Judgment’s Tableaux
The court made public
Kelli Moore
Student courtwatch drawing. New York City Superior Criminal Court, Spring 2022
To treat trials as mere entertainment, educational or otherwise, is to deprive the court of the dignity which pertains to it and can only impede that serious quest for truth for which all judicial forums are established.
—Judicial Canon 35
It is a peculiarity of the form of a melodramatic trial that the exciting action of a chase or rescue can never be, as in conventional melodrama, the climax of the story. In place of the ritual suspense of chase, escape, or rescue, a trial provides an entirely different ritual of suspense: the waiting for, and the reading of, the verdict. Verdict readings take the place in courtrooms where verbal displays of approval or disapproval are taboo. All the more reason, then, for the melodramatic text of muteness to take over as defendants, defendant’s families, defense attorneys, and prosecutors register mutely eloquent postures of relief and vindication or sorrow and outrage. These exaggerated gestures are almost pure moments of theatrical melodrama, functioning much like the tableaux of the nineteenth-century stage.
—Fred Moten, Stolen Life
A seated court officer checks his smart phone. Behind him, a bulky smart board broadcasts Honorable Judge Hasa A. Kingo’s face into the courtroom, a reminder of the continued reliance on hybridizing tech tools in post-pandemic New York. The actions of both are captioned in ways that offer subtle evaluation and judgment of the two legal roles represented by the men. Judge: “trying to think what’s the best way to do it.” Officer: Looking @ phone the whole time.
The drawing was completed by a college student enrolled in a New York University research practicum course at the Superior Criminal Court in New York City in 2022. At the center of the drawing is a reference to the court respondents; they are the reason the judge is trying to think of a “best way.” The facts of the relationship that bring the respondents to court are contained in the phrase “Mom & Son.” This drawing and others like it employ various forms of captioning, punctuating, and abbreviating to make sense of courtroom space; in doing so, they signal both muted and overpresent forms of embodiment: the judge is rendered as a talking head encased by smart technology. His authorial statements are presented in quotes. Similarly, etched in the court officer’s heavily shaded uniform is the severity of power bestowed by his office. The use of @ (i.e., “Looking @ phone the whole time”) is a mark of the many texting vernaculars incorporated by mobile technology. Unlike the judge and the court officer, Mother & Son are muted; they can only assume a body and relation through letter form.
Courtwatching is an organized practice of making court functioning public. During courtwatching, drawing and writing are the primary recording methods that resolve the problem of U.S. courtrooms forbidding the use of telephones or radio inside, leaving their presence to the discretion of presiding judges. Though courts circulate more images than ever before, they also vigorously forbid the recording of live courtroom events by the public. Audience members are forbidden to photograph, video, and audio record courtroom activity. Drawing is the best way to capture the everyday functioning of the courts; tiny details transform the mundane into moments of interest and discovery.
I first became involved in courtwatching as a method for observing the production and circulation of images of domestic violence while researching my first book, Legal Spectatorship: Slavery and the Visual Culture of Domestic Violence (Duke University Press, 2022), in which I provide a critical history of visual evidence in domestic abuse trials. My analyses draw upon the archive of New World slavery to demonstrate how limitations imposed upon the testimony of the enslaved are inscribed into the courtroom poetics of contemporary domestic violence adjudication. The victim testimonies, mediated in part by interactions with photographic evidence of abuse, that I analyze are written from the vantage point of the courtroom audience—an increasingly politicized formation—both physically and politically. In order to examine law in action, my project had to grapple with the problem of liveness and the interdiction of cameras in the courtroom. I wanted to know the procedures for making and displaying visual evidence of domestic violence—who takes such images, under what power dynamics, what entity owns the photographs, how are the images shown in court and discussed? The courtroom, with its live networked computers is alive with the traditional figures of the judge, bailiff, attorneys, court officers administering the court in sudden starts and stops. Watching and noting the flow of work in the courtroom allowed me to study the law’s standards and routines for arguing about visual evidence and adjudicating domestic violence. Often, I would sketch what I observed when what I was hearing became too jargon filled. Drawing the activities of the courtroom allowed me to work through the onset of boredom by solving the problem of representing the complex communicative interactions in a domestic violence courtroom. I would transition from a state of confusion to boredom to an attentive interest and investment in the drawing as more value from the scene emerged in my sketches.
The labor constitutive of the audience’s public duty to observe is controlled and archived officially by the state alone, not by the members of the community. Compare the relative silence concerning bystander witnessing via mobile phones to the high degree of excitement, confidence, and funding through which police body cameras have been promoted and installed nationally. State looking practices dominate. The sex trafficking trial of Ghislaine Maxwell is an example of our growing desire to also manage and police the courtroom audience. A sketch artist, Jane Rosenberg, assigned to document the proceedings was surprised to find Maxwell drawing a portrait of the artist at work. The story of Rosenberg’s observation is a testament to the desire for news and myths surrounding Maxwell’s titillating downfall. Taking Maxwell’s trial as a point of departure, this short article argues for the importance of drawing as a critical resource for courtwatching—a form of praxis born from the U.S. Constitution. Maxwell’s public appearances throughout her trial were frequently described as stoic. As Hannah Arendt’s association between the “banality of evil” and the failure to think disrupted the assumed relationship between intention and thinking, similarly, one can draw no easy conclusions about the meaning and intent of Maxwell’s drawing as an act of thought or speech. Maxwell’s ability to appear to spectators at all is mediated by Rosenberg’s act of recording from her line of sight in the courtroom audience. The drawings, then, proffer little access into the interiority of the accused. One thing is sure: the drawing is an invitation to consider the idea that the muteness Moten describes in the epigraph as a form of courtroom affect could be expressed through the activity of drawing.
If, according to Moten, muteness is what describes defendants, family, and friends waiting for a verdict, I suggest we take both Maxwell’s silence and the recording of her courtroom drawings as a deadly serious communicative act that both discloses and resists the vulnerability Moten’s description introduces among subjects of the melodramatic trial.
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Maxwell can be read as pointing toward the tradition of courtroom sketching and winking at its pervasive documentary realist aesthetic. A court sketch artist studies multiple gazes, working through the problem of recording live courtroom activity by hand. Operating within tight aesthetic confines, their renderings of courtroom activity approach verisimilitude. In the end, Rosenberg’s surprise turned to inspiration as the artist decided to incorporate Maxwell’s image into her trial portrait (“I’m going to draw her drawing me”). Such is the state’s aesthetic of transparency even as it flutters postmodern winks. Maxwell, on the other hand—both in personality and drawing—embodies an alternate and deviant perspective, one whose aesthetic may color outside realism and outside our justice system. Unlike the fallen socialite’s drawings, the order and visual realism of courtroom sketch art is beholden to visualize courtroom activity in obeisance of hegemonic codes against electronic recording devices.
Drawing courtroom activity, then, is an optimal practice for unfolding legal consciousness—the individual’s apprehension of and experience of law in everyday life. Recently, attention has also turned to what individuals do not think about law, suggesting that legal consciousness is equally comprised of a host of repressions and assumptions that are subterranean to individual consciousness. This leads to the problem of how we access something like a legal (un)conscious emerging in the context of rules against cameras in the courtroom. The affordances of drawing and writing are helpful for addressing the problem of how a scene and what becomes available to be seen are made through repetition and practice.
Drawing and writing are among dominant media-making practices that emerge in U.S. law though the interlocking First and Sixth Constitutional Amendments. The amendments interlock the moment when public assembly (First) and having a trial by one’s peers (Sixth) are protected. This portion of law effectively calls a practice of assembling—much like courtwatching—into being as both a right and a civic duty. Jocelyn Simonson observes that disciplinary attention to this political obligation is preoccupied with the duties entrusted to juries rather than courtroom audiences—a demographic made up of family, friends, and supporters of court defendants that is traditionally cash poor, non-white, without stable living addresses, and has itself been subject to police violence. Juries by comparison are enfranchised voting citizens with stable living addresses. These social dynamics silently encode the spatial dynamics of the courtroom. Yet, even as they structurally privilege the jury over the audience, the interlocking amendments leave philosophically open exactly what we are to do; the amendments leave uncodified just how we are to act once so freely assembled. A theory of media, memory, and motivation is latent in this moment of law and its repression of digital recording in the courtroom audience. The courtroom audience, then, are typically dispossessed folks. They are the kind of folks Stefano Harney and Fred Moten are thinking of when they reconsider the debtor/creditor relationship as being one in which the debtor position needs refuge and embrace. “Debt is social and credit is asocial,” they write. “Debt is mutual. Credit only runs one way. But debt runs in every direction, scatters, escapes, seeks refuge. The debtor seeks refuge among other debtors, acquires debt from them, offers debt to them. The place of refuge is the place to which you can only owe more and more because there is no creditor, no payment possible. This place of refuge, this place of bad debt, is what we call the fugitive public.”
Courtwatching exchanges precisely the “bad debt” promulgated by Harney and Moten by thinking with the commodity. As Simonson details in her book Radical Acts of Justice, paying a stranger’s bail and acts of witnessing and storytelling all conform to the praxes of study and bad-debt exchange between the lumpen classes of the courtroom audience and the bourgeois class aspiration of university students. One of the discoveries of the courtwatching movement is the “untapped” potential of watchers coming from the university. Within its economy of affect and desire, the sociality of courtwatching and drawing develops the legal (un)conscious.
The courtroom drawings become the media of a popular front with abolitionist potential.
Here a turn to Freud’s and Marx’s respective concepts of free association is helpful for teasing out the significance of courtwatching and its drawings to the history of labor and emancipation. Marx’s writing in The German Ideology, Capital, and The Communist Manifesto is replete with discussion of the role of political association in emancipating labor and society from state and capital. Freud, too, made use of free association as a method—in his case, for accessing the analysand’s unconscious machinations. In the courtwatching scenario, drawing works through the problem of unrecorded legal processes—unrecorded and therefore repressed—because of the interdiction on cameras in the courtroom. The courtroom drawings become the media of a popular front with abolitionist potential.
To commemorate the 150th anniversary of Freud’s birth, the New York Academy of Medicine in 2006 exhibited his psychoanalytic drawings. “From Neurology to Psychoanalysis: Sigmund Freud’s Drawings and Diagrams of the Mind” was a study of the analyst trying to solve the problem of representing unseen psychic processes. Freud, hoping to further evidence psychology’s scientific status, used patient observations to “infer underlying laws” of human mental processes. Exhibition curator Lynn Gamwell suggests that “he’s [Freud] thinking of the neurological substrate, but it’s [the drawing] also linking it to a dream.” Freud associated the scientific logic in his drawings with its so-called opposite—fantasy. As the collection revealed, scientific desire and fantasy are entwined and latent in Freud’s drawings of psychic processes. For his part, Fanon’s inventive use of the Thematic Apperception Test (TAT) provides a model in which drawings are explicitly deployed as scientific instruments in order to disidentify from the underlying colonial antiblack structures of psychoanalytic experiments and tools. Though designed to be the very picture of ambiguity and vagueness, the images encode Anglo-European Judeo-Christian values. Fanon administered the test to Algerian psychiatric patients subversively to enact a counternarrative to the universal logics of the test. Thus, Muslim women who “failed” to read the TAT images properly provided an immediate critique of these drawn instruments. Here colonialism is the unseen psychic problem underwriting the world in which Freudian psychoanalysis and Marx’s reading of the commodity are implicated. Freud and Marx respectively engage in free association for self-regulating the mind and the associationism among the collective organizing cadre. The courtroom space, whose architecture and activities were crucial to elaborating the imperial colonial project, is a scene of unseen psychic and social processes. Its form and (latent) content must be recorded by the courtroom audience.
“To define the geography of racial capitalism and of struggles against it through the prison is not to reduce it to the prison.” This notable observation by Brenna Bhandar and Alberto Toscano on the occasion of the publication of Ruth Wilson Gilmore’s Abolition Geography is suggestive of the ways critical prison studies must include the archives of imprisoned people. Student courtwatching co-produces the archive of the active courtroom audience, incorporating its expression as the ground for critical prison studies theory (think Sarah Elizabeth Lewis’s work on “the ground” in art in the era of Stand Your Ground law). Student drawings potentially archive an unofficial fugitive people’s transcript. In doing so, their media-making practice manifests a neglected part of the popular front of critical prison studies—the courtroom audience. “Study” in this sense includes academic scholarship but importantly is also study in the way Harney and Moten describe it, as the exchange of bad debt and its possibilities.
But we need to be clear what courtwatching is and is not. There is nothing inherently abolitionist about courtwatching or its incitement to media making. Although courtwatching undertakes serious field research in the courtroom, this was not always the case. Historically, the courts were a place to watch spectacular capital punishments, as Foucault detailed the brutal excesses of sovereign power in Discipline and Punish. In that landmark text, Foucault concluded sovereign power had reformed toward a medicalized “gentle way of punishment.” Such an inaccuracy would be famously qualified by Dwight Conquergood’s discussion of the public’s greed for state execution. In the United States, where public squares and courthouses often appear in close proximity, courtwatching practices could equally describe the history of organized mobs of white citizens assembled to watch a Black person lynched after being found guilty, before and after Jim Crow segregation. Lynching images record the workings of mob justice and antiblack punishment in the town square and courthouse. The archive of lynching photography freely circulating today is a testament to the incitement to media making conditioned by the free assembly of white folks called to watch in the special setting of the town square and courthouse. Sovereign power has retained its brutal force.
Given the creep of social media into the courtroom—consider the recent domestic-defamation and countersuit Depp v. Heard—some have asked if there is any point for court watchers to be present in the courtroom audience at all. And what is a court, anyway? Digital Black feminist research draws our attention to online publics—veritable courts of public opinion that perform as extralegal sites of condemnation and punishment meted out especially for dispossessed women. Whereas online courts of public opinion create accountability through content moderation, courtwatching offers accountability through content mediation. Courtwatching can bring accountability to the courtroom dynamic. By attending to the live body, in the words of Nick Gill and Jo Hynes, “courtwatching can help us to draw attention to the ways in which legal processes are affective, intimate, and embodied.” This is especially the case among abolition feminists—mothers, daughters, friends, and lovers sitting in U.S. courtrooms for decades while prosecutors aggressively removed Black and Brown kinfolk from our communities. From Ruth Wilson Gilmore’s cofounding of Critical Resistance to her description of Mothers Reclaiming Our Children (ROC); to video work of abused women and allies fighting for clemency for abused women by the Survived and Punished project; to Davis, Dent, Meiners, and Ritchie’s, Abolition. Feminism. Now. (2022), including Black feminist work in online publics like Moya Bailey’s Misogynoir Transformed: Black Women’s Digital Resistance (2021), and Catherine Knight Steele’s Digital Black Feminism (2021), abolition feminists have brought their embodied knowledge to the courts and the online courts of public opinion alike. Likewise, it is also important to clarify that explicating the silence of the laws on free assembly and trial by one’s peers is an investment in the U.S. Constitution as a legitimate social contract, which is in conflict with the stunning and correct Afro-pessimist indictment of civil society that makes possible a form of free assembly by violently and capriciously refusing it to Black folks. Reading free assembly alongside free association in Marx and Freud allows us to see how courtwatching opens a space of abolitionist practices for organizing self and group. Given the rigorous and violent ways Black citizenship and assembly are policed and surveilled, apartheid and antiblackness are the precise descriptors of courtroom geography. If courtwatching is to remain a tool of the oppressed—if it is to become what Gilmore calls “abolition geography,” we might draw inspiration from the theoretical and methodological experiments with free association of Marx, Freud, and Fanon (specifically in the cases of Freud and Fanon’s use of the TAT’s experimental drawings) as a way of disidentifying from the ideological structures of language that still inform history. Drawing is a way to represent and analyze the condition of the courtroom audience as it is subject to the bad faith (antiblack) legal fantasies of public assembly and trial by peers.
The courtroom space, whose architecture and activities were crucial to elaborating the imperial colonial project, is a scene of unseen psychic and social processes
Courtroom audience drawings are one expressive form abolition feminist movements can assume. The drawings critically intervene in an antiblack justice system at the level of culture, embodying its cultural front. According to Johan F. Hartle, the “structure of the concept of ‘association’ suggests a convergence between Marxism and psychoanalysis, one which goes beyond the problematic hermeneutic of the latent and also suggests a way of—somewhat therapeutically—organizing and expressing it.” Student court watchers collectively participate in collaborative courtroom drawings. Using notebooks, they engage in free association while observing courtroom interactions. Their association in the courtroom audience is valuable not because what they produce is systematic knowledge, but due to something more like wisdom. How might a hermeneutics of the courtroom drawing address free assembly of the courtroom audience and the political position of the people to the courts? We want to disidentify with the kind of assembly and associations that gave rise to lynching photography. We also want to disidentify from the ways, according to Torin Monahan, that imperial archival practices established “royal memory” and sovereign power. If the courtroom space is a site of abandonment, apartheid, and antiblackness, then the courtroom audience drawings constitute the activation of social production and artworks that Henry W. Pickford suggests “[attempt] to activate the recipient’s capacity for situational, kairotic perception and reaction (phronêsis as a distinct kind of aesthêsis).” Put simply, courtwatching and drawing are critical-practical activities required to exercise social production and critique.
Abolition feminism transformed free association among courtroom audiences and, by extension, the dynamics of courtroom professionals. “Intimate and embodied approaches to courtwatching help to reclaim and hold accountable the corporeal power that courts claim,” write Gill and Hynes, thus drawing can help tap into the corporeal accountability abolition feminists created. This is because drawings foster a mode of communication conveying experiential knowledge. As praxis, the drawings also work in the mode of abolition geography—negation—by turning the courtroom space and its traditional relationships of dominance and dispossession into something else.
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In a recent analysis of the drawings by Kenyatta A. C. Hinkle, Titus Kaphar, and Whitfield Lovell, critic Bridget R. Cooks observes the dual meaning of the verb “to draw,” as that which is drawn to you and that which is drawn out of you. Toward whom might court watchers draw? What might be drawn out of the student court watcher and others comprising the courtroom audience? Courtwatching creates an entanglement—free association—between the university student and the audience. Can doodles, scribbles, and marginalia mediate courtroom audience formation? And what of the qualia of mediation? What aesthetic categories will describe communicative interactions in legal settings that are distributed across the bodies of court watchers, the courtroom audience, and notebooks? These questions are part of a growing formation of popular evidence production-circulation-consumption whereby people access popular and varied forms of justice.
The courtroom is a primary site of image production and circulation according to a realist aesthetic of transparency. With its varied history, courtwatching is an important form of civil justice research. As more areas of need for legal services are exposed within the courts, student court watchers are uniquely positioned to make an unofficial record of courtroom activity through drawing. Courtwatching and its accompanying drawings can be an experiment among courtroom audiences, who are often the dispossessed of the courtroom milieu. The decolonial aesthetics emerging from this growing body of images demands its day in court.