Hear ye

Okay, here's my promised piece following up on a suggestion by my learned former opposing counsel, Frank the Cat. The Cat suggested that audio of CCA arguments should be publicly available, just as audio of CAAF's arguments is accessible to anyone with an Internet connection and a computer speaker.

I've researched this issue because I have a motion pending before the Air Force Court to allow recording of arguments in an ongoing capital appeal, since that's the only way the appellant can hear the proceedings in his own case. So let's look at what we know.

Joint Courts of Criminal Appeals Rule 27 authorizes a CCA to tape its proceedings. I contacted the clerks of each of the four Courts of Criminal Appeals to determine whether they record oral arguments. The Army, Air Force, and Navy-Marine Corps Courts do not. The Coast Guard Court does, but indicates that it does so only for its judges' uses and won't make the tapes available to anyone else. But I suspect that if a FOIA request were submitted for an audiorecording of an argument, the recording would be deemed a releasable document. If someone were to successfully obtain such a recording through FOIA, CGCCA might decide to stop taping future arguments, though I don't really understand why the court is opposed to releasing the tapes of oral arguments that it already makes.

As we all know, CAAF records all of its oral arguments on posts them on the Internet, almost always on the day of the argument or the following day. I'm unaware or any problems every caused by this practice and it's quite helpful for those of us who want to follow CAAF's docket but don't have time to make it down to E Street for every oral argument.

As reported by the Oyez Project, "The Supreme Court installed an audio recording system in 1955 and began recording its proceedings on the first Monday in October, the start of its annual Term. It has been recording almost all proceedings ever since." At the end of each Term, the Court gives tapes of all of its arguments to the National Archives. Those tapes are then converted into digital format and made publicly available. On some rare occasions, the Supreme Court releases same-day audio of its oral arguments. Supreme Court oral arguments are also accessible to the public through same-day transcripts posted on the Supremes' web site.

What about the Article III courts of appeals? At least six (the First Circuit, the Fifth Circuit, the Seventh Circuit, the Eighth Circuit, the Ninth Circuit, and the Federal Circuit), record their oral arguments and allow the public to access them through the Internet. The Second, Fourth, and Sixth Circuits record oral arguments and sell recordings of the arguments for $26. It appears that the Tenth Circuit also sells recordings of oral arguments for $26, though I could only find a reference to such sales in its fee schedules; I couldn't find its actual policy on selling recordings of oral arguments. The D.C. Circuit has a convoluted rule under which arguments are recorded, the counsel and the parties may listen to the oral argument tape, anyone can order a transcription of the oral argument for two years after issuance of the mandate, after which the tape is destroyed, and anyone can buy a copy of the oral argument tape once the case is completely concluded, including any remands, subsequent appeals, or other proceedings -- but presumably only if all proceedings in the case are completed before two years from when the mandate issues and the recording is destroyed. Who came up with that Rube Goldbergesque rule? The Third Circuit appears to have a general policy against recording arguments for public availability. Like the Coast Guard Court, the Eleventh Circuit records oral arguments but provides that those recordings are "for exclusive use of the court." 11th Cir. R. 34-4(g). "Neither the recording nor a transcript thereof will be made available to counsel or the parties." Id. But with the court's advance approval, parties may have a court reporter prepare an unofficial transcript of the oral argument. Id. But unlike the Coast Guard Court, which is in the Executive Branch, the 11th Circuit isn't covered by FOIA. So unlike the Coast Guard Court's oral argument tapes, the 11th Circuit's recordings aren't vulnerable to disclosure under FOIA.

While there is some variety in the Article III appellate courts' practices regarding public accessibility of oral arguments, as we have seen, the great majority of those courts make the arguments freely available on the Internet or generally available for $26. And the prestige of, say, the First or Fifth Circuits certainly hasn't diminished as a result of making its arguments freely available to all. (Perhaps the prestige of the D.C. Circuit should be diminished for adopting such a convoluted rule on public access to oral argument recordings.)

One key reason to record CCA oral arguments is that the appellants with the greatest interest in an appellate case's outcome -- those who remain confined -- can't attend the oral argument. Many non-confined appellants are extremely interested in their cases' progress but can't afford to travel to the Washington, D.C., area to attend an argument. Those whose cases are heard by CAAF can (and, I can attest, sometimes do) listen to the arguments over the Internet. But no similar opportunity is available to experience what happened at a CCA argument (again, except for the CGCCA litigant who submits a FOIA request for an argument tape). That seems like a gap that can and should be filled.