Reuters

2/3/04

Secrecy in Jacko case points to trend

By Dan Whitcomb

LOS ANGELES -- Nearly all of the evidence in the Michael Jackson child molestation case has been kept secret by judges, prosecutors and the pop star's lawyers -- in what critics call a disturbing trend toward secrecy in high-profile trials, particularly in California.

First Amendment scholars and press advocates say the clampdown on access to celebrity trials smacks of back-room deals for the rich and famous while eroding public confidence in the fairness of America's courts.

"There is a trend across the country right now that the more public interest there is in a case the less public openness the courts will allow and that's a dangerous trend for the judicial process," Ted Boutrous, an attorney for news organisations seeking access in the Jackson case, said.

In the trial of accused double murderer Scott Peterson, for instance, prosecutors kept their evidence in the case -- which could end in the Modesto fertiliser salesman's execution -- under wraps for months and a California judge imposed a strict "gag" order on all parties. That order served as a model for the gag rule issued in the Jackson case.

"The key rationale for allowing public scrutiny is that it instils public confidence and allows a review of the process," Boutrous said. "The First Amendment and California law create a strong presumption that judicial records in criminal proceedings should be made public and shielding cases with greatest public interest from public scrutiny turns these fundamental principles upside down."

But others involved in the criminal justice system say judges must resort to extraordinary measures to preserve the rights of celebrity defendants in the face of saturation news coverage that the writers of the Constitution could not have foreseen.

California judges are still haunted by the spectre of the "Trial of the Century," in which O.J. Simpson was acquitted of murder in 1995, legal experts say. Many felt the case was marred by a media frenzy that Los Angeles Superior Court Judge Lance Ito failed to control.

STEVEN SPIELBERG BECOMES 'JOHN DOE'

Since then authorities have often gone to great lengths to keep a lid on celebrity cases.

When in 1997 a man was indicted for stalking Oscar-winning director Steven Spielberg, a Los Angeles judge placed a gag order on everyone involved, sealed all of the documents and even changed the filmmaker's name to "John Doe" in court papers -- effectively keeping the very existence of the case secret for weeks.

In the Jackson case, reporters have battled since November for access to search warrant reports from a raid on the singer's Neverland Valley Ranch, which are public documents under California law but were sealed for 45 days by a judge.

With that order set to expire at the end of 2003, Santa Barbara County District Attorney Tom Sneddon and Jackson's attorney Mark Geragos -- bitter adversaries in and out of court -- quietly signed an agreement on Christmas Eve keeping it in effect. Another judge approved the stipulation two days later without convening court or advising attorneys for the press, then sealed the findings behind that order as well.

Santa Barbara County Judge Rodney Melville, who is presiding over the Jackson case, finally made the documents public on Monday, two weeks after the latest challenge by news organisations -- but in a heavily redacted form that left few clues about the evidence against the onetime "King of Pop."

While such secrecy has irked First Amendment lawyers, high profile Los Angeles attorney Harland Braun defended the practice, saying that a judge must sometimes put the rights of a defendant before those of the media.

"The stuff in the search warrant affidavits is uncorroborated and may not be admissible in court," said Braun, who has been involved in some of Los Angeles' most publicised trials. "The First Amendment is fine but if you start disseminating false information you are not going to be able to get a jury, and that's a problem."

Braun said judges who preside over high profile cases are in a tough spot because they often face a media blitz that the founding fathers did not envision.

"Some of these trials have basically been taken over by the entertainment media," Braun said. "We're having more and more press interested in these cases and judges are realising that televising cases changes the nature of the trial."