California high court won't review gag orders
By The Associated Press
08.22.02
SAN FRANCISCO — The California Supreme Court will let stand two gag orders and other sealing orders imposed in two murder trials despite the news media's allegations they were ordered improperly.
The Associated Press, San Francisco Chronicle and Marin Independent Journal asserted that a host of orders gagging trial participants are being issued in trials throughout the state with no clear guidelines for their imposition.
"Trial courts are imposing gag orders as a matter of routine, as if they were any other case management tool, often on the basis of outdated and inapplicable authority," attorney Rachel Matteo-Boehm wrote in the news media's petition.
The gag orders typically arise in high-profile cases, including the ongoing trial of alleged Yosemite killer Cary Stayner in Santa Clara County and the San Diego County trial of David Westerfield, who was convicted yesterday of kidnapping and murdering 7-year-old Danielle van Dam.
The news organizations urged the state Supreme Court to hear its appeals to resolve differences among the six lower California appeals courts on the requirements necessary for a judge to seal documents and prevent lawyers, police and other participants from speaking publicly about an ongoing case.
The media noted that the Los Angeles-based 2nd District Court of Appeal, for instance, has recognized that gag orders are "presumptively unconstitutional prior restraints on speech," and cannot be imposed without a "clear and present danger or serious and imminent threat" of "prejudice" that could affect the fairness of a trial.
Other appeals courts, notably the San Francisco-based 1st District Court of Appeal, are routinely upholding judges' orders to gag trials without considering the high court's 1999 decision that spelled out standards for limiting access to judicial proceedings.
One of the press's petitions concerns the trial of Patrick Goodman, convicted in May by a San Francisco County jury of murdering the 3-year-old son of his girlfriend. Elijah Sanderson suffered 54 blows to the body in what San Francisco's medical examiner called the worst case of child abuse he had seen in three decades.
Without advance notice, Superior Court Judge Jerome Benson imposed a gag order after the jury was picked in April, and sealed evidence that was presented to the jury. The news media argued that the trial judge provided no facts supporting how the gag order and sealing of documents would protect the defendant's right to a fair trial — a key requirement for such orders. Only one news story about the trial was published before the gag order.
The press appealed to the 1st District Court of Appeal. That court rejected it as moot because the trial had ended by the time the case reached the appellate panel. The news media sought the California Supreme Court's intervention in hopes of establishing uniformity among the appellate courts.
The second news-media case the justices rejected involves the prosecution of a Marin County man and his live-in female partners, who allegedly neglected their 13 children, one of whom died of malnutrition.
A gag order was imposed and a host of documents sealed in the case that has yet to go to trial. A hearing is set for next week on the sealing of grand jury testimony and other documents.
News organizations complained that Marin County Judge Terrence R. Boren imposed the gag order by speculating that publicity eventually could endanger the defendants' fair-trial rights. But Boren, the press alleged, did not support the assumption with facts as California law demands.
"The court is not saying the press can't cover the story," said Nanci Clarence, the attorney defending Winnfred Wright, the dead boy's father. "It's saying the lawyers cannot say factual information that may be heard by potential jurors."
The cases are Associated Press v. Superior Court (Goodman), S17990, and Associated Press v. Superior Court (Wright), S108722.