by Finchley Atticus
I don’t know who coined the well-worn phrase “a photo captures a moment in time” but if there’s more than a kernel of truth in that (and I think there is) we sadly miss those poignant, intimate, confusing and unjust moments in our Australian courtrooms. We’ve been witness to the Oscar Pistorius murder trial thanks to court room TV coverage, and members of a certain generation will remember being fixated by similar ongoing TV coverage of the murder trial of former NFL great and Naked Gun star O.J. Simpson. Recently in Australia royal commissions have opened up their proceedings to live streaming, where we recently saw former Prime Minister Julia Gillard holding her own in the face of questioning from counsel. But as ABC Photo Editor Nic MacBean commented, still photography is not allowed of Australian court proceedings.
Reading Nic’s article unexpectedly made me reminisce about one of my favourite American legal dramas, Law and Order, the original series which had an amazing run of 20 years, with the gavel coming down for the last time in 2010. Each episode of Law and Order had a tried and true format. The first 30 minutes focused on the NYPD’s investigation, usually of a suspected murder, and then the eventual arrest. The second 30 minutes saw the NY County DA prosecutors up against the alleged perpetrator, with the occasional twist, cliché (“Motion to suppress Jack”) and courtroom sidebar. Void of any car chases and street brawls (although the occasional punch was thrown during an arrest), Law and Order’s quality stood on the intriguing storylines, high standard of writing, and the outstanding acting.
Talking of sidebars, when I was a Monash law student back in the early 90s, I remember the University’s Police Studies Department wanting to become part of the Faculty of Law. I wryly thought the Faculty could rename itself the Faculty of Law and Order. Remarkably over two decades later, one of the first decisions of NSW Liberal Premier Mike Baird was to controversially rename the Department of Attorney-General and Justice to Department of Police and Justice. This was seen as a sign to the community (and maybe shock jocks?) that Order was rightfully in charge over that pesky Law, with the Police Minister heading the rebranded Department, making all those soft-on-crime lawyers stand to attention! Spend less on wigs and gowns and more on police uniforms and prison robes!! But after a few weeks Law was restored when the Attorney-General was back in charge of the Department after the Minister for Police, Mike Gallacher resigned after being named in an ICAC investigation. Law and Order again. Besides, Law and Order is more euphonic than Order and Law, and the Department was again quietly renamed, this time simply Department of Justice.
So why did Nic’s article make me reminisce about Law and Order? Believe it or not, it’s the memorable opening theme, or to be precise, the still photographs that you see throughout the theme. Much has been written about the theme, composed by prolific TV composer Mike Post. But I equally find compelling the still photograph – a defence lawyer conferring with his client, another lawyer commanding the presence of the courtroom. There’s not much internet discussion about the origin of these photos, so I wish I knew if they are real or staged. But one can read much into these photos. What was the defence lawyer conferring with is client about? What was the trial about? What was going through the mind of the lawyer as he took stage in the courtroom? The fact the photos are in black and white give it that photojournalistic authority that many colour photos lack.
It’s these moments that we fail to capture in Australian courtrooms. Sure never-ending video streaming captures more than a moment, but the photo captures that moment forever. The moment when the accused surveys the potential jurors wondering if they will acquit him, the moment the prosecutor is relieved when the defence is oblivious to key evidence that would exonerate the accused, when the defence is ecstatic that the judge rules key evidence inadmissible, the anguish when the accused hears the jury’s verdict, the judge wondering what the jury was thinking when it decided guilty or not, the victim and the defendant realise whether not justice has been served. Yes, post-trial interviews reveal what went on in the courtroom (and even in the jury room). But there’s something about the impact of the still photograph, where we can ponder and interpret, and be dismayed and confused.
Iselin M. Gambert, Associate Professor of Legal Research and Writing at The George Washington University Law School, utilises an innovative approach to enliven the teaching of the duty to rescue concept. Professor Gambert shows her first year law students famous and iconic photographs (e.g. Napalm Girl and Vulture) which initiate much discussion on the duty to rescue. In the case of the photos, a broad question of whether the photojournalists should have rescued those in distress is asked, leading to discussion of finer legal principles behind the duty to rescue. The power of the photograph is sufficient to be provocative. Professor Gambert writes about her teaching technique in The Law Teacher I wish that Australian lecturers in torts and contracts consider following Professor Gambert’s initiative by moving away from carbolic smokeballs and snails in bottles, and instead use more relevant examples.
Maybe one day Australian courtrooms will be open to still photographers, and if they were, it would provide a wealth of images that would contribute to society’s continual shaping of their perceptions of law and order.