California judges stifling trial publicity despite openness laws

Analysis

By The Associated Press

02.12.03

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LOS ANGELES — Judges who preside over some of California's highest-profile trials have been clamping down on press coverage in spite of legal rules and admonitions from higher courts telling them to keep doors and documents open.

In cases such as the Winona Ryder shoplifting prosecution in Beverly Hills and the David Westerfield child kidnap-murder trial in San Diego, judges have closed courtroom doors and sealed documents, releasing information only when ordered to do so by appellate courts.

"This happens not only in high-profile trials. It happens in all kinds of cases," said attorney Kelli Sager. "But unless the media challenges it, the public doesn't know about it."

Sager has represented numerous news media organizations in cases ranging from Ryder to O.J. Simpson. She and other First Amendment lawyers suggest that judges are either unaware of the rules governing access or ignore them to stifle publicity.

Federal case law supports openness in all court proceedings unless there is proof that "irreparable harm" would result to a defendant's case. Judges are required to consider less restrictive alternatives than closure as a means of preventing that harm.

'O.J. hangover'
Memories of the O.J. Simpson murder trial still haunt the Los Angeles judiciary. Six years after the saga ended, judges remain concerned about avoiding the kind of wall-to-wall coverage that made the case a national obsession.

"The courts still have an O.J. hangover," said Loyola Law School professor Laurie Levenson who was a TV commentator during that trial.

In the Ryder case, Superior Court Judge Elden Fox refused to admit the press and public to his courtroom during arguments on a sealed motion involving allegations of "prior bad acts" by Ryder. The judge also excluded the press and public while the prospective jury panel was being sworn in and refused to release their answers to a written questionnaire.

Fox lost in news media appeals on all counts. The 2nd District Court of Appeal found that he erred when he held closed hearings and did not make any findings on the record to justify his sealing of pretrial legal documents.

Fox responded that there were "unique aspects of this trial" involving pervasive publicity, a claim made by many judges in newsworthy trials.

"The court notes that even minute details of this trial are broadcast several times every hour on television and radio," Fox said.

The appeals court, however, declared that the presumption of openness is essential to "the very nature of a criminal trial under our system of justice."

In San Jose last year, Superior Court Judge Thomas C. Hastings was reversed by an appellate court after he excluded the press and public from jury selection in the trial of Carey Stayner for the murders of three women in Yosemite National Park.

Robert Blake — the next big trial
Robert Blake's trial is likely to pose the next news media-court conflict because of the massive publicity surrounding the slaying of the actor's wife.

Los Angeles District Attorney Steve Cooley, whose office is prosecuting Blake, says he opposes gag orders, sealing orders and closing of courtrooms.

"An informed public served by the free media has a right to know what happens in the courtrooms that its taxpayer dollars support," Cooley said. "There are few legitimate reasons to close courtrooms to the public or to order documents sealed."

Cooley also says he supports electronic coverage of criminal cases. Whether Blake's trial will be televised has yet to be decided.

Sager says publicity alone is not a reason to shut the doors and keep cameras out of big trials.

"I think the whole notion that you can't have publicity without it being prejudicial is just wrong," said Sager. "It used to be that everyone knew everything and juries were people that knew the defendant. It's still like that in some small towns."

In San Diego, Judge William Mudd clashed with the news media in sealing thousands of pages of documents that were released only after David Westerfield was sentenced to death for kidnapping and killing 7-year-old Danielle van Dam.

He also excluded a radio journalist from his court after the woman's station reported what happened at a closed hearing.

"She is the representative of an individual who takes great glee and delight in shoving it in this court's face in the name of the First Amendment," the judge said.

Rather than a fundamental attack on First Amendment law, such actions are personal, says Guylyn Cummins, the lawyer who represented The San Diego Union-Tribune in fighting for openness.

"Judges feel it's their courtroom and they do what they want," she said.

First Amendment lawyer Douglas Mirell of Los Angeles says attorneys were optimistic when the state Supreme Court enacted Rule No. 243 in 1999 to make clear a series of steps that must be taken before a judge can close proceedings or documents.

"I think that a lot of us were perhaps overly optimistic that the trial courts would read and understand the message conveyed by the Supreme Court," Mirell said. "We thought that closed hearings and sealed records would be an unfortunate historical memory."

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