OpenCourt paves way for more transparency

A screen grab of OpenCourt’s archives, available for free on the pilot project’s website two days after the livestreaming.

Of all the quandaries faced by the three employees of the controversial pilot project OpenCourt — from the ethical to legal dilemmas of live streaming from a Massachusetts courtroom gavel to gavel — it was a really basic problem that took almost three months to fix.

“They had DSL, but we needed a much better system,” said OpenCourt director Joe Spurr about the Quincy District Court. “Verizon and Comcast couldn’t come in and drill for setup at the courthouse.”

They ended up putting a device on top of the building and set up a Wi-Fi system for the courtroom now available to all citizen bloggers.

Since the launch of OpenCourt in May 2011, the project has made strides in journalism — planned ones and surprises, like the free Internet now available at the Quincy courthouse. One of the surprises: a lasting impact in Massachusetts’ legal landscape.

In March, the state’s highest court ruled that a judicial order that OpenCourt redact material presented during open court was an unconstitutional prior restraint on publication. The appeal stemmed from two separate criminal cases. In one case, the name of an underage alleged victim of sexual abuse was accidentally blurted in court. In the second case, a criminal defendant said that OpenCourt’s footage – in which he is seen shackled – violated his constitutional right to a fair trial and demanded the footage be redacted.

The state’s Supreme Judicial Court not only ruled in favor of OpenCourt, but also directed the court’s Judiciary-Media Committee to develop guidelines for the live online streaming of the pilot project.

Although OpenCourt has a policy prohibiting publication of the names of minor victims of sexual assault and did not intend to publish the name, it objected to the court’s order, arguing that any restriction on its right to publish the recordings constituted a prior restraint that violates the First Amendment, according to the appellate court opinion.

Spurr called the decision “validating.”

The premise of the project, which was kicked off by a $250,000 award from the Knight News Challenge, was to try and make courts more open and accessible, said John Davidow, WBUR.org’s executive editor and a member of the Judiciary-Media Committee of the Supreme Judicial Court of Massachusetts. WBUR is National Public Radio’s Boston affiliate.

The committee — comprised of journalists, judges and court personnel — identifies and attempts to fix media-related issues. One of the problems that kept coming up was how to keep up with modern reporting tools — from Twitter to video recording via cell phones.

“It became obvious there were no clear rules or boundaries,” Davidow said. “There was a fear and uncertainty about burgeoning online realities.”

Davidow came up with the idea to set up a camera that would record and stream live from the courtroom with no narration or editing. “This could broaden the coverage of the courts in a way that would serve the public and inform the public,” he said.

With the Knight backing and a nod from a supportive and media-friendly judge, OpenCourt hammered out the logistics and launched the site.

Journalists kept an eye on the project, which garnered a number of write-ups by the Associated Press, The Boston Globe and local affiliates in its first month. Within its first few weeks, the OpenCourt site was viewed more than 70,000 times.

But critics also expressed concerns about how the camera would affect the trial or a hearing.

Julieann Hernon, director of the Quincy District Court Office of the Committee for Public Counsel, said she was “dismayed” when she found out about the project.

“It’s not to exclude the press or shroud courts in the cloak of secrecy, it’s just not to overexpose ordinary people to public humiliation and ridicule,” Hernon said. “I think the value of privacy is one that is increasingly being lost.”

Hernon said she’s a “fan” of the First Amendment and an American Civil Liberties Union member since she was a teen. But broadcasting some of the lowest points in the lives of struggling residents of Massachusetts was too much for her.

“You have people who are crying, yelling at each other, breaking down,” she said. “This is a very private issue, but now it’s an archived issue. Someone with idle curiosity can look at that and find it very entertaining. Maybe it’s someone they know and now they can download that clip and post it on Facebook or forward it to everyone they want.”

But Davidow argues that OpenCourt doesn’t make anything “more public.” They are allowed to record what any other news organization can film.

“We have no additional access that the public has,” he said. “We are just essentially the eyes and the ears of the public.”

The only difference is that people sitting in at court only have their memories of the events to replay to their family at dinner that night.

OpenCourt archives the footage. The only edits are those based on rules agreed upon between the producers and the judge, such as the name of a juvenile or a sexual assault victim. Both are unwritten rules generally followed by the media. Massachusetts is unique in that the redaction of names in particular crimes is mandated by law.

How it works

Spurr starts his day at 8:30 a.m., digital video camera in tow, and absolutely no expectations of what might happen that day.

It could be boring. Or it could be like one of the project’s early days in court when a defendant on a domestic assault and battery charge made a run for the backdoor of the courthouse. He made it down the street before he was tackled, while Spurr – armed only with his camera – ran out along with the guards.

When something newsworthy is going on, Spurr tweets a heads up to its more than 570 followers.

That’s the difference between OpenCourt and, for example, the courts beat reporter for a newspaper.

The courts reporter will likely go to the courthouse for a specific hearing for a newsworthy defendant or crime.

OpenCourt shows up a couple times a week for first sessions and arraignments and films the entire time, regardless of what’s on the docket.

There always is an OpenCourt producer present when there is filming — it’s not like a surveillance camera that constantly records.

If an attorney objects to the recording, and the judge agrees, then the camera is shut off. Two days after filming, the video is available on the Internet with agreed upon items redacted. When that happens, the screen fades to black and a sentence reads “This footage has been removed for (whatever reason.)”

On average, there are 100 people watching the live stream, according to Spurr.

“Sometimes it’s boring,” said Spurr who has sat through hours of dull procedural sessions.

“But it’s surprising to see how much business they see every day. If everyone can have the experience I have of watching what’s happening in the community — the underbelly and the social problems — what could that do for us that would be useful to understand better what’s going wrong?” Spurr said.

Critics’ concerns

During the first week of OpenCourt recording at the Quincy District Court, the Norfolk County District Attorney filed a motion to shut down the project’s archives. The concern was that inappropriate or inaccurate information — such as names of victims or confidential informants — would be easily accessible. Judge Mark Coven denied the motion saying he couldn’t rule on “hypotheticals.”

The issue delayed the debut of OpenCourt as the small staff knew they had to address every issue that came up with an open mind — a necessity when working on a pilot project.

A number of the project’s critics, such as the district attorney’s office, were concerned about the live streaming, but what worried them the most was the archives.

While there are numerous signs in the courtroom alerting people that they may be filmed, there are no signs warning them that they may be “archived,” Hernon said.

“When a homeless man is convicted of battery or a neighbor of drunken driving, should you be able – with a key stroke – to download it 10 years later and send it to people in, for example, the PTA the defendant belongs to?” Hernon said. “It’s like a reality TV show, but you didn’t sign up for it.”

A big concern for Hernon and also a number of critics is Section 35, a Massachusetts law that allows family members to go to court to try and involuntarily commit someone they believe to have a substance abuse problem.

“These are often very sad scenes,” she said. Hernon described painful events for families such as children attempting to commit their parents who are subpoenaed to go before the court.

Hernon said she’s also concerned that the archived recordings may affect a client’s right to a fair trial — what if a curious juror decided to check out the arraignment of the defendant through OpenCourt’s archive?

David Traub, the communications director of Norfolk County District Attorney Michael Morrissey, said officials also were concerned that the camera would make people testifying nervous and hesitant.

“It’s not unusual for cameras in the courtroom to change the dynamic of how witnesses or victims of a particular crime feel,” he said. “It’s easy for reporters, but there are people who have never been in a courtroom their whole life. There is not a pre-existing comfort level to be in a criminal trial and there is not a pre-existing comfort level in being before a camera. Will there be a chilling effect?”

Donna Morelli, the director of programs and services of DOVE, Inc., a local organization that provides services for survivors of domestic abuse, said they initially had serious concerns with OpenCourt — from the livestreaming to the archiving.

“The concern we had is if hearings were broadcast, would victims be comfortable with coming forward?” Morelli said.

Morelli said she felt that the court and the OpenCourt staff addressed DOVE’s concerns.

“They involved us stakeholders and it was a pretty open process,” she said. The conclusion was that domestic violence cases seeking restraining orders could go to another courtroom if participants didn’t want their hearing televised. The hearing, however, would still be a public one.

Morelli said she also was surprised to find out that a number of DOVE’s clients were not as concerned about the live streaming as the officials initially thought.

“The reality is with the younger generation, I don’t think it was their concern,” said Morelli, referring to clients between 18 and 25 years old. “We thought they may be uncomfortable but they were used to it. Maybe this issue was us not being used to social media whereas the younger generation is used to having their lives broadcast. Their issue of privacy is much different.”

Defining success

The Knight funds lasted from November 2010 to March of this year. For the last couple of months, WBUR has picked up the tab for OpenCourt. Davidow is looking for funders.

But the costs go down each year as most of the expenses are associated with the equipment purchases for setup, according to Davidow, who declined to say exactly how much money the project needs each month.

“We want to take it from the premium package to a courtroom where you are that would allow you to take your laptop in or allow a citizen journalist access to a camera pool,” he said. “The C-Spanization of the courts is overdue.”

OpenCourt has already proved to be useful, according to Spurr, who said local journalists have watched hearings and used quotes just watching their live stream instead of coming in the courtroom. The Quincy Patriot-Ledger has already embedded the OpenCourt stream in a story.

Spurr said OpenCourt has heard from court interpreters who also use the live stream to practice and court clerks who check the archives or watch live to help track certain records.

Spurr said having a camera in the courtroom could also be very cost effective for taxpayers.

“If a court had a camera in every courtroom and used a video file as official record, a clerk doesn’t have to respond to all those record requests,” he said. “The value to the public is undeniable. As long as we go through these guidelines, it can only be a really good thing for having the courtroom be a glass house, which is what they are designed to be.”

Morelli is, to some extent, now a convert who admits to the value of OpenCourt.

“I think it’s the wave of the future,” she said. “This could be a good vehicle if done with safeguards. We’re going to see a lot more of this.”

That’s what Davidow would ultimately want to see. OpenCourt already has plans to expand and cover entire criminal trials instead of just first sessions and arraignments.

“We want to help perpetuate this type of transparency and openness, not just here but throughout the country,” Davidow said. “If we can push that frontier, there is an opportunity for greater understanding and training of future journalists who can work in a courtroom environment and learn how to cover the court.”