Wisconsin Lawyer
Vol. 79, No. 9, September 2006

Photojournalist Captures Courtroom Reality

By Dianne Molvig

On June 11, 1962, Mark Hertzberg trekked from his home in New York City to a nearby hotel, where President John Kennedy typically stayed when he visited the city. Hertzberg figured he might get lucky and capture a candid photograph of the President.

"I took a snapshot of him with my Brownie," Hertzberg recalls, "and tried to sell it to Time Magazine." He was 11 years old. Time declined his photograph.

Scrolling ahead to a day some 40 years and thousands of published photographs later, we find Hertzberg with a professional Nikon digital camera focused on the subject of a hearing in a Racine (Wis.) County courtroom. Hertzberg is there on assignment for the Racine newspaper, The Journal Times.

Framed in his viewfinder is an 8-year-old boy, just a bit younger than Hertzberg was on that summer day when he first aspired to be a published photographer.

This boy, however, is in trouble. Although he's too young to be formally charged with a crime, he has committed an assault that can't be ignored. He'd arrived at school armed with a 28-inch-long solid wooden pole, more than an inch in diameter, that he planned to use against a student he claimed had beat him up the day before.

When he attacked the other child with the pole, the principal intervened, and the boy bashed the principal over her head, breaking the pole into three pieces. The principal suffered head injuries and was nonresponsive when the ambulance arrived. The boy ended up in the justice system, which ultimately sent him to a residential treatment facility to learn to manage his anger.

Being in the courtroom to photograph the boy's hearings was imperative, says Hertzberg, who's been photographing courtroom scenes since 1978.

"It was an important story to tell beyond the nuts-and-bolts police blotter stuff," he says. "This was a serious social issue. What happens to this 8-year-old boy? How does he get treated? What are the implications for him, for society, for the victim? This case epitomizes the importance of opening the courts to photographic coverage."

Stories Without Words

It also was an extremely challenging assignment to shoot. "I had to tell the story," Hertzberg explains, "without ever showing the boy's face" (to protect his identity).

Hertzberg pulled it off commendably, true to the reputation he's gained over the years as a photojournalist. One of his photos speaks volumes about an 8-year-old's perspective on legal proceedings he mostly doesn't comprehend. The photo shows only the boy's hand as he plays tic-tac-toe on a legal pad during the hearing.

The last photograph in the series was taken at the end of the final hearing, when Racine County circuit court judge Charles Constantine released the boy from residential treatment, allowing him to return home and continue outpatient treatment. Depicting a typical 8-year-old's behavior, the photo shows the boy, from behind, waving goodbye to the judge from the defendant's table. And the judge is waving back.

Called "Too Young for the System," the photo series won Hertzberg the 2006 Joseph Costa Award for Courtroom Photography, given by the Department of Journalism at Ball State University, Muncie, Ind.

He'd won this award before - first in 1987, and then in 2001, when he became the first photographer to win the award twice. This year he broke his own record by becoming the first three-time winner. He's also been the recipient of other awards, among them State Bar of Wisconsin Golden Gavel Awards.

The Joseph Costa Award has special meaning for Hertzberg because he knew its namesake personally. Costa was one of the founders of the National Press Photographers Association in 1946 and a champion for photojournalists' rights to cover courtroom proceedings.

Hertzberg traces his own awareness about issues surrounding cameras in courtrooms back to the early 1970s. Fresh out of Lake Forest College, a small liberal arts college near Chicago, with a degree in international relations, he got a job at the Beloit Daily News.

He worked there for four years doing everything from taking photographs, to writing captions, to writing features and columns - "journalism boot camp," as Hertzberg describes it.

Two assignments, in particular, at the Beloit Daily News got him thinking about why cameras should be allowed inside courtrooms. The first assignment, in 1974, involved covering the trial of a man and his mother, both accused of maltreating their farm animals. Hertzberg had to confine his photographic coverage to what went on outside the courtroom.

"I didn't enjoy photographing a man who was shackled and handcuffed as he was shuffling from a police car into a courthouse," Hertzberg recalls. "There was a certain lack of dignity in that."

On another occasion he was covering a hearing at which a wrongfully convicted man regained his freedom. "I couldn't be in the courtroom to photograph his and his family's reactions," Hertzberg says. "By the time they got outside, there was nothing to photograph anymore."

The Wisconsin Experiment

Such experiences motivated him to get in touch with Joseph Costa. Hertzberg became active in the National Press Photographers Association, got elected to its board, and served on its Freedom of Information Committee, which worked on camera-in-the-courtroom issues nationwide. When the issue came before the Wisconsin Supreme Court, Hertzberg was there to testify at hearings to support the idea.

Those hearings resulted after Ed Hinshaw from WTMJ-TV in Milwaukee and Bob Wills, editor of the Milwaukee Sentinel - both acting on behalf of the Society of Professional Journalists - petitioned the state supreme court to allow cameras and audio recorders in Wisconsin courtrooms. The court agreed to a one-year experiment and then granted full authorization on July 1, 1979.

Hertzberg was eager to jump into action when the experimental period began on April 1, 1978. "There was a bank robbery trial in Beloit that day, even though it was a Saturday," he recalls. "So I shot a picture on the first day."

Since then, he's shot thousands of photographs during his four years at the Beloit Daily News and 28 years at The Journal Times in Racine. But even with all that experience behind him, photographing in the courtroom "can't be second nature to you," Hertzberg says, "because if it's second nature, you're going to miss a good picture."

Besides shooting pictures and acting as The Journal Times' photography director since 1987, Hertzberg also is media coordinator for Racine County, a position he's held ever since cameras gained admittance into Wisconsin's courts in 1978.

"Back then, one of the concerns some judges had," Hertzberg says, "was that they didn't want to be bogged down with having to make the arrangements for photographers." Media coordinators - who are newspaper, radio, or television journalists - handle such arrangements for their journalist colleagues in their districts.

As a media coordinator, one frustration Hertzberg has is that his colleagues sometimes lose sight of the fact that being allowed in court is not only their right, it's also a privilege. "I just try to remind them that court hearings affect people's lives," he says. "These are not press conferences or photo opportunities."

When photographers fail to respect the court, Hertzberg feels they should apologize to court officials. He remembers an incident several years ago during a Green Bay homicide trial. After the judge announced the verdict, a local photographer took a picture of the jury - an action that's expressly forbidden by the Wisconsin Supreme Court's rules about cameras in courtrooms. The court allows photos of jurors only if individual jurors give consent or if including jurors in a photo's background is unavoidable. Even so, those jurors must not be identifiable.

But the Green Bay newspaper photo clearly revealed jurors' identities, without their consent. "There was a bit of an uproar," Hertzberg says.

He called the photo director at the Green Bay newspaper and advised him to contact the judge promptly, admit the mistake, and make assurances it wouldn't happen again. Taking such actions is critical to the future of courtroom photojournalism, in Hertzberg's view. The profession must monitor and police itself to maintain credibility.

"When [photojournalists] err," he says, "we have to acknowledge the error. We can't get defensive. We have to address [problems] head on."

A Clear Picture

Overall, Hertzberg feels that cameras in the courtroom have gained widespread acceptance in Wisconsin over the past three decades. Meanwhile, other states still struggle with the concept. For example, Indiana recently launched a pilot project to test cameras in some courts. And in New York, some judges recently have begun to allow still photography in their courtrooms, creating a small crack in the state's 54-year ban on cameras.

In Wisconsin, one concern that critics raised early on was that photojournalists would cover only the sensational trials. That type of coverage will happen "whether cameras are allowed in court or not," Hertzberg observes. "Still, in terms of television, I'd rather see 15 or 30 seconds of actual courtroom testimony, rather than a reporter standing outside a courthouse paraphrasing that testimony."

But Hertzberg sees room for improvement in photojournalism. "There are a few places where I think we fail as a profession," he says. "One of them is that our coverage is mostly on the headline felony cases. There are so many other opportunities to take pictures."

He'd like to see more coverage of civil court matters, for instance, or even small claims court. The reality is that budget constraints force photography directors to make hard choices on not only which proceedings to cover, but also how much coverage to give any particular proceeding.

"We don't have a large enough staff to be able to cover a trial full time," Hertzberg notes, "or to try to guess when different people will testify." So a photographer might be on hand for the initial appearance or preliminary hearing and maybe for the verdict and sentencing. "We rarely send photographers to the body of the trial," Hertzberg explains.

One exception is a trial in Racine County set for November, involving a man who shot at four young men attempting to steal cars. The shooter killed one and wounded another. Both men apparently had been shot from behind.

"This is the first trial we may staff [with a photographer] full time," Hertzberg says, "because it's polarized the community. Reactions range from condemnation of vigilante justice to applause for somebody who, some would say, 'did what we all want to do.'"

This is another case, like that of the pole-wielding 8-year-old boy, that raises critical questions for society. And cameras need to be there to help tell the story, Hertzberg believes.

Despite any flaws or limitations of photojournalism, cameras in court benefit all of us, he contends, by shedding light on the workings of the judicial branch of government. "It's the least understood branch," he says. "One reason is because people don't go to court unless they're involved in a legal proceeding, and the other is that they're so brainwashed by Hollywood."

Cameras in court help to combat misconceptions by "presenting to the public what judges, attorneys, and their colleagues do every day," Hertzberg says. "Anything that can be done to bring the reality of the courtroom to our readers and viewers can only help educate people."

"If cameras were not allowed in court," he adds, "you'd be left with 'Law and Order' and all those other shows as the only window people have [on the justice system]. And that is a foggy window."

Wisconsin Lawyer