
date the threai war mude, or date lire Jargel was mdde mare af the threat.
dale the?OIfirict Q@CB $#cwr/tymanager wra$ informed ~fthe rhreat;
dare rhe USMS und FBI were rtorged; und
dare the UUO srrhnrkred the Urgent Report m EOUSA
EOUSA agrees to implement this rr~omendatiom~

As indicated above and in tihe report.
EOUSA is dcvcloping a new, wbbascd Urgcnt Report systam that will facilitate more timely
and ciomplete threat reporting. EOUSA hopes to pilot the new wcbboscd system in the sixand
quarter of 2010. Also. as pad of the mmorandum issued to all Unitedl States Attorneys, ref-
to above, EOUSA has creazed and made available to all USAOs a ncw thrcot rr?pohingfform, to
be used in Ule existing Urgcnt Rcprt sptm. l'hc new form covers all the information lisrcd
above.
I4 EOUSA esrablish guidance ro require the Disrriu Ofice Sa~ufry bIan1pgors to sod
upbred informa~ionvia Urgenl Reprom at orgr1lur interval$ to inJorm & o m of lhe
status of USAO, USMS,a d FBAactFons uo protect the threatenedA USA
EOUSA agrecs lo irnplcrnetal this rccommendauoa lhc mmornndumjun'issued to all

United States Attorneys reminds & office of this requimmenl. MomVw,the new, w m h - W
system will facilitate g.iwer aad mare cjarnglele failow-urg ~prtiitgfiam uhe B m c t ~ .
APPENDIX VII: OIG'S ANALYSIS OF THE EXECUTIVE OFFICE FOR

UNITED STATES ATTORNEYS' RESPONSE
The Office of the Inspector General provided a draft of this report to

the Executive Office for United States Attorneys (EOUSA)for its comment.
The report contained 14 recommendations: Recommendations 1, 2 , 4 ,
and 5 through 9 are directed to the United States Marshals Service
(USMS). Recommendations 3, 10, 12, 13, and 14 are directed to EOUSA.
Recommendation 11 is directed to both the USMS and EOUSA.
EOUSA's response is included in Appendix VI to this report. In its

response, EOUSA concurred with the recommendations addressed to it,
and outlined steps to address the recommendations. It also made general
comments regarding statements in the report on the level of expertise of
EOUSA security personnel. We first address EOUSA's comments and
then discuss its response to the recommendations.
General Comments
Summary o f EOUSA Response. EOUSA in its response disagreed

with the OIG's characterization of the expertise of current EOUSA security
personnel in judicial security operations. EOUSA stated that unlike the
District Office Security Manager positions in the United States Attorney
Offices (USAO),which are collateral duty positions and may be filled by
persons with varying degrees of security experience, the security personnel
at EOUSA, including the Assistant Director for Security Programs, have
extensive security-related backgrounds. EOUSA also stated in response to
the OIG's statement on page 28 of the report that the safety and security of
USAO employees is always the Assistant Director's top priority.
OIG Analysis. OIG agrees that the Assistant Director of the Security
Programs Staff has a n extensive background in physical and electronic and
security operations appropriate to fulfill his role overseeing many of the
security related matters facing USAOs. However, Deputy Marshals involved
in ensuring the safety of protectees generally have not only extensive law
enforcement training, but also specific training in protecting members of the
judiciary, including determining and implementing threat response
procedures. Moreover, our concern was primarily with the experience and
training of the USAO staff in the 93 judicial districts, since they are the on-
site personnel responding directly when United States Attorneys and
Assistant United States Attorneys (AUSA) are threatened.

Recommendation 3. EOUSA amend the U.S. Attorneys' Manual to clearly

instruct the AUSAs that all threats must be reported promptly to the
District Office Security Manager. Such instruction should include an
explanation of the detrimental effect that delays or the failure to report has
on the security provided.
Summary of EOUSA Response. EOUSA concurred with this

recommendation and stated that it will not@ the OIG when the U.S.
Attorneys' Manual has been formally amended. In the interim, EOUSA
issued a memorandum to all U.S. Attorneys reminding them that it is
incumbent upon each USAO employee to not@ the District Office Security
Manager of all threats. The memorandum notes that threat reports play a
critical role in helping the USMS assess the pattern and context of future
threats. EOUSA provided the OIG with a copy of that memorandum under
separate cover.
OIG Analysis. The actions planned by EOUSA are responsive to our

recommendation. Please provide the OIG with a copy of the final, approved
U.S. Attorneys' Manual amendments or a status report regarding the policy
amendments by March 1, 20 10.
Recommendation 10. EOUSA provide, in consultation with the USMS,

sufficient training to EOUSA and USAO staff assigned threat response
duties.
Summary of EOUSA Response. EOUSA concurred with this

recommendation and plans to consult with the USMS on the training
curriculum.
OIG Analysis. Although EOUSA concurred with the recommendation,

it did not provide any details regarding its training plans. Please provide the
OIG w i t h a timeline for implementation of revised training, information on
who will be trained and how the training will be delivered, and a copy of the
proposed training curriculum or a status report regarding the plans by
March 1, 2010.
Recommendation 11. The USMS and EOUSA sign a memorandum of

understanding that defines their roles and responsibilities in protecting
U.S. Attorneys and AUSAs who receive threats.

Summary of EOUSA Response. EOUSA concurred with the

recommendation. EOUSA will consult with the USMS to produce a
memorandum of understanding that defines the roles and responsibilities of
EOUSA and the USMS when a threat is received by a USAO employee.
OIG Analysis. The actions planned by EOUSA are responsive to our

recommendation. Please provide the OIG with a copy of the memorandum
of understanding that describes the roles and responsibilities of EOUSA,
USAOs, USMS headquarters, and USMS district offices by March 1, 2010.
Recommendation 12. EOUSA provide guidance and periodic reminders to

USAOs of the requirement to submit Urgent Reports immediately when a
U.S. Attorney or AUSA is threatened.
Summary of EOUSA Response. EOUSA concurs with this

recommendation. EOUSA issued a memorandum to all U.S. Attorneys, First
Assistant U.S. Attorneys, District Office Security Managers, and Criminal
Chiefs to remind all USAO employees to not@ their District Office Security
Manager and office management when a threat is received.
OIG Analysis. EOUSA issued a memorandum to all USAOs that is

responsive to the intent of this recommendation. The memorandum
reiterates the requirement in the U.S. Attorneys' Manual to immediately
report to EOUSA via Urgent Report any threat to USAO personnel.
However, we believe that periodic reminders by EOUSA of the reporting
requirement should still be made to the USAOs. Please provide the OIG
with a description, by March 1, 2010, of how often EOUSA intends to send
reminders to all U.S. Attorneys, First Assistant U.S. Attorneys, District
Office Security Managers, and Criminal Chiefs to remind all USAO
employees to notlfy their District Office Security Manager and office
management when a threat is received. Also, please provide the OIG with a
copy of the next reminder when issued.
Recommendation 13. EOUSA revise the Urgent Report template so that it

includes a requirement to provide at least the following information:

name and location of the person making the threat, if known;

date the threat was made, or date the target was made aware of the
threat;
date the District Office Security Manager was informed of the threat;
Summary o f EOUSA Response. EOUSA concurred with this

recommendation and stated that it has made available to all USAOs a new
threat reporting form covering the information in our recommendation.
EOUSA is also developing a web-based Urgent Report system intended to
facilitate timely and complete threat reporting that it hopes to pilot in the
second quarter of 20 10.
OIG Analysis. EOUSA concurred with the recommendation and

provided a new threat reporting form to the USAOs that included the
information in the recommendation. Please provide to u s by March 1, 20 10,
the system requirements documents for the web-based Urgent Report
system (specifically the section that includes the above elements as
functional requirements for completion of the Urgent Report form), and a
copy of the instructions to the USAOs for reporting threats using the
system.
Recommendation 14. EOUSA establish guidance to require the District

Office Security Managers to send updated information via Urgent Reports at
regular intervals to inform EOUSA of the status of USAO, USMS, and FBI
actions to protect the threatened AUSA.
Summary o f EOUSA Response. EOUSA concurred with this

recommendation. EOUSA has issued a memorandum to all U.S. Attorneys
to remind each office of the requirement to send updated information to
EOUSA. EOUSA is also developing a web-based Urgent Report system
intended to facilitate greater and more complete follow-up reporting from the
districts.
OIG Analysis. Although EOUSA concurred with the

recommendation, it has not established guidance that requires District
Office Security Managers to send updated information via Urgent Reports to
inform EOUSA of the status of actions taken to protect threatened USAO
employees. The memorandum does not establish a requirement to send this

updated information and is not equivalent to amending current policy.

Please provide us with a copy of the amended guidance that includes the
requirement to provide updated information to EOUSA by March 1, 2010.

Exhibit 24
United States Court of Appeals for the Ninth Circuit http://www.ca9.uscourts.gov/
Electronic Filing - ECF

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Site Map | Intranet (Judiciary Only) | Seminar Disclosures | Judicial Misconduct | Suggestions
1 of 1 1/5/2010 8:38 PM
Post Office Box 193939

San Francisco, CA 94119-3939
OPPORTUNITY FOR COMMENT - RULES GOVERNING JUDICIAL

MISCONDUCT COMPLAINTS
The provisions noted below are potential additions to the existing procedures
governing judicial misconduct complaints. Public comment on the supplementary
language is invited. Responses are due on or before January 22, 2010 and should
be directed to Molly_Dwyer@ca9.uscourts.gov.
Proposed Local Rule 6.1(b): Page Limit. The statement of facts must not
be longer than five pages (five sides), or 1,200 words, whichever is less. The
complaint must be submitted on standard 8.5x11 size paper. A complainant may
petition the Chief Judge for permission to submit additional pages if extraordinary
circumstances exist.
Proposed Local Rule 6.1(a): Name of Subject Judge. Complainant must

use the form appended to these rules. If complainant fails to identify the subject
judge(s) on the first page of the form, the complaint will be returned to
complainant with a request to do so.
Proposed Local Rule 6.1(e): Number of Copies. If the complaint is about

a single judge, the complainant must file five copies of (1) the complaint form, (2)
the statement of facts, and (3) any documents submitted. If the complaint is about
more than one judge, one extra copy must be filed for each additional judge.
Proposed Local Rule 18.1(b): Number of Copies. The complainant must

file an original and fifteen copies of the petition for review, along with ten copies
of the original complaint.
January 8, 2010 Respectfully Submitted,
Andrew P. Pugno s/Michael W. Kirk

LAW OFFICES OF ANDREW P. Charles J. Cooper
PUGNO Michael W. Kirk
101 Parkshore Dr., Ste. 100 Jesse Panuccio
Folsom, CA 95630 COOPER & KIRK PLLC
(916) 608-3065 1523 New Hampshire Avenue, NW
202-220-9600
Brian W. Raum
James A. Campbell
15100 N. 90th St.
Scottsdale, AZ 85260
(480) 444-0020
Counsel for Petitioners

DECLARATION OF SERVICE
following counsel a true and correct copy of the foregoing via FedEx Express:
Kenneth C. Mennemeier Gordon Burns

Andrew W. Stroud Tamar Pachter
MENNEMEIER, GLASSMAN & OFFICE OF THE ATTORNEY
STROUD LLP GENERAL
980 9th Street, Suite 1700 1300 I Street, Suite 125
Sacramento, CA 95814-2736 P.O Box. 944255
kcm@mgslaw.com Sacramento, CA 94244-2550
gosling@mgslaw.com Gordon.Burns@doj.ca.gov
aknight@mgslaw.com Tamar.Pachter@doj.ca.gov
stroud@mgslaw.com
lbailey@mgslaw.com Attorneys for Defendant Attorney
General
Attorneys for the Administration Defen- Edmund G. Brown, Jr.
dants
Dennis J. Herrera Elizabeth M. Cortez

Therese M. Stewart Judy W. Whitehurts
OFFICE OF THE CITY ATTORNEY THE OFFICE OF CITY COUNSEL
City Hall, Room 234 648 Kenneth Hahn Hall of Admini-
One Dr. Carlon B. Goodlett Place stration
San Francisco, California 94102-4682 500 West Temple Street
therese.stewart@sfgov.org Los Angeles, CA 90012-2713
erin.bernstein@sfgov.org jwhitehurst@counsel.lacounty.gov
vince.chhabria@sfgov.org
danny.chou@sfgov.org Attorneys for Defendant Dean C. Lo-
ronald.flynn@sfgov.org gan
mollie.lee@sfgov.org Registrar-Recorder/County Clerk,
Christine.van.aken@sfgov.org County
catheryn.daly@sfgov.org of Los Angeles
Attorneys for Plaintiff-Intervenor City

and County of San Francisco
Richard E Winnie Ted Olson

Brian E. Washington Matthew McGill
Claude F. Kolm Amir Tayrani
Manuel F. Martinez GIBSON, DUNN & CRUTCHER
THE OFFICE OF CITY COUNSEL LLP
1221 Oak Street, Suite 450 1050 Connecticut Avenue, N.W.
Oakland, California 94612 Washington, DC 20036-5306
Brian.washington@acgov.org T: (202) 955-8500
Claude.kolm@acgov.org F: (202) 467-0539
Lindsey.stern@acgov.org TOlson@gibsondunn.com
Judith.martinez@acgov.org MMcGill@gibsondunn.com
ATayrani@gibsondunn.com
Attorneys for Defendant Patrick
O’Connell Theodore Boustrous, Jr.
Clerk Recorder of the County of Alemeda Christopher Dusseault
Theane Kapur
LLP
Los Angeles, CA 90072-1512
T: (213) 229-7000
F: (213) 229-7520
TBoutrous@gibsondunn.com
CDusseault@gibsondunn.com
TKapur@gibsondunn.com
SMalzahn@gibsondunn.com
Ethan Dettmer
Enrique Monagas
LLP
T: (415) 393-8200
F: (415) 393-8306
EDettmer@gibsondunn.com
SPiepmeier@gibsondunn.com
EMonagas@gibsondunn.com
RJustice@gibsondunn.com
MJanky@gibsondunn.com
Theodore Uno
BOIES, SCHILLER & FLEXNER
LLP
Oakland, CA 94612
T: (510) 874-1000
F: (510) 874-1460
jgoldman@bsfllp.com
tuno@bsfllp.com
brichardson@bsfllp.com
rbettan@bsfllp.com
jischiller@bsfllp.com
Attorneys for Plaintiff Kristin M.

Perry
following counsel a true and correct copy of the foregoing via United States
Postal Service express mail overnight delivery:
Terry L. Thompson
LAW OFFICE OF TERRY L. THOMPSON
P.O. Box 1346
Alamo, CA 94507
T: (925) 855-1507
F: (925) 820-6035
tl_thompson@earthlink.net
Attorney for Defendant-Intervenor Hak-ShingWilliam Tam

s/Jesse Panuccio
Jesse Panuccio
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NO. 10-____
IN RE: DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F. GUTIERREZ,
MARK A. JANNSON, AND PROTECT-MARRIAGE.COM—YES ON 8, A
PROJECT OF CALIFORNIA RENEWAL
DENNIS HOLLINGSWORTH, et al., Petitioners
v.
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
CALIFORIA, Respondent,
KRISTEN M. PERRY, SANDRA B. STIER, PAUL K. KATAMI, JEFFREY J.
ZARRILLO, CITY AND COUNTY OF SAN FRANCISCO, NON-PARTY THE
MEDIA COALITION, ARNOLD SCHWARZENEGGER, in his official capacity as
Governor of California, EDMUND G. BROWN, JR., in his official capacity as Attorney
General of California, MARK B. HORTON, in his official capacity as Director of the
California Department of Public Health and State Registrar of Vital Statistics,
LINETTE SCOTT, in her official capacity as Deputy Director of Health Information &
Strategic Planning for the California Department of Public Health, PATRICK
O’CONNELL, in his official capacity as Clerk-Recorder for the County of Alameda,
DEAN C. LOGAN, in his official capacity as Registrar-Recorder/County Clerk for the
County of Los Angeles, and HAK-SHING WILLIAM TAM, Real Parties in Interest.
United States District Court for the Northern District of California

Civil Case No. 09-CV-2292 VRW (Honorable Vaughn R. Walker)
APPENDIX TO THE EMERGENCY PETITION UNDER CIRCUIT

RULE 27-3 FOR A WRIT OF MANDAMUS OR PROHIBITION
TO THE NORTHERN DISTRICT OF CALIFORNIA
Andrew P. Pugno Charles J. Cooper

LAW OFFICES OF ANDREW P. PUGNO Michael W. Kirk
101 Parkshore Drive, Suite 100 Jesse Panuccio
Folsom, California 95630 COOPER AND KIRK, PLLC
(916) 608-3065; (916) 608-3066 Fax 1523 New Hampshire Ave., N.W.
Brian W. Raum (202) 220-9600; (202) 220-9601 Fax
James A. Campbell
Attorneys for Petitioners
(480) 444-0020; (480) 444-0028 Fax
Index of Exhibits
Description Exhibit
Notice to Parties (1/7/2010) 1
Transcript of Hearing (1/6/2010) 2
Statement of Hon. Diarmuid O’Scannlain for the Judicial Conference

of the United States 3
Letter from James C. Duff (July 23, 2009) 4
Resolution of the Ninth Circuit Judicial Conference (July 2007) 5
Northern District of California’s Local Rule 77-3 6
N.D. Cal. Gen. Order No. 58 7
Letter from Cathy A. Catterson (May 7, 2009) 8
Transcript of Hearing (Sept. 25, 2009) 9
Letter from Plaintiffs to the Honorable Vaughn R. Walker (October

5, 2009) (Doc. 218) 10
Letter from Defendant-Intervenors to the Honorable Vaughn R.

Walker (October 5, 2009) (Doc. 218) 11
Transcript of Hearing (December 16, 2009) 12
USCA 9th Circuit News Release (December 17, 2009) 13
NDCA Public Notice (Screenshot of December 29, 2009) 14

Walker (December 28, 2009) (Doc. 324) 15

Walker (December 29, 2009) (Doc. 326) 16
NDCA Announcement of Proposed Revision to L.R. 77-3 17

Walker (January 4, 2010) (Doc. 336) 18
NDCA Notice of Adopted Amendment to L.R. 77-3 (Screenshot of

January 4, 2010) 19
Statement of Hon. John R. Tunheim for the Judicial Conference of

the United States 20
Statement of Hon. Edward R. Becker for the Judicial Conference of

the United States 21
Statement of John C. Richter for the Dep’t of Justice 22
U.S. Dep’t of Justice, Office of the Inspector General, Review of the

Protection of the Judiciary and the United States Attorneys 23
United States Court of Appeals for the Ninth Circuit, Opportunity for
Comment – Rules Governing Judicial Misconduct Complaints (Dec.
21, 2009) 24
Exhibit 1
Case:
10-70063 01/08/2010 Document358
Page1 of 1-9
2
1
2 IN THE UNITED STATES DISTRICT COURT
3 FOR THE NORTHERN DISTRICT OF CALIFORNIA
4
5 KRISTIN M PERRY, SANDRA B STIER,
PAUL T KATAMI and JEFFREY J
6 ZARRILLO,
7 Plaintiffs,
8 CITY AND COUNTY OF SAN FRANCISCO,
9 Plaintiff-Intervenor,
10 v
For the Northern District of California
11 ARNOLD SCHWARZENEGGER, in his

United States District Court
official capacity as governor of

12 California; EDMUND G BROWN JR, in
his official capacity as attorney No C 09-2292 VRW
13 general of California; MARK B
HORTON, in his official capacity NOTICE TO PARTIES
14 as director of the California
Department of Public Health and
15 state registrar of vital
statistics; LINETTE SCOTT, in her
16 official capacity as deputy
director of health information &
17 strategic planning for the
California Department of Public
18 Health; PATRICK O’CONNELL, in his
official capacity as clerk-
19 recorder of the County of
Alameda; and DEAN C LOGAN, in his
20 official capacity as registrar-
recorder/county clerk for the
21 County of Los Angeles,
22 Defendants,
23 DENNIS HOLLINGSWORTH, GAIL J

KNIGHT, MARTIN F GUTIERREZ,
24 HAKSHING WILLIAM TAM, MARK A
JANSSON and PROTECTMARRIAGE.COM –
25 YES ON 8, A PROJECT OF
CALIOFORNIA RENEWAL, as official
26 proponents of Proposition 8,
27 Defendant-Intervenors.
/
28
Case:
10-70063 01/08/2010 Document358
Page2 of 1-9
2
1 After hearing the parties and counsel for media regarding

2 the suggestion that the above action be included in the Ninth
3 Circuit pilot project on audio-video recording and transmission
4 announced on December 17, 2009, the undersigned on January 6, 2010
5 formally requested the Chief Judge of the Ninth Circuit to approve
6 inclusion of the trial in the pilot project on the terms and
7 conditions discussed at the January 6, 2010 hearing and subject to
8 resolution of certain technical issues.
9
10
For the Northern District of California
11
United States District Court
12 VAUGHN R WALKER
United States District Chief Judge
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
Exhibit 2
Pages 1 - 94
UNITED STATES DISTRICT COURT
BEFORE THE HONORABLE VAUGHN R. WALKER
KRISTIN M. PERRY, )
SANDRA B. STIER, PAUL T. KATAMI, )
and JEFFREY J. ZARRILLO, )
)
Plaintiffs, )
)
VS. ) NO. C 09-2292 VRW
)
ARNOLD SCHWARZENEGGER, in his )
official capacity as Governor of )
California; EDMUND G. BROWN, JR., )
in his official capacity as )
Attorney General of California; )
MARK B. HORTON, in his official )
capacity as Director of the )
Health and State Registrar of )
Vital Statistics; LINETTE SCOTT, )
in her official capacity as Deputy )
Director of Health Information & )
Strategic Planning for the )
Health; PATRICK O'CONNELL, in his )
Clerk-Recorder for the County of )
Alameda; and DEAN C. LOGAN, in his )
Registrar-Recorder/County Clerk )
for the County of Los Angeles, )
) San Francisco, California
Defendants. ) Wednesday
___________________________________) January 6, 2010
TRANSCRIPT OF PROCEEDINGS
Reported By: Katherine Powell Sullivan, CRR, CSR 5812

Official Reporter - U.S. District Court
APPEARANCES:
For Plaintiffs: GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, N.W.
Washington, D.C. 20036-5306
BY: THEODORE B. OLSON, ESQUIRE
MATTHEW D. MCGILL, ESQUIRE

Los Angeles, California 90071-3197
BY: THEODORE J. BOUTROUS, JR., ESQUIRE
CHRISTOPHER D. DUSSEAULT, ESQUIRE

BY: ETHAN D. DETTMER, JR., ESQUIRE

BY: JEREMY MICHAEL GOLDMAN, ESQUIRE
For Plaintiff- CITY AND COUNTY OF SAN FRANCISCO

Intervenor: OFFICE OF THE CITY ATTORNEY
One Drive Carlton B. Goodlett Place
BY: THERESE STEWART, DEPUTY CITY ATTORNEY
ERIN BERNSTEIN, DEPUTY CITY ATTORNEY
For Defendant MENNEMEIER, GLASSMAN & STROUD

Gov. Schwarzenegger: 980 9th Street, Suite 1700
Sacramento, California 95814-2736
BY: ANDREW WALTER STROUD, ESQUIRE
For Defendant STATE ATTORNEY GENERAL'S OFFICE

Edmund G. Brown Jr.: 455 Golden Gate Avenue, Suite 11000
BY: TAMAR PACHTER, DEPUTY ATTORNEY GENERAL
(Appearances continued on next page)
APPEARANCES (CONTINUED):
For Defendant- COOPER & KIRK

Intervenors: 1523 New Hampshire Avenue, N.W.
BY: MICHAEL W. KIRK, ESQUIRE
JESSE PANUCCIO, ESQUIRE
For Proposed ADVOCATES FOR FAITH AND FREEDOM

Intervenor Imperial 24910 Las Brisas Road, Suite 110
County, et al.: Murrieta, California 92562
BY: ROBERT H. TYLER, ESQUIRE
JENNIFER L. MONK, ESQUIRE
For Media Coalition: DAVIS WRIGHT TREMAINE LLP

505 Montgomery Street, Suite 800
BY: THOMAS R. BURKE, ESQUIRE
For Doug Swardstrom: HICKS THOMAS LLP

8001 Folsom Boulevard, Suite 10
Sacramento, California 95826
BY: ERIC GRANT, ESQUIRE
1 P R O C E E D I N G S
2 JANUARY 6, 2010 10:05 A.M.
4 THE CLERK: Calling civil action C 09-2292, Kristin

5 M. Perry, et al. versus Arnold Schwarzenegger, et al.
6 MR. RICO: Good morning, everyone. My name is Buz
7 Rico. I'm the IT manager for the District Court here.
8 Judge Walker asked me to give a brief presentation to
9 you all, and allow for some questions and answers afterwards,
10 discussing the cameras that you see here in the courtroom.
11 I'm going to give you a demonstration of a test video
12 that we made the other day, to show you the concept that we
13 came up with, and give you an impression on how we're going to
14 allow for public access, how we would like to allow for public
15 access.
16 You will be able to see the presentation on the video
17 monitors there as well as hear it through the sound system. I
18 will be happy to repeat the little one-minute video that we
19 have, if you like.
20 To give you a brief overview to begin with, we have
21 three cameras, stationary cameras, that are dedicated viewing:
22 The counsel, the judge, and the witness.
23 There are no other room cameras. And the cameras do
24 not move, zoom, pan, or anything like that. They are merged
25 into a single video image that I'll bring up on the screen

1 right now. Looks like that.
2 (Image displayed)
3 There's a clock running in the upper right-hand
4 corner, notation at the actual case name and number, the court
5 logo. And then you see an actual video from that.
6 I'm going to run the video right now so you can see
7 what happens. We're able to moot the sound that's recorded and
8 is also streamed over to the ceremonial courtroom on the 19th
9 floor which we will be using for overflow purposes and down to
10 the media center that's on the first floor.
11 In addition to being able to moot the sound, we can
12 black out any of the cameras upon request of the judge. So if
13 we have a witness who does not wish to appear on camera, the
14 judge can specifically request that to the IT department, where
15 I will be sitting at my desk ready to moot any camera he
16 wishes.
17 So here runs the demo.
18 (Demonstration video played in open court.)
19 MR. RICO: You can see he's talking now.
20 (Demonstration video played in open court.)
21 MR. RICO: So, as you can see, we can moot any aspect
22 of this. We can continue to hear the audio if the camera is
23 turned off, if you wish. The only thing we can't do is, we
24 can't turn off individual microphones. There also would be no
25 point to doing that because the other microphones in the room

1 would pick up anybody else talking.
2 Also, there's really no point in turning off the
3 audio for the other rooms or the video for the other rooms,
4 necessarily, unless the courtroom is also cleared out, because
5 there will be public here from the courtroom.
6 Nevertheless, the intent right now is to record the
7 video of the hearing and then make that available to the public
8 at a slightly later time.
9 So to enact that, we've started up a YouTube channel,
10 where we are able to upload -- we already have uploaded the
11 same video you just saw.
12 We are really proud of that video, as you can tell.
13 (Laughter)
14 MR. RICO: So the idea is basically that.
15 We'll be recording the session. There's some
16 technical issues we have to get through to be able to get the
17 video ready for YouTube, uploaded to YouTube. And then YouTube
18 has a processing time, so odds are videos won't be available
19 until many hours, or possibly the next morning, after the
20 hearing or the session is over.
21 We're going to try to make that as quickly as
22 possible. The judge specifically did not want it broadcast
23 live. He did want the delay involved in it.
24 And, again, anything that is mooted, audio or video,
25 is then the same way recorded that way and sent to the overflow
1 chambers and to the -- the overflow courtroom, excuse me, and
2 to the media center.
3 So with that, does anybody have any questions? In
4 the back.
5 UNIDENTIFIED SPEAKER: There is a TV truck that we
6 were told is plugging into this. Is there a live feed out for
7 us to record, as well?
8 MR. RICO: The question was: There's a TV truck with
9 a live feed coming out.
10 The television stations actually do have a fiberoptic
11 link that goes to the media center. The purpose of that link
12 is so that they can connect to their own cameras down in the
13 media center for the purposes of recording interviews. It's
14 not for the purpose of patching into the system. They do not
15 have any type of patch, nor are they allowed to record what
16 they actually see on the screen, which I think is probably
17 below the quality they wish anyway. But, yeah, the purposes of
18 that patch is not for feeding out this link directly.
19 Any other questions?
20 Here in the front.
21 MR. BURKE: I have a number of questions for the
22 Media Coalition, but I assume the judge is also going to answer
23 questions.
24 MR. RICO: Yes. I'm just here for the technical
25 aspect of this.
1 There's another question over here.
2 UNIDENTIFIED SPEAKER: Did I take it from what you
3 said, the judge is determined -- is not inclined to telecast
4 any of the trial live?
5 MR. RICO: I'll leave that answer to the judge. But,
6 at this point, my direction is to record and then make
7 available later; not to make it available outside of this
8 building live.
9 We are looking into the possibility of streaming live
10 to other courthouses in the Ninth Circuit, possibly outside the
11 Ninth Circuit, which may allow the public to come to those
12 courts to see the video live, but not to allow the streaming
13 live to the media or to the public or Internet directly.
14 Yes, here in front.
15 UNIDENTIFIED SPEAKER: Will YouTube carry the entire
16 proceeding?
17 MR. RICO: The question is: Will YouTube carry the
18 entire proceeding?
19 Their only limitation, per our contract with them, is
20 a file-size limit. We don't have a limitation on the number of
21 files we can do. Our intent is to upload the entire thing.
22 There is some technical issues on that because your average
23 movie may be two hours long and we've got eight hours a day of
24 this stuff. So we are going to try to get as much of it up
25 there as we can, if not all.

1 Yes.
2 UNIDENTIFIED SPEAKER: What's the YouTube address?
3 MR. RICO: The YouTube address right now is
4 youtube.com/usdccand. So it's like U.S. District Court
5 California Northern District.
6 UNIDENTIFIED SPEAKER: Are you going to be recording
7 it and streaming it out in HD quality, at the very least? Or
8 do you know what quality you are sending it out?
9 MR. RICO: We are going to try to record this at the
10 highest possible quality. The higher the quality, the longer
11 it takes to process everything. So if speed is of the issues,
12 we might drop down the quality so we can upload it to YouTube
13 faster. Right now, we are still working out the kinks. We are
14 going to try to do the best we can.
15 Another question in front?
16 MR. BURKE: Are those the cameras that you plan to
17 use?
18 MR. RICO: Yeah. The equipment that you see in the
19 courtroom right now are the cameras we are using. They are
20 standard cameras. They are running all in HD.
21 And the video feed you see on the screen here in this
22 movie is also HD. The images that are seen in the ceremonial
23 courtroom and media center are also all HD.
24 UNIDENTIFIED SPEAKER: Do you happen to know if
25 YouTube has had this arrangement in other courts in the past?

1 MR. RICO: The question was: Does YouTube have this
2 arrangement? There are other arrangements with other courts.
3 There's a federal contract between YouTube and the federal
4 government and individual entities within the government. The
5 most noted one is, if you go to youtube.com/whitehouse, all of
6 the White House videos are there. They look really good. We
7 are trying to match them.
8 Yes.
9 UNIDENTIFIED SPEAKER: What do we have to worry about
10 as far as licensing is concerned? Do we have to ask anyone for
11 permission to rebroadcast, or is this public domain for the
12 government?
13 MR. RICO: The question was asked: Do we have any
14 issues about licensing?
15 I'm not an expert in that, but, as far as I know,
16 this is a matter of public record.
17 UNIDENTIFIED SPEAKER: Can we quote you as saying
18 that?
19 (Laughter)
20 MR. RICO: I guess whatever I say is a matter of
21 public record. I'm just the IT guy here.
22 (Laughter)
23 MR. RICO: I believe the judge can overrule that or
24 accept that.
25 This is also an experiment, as was noted by the

1 announcement in the Ninth Circuit. We are trying our best at
2 this.
3 This is the first time this has been done, and we
4 didn't have a lot of time to prepare. So the whole thing might
5 be cancelled or put in some kind of degraded state in some kind
6 of way, if we can't manage to keep up this full workload.
7 So, with that, the judge asked me to take about 15
8 minutes, and that's what I've taken. So thank you very much.
9 (Pause in proceedings.)
10 THE CLERK: Recalling civil action C 09-2292
11 Kristin M. Perry, et al. versus Arnold Schwarzenegger, et al.
12 Counsel, please step forward and state your
13 appearances along with whom you represent, for the record.
14 MR. OLSON: Good morning, Your Honor.
15 Theodore B. Olson, Gibson, Dunn & Crutcher, on behalf
16 of the plaintiffs.
17 THE COURT: Good morning, Mr. Olson.
18 MR. BOUTROUS: Good morning, Your Honor.
19 Theodore J. Boutrous, Jr., also for the plaintiffs,
20 also from Gibson, Dunn & Crutcher.
21 THE COURT: Mr. Boutrous, good morning.
22 MR. DETTMER: Good morning, Your Honor.
23 Ethan Dettmer, from Gibson, Dunn, on behalf of the
24 plaintiffs.
25 THE COURT: Mr. Dettmer.

1 couple of other issues.
2 One was the depositions and the scope -- some of the
3 deposition objections. I think the Court had mentioned them in
4 the order. We would like permission to reopen several of the
5 depositions, in light of the Ninth Circuit's amended opinion
6 which puts many documents back on the table, and the objections
7 which we think were baseless during the depositions that have
8 occurred so far.
9 THE COURT: Why don't we take that up at the time we
10 address the Swardstrom deposition.
11 MR. BOUTROUS: That makes sense, Your Honor.
12 We have a couple of housekeeping matters in
13 connection with the trial that I thought we could maybe raise
14 at the very end of the hearing.
15 THE COURT: That will be fine.
16 MR. BOUTROUS: Thank you, Your Honor.
17 THE COURT: There always are those housekeeping
18 details.
19 Any others? Any other items that we need to discuss
20 this morning, besides those that I mentioned?
21 Well, the first issue is, of course, the issue of
22 recording these proceedings. And you've had a demonstration by
23 the Court's IT manager, Mr. Rico, of what he is prepared to do
24 by way of recording these proceedings.
25 As you know, the Ninth Circuit Court of Appeals,

1 Ninth Circuit Council, has approved an experimental pilot
2 program to record District Court civil nonjury proceedings that
3 appear to be of public interest.
4 And this particular case has certainly been
5 identified as a case that is appropriate for that pilot
6 project.
7 Chief Judge Kozinski has authorized that these
8 proceedings today be recorded and be made available to the
9 Internet through the connection, the government contract that
10 the government has with Google YouTube.
11 Now, my understanding is that there is no objection,
12 and I think there can be essentially no objection, to the
13 streaming video and audio image of these proceedings into the
14 overflow courtroom, which is the ceremonial courtroom in this
15 building.
16 My understanding is that the Ninth Circuit would also
17 like that video to go to the Ninth Circuit courthouse here in
18 San Francisco, at 7th and Mission, and would propose to make
19 that available at Ninth Circuit courthouses in Pasadena,
20 Portland, and Seattle.
21 And my understanding, also, is that the Ninth Circuit
22 has received a request to make that streaming video available
23 to the Northern District of Illinois, at the federal courthouse
24 in Chicago.
25 I'm not aware, at this time, that there are requests

1 by any other courts, but it's conceivable there may be.
2 Those transmissions would, of course, be simultaneous
3 with the proceedings.
4 The matter which I think probably we have some reason
5 to discuss this morning is the second step of the process, and
6 that is, namely, the transmission of these proceedings on a
7 delayed basis to YouTube, for purposes of posting on the
8 Internet so the proceedings can be made generally available.
9 My understanding is that the plaintiffs do not object
10 to this. And we have Mr. Burke, from the Media Coalition, who
11 has submitted materials on this. We have some concerns that
12 Mr. Kirk and his clients have raised. And so I'm going to give
13 all parties an opportunity to add to what they have previously
14 submitted on this subject.
15 So, let me begin you with, Mr. Boutrous. What would
16 you like to add to the materials that have been submitted?
17 MR. BOUTROUS: Your Honor, first, I would like to say
18 that we strongly support the Court's plan, and the
19 demonstration was very helpful.
20 And we think that if ever there were a case that
21 would be perfect for this pilot program, it would be this case,
22 because of the extraordinary public interest, the effect on
23 millions of citizens in California and nationwide. It's a
24 constitutional issue.
25 I think, based on the demonstration, it confirms our

1 thinking that the Court would be able to protect privacy
2 interests to the extent they are raised, some of the concerns
3 that the proponents have raised about witnesses and reluctance
4 to be in a televised trial, with the ability to turn off the
5 camera or otherwise limit coverage as the Court deems
6 appropriate.
7 So we think this is an ideal situation to use this
8 pilot program. And, more broadly, I think the openness in
9 allowing people to see and hear what happens in the case as
10 close to simultaneously as possible really will relieve some of
11 the pressure of people wanting to come and be in the courtroom.
12 And, in the First Amendment context, not talking
13 about cameras specifically, the Supreme Court and the Ninth
14 Circuit have said that the value of openness gives people more
15 confidence in the system, whatever their views of the issues,
16 when citizens can see how things are proceeding in an orderly
17 way, with witnesses testifying, with the Court presiding. It
18 brings a confidence from the public in the results and in the
19 process. And we think that using cameras would foster those
20 values.
21 THE COURT: Well, televised court proceedings, of
22 course, have a checkered history.
23 What makes this case different? Why is this case not
24 going to suffer from some of the problems that have attended
25 these other cases that have been televised?

1 MR. BOUTROUS: Several things, Your Honor.
2 First, the fact that it is a bench trial, I think it
3 really eliminates a number of the concerns that have been
4 raised in -- regarding prior trials that have been televised,
5 and concerns about future televised trials, because it's the
6 Court. The Court can control the presentation and there aren't
7 the jury concerns.
8 Secondly, we are talking about constitutional issues,
9 not so much relating to individual circumstances. There are
10 some individuals, our clients' stories. But beyond that, we
11 are talking about issues of widespread importance and
12 constitutional questions, unlike other cases that are in trial,
13 if we are talking about a murder trial or some other type of
14 case that's very fact specific.
15 That's why I think it makes this case, really, an
16 ideal situation for having cameras in the courtroom. And I
17 think even though they object to the cameras, Counsel on the
18 other side and our team are, I think, ready to work with the
19 court to make it work smoothly and in a way that will be
20 informative to the public and, I think, for real public good.
21 THE COURT: Well, couldn't someone who is, say, a
22 witness in a case have some objection to having his or her
23 testimony recorded for purposes of posting on the Internet?
24 It's qualitatively different, isn't it, from getting
25 in the witness stand and testifying before a courtroom of

1 people?
2 MR. BOUTROUS: Theoretically, they might have an
3 objection. I don't think it's a valid one, in the sense that,
4 as the Supreme Court has said, what happens in the courtroom is
5 public property. This is the people's courtroom. And it
6 really is a mechanism for allowing people to see what is
7 happening in their courtroom.
8 That said, I do recognize that some individuals may
9 feel a shyness and a reluctance to be broadly disseminated on
10 the Internet. To the extent there is a real concern, I think
11 the Court has the ability to control that.
12 And we would certainly be -- work with the Court to
13 the extent there are real concerns and real issues regarding
14 particular witnesses.
15 Things like opening statements, closing arguments,
16 vast pieces of the case in terms of expert witnesses, I don't
17 think would raise any of those issues. That's why I think this
18 is really a good case for the pilot program. And we strongly
19 support the Court's proposal.
20 The other thing I wanted to raise was on the
21 rule-making issues that the proponents' counsel have raised.
22 It seems to me, one, this really isn't a change in
23 any of the court's rules. The General Order 58 says, "Unless
24 otherwise ordered by a judge of the court," when it's referring
25 to electronic devices.
1 And the Rule 77-3 is not being changed. The rule
2 still stands. The Ninth Circuit, which has authority in these
3 matters, has authorized a pilot program. And that's what is
4 being undertaken.
5 And, this court has invoked the immediate need
6 provision of the notice and comment statute regarding local
7 rules, and asked for comment.
8 So I think all of those procedural issues that have
9 been raised by the proponents are meritless, and, in any event,
10 have been addressed by the Court.
11 Thank you.
12 THE COURT: Very well. Thank you, Mr. Boutrous.
13 Mr. Burke, you have weighed in on behalf of a group
14 of media folks on this issues.
15 MR. BURKE: Yes, Your Honor.
16 And the Media Coalition appreciates the Court's
17 willingness to hear the concerns and perhaps enhancements that
18 the media coalition can give to the Court's consideration of
19 this particular case being the first of the Ninth Circuit's
20 trials to be televised.
21 We have submitted briefing for the Court which may
22 address some of the larger issues, and I'm happy to address
23 those. But I have three basic comments that I want to point to
24 the Court, and then talk specifically about the framework
25 that's been proposed for the camera coverage.

1 The first is, it goes to that question that these are
2 historic proceedings; and the issue that this Court will decide
3 will have profound importance to millions of people.
4 And to answer the Court's question about the
5 significance of this case versus some other case -- and the
6 nature of cases perhaps not to be named in the past, where
7 things have not gone as well as others would expect, in some
8 people's impressions -- millions have voted on this very issue
9 that the Court is going to decide. They voted recently on it.
10 And what happens in this federal court in
11 San Francisco is going to be closely followed not only in
12 California but throughout the nation and, indeed, the world.
13 So the question really is: What can more realtime TV
14 camera coverage provide to this case if it is, indeed, the
15 first case to be televised?
16 And, I think, most importantly, allowing TV camera
17 coverage will educate the public about how an independent
18 federal judiciary can effectively try, with rules of evidence
19 and procedure, complex and in this case politically sensitive
20 issues which will come up in this case, like this case.
21 It makes it, indeed, as Mr. Boutrous says, the ideal
22 case to be televised, given the issues, given the interest, and
23 given the role of the federal court in this particular issue.
24 And, of course, I guess I would be playing to the
25 audience here, both the Court and to counsel, but there is

1 tremendously experienced counsel ready to try this case and
2 zealously represent both sides. That's an ideal setting for
3 the Court to have a case where camera coverage is allowed.
4 There are, however, some concerns based on what we
5 had heard previously and certainly with what we have seen in
6 the presentation. And this is in no way to diminish the
7 extraordinary efforts that the Court's staff has clearly gone
8 to, to set up this program. But if you would grant me the
9 license to comment on certain aspects of that, the Media
10 Coalition would really like to offer potentially some
11 substantial enhancements to that.
12 But the key issue, and I would like to touch on it
13 initially, is the notion of whether or not there is going to be
14 a realtime broadcast. And the Court has outlined that there
15 may be, with respect to the overflow courtroom, the Ninth
16 Circuit courtroom and other courthouses around the country.
17 But, truly, I think if there is a concern about
18 something more expansive than that -- and there can be, and it
19 can be far more realtime -- the Court's question has to be
20 about control.
21 And I can assure the Court that the Court will have
22 full control over whatever is televised, whatever is streamed,
23 however contemporaneous that can be.
24 I want to introduce from afar Grace Wong, along with
25 the crew from In Session, formerly known as Court TV. They

1 have flown in today. They are available to talk to the Court
2 and to demonstrate to the Court and to counsel, today or some
3 other time before the trial, various additional options that
4 might be available. And let me just touch on a few of them.
5 But before I do, please, understand that this very
6 crew that's prepared to do this work was hired by the Justice
7 Department to televise live to the world Saddam Hussein's trial
8 in Baghdad, which it did without incident. Worldwide audience.
9 And what's important there, from that experience, is,
10 not only did it happen, and the crew that is here to do this is
11 the crew that you would have at your disposal, there was a
12 half-an-hour delay. That was the only delay involved in that.
13 And that did not have to happen. That was something that was
14 requested as a part of their arrangement.
15 That is something the Court should bear in mind, in
16 terms of the bona fides of this group who have literally
17 thousands of hours of experience of California camera coverage,
18 more than 30 federal trials, principally through the trial
19 period in the early '90s. They have tremendous experience, and
20 they would make that available to the Court.
21 Let me just touch on four things, with respect to
22 what was outlined. One is TV camera quality.
23 And, Your Honor, no offense to the cameras who
24 obviously can't be offended, but those are consumer-quality
25 cameras. They are not broadcast production quality cameras.

1 And that significance, if this Court wants to
2 achieve, especially on a downloaded streaming basis, wants high
3 production values with respect to the camera coverage that it
4 would allow. It looks pretty good with respect to the
5 demonstration here in the court. But from the end of those
6 receiving at the end, perhaps on an Internet connection on the
7 download, that quality difference will be significant. So
8 replacing the cameras with broadcast-quality cameras would be
9 an important upgrade.
10 Secondly, these microphones work well, but these are
11 not broadcast-quality audio. There is no -- there doesn't
12 appear to be any separate broadcast-quality audio available for
13 the proceeding. That would be an important, yet very simple,
14 change that could be made to enhance what the Court has
15 proposed.
16 Third, the issue of split screens, we saw the
17 demonstration. And in practice that will work. But with a bit
18 of technology, referred to generally as a switch feed function,
19 if one person is speaking, the camera can -- the image that
20 people can see is of that person speaking as opposed to a
21 permanent breaking down of three different. So if no one is
22 speaking in two of the boxes, that person's image will not be a
23 tiny image.
24 And especially, again, for screening and streaming
25 online, that can be a critical distinction as to what can be

1 seen and what can't, in terms of the video.
2 There's also some technical support that could be
3 produced. And I did note Mr. Rico's comment that the coverage
4 that the staff might be able to provide -- and I'm not trying
5 to quote him; we tried to make him into a lawyer earlier, and
6 that wasn't fair -- the whole thing might be cancelled or
7 degraded if it can't be accomplished by the Court's staff.
8 And this is exactly what we're concerned about. And,
9 you know, with due respect, the in camera crew are the best in
10 the business. And this is what they do for a living. And that
11 will not happen on their watch, and it doesn't have to be a
12 concern for the Court.
13 THE COURT: You mean the In Session crew?
14 MR. BURKE: Correct. I apologize, especially to my
15 client.
16 Broadcast-quality footage is available in different
17 formats. And given the range of media that will be covering
18 this, there is definition, high-def, and digital, and various
19 formats will be requested. That's an issue that can be
20 addressed by the Media Coalition with technology. I do not
21 know that the court is prepared or the staff is prepared to
22 address that.
23 And, also, finally, the issue of distributed network
24 for Internet access. We've heard this morning about the
25 YouTube site. But, clearly, the downfall there, the

1 disadvantage there is that is not going to be instantaneous.
2 When In Session does its live coverage, In Session is
3 able to stream live that coverage on cnn.com/live. And it's
4 available.
5 And, in this instance, especially with the experience
6 of the California Judicial Council and its website, which saw
7 it crash for a few hours on March 5th, certainly the Court does
8 not want to be streaming on its own site.
9 So, certainly, the suggestion of YouTube is a change,
10 and an improved one, in terms of bandwidth capacity. But it
11 doesn't address the issue of instantaneous access. That is
12 something I really hope the Court would consider differently.
13 There is a substantial demand here, and there will be
14 heavy network use, which would call for a more distributed
15 network for Internet access.
16 I'm happy to address any of these particular points.
17 I'm happy to have Ms. Wong talk with the Court, answer the
18 Court's questions or provide a demonstration, including robotic
19 cameras, smaller cameras, cameras that you won't know are
20 there. And that's the technology that's available to the
21 Court. Please, just ask.
22 THE COURT: Very well. Thank you, Mr. Burke.
23 Mr. Kirk, do you want to weigh in on behalf of your
24 clients?
25 MR. KIRK: Thank you very much, Judge Walker.

1 And, may it please the Court, and let me emphasize,
2 first, how happy I am to be before Your Honor.
3 (Laughter)
4 THE COURT: Even though it's only once.
5 MR. KIRK: Even though it's only once.
6 I'd like to begin with Your Honor's introductory
7 comments concerning, sort of, the state of play, and, first,
8 confirm that Your Honor was correct that the
9 defendant-intervenors do not have an objection to providing
10 streaming coverage to the overflow courtroom here at the
11 courthouse.
12 This morning was, I think, the first we've heard of
13 the suggestion that other courthouses around the country, in
14 Chicago, Pasadena, Seattle, and Portland, and perhaps the Ninth
15 Circuit courthouse, as well, might be interested in having
16 streaming coverage there.
17 And while it's certainly not quite the same as a live
18 broadcast to the public, it does strike me, at least on first
19 hearing, at least a step in that direction as we, you know, add
20 five or six different sites where the material can be
21 broadcast. It at least is stepping in the direction of a
22 public broadcast.
23 So I would register an objection to that, that I
24 would just fold into our objection to the broader question of
25 whether the proceedings ought to be broadcast or recorded for

1 later broadcast, as I understand the suggestion that's on the
2 table.
3 We've laid out in our papers in, I think, two or
4 three letters that we've submitted to the Court, the basis for
5 our objections. And, largely, I just rest on those papers.
6 We believe the trial should not be televised largely
7 for the reasons that were stated in multiple proceedings over
8 the last 15 years by the Judicial Conference of the
9 United States.
10 We do think broadcast imperils proponents' right to a
11 fair trial before this Court, and we do think it will violate
12 their due process rights.
13 THE COURT: How so?
14 MR. KIRK: Probably the most compelling concern we
15 have, Your Honor -- and it's one that the Judicial Conference
16 has repeatedly emphasized -- is the unacceptable risk that
17 broadcasting will have an impact on witnesses' testimony. And
18 the Judicial Conference has kind of identified two different
19 ways. The one that, quite frankly, concerns us the most is the
20 potential for intimidating witnesses.
21 As the Court is aware, and as I think we've
22 documented in our papers, the Judicial Conference has voiced
23 particular concern about the possibility of intimidating
24 witnesses as a result of broadcasts.
25 And, Your Honor, we do believe that those concerns

1 are at their apex in this particular case. This is --
2 THE COURT: Aren't those concerns generally voiced in
3 connection with criminal trials? Whereas, here we have a group
4 of individuals, your clients, who organized and gathered to put
5 together a political campaign to change the constitution of
6 California; who undertook to raise a great deal of money to run
7 that campaign and run extensive advertisements and a very
8 extensive campaign. They assumed a public face, if you will, a
9 public responsibility in doing so.
10 And the witnesses on your witness list are academics,
11 for the most part, people who stand up before classrooms all
12 the time and express their views and opinions and so forth.
13 Aren't these folks different from the kind of
14 individuals that the Judicial Council has expressed concern
15 about, in connection with witness intimidation?
16 MR. KIRK: I don't believe so, Your Honor.
17 It's true that some of the Judicial Conference's
18 concerns are particular to criminal cases, but they have been
19 quite clear that those concerns carry over to testimony in
20 civil cases as well.
21 That's why their policy is not limited to opposing or
22 prohibiting the use of broadcast cameras in criminal cases. It
23 extends to civil cases as well.
24 In terms of the witnesses on our list, yes, our
25 experts, many of them are academics. Nevertheless, it's one

1 thing to stand up in the classroom. It's another thing to be
2 testifying across the country and across the world on camera in
3 a case like this, one that has raised passions on both sides.
4 It's a case that is contentious and highly politicized.
5 And, most importantly, Your Honor, the record is full
6 of instances in which individuals who have supported
7 Proposition 8 have been subjected to harassment and
8 intimidation.
9 THE COURT: How is the testimony of the witnesses
10 going to be different if the testimony is available on the
11 Internet?
12 MR. KIRK: The Judicial Conference's analysis to that
13 question -- which also drew on the Supreme Court's decision in
14 the Estes case, Estes vs. Texas --
15 THE COURT: That goes back a good many years.
16 MR. KIRK: It does, Your Honor. It's, I believe,
17 1965.
18 And I would also commend the Court, by the way, to
19 Justice Harlan's concurring opinion, which also addressed the
20 effect on witnesses. And all of those sources basically say
21 the same thing.
22 THE COURT: This was a criminal trial, wasn't it?
23 MR. KIRK: It was a criminal trial, Your Honor;
24 although, the discussion of the effect on witnesses didn't
25 appear to be -- certainly, the discussion in the Court's

1 opinions didn't appear to be focused on the fact that it was
2 criminal. But, yes, Your Honor is correct, it was criminal.
3 The points that were made in the Estes opinions in
4 the various materials that the Judicial Conference have been
5 published is that the effect on witnesses is twofold. On the
6 one hand, the knowledge that instead of just testifying to
7 those that are sitting in the courtroom you're testifying to
8 untold thousands and millions of people can have the impact of
9 causing some witnesses to be more timid, to be more retiring,
10 to testify differently than they would in a circumstance where
11 they are just in the courtroom.
12 Conversely, Your Honor, the Supreme Court's opinions
13 and the Judicial Conference's various reports and testimony
14 make the point that some witnesses adopt a bit more bravado or
15 overdramatization, knowing that what they are saying is on a
16 broader platform; it's going out across the world.
17 Now, in, I think the Estes case, if I'm recalling
18 correctly, the Court made the point that -- and, certainly, the
19 Judicial Conference has made this in its materials, that there
20 is no way to know in advance that Mr. Smith, who is going to
21 testify on Tuesday, will be in one category or the other. But
22 the conclusion that was reached was that the risk is just
23 unacceptable. The Judicial Conference's conclusion was that
24 and is that the risk to a fair trial is unacceptably high if
25 broadcast is permitted.
1 Now, Your Honor, I did want to respond to a point
2 that Mr. Boutrous made in this regard, and it was featured in
3 the technical presentation that we received this morning from
4 the Court's staff.
5 And that is, Mr. Boutrous suggested that, well, to
6 the extent a witness might feel concerned about it or
7 intimidated by it, the Court could order that that witness's
8 testimony or his picture would be blacked out. And the
9 presentation we saw showed that, indeed, the Court's staff has
10 that capability.
11 We don't think that solves the problem. And the
12 Judicial Conference, again, in -- I believe, in testimony
13 responding to proposed legislation, specifically addressed that
14 issue and concluded that that solution does not solve the
15 problem because, number one, in this particular case, a witness
16 who is identified as not wanting to appear and testify on
17 camera, that fact, in and of itself, will shine a spotlight on
18 that person and draw additional attention to that person that
19 otherwise would not be evoked if the witness was just one of
20 the dozens testifying in open court like all the other
21 witnesses.
22 And, second, that possibility of blacking out doesn't
23 address the other side of the coin that the Judicial Conference
24 was worried about; that is, the witness whose testimony is
25 altered in the overdramatization fashion that the -- that a

1 live broadcast or a recorded broadcast that goes up a day later
2 provides as a platform.
3 THE COURT: Since I left the practice of law 20 years
4 ago, it has become common for deposition testimony to be
5 videotaped.
6 MR. KIRK: That's true, Your Honor. That does
7 happen.
8 THE COURT: It does happen quite frequently.
9 And those videotapes are played in trials. That
10 process seems not to have affected deposition testimony in any
11 material way. The testimony is what it is. And, of course,
12 it's very helpful to a fact finder, whether it's a judge or a
13 jury, to be able to see the witness in deposition testifying.
14 It's proven to be a very powerful enhancement of this method of
15 discovery.
16 So why can you not say the same thing about trial
17 testimony? Seeing it, essentially, as it unfolds is much more
18 informative than reading a cold record or reading a newspaper
19 story about the testimony.
20 MR. KIRK: Judge Walker, I don't believe the impact
21 on a witness whose deposition is being videotaped is the same
22 as the impact on a witness who is testifying at trial knowing
23 that the video recording of that testimony will be broadcast
24 throughout the world.
25 In the deposition setting, the videotape is taken or

1 the digital -- I guess they are digital now -- is recorded and
2 kept, but it's not broadcast to the world. Instead, it's kept
3 in the lawyer's files. Maybe a clip of it will three years
4 later be shown at the trial. Maybe it won't. But it's not
5 broadcast worldwide.
6 As I said, we're not objecting to the physical
7 presence of the camera in the courtroom for the purpose of
8 showing the testimony in the overflow courtroom. And I would
9 submit that that's perhaps analogous to the deposition
10 scenario.
11 But the primary impact on the witness is the
12 knowledge that the testimony is going to be beamed or broadcast
13 to thousands if not millions around the country, and, indeed,
14 with the Internet around the world.
15 I did want to also, very briefly, Your Honor, respond
16 to a couple of the procedural points that Mr. Boutrous made.
17 First, Mr. Boutrous suggested that the Court's rules
18 that were in effect up until mid December perhaps haven't been
19 changed, and perhaps those might have authorized the broadcast
20 of these proceedings. We certainly don't agree with that
21 suggestion.
22 With regard to General Order 58, that order, I don't
23 believe, has been changed since 1995. And if the Court takes a
24 look at that, paragraph Roman numeral III is quite clear in
25 adopting the policy of the Judicial Conference of the

1 United States, which is again a policy against the broadcast of
2 civil proceedings.
3 Mr. Boutrous made reference to paragraph IV, Roman
4 IV, which begins with a "except as authorized by the presiding
5 judge." And, then, one of the exceptions it authorizes is, if
6 the judge authorizes it, photography can take place, for
7 various reasons, in the courtroom.
8 That provision in Roman IV does not eliminate the
9 policy position taken in paragraph 3 of General Order 58. And
10 any confusion on that, I think, was probably cleared up, if the
11 Court takes a look at the media guide that the clerk's office
12 here in the District Court published for this very case. That
13 media guide, at least as it stood in December, and I think it
14 was subsequently revised a bit, in light of the changes in the
15 local rules, but as it stood in December, and I think as it
16 stood today, it pointed out to the media and other interested
17 people the General Order 58 adopts the Judicial Council's
18 policy, and it prohibits the broadcast or televising of civil
19 proceedings.
20 Now, with regard to Local Rule 77-3, as I understand
21 the situation, the Court has amended that. And the amendment
22 does state that it authorizes the court -- it maintains the
23 prohibition against the broadcast of civil proceedings, but it
24 includes an exception in which the court can have a particular
25 case participate in the pilot program that the Ninth Circuit

1 had announced.
2 We have outlined, I think, most of our objections to
3 the procedures that led to the adoption of that rule, in our
4 papers, and I won't repeat those. The only new points I would
5 make is, I understand that either yesterday, or perhaps the day
6 before, the court posted a revised copy of the rule with a
7 notice that indicated the court was invoking the immediate need
8 exception that was set forth in 28 U.S.C. Section 2071E.
9 I would just note for the Court that we don't believe
10 that there is any immediate need for this particular case to be
11 broadcast.
12 It would be our view that to the extent the rules are
13 going to be changed on a going forward basis, and a pilot
14 program is proper and authorized, that that ought to be done
15 for another what we would submit would be more appropriate case
16 that could --
17 THE COURT: What would be an appropriate case?
18 MR. KIRK: Your Honor, our view would be there is
19 none, because we agree with the view taken by the Judicial
20 Conference that there is none.
21 But if that view is rejected, I would respectfully
22 submit, an appropriate case would be a more run-of-the-mill
23 sort of case that better captures the daily operations,
24 perhaps, of the Federal District Court. And certainly not a
25 case where any party has objected or any witness has objected.
1 And certainly not a case where there is already specific record
2 evidence demonstrating that because of the highly contentious
3 and politicized nature of the underlying issue, that
4 individuals have been subjected to harassment and intimidation.
5 If ever there was a case where it was appropriate, Your Honor,
6 we would respectfully submit, this isn't it.
7 So we would say, Your Honor, that we don't believe
8 that there is an immediate need that justifies changing the
9 rule without appropriate notice and comment.
10 And the one other point I'd like to make, in putting
11 the rule out for notice and comment, even as the immediate need
12 exception was invoked, the period that was authorized for
13 comment was exceptionally short. I think it was on the order
14 of five business days.
15 And it would be our view that, especially given the
16 magnitude of the change being proposed to the court's rules,
17 and the fact that it is contrary to a long-standing policy
18 adopted by the Judicial Conference of the United States that
19 the Conference believed was necessary to ensure fair trials, we
20 would submit that a longer comment period really is
21 appropriate.
22 And with that, Your Honor, we would be happy to rest
23 on the papers that we've submitted. And I thank you so much,
24 Your Honor, for taking the time to hear our argument.
25 THE COURT: Very well. Thank you, Mr. Kirk.

1 MR. BOUTROUS: Your Honor.
2 THE COURT: One last word, Mr. Boutrous, very
3 quickly.
4 MR. BOUTROUS: May I, Your Honor, very quickly? I
5 want to focus on this witness issue, very briefly.
6 These witnesses and the proponents are involved in a
7 case that will affect the rights of millions. The proponents
8 thrust themselves into this issue. As the Court noted, ran a
9 $40 million campaign, highly public. They have their own
10 videos on YouTube. Dr. Marks, one of the proponents' experts,
11 links in his bio to a YouTube bio of himself. Schubert and
12 Flint have highly-publicized YouTube videos about this case.
13 And I think it's ironic that the proponents are
14 claiming that their witnesses have been subjected to harassment
15 and intimidation in a case where we're talking about stripping
16 away the rights of individuals who themselves have been subject
17 to a history of that kind of behavior.
18 So I think that the arguments about the witnesses and
19 the change in witness testimony are meritless, speculative, and
20 in some ways water under the bridge.
21 The Judicial Conference of the Ninth Circuit, when it
22 issued the release in the pilot program, addressed those issues
23 and wanted to experiment. This is the perfect case to do it
24 in, and we would ask the Court to move forward with this plan.
25 Thank you, Your Honor.

1 THE COURT: Very well. Well, thank you, Counsel.
2 With respect to how we proceed from here, let me make
3 the following comments:
4 First of all, this certainly is a case that has
5 sparked widespread public interest. The issues are issues that
6 have been widely debated in a variety of different forums.
7 Now, of course, the issues that we're going to try
8 here are not so much the policy issues, as the constitutional
9 issues that the plaintiffs have raised and that the
10 defendant-intervenors have joined.
11 And those issues, as I said, I think, at our very
12 first gathering, are highly fact laden. One need only pick up
13 the papers and start reading them to observe that there are a
14 lot of factual hypotheses that have been asserted on both
15 sides.
16 And the other cases that have involved this issue,
17 the issue that is the ultimate issue here, that I'm aware of,
18 have not been aired in the course of a trial, in which
19 witnesses get on the stand, testify, make their factual
20 assertions, and are subject to cross-examination.
21 Facts that are asserted in a declaration or affidavit
22 are quite different from facts that appear and that are voiced
23 in the witness stand and subjected to cross-examination.
24 So I think a trial can be highly informative. And
25 because of the high information content associated with these

1 proceedings, I think this is a case which merits very serious
2 consideration for widespread distribution.
3 And, of course, today we have the capability of
4 providing that kind of widespread distribution through,
5 essentially, the Internet.
6 There's, of course, another aspect of this. As the
7 lawyers here know far better than anyone else, trials sometimes
8 involve a lot of tedium. And I don't want to pop anybody's
9 balloon, but it may very well be that as the trial unfolds
10 there will be a lot less interest in the case than there may be
11 now. And, perhaps, if that's the situation, maybe that would
12 be an important lesson to be drawn from these proceedings.
13 (Laughter)
14 THE COURT: But, nonetheless, it does seem to me that
15 if we are able to show the public how these issues are dealt
16 with in a judicial proceeding, with some of the most capable
17 and skilled lawyers in the United States, and some of the most
18 responsible lawyers in the United States, who will not, I am
19 quite sure, engage in some of the unfortunate tactics that have
20 perhaps marred other cases in the past, that have been subject
21 to broadcast, so I think this case clearly merits a serious
22 consideration for distribution through the processes that have
23 been outlined.
24 I don't know, with all due respect, Mr. Kirk, that a
25 run-of-the-mill is the kind of case that will provide the civic

1 lesson that might be helpful. I think the only time that
2 you're going to draw sufficient interest in the legal process
3 is when you have an issue such as the issues here, that people
4 think about, talk about, debate about and consider.
5 The run-of-the-mill traffic accident or injury case
6 is simply not a case that is likely to draw the attention that
7 is necessary to provide that lesson to the public.
8 And I've always thought that if the public could see
9 how the judicial process works, they would take a somewhat
10 different view of it.
11 I've noticed that in the last 20 years with juries,
12 how they find their experience listening to the process so very
13 revealing. And they come away from it with a much deeper and
14 keener appreciation of the judicial process.
15 So I think it's worth trying in this case.
16 With respect to the various rule changes, the subject
17 of broadcast or televising federal court proceedings is one
18 that has been debated in the judiciary and in the councils of
19 the judiciary, the federal judiciary, for many, many years.
20 There was a proposal for a pilot project as early as
21 1990, that was advanced. It was advanced in this court by the
22 late chief judge of this court, Robert Peckham, at one of the
23 very first judges meetings that I attended.
24 I recall thinking, if there was any motion that it
25 would be safe for a brand-new judge to make at a judges'

1 meeting, it would be a motion for supporting a recommendation
2 by Judge Peckham, for participation in a pilot project very
3 much like the pilot project we are now dealing with. So I made
4 the motion at the judges' meeting. The motion died for want of
5 a second.
6 Well, the subject continued to be debated. It was
7 debated at the Ninth Circuit Judicial Conference in 2007, and.
8 The Conference, at that time, adopted a resolution seeking a
9 change in Judicial Conference policy, to permit photographing
10 and recording and broadcasting in nonjury civil cases.
11 Now, not much was done on that for some period of
12 time. I think, primarily, because the Ninth Circuit Judicial
13 Conference was hopeful that Conference policy would change.
14 The Judicial Council of the Ninth Circuit forwarded
15 to the Judicial Conference Committee on Court Administration
16 the recommendation of the Ninth Circuit Conference, requested
17 action in May of this year. Nothing occurred. I understand
18 the court administration committee considered the Ninth
19 Circuit's request, but took no action.
20 And, so, in light of that, Chief Judge Kozinski, in
21 October, October 22nd, appointed a committee to evaluate the
22 possibility of adopting a Ninth Circuit rule. And, clearly,
23 you're correct, this case was very much in mind at that time
24 because it had come to prominence then and was thought to be an
25 ideal candidate for consideration.

1 And the committee, which consisted of Judge Sidney
2 Thomas, Chief Judge Audrey Collins, in the Central District of
3 California, and myself, made a recommendation to the Ninth
4 Circuit Judicial Council, which unanimously adopted the rule
5 which you've seen, permitting a pilot project, an
6 experimental -- it was really a pilot project that was
7 announced in the Ninth Circuit press release.
8 Our court, in response to that, met and amended Local
9 Rule 77-3, to permit participation in that Ninth Circuit pilot
10 project.
11 At the time, we considered that to be a conforming
12 amendment. Our rules, of course, conform and must conform to
13 the Federal rules and to the Ninth Circuit rules. And I think
14 our view, at the time, was that was simply conforming our local
15 rules to the Circuit rules.
16 And, then, the issue was raised as to whether or not
17 there was an adequate basis. And so I take responsibility for,
18 perhaps, a mixed signal with the court clerk, who did not have
19 the opportunity to consider that basis for the amendment. And
20 that may be the reason why the comment period started later
21 than it might otherwise have started.
22 But, in any event, I'm satisfied, after consideration
23 of the matter and discussions with those in the Circuit who
24 have views and authority on these matters, that the path is
25 clear for participation in a pilot project of this case, should

1 we determine that that is appropriate. And I think for the
2 reasons I mentioned a moment ago, that it is appropriate.
3 Now, with respect to the comments made by Mr. Burke,
4 I very much appreciate that In Session and other media may have
5 a great deal more experience than the court staff, may have
6 equipment advantages and superiorities over that that the Court
7 has. Might very well provide higher quality audio and video
8 images of the proceedings. And perhaps that would be -- would
9 perhaps be helpful.
10 But, I think, in view of the -- I don't want to say
11 the experimental nature, but the nature of these proceedings,
12 it's important for this process to be completely under the
13 Court's control, to permit the Court to stop it if that proves
14 to be a problem, if it proves to be a distraction, if it proves
15 to create problems with witnesses.
16 And, so, I think this is a process that must remain
17 under the Court's control. And, so, with whatever limitations
18 we may be working with, I'm not prepared, frankly, to permit a
19 third-party vendor to come in and to provide these services. I
20 think those steps must remain under the control of the Court.
21 And, as I say, if at any time the matter becomes a
22 distraction, it creates collateral problems, if we have
23 technical difficulties -- and we may very well have technical
24 difficulties, given the limitations that we confront -- I will
25 discontinue the program.

1 But I think it's worth attempting in a case of this
2 particular nature and this particular interest.
3 So I understand your concerns, Mr. Kirk, and respect
4 them, but I think we should proceed step by step.
5 Now, what I will do is to tell Chief Judge Kozinski
6 of my determination. And if he approves, then we will begin a
7 recording of the proceedings beginning on Monday; and the
8 distribution of those recordings in the manner that has been
9 described to you by Mr. Rico.
10 So I want to make it clear, this case is about
11 Proposition 8. It is not about television in the courtroom.
12 So let's turn to those issues. And I think the first
13 issue we ought to address is the motion to intervene by
14 Imperial County.
15 Ms. Monk, are you going to be dressing that?
16 MR. TYLER: Your Honor, I will. Thank you.
17 THE COURT: Let's see, you are Mr. --
18 MR. TYLER: Robert Tyler, Your Honor.
19 THE COURT: Tyler.
20 MR. TYLER: Your Honor, first, I'd like to thank you
21 and the Court staff for allowing this motion to proceed on the
22 expedited basis that it has.
23 First --
24 THE COURT: Well, I appreciate your prompt response.
25 MR. TYLER: Well, we did everything we can to avoid

Exhibit 3
available at: http://www.usacourts.gov/testimony/exhibit4CameraTest05.pdf
Exhibit 4
STATEMENT OF JUDGE DIARMUID O’SCANNLAIN
ON BEHALF OF
THE JUDICIAL CONFERENCE OF THE UNITED STATES REGARDING
S. 829 AS APPLIED TO FEDERAL TRIAL COURTS
Introduction
The Judicial Conference strongly opposes S. 829, a bill that would “allow
media coverage of court proceedings,” so far as it applies to the federal trial
courts. Of course, the Judicial Conference cannot and does not speak for the
Supreme Court.
The federal judiciary has examined the issue of whether cameras should be
permitted in the federal courts for more than six decades, both through case law
and Judicial Conference consideration. The Judicial Conference in its role as the
policy-making body for the federal judiciary has consistently expressed the view
that camera coverage can do irreparable harm to a citizen’s right to a fair and
impartial trial. On the other hand, since 1994 the Judicial Conference has
permitted “the photographing, recording, or broadcasting of appellate arguments”
in the Circuit Courts of Appeals. But, as to the trial courts, we believe that the
intimidating effect of cameras on litigants, witnesses, and jurors has a profoundly
40
negative impact on the trial process. Moreover, in civil cases cameras can
intimidate civil defendants who, regardless of the merits of their case, might prefer
to settle rather than risk damaging accusations in a televised trial. Cameras can
also create security concerns in the federal courts. Finally, cameras can create
privacy concerns for countless numbers of persons, many of whom are not even
parties to the case, but about whom very personal information may be revealed at
trial.
These concerns are far from hypothetical. Since the infancy of motion
pictures, cameras have had the potential to create a spectacle around trial court
proceedings. Obvious examples include the media frenzies that surrounded the
1935 Lindbergh baby kidnapping trial, the murder trial in 1954 of Dr. Sam
Sheppard, and the more recent Menendez brothers and O.J. Simpson trials. We
have avoided such incidences in the federal courts due to the present bar of
cameras in the trial courts, which S. 829 now proposes to overturn.
The federal courts have shown strong leadership in the continuing effort to
modernize the litigation process. This has been particularly true of the federal
judiciary’s willingness to embrace new technologies, such as electronic case filing
and access, videoconferencing, and electronic evidence presentation systems. The
federal courts have also established community outreach programs in which
41
several thousand students and teachers nationwide have come to federal
courthouses to learn about court proceedings. Our opposition to this legislation,
therefore, is not, as some may suggest, borne of a desire to stem technology or
access to the courts. We oppose the broadcasting of federal trial court proceedings
because it is contrary to the interests of justice, which it is our most solemn duty to
uphold.
Today I will discuss some of the Judicial Conference’s specific concerns
with this legislation, as well as with the issues of cameras in the trial courtroom,
generally. However, before addressing those concerns, I would like to provide
you with a brief review of the Conference’s experience with cameras, which will
demonstrate the time and effort it has devoted to understanding this issue over the
years. I must emphasize at the threshold that today, as in the past, the federal
courts, both appellate and trial, are at all times open to the public.
Whether to allow cameras in the courtroom is far from a novel question for
the federal judiciary. Electronic media coverage of criminal proceedings in
federal courts has been expressly prohibited under Federal Rule of Criminal
Procedure 53 since the criminal rules were adopted in 1946. That rule states that
“[t]he taking of photographs in the courtroom during the progress of judicial
42
proceedings or radio broadcasting of judicial proceedings from the courtroom
shall not be permitted by the court.”
In 1972, the Judicial Conference adopted a prohibition against
“broadcasting, televising, recording or taking photographs in the courtroom and
areas immediately adjacent thereto. . . .” The prohibition applied to criminal and
civil cases. The Conference has, however, repeatedly studied and considered the
issue since then.
In 1988, Chief Justice William Rehnquist appointed an Ad Hoc Committee
on Cameras in the Courtroom, which recommended that a three-year experiment
be established permitting camera coverage of certain proceedings in selected
federal courts. In 1990, the Judicial Conference adopted this recommendation,
and authorized a three-year pilot program allowing electronic media coverage of
civil proceedings in six district and two appellate courts, which commenced July
1, 1991. The courts that volunteered to participate in the pilot project were the
U.S. Courts of Appeals for the Second and Ninth Circuits, and the U.S. District
Courts for the Southern District of Indiana, District of Massachusetts, Eastern
District of Michigan, Southern District of New York, Eastern District of
Pennsylvania, and Western District of New York.
The Federal Judicial Center (FJC) conducted a study of the pilot project and
43
submitted its results to a committee of the Judicial Conference in September
1994.1 The research project staff made a recommendation that the Conference
“authorize federal courts of appeals and district courts nationwide to provide
camera access to civil proceedings in their courtrooms. . . .” It is important to note
that the recommendations included in the report were reviewed within the FJC but
not by its Board.
The Conference disagreed with the conclusions drawn by the FJC staff and
concluded that the potentially intimidating effect of cameras on some witnesses
and jurors was cause for considerable concern. The paramount responsibility of a
United States judge is to uphold the Constitution, which guarantees citizens the
right to a fair and impartial trial. Taking into account this considerable
responsibility placed upon judges, the Conference concluded that it was not in the
interest of justice to permit cameras in federal courtrooms.
Two years later, at its March 1996 session, the Judicial Conference again
considered the issue. At that session, the Conference voted strongly to urge each
circuit judicial council to adopt, pursuant to its rulemaking authority articulated in
28 U.S.C. § 332(d)(1), an order reflecting the Conference’s September 1994
1
In 1994, the Federal Judicial Center published a report entitled Electronic Media Coverage of Federal
Civil Proceedings: An Evaluation of the Pilot Program in Six District Courts and Two Courts of Appeals. The
period used by the Federal Judicial Center for its study was July 1, 1991, to June 30, 1993.
44
decision not to permit the taking of photographs or radio and television coverage
of proceedings in U.S. district courts. The Conference also voted strongly to urge
circuit judicial councils to abrogate any local rules that conflict with this decision,
pursuant to 28 U.S.C. § 2071(c)(1).
The Conference, however, made a distinction between camera coverage for
appellate and district court proceedings. Because an appellate proceeding does not
involve witnesses and juries, the concerns of the Conference regarding the impact
of camera coverage on the litigation process were reduced. Therefore, the
Conference adopted a resolution stating that “[e]ach court of appeals may decide
for itself whether to permit the taking of photographs and radio and television
coverage of appellate arguments, subject to any restrictions in statutes, national
and local rules, and such guidelines as the Conference may adopt.”
The current policy, as published in the Guide to Judiciary Policies and
Procedures states:
A judge may authorize broadcasting, televising, recording, or taking

photographs in the courtroom and in adjacent areas during investitive,
naturalization, or other ceremonial proceedings. A judge may
authorize such activities in the courtroom or adjacent areas during
other proceedings, or recesses between such other proceedings, only:
(a) for the presentation of evidence;

(b) for the perpetuation of the record of the proceedings;
(c) for security purposes;
45
(d) for other purposes of judicial administration; or

(e) for the photographing, recording, or broadcasting of appellate
arguments.
When broadcasting, televising, recording, or photographing in the

courtroom or adjacent areas is permitted, a judge should ensure that it is
done in a manner that will be consistent with the rights of the parties, will
not unduly distract participants in the proceeding, and will not otherwise
interfere with the administration of justice.
Presently, only two of the 13 appellate courts, the Second and Ninth
Circuits, have decided to permit camera coverage in appellate proceedings. This
decision was made by the judges of each court. As for cameras in district courts,
most circuit councils have either adopted resolutions prohibiting cameras in the
district courts or acknowledged that the district courts in that circuit already have
such a prohibition.
Finally, it may be helpful to describe the state rules regarding cameras in the
courtroom. While it is true that most states permit some use of cameras in their
courts, such access by the media is not unlimited. The majority of states have
imposed restrictions on the use of cameras in the court or have banned cameras
altogether in certain proceedings. Although it is somewhat difficult to obtain
current information, it appears that approximately 31 states that permit cameras
have restrictions of some kind written into their authorizing statutes, such as
allowing coverage only in certain courts, prohibiting coverage of certain types of
46
proceedings or of certain witnesses, and/or requiring the consent of the parties,
victims of sex offenses, and witnesses. Thirteen states do not allow coverage of
criminal trials. In nine states, cameras are allowed only in appellate courts. The
District of Columbia prohibits cameras altogether. Utah allows only still
photography at civil trials. In fact, only 19 states provide the presiding judge with
the type of broad discretion over the use of cameras contained in this legislation.
It is clear from the widely varying approaches to the use of cameras that the state
courts are far from being of one mind in the approach to, or on the propriety and
extent of, the use of cameras in the courtroom.
III. Judicial Conference Concerns Regarding S. 829, As Applied to Trial
Courts
I would now like to discuss some of the specific concerns the Judicial
Conference has with S. 829, as well as the more general issue of media coverage
in trial courtrooms.
Supporters of cameras in the courtroom assert that modern technology has
made cameras and microphones much less obvious, intrusive or disruptive, and
that therefore the judiciary need not be concerned about their presence during
proceedings. That is not the issue. While covert coverage may reduce the bright
47
lights and tangle of wires that were made famous in the Simpson trial, it does
nothing to reduce the significant and measurable negative impact that camera
coverage can have on the trial participants themselves.
Proponents of cameras in the courtroom argue that media coverage would
benefit society because it would enable people to become more educated about the
legal system and particular trials. But even if this is true, increased public
education cannot be allowed to interfere with the judiciary’s primary mission,
which is to administer fair and impartial justice to individual litigants in individual
cases. While judges are accustomed to balancing conflicting interests, balancing
the positive effects of media coverage against an external factor such as the degree
of impairment of the judicial process that camera coverage would bring is not the
kind of thing judges should balance. Rather, our mission is to administer the
highest possible quality of justice to each and every litigant. We cannot tolerate
even a little bit of unfairness (based on media coverage), notwithstanding that
society as a whole might in some way benefit, for that would be inconsistent with
our mission.
The Conference maintains that camera coverage would indeed have a
notably adverse impact on trial court proceedings. This includes the impact the
camera and its attendant audience would have on the attorneys, jurors, witnesses,
48
and judges. We believe, for example, that a witness telling facts to a jury will
often act differently when he or she knows that thousands of people are watching
and listening to the story. This change in a witness’s demeanor could have a
profound impact on a jury’s ability to accurately assess the veracity of that
witness. Media coverage could exacerbate any number of human emotions in a
witness from bravado and over dramatization, to self-consciousness and under
reaction. In fact, even according to the FJC study (which is discussed in more
detail later in this statement), 64 percent of the participating judges reported that,
at least to some extent, cameras make witnesses more nervous. In addition, 46
percent of the judges believed that, at least to some extent, cameras make
witnesses less willing to appear in court, and 41 percent found that, at least to
some extent, cameras distract witnesses.
Such effects could severely compromise the ability of jurors to assess the
veracity of a witness and, in turn, could prevent the court from being able to
ensure that the trial is fair and impartial. Likewise, television cameras could have
a profound impact on the deliberations of a jury. The psychological pressures that
jurors are already under would be unnecessarily increased by the broader exposure
resulting from the broadcasting of a trial and could conceivably affect a juror’s
judgment to the detriment of one of the parties.
49
The primary goal of this legislation is to allow radio and television coverage
of federal court cases. While there are several provisions aimed at limiting
coverage (i.e., allowing judges the discretion to allow or decline media coverage;
authorizing the Judicial Conference to develop advisory guidelines regarding
media coverage; and requiring courts to disguise the face and voice of a witness
upon his or her request), the Conference is convinced that camera coverage could,
in certain cases, so indelibly affect the dynamics of the trial process that it would
impair citizens’ ability to receive a fair trial.2
For example, Section 1(a) and (b) of the bill would allow the presiding
judge of an appellate or district court to decide whether to allow cameras in a
particular proceeding before that court. If this legislation were to be enacted, we
are confident that all federal judges would use extreme care and judgment in
making this determination. Nonetheless, federal judges are not clairvoyants. Even
the most straightforward or “run of the mill” cases have unforseen developments.
Obviously a judge never knows how a lawyer will proceed or how a witness or
party will testify. And these events can have a tremendous impact on the trial
2
W e recognize that the legislation would sunset the authority for district court judges to permit cameras
three years after the date of enactment of the Act. There is no comparable sunset provision for the appellate courts.
50
participants. Currently, courts have recourse to instruct the jury to disregard
certain testimony or, in extreme situations, to declare a mistrial if the trial process
is irreparably harmed. If camera coverage is allowed, however, there is no
opportunity to later rescind remarks heard by the larger television audience. This
concern is of such importance to the Conference that it opposes legislation that
would give a judge discretion to evaluate in advance whether television cameras
should be permitted in particular cases.
We also are concerned about the provision that would require courts to
disguise the face and voice of a witness upon his or her request. Anyone who has
been in court knows how defensive witnesses can be. Frequently they have a right
to be. Witnesses are summoned into court to be examined in public. Sometimes
they are embarrassed or even humiliated. Providing them the choice of whether to
testify in the open or blur their image and voice would be cold comfort given the
fact that their name and their testimony will be broadcast to the community. It
would not be in the interest of the administration of justice to unnecessarily
increase the already existing pressures on witnesses.
These basic concerns regarding witnesses were eloquently described by
Justice Clark in Estes v. Texas, 381 U.S. 532:
The quality of the testimony in criminal trials will often be impaired.
51
The impact upon a witness of the knowledge that he is being viewed

by a vast audience is simply incalculable. Some may be demoralized
and frightened, some cocky and given to overstatement; memories
may falter, as with anyone speaking publicly, and accuracy of
statement may be severely undermined. Embarrassment may impede
the search for the truth, as may a natural tendency toward over
dramatization. Furthermore, inquisitive strangers and ‘cranks’ might
approach witnesses on the street with jibes, advice or demands for
explanation of testimony. There is little wonder that the defendant
cannot ‘prove’ the existence of such factors. Yet we all know from
experience that they exist. . . .
Estes, 381 U.S. at 547.
It is these concerns that cause the Judicial Conference of the United States
to oppose enactment of S. 829.
Cameras provide a very strong temptation for both attorneys and witnesses
to try their cases in the court of public opinion rather than in a court of law.
Allowing camera coverage would almost certainly become a potent negotiating
tactic in pretrial settlement negotiations. For example, in a high-stakes case
involving millions of dollars, the simple threat that the president of a defendant
corporation could be forced to testify and be cross examined, for the edification of
the general public, might well be a real disincentive to the corporation’s exercising
its right to a public trial.
52
Although the bill includes language allowing witnesses who testify to be
disguised, the bill does not address security concerns or make similar provision
regarding other participants in judicial proceedings. The presence of cameras in
the trial courtroom is likely to heighten the level and the potential of threats to
judges. The number of threats against judges has escalated over the years, and
widespread media exposure could exacerbate the problem. Additionally, all
witnesses, jurors, and United States Marshals Service personnel may be put at risk
because they would no longer have a low public profile.
Also, national and international camera coverage of trials in federal
courthouses would place these buildings, and all in them, at greater risk from
terrorists, who tend to choose targets for destruction that will give their
“messages” the widest exposure. Such threats would require increased personnel
and funding to adequately protect participants in court proceedings.
There is a rising tide of concern among Americans regarding privacy rights
and the Internet. Numerous bills have been introduced in both the Congress and
state legislatures to protect the rights of individual citizens from the indiscriminate
dissemination of personal information that once was, to use a phrase coined by the
53
Supreme Court, hidden by “practical obscurity,”3 but now is available to anyone at
any time because of the advances of technology. Broadcasting of trials presents
many of the same concerns about privacy as does the indiscriminate dissemination
of information on the Internet that was once only available at the courthouse.
Witnesses and counsel frequently discuss very sensitive information during the
course of a trial. Often this information relates to individuals who are not even
parties to the case, but about whom personal information may be revealed. Also,
in many criminal and civil trials, which the media would most likely be interested
in televising, much of the evidence introduced may be of an extremely private
nature, revealing family relationships and personal facts, including medical and
financial information. This type of information provided in open court, is already
available to the public through the media. Televising these matters sensationalizes
these details for no apparent good reason.
Involvement in a federal case can have a deep and long-lasting impact on all
its participants, most of whom have neither asked for nor sought publicity. In this
adversarial setting, reputations can be compromised and relationships can be
damaged. In fact, according to the FJC study on live courtroom media coverage,
3
United States Department of Justice v. Reporters Committee for the Freedom of the Press, 489 U.S. 749,
764 (1989) .
54
56% of the participating judges felt that electronic media coverage violates a
witness’s privacy. This is not to say that the Conference advocates closed trials;
far from it. Nevertheless, there is a common-sense distinction between a public
trial in a public courtroom—typically filled with individuals with a real interest in
the case—and its elevation to an event that allows and encourages thousands to
become involved intimately in a case that essentially concerns a small group of
private people or entities.
The issue of privacy rights is one that has not been adequately considered or
addressed by those who would advocate the broadcasting of trials. This
heightened awareness of and concern for privacy rights is a relatively new and
important development that further supports the position of the Judicial
Conference to prohibit the use of cameras in the courtroom.
F. S. 829 Does Not Address the Complexities Associated with Camera
Coverage in the Trial Courts
Media coverage of a trial would have a significant impact on that trial
process. There are major policy implications as well as many technical rules
issues to be considered, none of which are addressed in the proposed legislation.
For example, televising a trial makes certain court orders, such as those
sequestering witnesses, more difficult to enforce. In a typical criminal trial, most
55
witnesses are sequestered at some point. In addition, many related technical issues
would have to be addressed, including advance notice to the media and trial
participants, limitations on coverage and camera control, coverage of the jury box,
and sound and light criteria.
Finally, S. 829 includes no funding authorization for implementation of its
mandates. Regardless of whether funding is authorized, there is no guarantee that
needed funds would be appropriated. The costs associated with allowing cameras,
however, could be significant. For example, costs would be incurred to retrofit
courtrooms to incorporate cameras while minimizing their actual presence to the
trial participants. Also, to ensure that a judge’s orders regarding coverage of the
trial were followed explicitly (e.g., not filming the jury, obscuring the image and
voice of certain witnesses, or blocking certain testimony), a court may need to
purchase its own equipment, as well as hire technicians to operate it. When
considering that these expenses may have to be incurred in each of the 94 districts,
the potential cost could be significant. An additional considerable cost would be
creation of the position of media coordinator or court administrative liaison to
administer and oversee an electronic media program on a day-to-day basis.
According to the FJC report, the functions of the media liaisons included receiving
applications from the media and forwarding them to presiding judges,
56
coordinating logistical arrangements with the media, and maintaining
administrative records of media coverage.
Some have asserted that there is a constitutional “right” to bring cameras
into the courtroom and that the First Amendment requires that court proceedings
be open in this manner to the news media. The Judicial Conference responds to
such assertions by stating that today, as in the past, federal court proceedings are
open to the public; however, nothing in the First Amendment requires televised
trials.
The seminal case on this issue is Estes v. Texas, 381 U.S. 532 (1965). In
Estes, the Supreme Court directly faced the question whether a defendant was
deprived of his right under the Fourteenth Amendment to due process by the
televising and broadcasting of his trial. The Court held that such broadcasting in
that case violated the defendant’s right to due process of law. At the same time, a
majority of the Court's members addressed the media's right to telecast as relevant
to determining whether due process required excluding cameras from the
courtroom. Justice Clark's plurality opinion and Justice Harlan's concurrence
indicated that the First Amendment did not extend the right to the news media to
televise from the courtroom. Similarly, Chief Justice Warren's concurrence, joined
57
by Justices Douglas and Goldberg, stated:
[n]or does the exclusion of television cameras from the courtroom in

any way impinge upon the freedoms of speech and the press. . . . So
long as the television industry, like the other communications media,
is free to send representatives to trials and to report on those trials to
its viewers, there is no abridgement of the freedom of press.
In the case of Westmoreland v. Columbia Broadcasting System. Inc., 752
F.2d 16 (2d Cir. 1984), the Second Circuit was called upon to consider whether a
cable news network had a right to televise a federal civil trial and whether the
public had a right to view that trial. In that case, both parties had consented to the
presence of television cameras in the courtroom under the close supervision of a
willing court, but a facially applicable court rule prohibited the presence of such
cameras. The Second Circuit denied the attempt to televise that trial, saying that
no case has held that the public has a right to televised trials. As stated by the
court, “[t]here is a long leap . . . between a public right under the First Amendment
to attend trials and a public right under the First Amendment to see a given trial
televised. It is a leap that is not supported by history.” Westmoreland, 752 F.2d at
23.
Similarly, in United States v. Edwards, 785 F.2d 1293 (5th Cir. 1986), the
court discussed whether the First Amendment encompasses a right to cameras in
58
the courtroom, stating: “No case suggests that this right of access includes a right
to televise, record, or otherwise broadcast trials. To the contrary, the Supreme
Court has indicated that the First Amendment does not guarantee a positive right
to televise or broadcast criminal trials.” Edwards, 785 F.2d at 1295. The court
went on to explain that while television coverage may not always be
constitutionally prohibited, that is a far cry from suggesting that television
coverage is ever constitutionally mandated.
These cases forcefully make the point that, while all trials are public, there
is no constitutional right of media to broadcast federal district court or appellate
court proceedings.
Proponents of S. 829 have indicated that the legislation is justified in part by
the FJC study referred to earlier. The Judicial Conference based, in part, its
opposition to cameras in the courtroom on the same study. Given this apparent
inconsistency, it may be useful to highlight several important findings and
limitations of the study. As I noted earlier in the statement, the recommendations
included in the FJC report, which were proposed by the research project staff,
were reviewed within the FJC but not by its Board.
First, the study only pertained to civil cases. This legislation, if enacted,
59
would allow camera coverage in both civil and criminal cases. As this
Subcommittee is acutely aware, the number of criminal cases in the federal courts
continues to rise. One could expect that most of the media requests for coverage
would be in sensational criminal cases, where the problems for witnesses,
including victims of crimes, and jurors are most acute.
Second, the study’s conclusions ignore a large amount of significant
negative statistical data. For example, the study reports on attorney ratings of
electronic media effects in proceedings in which they were involved. Among
these negative statistics were the following:
• 32% of the attorneys who responded felt that, at least to some extent, the
cameras distract witnesses;
• 40% felt that, at least to some extent, the cameras make witnesses more
• 21% believed that, at least to some extent, the cameras cause attorneys to be
• 27% believed that, at least to some extent, the cameras have the effect of
distracting the attorneys; and
• 21% believed that, at least to some extent, the cameras disrupt the
courtroom proceedings.
When trial judges were asked these same questions, the percentages of
60
negative responses were even higher:
• 46% believed that, at least to some extent, the cameras make witnesses less
willing to appear in court;
• 41% found that, at least to some extent, the cameras distract witnesses;
• 64% reported that, at least to some extent, the cameras make witnesses more
• 17% responded that, at least to some extent, cameras prompt people who see
the coverage to try to influence juror-friends;
• 64% found that, at least to some extent, the cameras cause attorneys to be
• 9% reported that, at least to some extent, the cameras cause judges to avoid
unpopular decisions or positions; and
• 17% found that, at least to some extent, cameras disrupt courtroom

proceedings.
For the appellate courts, an even larger percentage of judges who
participated in the study related negative responses:
• 47% of the appellate judges who responded found that, at least to some
extent, the cameras cause attorneys to be more theatrical in their
presentations;
• 56% found that, at least to some extent, the cameras cause attorneys to
change the emphasis or content of their oral arguments;
• 34% reported that, at least to some extent, cameras cause judges to change
the emphasis or content of their questions at oral arguments; and
• 26% reported that, at least to some extent, the cameras disrupt courtroom
61
proceedings.
While the Conference did allow each United States court of appeals to
determine whether to permit the use of cameras in that circuit, these high negative
responses give us a very real indication as to why only two out of 13 courts of
appeals have allowed their proceedings to be televised. The two courts that do
allow camera coverage are the Second and Ninth Circuits, which voluntarily
participated in the pilot project.
These negative statistical responses from judges and attorneys involved in
the pilot project dominated the Judicial Conference debate and were highly
influential in the Conference’s conclusion that the intimidating effect of cameras
on witnesses and jurors was cause for alarm. Since a United States judge’s
paramount responsibility is to seek to ensure that all citizens enjoy a fair and
impartial trial, and cameras may compromise that right, allowing cameras would
not be in the interest of justice. For these reasons, the Judicial Conference rejected
the conclusions made by the FJC study with respect to cameras in district courts.
Carefully read, the FJC study does not reach the firm conclusions for which
it is repeatedly cited. The negative responses described above undermine such a
reading. When considering legislation affecting cameras in the courtroom with
such permanent and long-range implications for the judicial process, the negative
62
responses should be fully considered. Certainly that is what the Conference
focused on. In reality the recommendations of the study reflect a balancing
exercise which may seem proper to social scientists but which is unacceptable to
judges who cannot compromise the interests of the litigants, jurors, and witnesses,
even for a public benefit.
IV. Conclusion
When almost anyone in this country thinks of cameras in the trial courtroom
today, they inevitably think of the O.J. Simpson case. I sincerely doubt anyone
believes that the presence of cameras in that courtroom did not have an impact on
the conduct of the attorneys, witnesses, jurors, and judge—almost universally to
the detriment of the trial process. Admittedly, few cases are Simpson-like cases,
but the inherent effects of the presence of cameras in the courtroom are, in some
respects, the same, whether or not it is a high-publicity case. Furthermore, there is
a legitimate concern that if the federal courts were to allow camera coverage of
cases that are not sensational, it would become increasingly difficult to limit
coverage in the high-profile and high-publicity cases where such limitation, almost
all would agree, would be warranted.
This is not a debate about whether judges would be discomfited with camera
coverage. Nor is it a debate about whether the federal courts are afraid of public
63
scrutiny. They are not. Open hearings are a hallmark of the federal judiciary. It is
also not about increasing the educational opportunities for the public to learn
about the federal courts or the litigation process. The judiciary strongly endorses
educational outreach, which could better be achieved through increased and
targeted community outreach programs.
Rather, this is a decision about how individual Americans—whether they
are plaintiffs, defendants, witnesses, or jurors—are treated by the federal judicial
process. It is the fundamental duty of the federal judiciary to ensure that every
citizen receives his or her constitutionally guaranteed right to a fair trial. For the
reasons discussed in this statement, the Judicial Conference believes that the use
of cameras in the trial courtroom could seriously jeopardize that right. It is this
concern that causes the Judicial Conference of the United States to oppose
enactment of S. 829 as applied to federal trial courts. As the Supreme Court stated
in Estes, “[w]e have always held that the atmosphere essential to the preservation
of a fair trial—the most fundamental of all freedoms—must be maintained at all
costs.” 381 U.S. at 540.
I have mentioned in my oral testimony that there is a fundamental
distinction between appellate and trial proceedings. The Judicial Conference has
serious concerns, which I share, that cameras are inappropriate in the trial court
64
setting, while acceptable, with discretion, in the Circuit Courts of Appeals.
65
Exhibit 4
EXHIBIT B
JO'DIClALCONlFERENCEOFTHE 1[JNKTEDSTATES
WASHINGTON, D.C. 20544

THE CHIEF pJSTICE lAMES C DUFF
OF THE UNITED STATES Secrelary
Presiding
July 23, 2009

Chairman

Ranking Member
Dear Mr. Chairman and Senator Sessions:
The Judicial Conference of the United States strongly opposes the "Sunshine in the
Courtroom Act of2009," S. 657 (11 ph Cong.), because it provides for the use of cameras
in federal trial court proceedings. Cameras can affect behavior in court proceedings.
Cameras can even affect whether a case goes to trial. Cameras can also affect courtroom
security ofjudges, witnesses, employees, and U.S. marshals. This is of particular concern
in light of recent increased threats to federal judges. The Judicial Conference believes
that these and other negative affects of cameras in trial court proceedings far outweigh
any potential benefit. The Judicial Conference also opposes the legislation because it
would empower any appellate court panel to permit cameras in their courtroom rather
than retain that power within the management of each circuit.
The Judicial Conference bases its policy and opposition to the use of cameras in
the federal trial court proceedings on decades of experience and study. The Conference
considered the issue in a number of different situations and contexts including a pilot
project - and concluded that the presence of cameras in federal trial court proceedings is
not in the best interest ofjustice. Federal judges must preserve each citizen's right to a
fair and impartial trial. Of course, federal trials have long been open to the media and
public. But it is the studied judgment ofthe Judicial Conference that cameras can

Page 2
interfere with a fair and impartial trial. Thus, the use of cameras in trial courts would
differ substantially from the impact of their use in legislative, administrative, or
ceremonial proceedings.
Cameras can interfere with a fair trial in numerous ways. First, broadcasting
proceedings can affect the way trial participants behave. Television cameras can
'intimidate litigants, witnesses, andjurors, many of whom have no direct connection to the
proceeding and are involved in it through no action of their own. Witnesses might refuse
to testi1J or alter their stories when they do testi1J if they fear retribution by someone who
may be watching the broadcast.
Second, and similarly, camera coverage can create privacy concerns for many
individuals involved in the trial, such as witnesses and victims, some of whom are only
tangentially related to the case but about whom very personal and identifYing information
might be revealed. For example, efforts to discredit a witness frequently involve the
revelation of embarrassing personal information. Disclosing embarrassing facts or
accusations in a courtroom already creates challenges in court proceedings. Those
challenges would be multiplied enormously if that information were aired on television
with the additional possibility of taping and replication. This concern can have a material
effect on a witness's testimony or on his or her willingness to testifY at all.
Third. and as a consequence of the aforementioned points, camera coverage could

also become a potent negotiating tactic in pretrial settlement discussions. Parties may
choose not to exercise their right to trial because of concerns regarding possible camera
coverage. Thus, allowing cameras could cause a "chilling effect" on civil rights
litigation; plaintiffs who have suffered sex or age discrimination may simply decide not to
file suit if they learn that they may have to relive the incident and have that description
broadcast to the public at large. Or, parties litigating over medical issues may not wish to
reveal their personal medical history and conditions to a broad audience.
Fourth, the presence of cameras in a trial court will encourage some participants to
become more dramatic, to pontificate about their personal views, to promote commercial
interests to a national audience, or to lengthen their appearance on camera. Such
grandstanding is disruptive to the proceedings and can delay the trial.
The Federal Judiciary is therefore very concerned that the effect of cameras in the
courtroom on participants would be to impact negatively the trial process and thereby
interfere with a fair trial.

Page 3
In addition to affecting the fairness of a trial, the presence of cameras in a trial

courtroom also increases security and safety issues. Broadcasting the images ofjudges
and court employees, such as court reporters, courtroom deputies, and'law clerks, makes
them more easily identified as targets by those who would attempt to influence the .
outcome of the matter or exact retribution for an unpopular court ruling. Threats against
judges, lawyers, and other participants could increase even beyond the current disturbing
level. Cameras create similar security concerns for law enforcement personnel present in
, the courtroom, including U.S. marshals and U.S. attorneys and their staffs.
Finally, regarding the courts of appeals, in 1996 the Judicial Conference adopted
the position that each circuit may decide for hselfwhether to permit photographic, radio,
and television coverage of appellate arguments, subject to any restrictions in statutes,
national and local rules, and such guidelines as the Conference may adopt. This policy
ensures consistency within each circuit. The Sunshine in the Courtroom Act of 2009
would allow panels within the circuits to determine whether cameras will be allowed at
their proceedings, rather than leaving the initial decision to the circuit's management.
This will result in differing treatment of litigants within each circuit. Currently, the
circuit-wide policies avoid piecemeal and ad hoc resolutions of the issue among the
various panels convened within a court of appeals, and that approach is therefore better
than the proposed legislative change.
* * *
For the foregoing reasons, the Judicial Conference of the United States strongly
opposes legislation that allows the use of cameras in federal trial court proceedings and
permits individual panels to use of cameras in all courts of appeals instead of deferring to
each circuit's rules on such use.
Thank you for the opportunity to provide the position of the Judicial Conference
on this legislation. The legislation raises issues of vital importance to the Judiciary. If we
may be of additional assistance to you, please do not hesitate to contact our Office of
Legislative Affairs at 202-502-1700.
Sincerely,
(j~tV
James C. Duff
Secretary
cc: Members, Senate Judiciary Committee
I
REpORT OF THE PROCEEDINGS

OF THE JUDICIAL CONFERENCE
OF THE UNITED STATES
March 12, 1996
The Judicial Conference of the United States convened in Washington, D.C.,

on March 12, 1996, pursuant to the call of the Chief Justice of the United States issued
under 28 U.S.C. § 331. The Chief Justice presided, and the following members of the
Conference were present:
First Circuit:
Chief Judge Juan R. Torruella
Chief Judge Joseph L. Tauro,
District of Massachusetts
Second Circuit:
Chief Judge Jon O. Newman
Chief Judge Peter C. Dorsey,
District of Connecticut
Third Circuit:
Chief Judge Dolores K. Sloviter

Chief Judge Edward N. Cahn,
Eastern District of Pennsylvania
Fourth Circuit:
Chief Judge 1. Harvie Wilkinson, III

Judge W. Earl Britt,
Eastern District of North Carolina
Fifth Circuit:
Chief Judge Henry A. Politz

Chief Judge William H. Barbour,
Southern District of Mississippi
March 12, 1996
CAMERAS IN THE COURTROOM
I courts The Judicial Conference agreed to authorize each court of appeals to decide for
's itself whether to permit the taking of photographs and radio and television coverage of
appellate arguments, subject to any restrictions in statutes, national and local rules, and
icial such guidelines as the Judicial Conference may adopt. The Conference further agreed
ourt of to-
les for
ledule. a. Strongly urge each circuit judicial council to adopt an order reflecting the
Judicial Conference's decision to authorize the taking of photographs and radio
and television coverage of court proceedings in the United States courts of
appeals; and
;:ess
b. Strongly urge each circuit judicial council to adopt an order pursuant to
a
28 U.S.C. § 332 (d)(l), reflecting the September 1994 decision of the Judicial
Conference (JCUS-SEP 94, pp. 46-47) not to permit the taking of photographs
~P and radio and television coverage of court proceedings in the United States
district courts. In addition, the Judicial Conference agreed to strongly urge the
te; it judicial councils to abrogate any local rules of court that conflict with this
decision, pursuant to 28 U.S.C. § 2071{cXI).
ttee
ents
COMMITIEE ON CRIMINAL LAW
UNIVERSAL PRETRIAL DRUG TESTING
In December 1995, President Clinton directed the Attorney General to develop

uit
a "... universal policy providing for drug testing of all federal arresteesoefore decisions
en
are made on whether to release them into the community pending triaL" In February
of
1996, the Attorney General submitted a pretrial drug testing proposal to the Executive
mce
Committee, which referred the matter to the Committee on Criminal Law for
recommendation to the March Judicial Conference. Reporting on the proposal to the
Conference, the Criminal Law Committee recommended that the issue be referred back
ciary to that Committee. The Judicial Conference voted to refer the Attorney General's
dified proposal regarding universal pretrial drug testing to the Criminal Law Committee for
nd (b) expeditious consideration and report to the Executive Committee, which is authorized
;ertain to act on the matter on behalf of the Conference.
17
Exhibit 5
Exhibit 6
Civil Local Rules
(f) Orders taxing costs pursuant to Civil L.R. 54-4.
Cross Reference
See ADR L.R. 4-11(d) “Nonbinding Arbitration; Entry of Judgment on
Award.”
Unless allowed by a Judge or a Magistrate Judge with respect to his or her

own chambers or assigned courtroom for ceremonial purposes, the taking of
photographs, public broadcasting or televising, or recording for those purposes in the
courtroom or its environs, in connection with any judicial proceeding, is prohibited.
Electronic transmittal of courtroom proceedings and presentation of evidence within
the confines of the courthouse is permitted, if authorized by the Judge or Magistrate
Judge. The term “environs,” as used in this rule, means all floors on which
chambers, courtrooms or on which Offices of the Clerk are located, with the
exception of any space specifically designated as a Press Room. Nothing in this rule
is intended to restrict the use of electronic means to receive or present evidence
during Court proceedings.
77-4. Official Notices.
The following media are designated by this Court as its official means of
giving public notice of calendars, General Orders, employment opportunities,
policies, proposed modifications of these local rules or any matter requiring public
notice. The Court may designate any one or a combination of these media for
purposes of giving notice as it deems appropriate:
(a) Bulletin Board. A bulletin board for posting of official notices shall be
located at the Office of the Clerk at each courthouse of this district.
(b) Internet Site. The Internet site, located at http://www.cand.uscourts.gov,

is designated as the district’s official Internet site and may be used for the posting of
official notices.
(c) Newspapers. The following newspapers are designated as official

newspapers of the Court for the posting of official notices:
(1) The Recorder; or
(2) The San Francisco Daily Journal; or
(3) The San Jose Post-Record, for matters pending in the San
Jose Division, in addition to the newspapers listed in subparagraphs
(1) and (2); or
Published December 2009 CIV 92

Exhibit 7
GENERAL ORDER No 58
REGULATING POSSESSION AND USE OF
ELECTRONIC DEVICES IN THE COURTHOUSE
The purposes of this General Order are to promote security for all persons who enter federal
courthouses (or the portions of federal buildings occupied by the District Court), to protect the integrity of
judicial proceedings, to facilitate legitimate use of electronic devices for communication or for the storage,
retrieval, or presentation of information, and to comply with the mandates of the Federal Rules of Criminal
Procedure and the policies of the Judicial Conference of the United States.
I. Definition: “Electronic Device”

As used in this General Order, the phrase “electronic device” embraces all equipment (regardless of
how it is powered or operated) that can be used for
A. wireless communication; or
B. receiving, creating, capturing, storing, retrieving, sending, or broadcasting any signals or any
text, sound, or images; or
C. accessing the internet or any other network or off-site system or equipment for communicating
or for storing or retrieving information.
II. Federal Rule of Criminal Procedure 53 prohibits “the taking of photographs in the courtroom during
judicial proceedings or the broadcasting of judicial proceedings from the courtroom.”
III. Policy of the Judicial Conference of the United States prohibits, in both civil and criminal cases in all
district courts, broadcasting, televising, recording, or photographing courtroom proceedings for the purpose
of public dissemination.
IV. Additional Rules in this District.
Except as may be otherwise ordered by a judge of this court, possession and use of electronic devices
and cameras in federal courthouses in this district, and in the portions of buildings in which judicial
proceedings are held, shall be governed by the following rules and policies:
A. Court security personnel will screen all electronic devices and cameras before permitting them
to be brought into the courthouse or into any facility or portion of any facility in which a judicial
proceeding is held. The purpose of this screening is to make sure that the items do not contain
weapons, dangerous devices or materials, or contraband.
1. Court security personnel may bar from the courthouse, or from portions of a building in
which judicial proceedings are held, any item that appears to pose a threat to security or
safety.
2. In response to a violation of any provision of this General Order, or of any court order
addressing matters covered by this General Order, court security personnel may order
immediate compliance, direct the offender to leave the courtroom or the building,
temporarily confiscate the device(s) used in violation of these rules, and/or report the
violation to the presiding judge, the Chief Judge, and/or the United States Attorney.
B. Subject to the screening described in the preceding paragraph and to other provisions of this
General Order, electronic devices may be brought into the courthouse and may be used in a non-
disruptive manner in the common areas of the building.
C. Photographs may not be taken and images may not be captured by any means in the courthouse
or in the courthouse portions of the building (this prohibition does not apply to sketch artists).
D. Except as may be permitted pursuant to paragraph E, below, or as authorized for the taking of
the official record of judicial proceedings or grand jury deliberations by a court reporter or court
recording operator, or as necessary to facilitate necessary language translations, no part of any
judicial proceedings or of any deliberations by a petit jury or a grand jury may be recorded, or
transmitted.
E. With the exception of court personnel and court reporters, and with the further exception of
laptops, PDAs or their equivalent used by counsel during and in connection with judicial
proceedings, no electronic device may be used in any courtroom without express permission, in
advance, from the presiding judge.
1. Counsel who wish to use electronic devices other than laptops, PDAs or their equivalent
during and in connection with judicial proceedings must secure permission, in advance,
from the judge presiding over those proceedings.
2. Cell phones, pagers, and other electronic communication devices may be activated only
in the ‘vibration’ mode inside courtrooms or jury rooms. Such devices may not be activated
in courtrooms or jury rooms in any mode that uses any sound to alert the user to incoming
communication.
F. Jurors may not use any electronic device in a courtroom during judicial proceedings or in a jury
room during or in connection with deliberations. Grand jurors may not use any electronic device
during or in connection with any proceedings before or deliberations by the grand jury. Cell
phones, pagers, and their equivalent may be activated in courtrooms or jury rooms only in the
‘vibration’ mode.
ADOPTED: October 20, 2005 FOR THE COURT:
Vaughn R Walker
United States District Chief Judge

10-70063 #1

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10-70063 #1

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Case: 10-70063 01/08/2010 Page: 1 of 48 ID: 7187906 DktEntry: 1-1

United States District Court for the Northern District of California

EMERGENCY PETITION UNDER CIRCUIT RULE 27-3 FOR

Andrew P. Pugno Charles J. Cooper

Circuit Rule 27-3 Certificate

Pursuant to Circuit Rule 27-3, Petitioners respectfully certify that their

(VRW) (the “mandamus petition”) is an emergency petition requiring at least

temporary “relief … in less than 21 days” in order to “avoid irreparable harm.”

Petitioners are a “primarily formed ballot committee” and the “official

proponents” of Proposition 8 (“Proponents”), who were permitted to intervene in

beginning this coming Monday, January 11, 2010.

As elaborated in Proponents’ mandamus petition, the district court’s

unlawful decision to broadcast the trial proceedings will cause immediate

less than 21 days”—and indeed by Monday morning—in order to prevent these

irreparable injuries. Cir. R. 27-3(a). Accordingly, Proponents respectfully request

Proponents’ mandamus petition.

court, and were rejected.

parties with copies thereof by email.

Attorneys for Plaintiffs Kristin M. Attorney for Defendant Clerk-

Theodore J. Boutrous, Jr. Dennis J. Herrera, City Attorney

(213) 229-7804 Attorney

Attorney for Defendant Registrar-

(916) 324-3081 (202) 220-9600

Corporate Disclosure Statement Under Fed. R. App. P. 26.1

Defendant-Intervenors-Petitioners are not a corporation but a primarily

CIRCUIT RULE 27-3 CERTIFICATE ......................................................................i

CORPORATE DISCLOSURE STATEMENT ........................................................vi

TABLE OF AUTHORITIES ....................................................................................ix

I. Absent Mandamus, No Other Means of Review is Available. ...................12

II. Proponents Will Be Irreparably Harmed Absent Immediate Review.........13

III. The District Court Clearly Erred as a Matter of Law..................................21

A. The Purported Revision of Local Rule 77-3 ............................................22

B. Ninth Circuit Judicial Council Policy ......................................................27

C. The Lack of Guidelines Governing the Pilot Program.............................28

D. Public Broadcast of the Trial in This Case Would Violate Proponents’

Due Process Right to a Fair Trial. ........................................................29

IV. The Question Presented Is One of First Impression but Is Capable of

Creating a Persistent Disregard of the Federal Rules. ................................30

STATEMENT OF RELATED CASES...................................................................32

Chandler v. Florida, 449 U.S. 560 (1981)...............................................................30

Estes v. Texas, 381 U.S. 532 (1965). .......................................................... 14, 29, 30

In re Complaint Against District Judge Billy Joe McDade, No. 07-09-90083

In re McBryde, 117 F.3d 208 (5th Cir. 1997) ..........................................................28

Miner v. Atlass, 363 U.S. 641 (1960) ......................................................................24

Perry v. Schwarzenegger, No. 09-17241, slip op. at 15-16

Petry v. Block, 737 F.2d 1193 (D.C. Cir. 1984) ......................................................24

Russell v. Hug, 275 F.3d 812 (9th Cir. 2002) ..........................................................28

United States v. Edwards, 785 F.2d 1293 (5th Cir. 1986).......................................20

United States v. Hastings, 695 F.2d 1278 (11th Cir. 1983).....................................21

United States v. Terry, 11 F.3d 110 (9th Cir. 1993) ................................................25

Weil v. Neary, 278 U.S. 160, 169 (1929)………………………………………….21

Westmoreland v. Columbia Broadcasting System, Inc., 752 F.2d 16

28 U.S.C. § 2071..................................................................................... 2, 22, 25, 26

28 U.S.C. § 2077(b) .......................................................................................... 23, 25

FED. R. APP. P. 21.......................................................................................................1

FED. R. CIV. P. 83(a)(1)..................................................................................... 22, 24

N.D. Cal. L.R. 77-3..................................................................................... 23, 27, 28

N.D. Cal L.R. 83-1...................................................................................................22

N.D. Cal L.R. 83-3(a) ..............................................................................................22

CAL. CONST. art. I, § 7.5.............................................................................................1

Notes of Advisory Committee on 1985 Amendments to FED. R. CIV. P. 83...........24

Thomas M. Messner, The Price of Prop 8, Heritage Foundation, available at

Rule 21, Petitioners respectfully petition for an emergency writ of mandamus or

This petition arises in a case presenting a federal constitutional challenge to