Monday, June 29, 2009

Nesson to Souter: allow webcast or block trial

Harvard Law Professor Charles Nesson has posted to his blog what appears to be a draft of a petition to Supreme Court Justice David Souter, asking him in his capacity as circuit justice assigned to the First Circuit to permit the webcast of district court proceedings in the Joel Tenenbaum case, or suspend proceedings until the Court has acted on his cert. petition:

I request that you, as presiding justice for the First Circuit, suspend Local Rule 83.3 and the First Circuit’s order of prohibition in order to permit digital recording and dissemination of the trial; or, in the alternative, grant a stay of all further proceedings in the case to permit consideration by the Supreme Court of the petition for certiorari in due course.

It is time to open the courts of the United States to the internet and this case is a perfect test case in which to do so. The issues in it are of particular concern to the digital generation. The legal debates about them should be digitally recorded and accessible to them. To interpret the Local Rule so rigidly as to exclude any and all digital preservation and dissemination of the public proceedings of the district courts is arbitrary. Given the court’s scheduling of the trial on July 27, 2009, in the absence of the requested suspension of the rule or a stay of the trial, the petition for certiorari will be moot. For these reasons, we seek your assistance.

Prof. Nesson's draft is dated June 25, though the petition is not yet listed on the case docket. It's my understanding that Justice Souter's resignation became effective when the Court recessed this morning; I don't know which justice will assume his duties as the First Circuit's circuit justice. On the issue of cameras in the courtroom, any justice is probably better than Justice Souter, who famously pronounced: "I think the case is so strong [against cameras in the Supreme Court] that I can tell you the day you see a camera come into our courtroom, it's going to roll over my dead body."

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