Saturday, November 29, 2008

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.


Anonymous said...

I agree with the wise old man. Record the arguments and make them available for all. The military wants greater transparency; here is one way to make it happen. I bet the only problem is that they don’t have the technological capability; remember the Supremes only started doing this in 1955. I suspect the military will get this capability in about 10-15 years.

OyezOyez said...

I would go further and have video such as in the Supreme Courts of Massachusetts, Florida, Ohio and so on... the concern that it encourages gamesmanship and "sound byte" lawyering just doesn't play out in the real world. That parade of horribles just doesn't come in the real world -- except to the extent that it's there already.

Anonymous said...

Is it interesting to anyone else that the CG tapes oral arguments on appeal, but steadfastly refuses to tape Article 32 investigations?

Anonymous said...

Anon 0553- you are assuming that the government WANTS "greater transparency...." Me thinks it is just the opposite. I've had the Army CCA deny a motion for oral argument in a premed murder case where the Gov't did not oppose the motion after they granted a Motion to file an enlarged brief because there were so many issues....

It's the same thing for 32's - it serves to cover up the gov'ts inadequate investigations and frustrate the due process of the Accused. In the "real" world, even disputed parking ticket hearings are recorded!

The Cat said...

Anon 1522; that is just bunk.

I would like to see CCAs oral arguments recorded and released on the internet to the public because I think it would be a great display of how sophisticated the practice is in the military. Even today, all to often I hear lawyers who never served in the military and no nothing about it scoff at our practice as though we were simpletons.

It is absolutely correct that recording and placing oral arguments on the web has not diminished the 5th circuit at all, nor any others that do it. Quite frankly, I have a lot of issues with the CGCCA recording the oral arguments but refusing to release them. They are solely for the Court? What does that mean? There is nothing privileged or confidential in an oral argument. These sessions are open to the public, and quite frankly, I am very tempted (as Joe the Citizen; not in my government capacity) to file a FOIA for an oral argument recording and take them to task. That to me is an abomination. No, they don't have to post it on the internet just because they do record the argument, but to deny anyone access to a PUBLIC RECORD is an abomination to me. To quote VP Al Gore: "That is a national outrage."

I am also sympathetic to the position that a criminal defendant should be able to hear his case orally argued if technology allows for it. Now, for those of you who do not know me, I am by no means a "defense hack" for lack of a better way to put it ( and I mean that because I truly do not mean that in any disparaging way, though that is usually the connotation). I do tend to have a more law and order (government hack) bent, but I do believe that a defendant should be able to listen to his oral argument, if technology allows for that. That is not to say that I believe he has some sort of constitutional right to that, but just because it may not be mandated by the Constitution (yes this government hack spelled it with a capital "C") does not mean it should not be afforded to a defendant.

I know NMCCA does do some project outreach type of oral arguments. The sole purpose is to make military justice more accessible to the public and to promote more public awareness of the military justice system. So why not record and release. I am starting a new campaign: Record and Release Now Baby.

Anonymous said...

Cat - it isn't "bunk" - it's the unfortunate truth in that case. Maybe not in the "run of the mill" cases, but that case is the worst example of anything called a "trial" since Kafka. Take a look at Oldfather, Remedying Judicial Inactivism: Opinions as Informational Regulation, 58 Fl.L.Rev. 743 (2006) - a good commentary on Appellate Judges doing "less" than what their roles require, especially when it "buries" a meritorious issue.

Why do Trial Counsel continue to "object" when we try to either tape record or bring in a civilian steno for a 32? That's hardly transparency, much less "good" practice.

But, I agree with you as to the recording and release. I think that a successful FOIA lies - there's no obvious exemption, especially if the oral argument is open to the public.

As an aside - since you appear to be in a position to know, why does the N-M CCA not "publish" the vast majority of its opinions? That seems to be a similar issue.

Anonymous said...

Anon 1522, it is bunk.

You ask a great question about publishing opinions, but I believe a post on another string indicated that NMCCA did about 2000+ cases a year, the product of mandatory appellate review (as opposed to CAAF and virtually every other appellate court). That same post indicated that the majority of the cases were about post-trial delay, sentence appropriateness, and some other mundane issue. I also suspect that in many of the cases the appellate counsel do not even specify issues. Would you actually want to carry that 3000 page Military Justice reporter around, one full of opinions that do nothing in the way of new precedent to assist and guide trial practitioners?

Anonymous said...

Cat - then tell me why it's "bunk" in your opinion?

Does the N-M CCA do that many more cases than the Army CCA? Just my observations from a Motion that I'm working on - which doesn't deal with delay or routine issues - but rather substantive issues, and the majority of cases on WestLaw were "unreported," including ones of interest to practitioners. If they do a summary affirmance, no issue.

Are you saying that the majority are Anders' Briefs??? I can see that if it's a guilty plea/PTA case; other wise not. Thanks for the info....

Anonymous said...

To see the number of cases each CCA decides, just go to the CAAF web site and look at the annual reports. Each service make a general report, but they all contain an appendix that indicates the number of cases each CCA decided in that year (in additiopn to number of cases tried that year).