SAN FRANCISCO — So many people came to listen to lawyers argue the death penalty appeal of convicted Chino Hills murderer Kevin Cooper that dozens of overflow spectators had to watch from the courthouse cafeteria on a closed-circuit television.
But three seats remained empty during the hearing last week in the large ceremonial courtroom of the U.S. 9th Circuit Court of Appeals. They were the chairs reserved for the judges, who were hundreds of miles away, listening to the arguments via video hookup, and occasionally asking questions.
The 9th Circuit, which considers appeals in federal cases from nine western states, including California, Alaska and Hawaii, plus Guam and the Mariana Islands, has had the technological capacity to conduct oral arguments via video for seven years. But the Cooper hearing marked the first time that an argument was held with none of the judges present, according to Mary M. Schroeder, the 9th Circuit's chief judge.
In an interview late last week, Schroeder, who is based in Phoenix, said she was troubled by the development, and may propose curbs on judicial videoconferencing.
"I was at the courthouse in San Francisco on Tuesday, and I was very surprised and concerned when I learned all three judges were on video," Schroeder said. "That was a first. Several other judges are concerned as well, and we are going to have a full discussion as soon as we can.
"I don't think this is going to happen again."
Videoconferencing for oral arguments was introduced in several of the nation's federal circuits between 1998 and 2001. Supporters say it saves travel time and increases court efficiency, while detractors worry that it eliminates important personal interplay between lawyers and judges.
Federal appeals court judges may spend months on a case, reviewing briefs, discussing the case with colleagues and law clerks, writing and rewriting opinions. But the oral arguments are the only time that those judges, who have lifetime tenure, interact with the lawyers. In serious cases, each side gets half an hour. In some instances, the attorney barely utters a sentence or two before the judges start posing pointed questions.
The first time the 9th Circuit used the video system, it was in 2000 for the convenience of lawyers from Guam, who wanted to save the time and expense of flying to San Francisco. The judges assembled at the San Francisco courthouse, and the lawyers argued via video from Guam.
The circuit stepped up use of video for oral arguments several years ago when one judge faced medical problems that prevented him from flying. However, in recent months, an increasing number of 9th Circuit judges have invoked their privilege of appearing via video, even when they did not have a compelling reason, according to judges on the court who spoke on a not-for-attribution basis.
Two judges on the court took particular umbrage at a colleague who they said had recently informed the court that it would be inconvenient to attend arguments because they would conflict with a child's basketball games.
Veteran 9th Circuit Judge Stephen Reinhardt, though declining comment on the Cooper arguments, said he was troubled by judges' increasing tendency to participate in oral arguments via video.
"I may be a traditionalist, and somewhat of a conservative, but I believe that attorneys who come to court to argue are entitled to directly engage the judges who are deciding their clients' rights," said Reinhardt, whose chambers are in Los Angeles. "After all, that's what we were appointed to do -- show up in court and hear cases."
The Cooper case has attracted a lot of interest, both because of the brutality of the murders -- in which a couple and two children were hacked to death in Chino Hills in 1983 -- and allegations that Cooper was framed.
Norman Hile and Holly Wilkens, the two lawyers who squared off at the Cooper hearing, delivered their arguments while facing a television screen. Each attorney could see his/her image and that of two of the three judges -- Ronald M. Gould, who was in Seattle, and M. Margaret McKeown, who was in San Diego -- displayed on a split-screen. Gould has serious health problems that make it dangerous for him to fly, according to Cathy Catterson, the 9th Circuit's chief clerk.
A technical glitch meant the lawyers and the other judges could only hear, but not see, Judge Pamela Ann Rymer, who was in Pasadena. The other two judges could see each other as well as the lawyers.
Hile, who represents Cooper, drove from Sacramento for the argument. He declined comment on the hearing format. Wilkens, a deputy state attorney general, who flew from San Diego to argue in favor of the death sentence, said that the format "made absolutely no difference" on how she presented her case.
The Times sent the three judges assigned to the Cooper case an e-mail asking for their views on the subject of judges hearing argument via video. All three answered with similar responses: