Stories:1999-2001
Open Courts
1997 1998
2002-2003
Paper In
Federal Court Challenging Secret Plea Bargains 11/19/01
Trial
on Prison Grounds Didn't Violate Inmate's Rights 9/15/00
Press Groups
Seek Release of Record in Yosemite Slaying 9/1/00
Court:
Closed Proceedings Yes, Anonymous Witnesses No 8/18/00
Bill Would
Presume Juvenile Dependency Hearings Open 7/21/00
Proposed
New Rules 'Disfavors' Sealing Court Records 7/7/00
Yolo Judge
Slaps Gag on Lawyer in Retrial of Biotech Feud 7/7/00
Report:
Sealed Letters from Convicted Bribe-Taker Mention Governor Gray
Davis 2/11/00
COURT:
JUDGMENT CREDITOR'S EXAM OF DEBTOR IS OPEN TO THE PUBLIC 9/10/99
COURT:
PRESUMPTION OF COURT OPENNESS EXTENDS TO CIVIL TRIALS 7/30/99
COURT: UNABOM TRIAL JUDGE'S CONDUCT UNREVIEWABLE
AS MOOT 6/11/99
COURT:
VOTES BY JUDICIAL PERFORMANCE COMMISSIONERS ARE PUBLIC 5/21/99
JUDICIAL
NOMINATION LETTERS TO BECOME PUBLIC BEFORE HEARING 5/21/99
"SUNSHINE
IN COURTS" BILL DEALS IN ATTORNEY GENERAL AS PLAYER 5/21/99
JUSTICE
DEPARTMENT WOULD STUDY HOME SECRECY FOR THE ELITE 5/21/99
ASSEMBLY
JUDICIARY COMMITTEE REJECTS BILL MANDATING ANONYMOUS JURIES IN
CRIMINAL TRIALS 3/19/99
AB
310 WOULD MAKE ALL CRIMINAL TRIAL JURORS IDENTIFIABLE ONLY BY
COURT-ASSIGNED NUMBER 3/12/99
ALERT:
SENATE MAY CLOSE DOORS FOR DELIBERATION PHASE OFIMPEACHMENT TRIAL
C-SPAN 1/15/99
Paper
In Federal Court Challenging Secret Plea Bargains (11/19/01)
The San Diego Union-Tribune
is challenging the local federal court’s practice of letting
prosecutors keep plea bargains secret.
Since plea agreements, not trials, account
for a large percentage of how federal courts resolve criminal
cases, allowing prosecutors to keep them under wraps frustrates
public scrutiny of how justice is done, says Union-Tribune attorney
Guylyn Cummins.
"If it's all done in secret, then
the public can never see whether a plea agreement is fair,"
she said. "The public will never trust a system that they
can never see. The failure to file the plea agreements with the
court after the court has relied on them is a violation of the
First Amendment."
A case in point and the one provoking the
Union-Tribune’s lawsuit is described in the newspaper thus:
"On Oct. 17, John Krueger pleaded
guilty to plotting the kidnapping of a private investigator who
authorities say was tortured and killed in MexicoSKrueger, 34,
admitted in San Diego federal court that he helped arrange the
kidnapping of Richard Post because he believed Post was stealing
money and cutting him out of a profitable business. Krueger faces
up to life in prison for the crime. According to federal officials,
Post, a 54-year-old private detective from Point Loma, was tortured
for five days and then killed. However, his body was never found
and defense attorneys have contended he could still be alive.
" When a Union-Tribune reporter asked
for a copy of Krueger’s plea agreement, the judge said no
copy had been filed. Then the U.S. Attorney’s office admitted
it had been keeping the only copies in its own files and not
in the courthouse.
"Some prosecutors and defense attorneys
fear that making plea agreements public would jeopardize the
safety of criminal defendants -- especially in drug cases,"
the newspaper noted. "The attorneys say that's of special
concern in border cities like San Diego, where drug trafficking
is said to be controlled by the Arellano FÈlix drug cartel.
" But while Cummins concedes that
a judge might decide to seal a plea agreement if specific threats
have been made against a defendant's life, she notes that under
controlling case law, such a compelling public interest in secrecy
has to be established by a court and not a prosecutor in every
instance, case by case.
Back to top
Trial
on Prison Grounds Didn't Violate Inmate's Rights (9/15/00)
The fact that the trial of
state prison inmate Robert England on charges associated with
stabbing two guards took place on prison grounds did not deprive
him of any rights as a defendant, since the press and public
had full access and the trial was, based on other factors, as
"open" as required by rules of court or the circumstantial
dictates.
So ruled the California Court of Appeal
for the Third District in People v. England, Case No. C032080,
filed Tuesday, September 12.
In resisting a search of his cell at High
Desert State Prison in Susanville in Lassen County, Robert England
stabbed two correctional officers during a "forcible extraction.
A jury convicted him of several battery-related crimes (but acquitted
him of such charges in connection with a third officer). He was
sentenced to 26 years, to begin when his current term was up.
On appeal, England argued among other things
that trying him in a courtroom on the prison grounds violated
the California court system's Standards of Judicial Administration,
his rights to a public trial under the state and federal constitutions,
and the doctrine of separation of powers, and that it had other
unjust effects on the proceedings.
The Third District, in an opinion for the
court by Justice Harry E. Hull, Jr., concluded otherwise.
True, the judicial administration standards
do generally, in Section 7.5 discourage trials on prison grounds,
Justice Hull conceded, but they also provide several factors
for deciding when such arrangements are permissible, namely:
"(1) the physical and visual remoteness
of the facility from the facilities and activities of the prison;
"(2) the location and appearance of the court facility with
respect to the adjacent public areas through which jurors and
witnesses would normally travel in going to and from the court;
"(3) the accessibility of the facility to the press and
the general public; and
"(4) any other factors that might affect the fairness of
the judicial proceedings. "
In this case, Hull observed, the courtroom
was on state prison property but outside the prison wires, so
that the only visible prisoners would have been those doing gardening
work around the building. Jurors had no trouble reaching the
courtroom and could in fact drive right up to it. And although
the press and public had to identify themselves at the outer
gate, "this security measure does not make the courtroom
inaccessible." Special precautions were taken to offset
any anxieties about proximity to the prison. The court questioned
prospective jurors about this issue, and the one who had some
nervousness about the location was excused.
As a result of these precautions, Judge
Hull said, there was no unconstitutional denial of an "open"
trial.
Back to top
Press
Groups Seek Release of Record in Yosemite Slaying (9/1/00)
Why is the government seeking
the death penalty for Cary Stayner, accused of murdering and
beheading Joie Armstrong at Yosemite National Park in July 1999?
Its reasons are outlined in a sealed offer of proof to justify
capital punishment, namely evidence of a "heinous, cruel
and depraved manner," and press groups want the record unsealed.
U.S. District Court Judge Anthony Ishii
in Fresno allowed the U.S. Attorney to file the document under
seal when Stayner's counsel, assistant federal defender Robert
Rainwater, argued that allowing public access and press reports
of the contents, which include an FBI interview of the defendant,
would make it impossible to get an unbiased jury.
But the Associated Press and several other
news organizations say the defense rationale for secrecy is now
misplaced, since a motion for change of venue has been granted
and the trial will probably be held in Seattle - thus alleviating
concerns for the impact of pretrial publicity in California
Furthermore, the petitioners are arguing
to the U.S. Ninth Circuit Court of Appeals that Judge Ishii failed
to follow constitutionally mandated procedure for sealing court
documents.
But the fundamental argument, according
to comments in the San Francisco Chronicle by Neil Shapiro, the
attorney representing the media group, is that "the federal
government has said it wants to put Stayner to death," and
"the public should have the right to know why."
Stayner, a motel handyman, also must answer
for charges of earlier killing three tourists, a mother, her
daughter and a young friend who disappeared on a trip through
the area in early 1999. Their bodies were found miles from Yosemite
after a months-long highly publicized dragnet.
Other media organizations joining AP in
the access litigation are the Hearst Corporation, the Chronicle
Publishing Co., McClatchy Newspapers and Knight-Ridder, Inc.
Back to top
Court:
Closed Proceedings Yes, Anonymous Witnesses No (8/18/00)
The California Supreme Court
this week definitively ruled out the use of nameless prosecution
witnesses, whose identities are suppressed in concern for intimidation
or retaliation, but as one alternative has referred to the partial
closure of trial proceedings as a legitimate protective measure.
Given the stakes, that option may become more routine.
In Alvarado v. Superior Court, Case
No. S059827, the court unanimously held that the constitutional
right of a criminal defendant to confront the witnesses against
him ruled out any suppression of the name of a prosecution witness
at the time of trial, although suppression up to that point could
sometimes be justified.
In one of the many observations in the
lengthy opinion supporting this conclusion, Chief Justice Ronald
George wrote for the court:
"A trial court also retains broad
discretion to control courtroom proceedings in a manner directed
toward promoting the safety of witnesses. (See, e.g., (Penal
Code) 868.7, subd. (a)(2) [upon motion of the prosecutor, a magistrate
may close the examination of a witness '[w]hose life would be
subject to a substantial risk in appearing before the general
public']; see also ' 686.2 [authorizing the trial court to remove
any spectator who is intimidating a witness]; ' 867 [authorizing
the magistrate to exclude potential and actual witnesses upon
motion of either party]; ' 868 [authorizing the magistrate to
exclude the public upon the request of the defendant and a finding
by the magistrate "that exclusion of the public is necessary
in order to protect the defendant' s right to a fair and impartial
trial]; People v. Woodward (1992) 4 Cal.4th 376, 382-386
[upholding the temporary closure of the courtroom to additional
spectators during a murder trial, in view of the 'unusual security
risks posed by the trial']; NBC Subsidiary (KNBC-TV), Inc.
v. Superior Court (1999) 20 Cal.4th 1178, 1222, fn. 46 [noting
that among the 'overriding interests that may justify closure
of a courtroom in an appropriate instance is the protection of
witnesses from intimidation'].) "
The case arose from a jailhouse stabbing
in Los Angeles which led to the prosecution of Joaquin Alvarado,
Jorge Lopez and Frank Marquez, with the death penalty sought
against Alvarado. The prosecution refused to provide the defense
with the names of three inmate witnesses scheduled to testify
against them at trial, citing concerns with the murderous retaliation
efficacy of the Mexican Mafia.
Both the trial and appellate courts approved
withholding of the identities - the latter court specifying that
they could be kept secret permanently. This conclusion led to
the supreme court's reversal and remand to the trial court, directing
the latter to vacate its order approving the anonymity. Chief
Justice George stated:
"(T)he serious threat to the witnesses'
safety disclosed by the evidence presented by the prosecution
in this case clearly justified delaying disclosure of the witnesses'
identities to the defense, but the trial court' s order went
beyond constitutional bounds in determining that, notwithstanding
the significant impairment of defendants' ability to investigate
or cross-examine the witnesses or the apparently crucial nature
of the witnesses' proposed testimony, the prosecution could withhold
the identities of witnesses 1, 2, and 3 from the defense for
the duration of the proceedings and have them testify anonymously
at trial."
COMMENT:
Reacting to the decision, Alvarado's lawyer, Michael Crain of
Santa Monica, told the Daily Recorder that "asking judges
to hold trials with anonymous witnesses has become a popular
fad in L.A. County." If fears of gang retaliation are indeed
that often cited and deferred to, motions for at least partial
trial closures may be the next "fad" - citing the authority
of this case.
Back to top
Bill
Would Presume Juvenile Dependency Hearings Open (7/21/00)
The traditional secrecy of
juvenile court proceedings which decide the question of parents'
- or others' - fitness to have custody of a child would be ended
under a landmark bill moving steadily toward the governor's desk.
If it became law, such hearings would be presumed public, and
closed only on a showing of harm to the child's "best interest."
SB 1391 by Senators Adam Schiff (D-Burbank)
and Richard Polanco (D-Los Angeles) is to be heard in the Assembly
Appropriations Committee August 9, after passage in the Assembly
Judiciary Committee on a 9-1 vote June 28, on the Senate Floor
on a 31-5 vote May 31, and in the Senate Judiciary Committee
on a 5-1 vote April 24.
The bill would not affect juvenile court
delinquency proceedings, but would repeal the current flat prohibition
on public access to dependency hearings, in which the court deals
with such issues as runaway and abused children and tries to
find the best home for them whether or not that may mean removing
them from the custody of one or both parents, judged to be unfit
for their customary responsibility.
The new provisions, reflected in the most
recent amended version of the bill, would presume all such proceedings
to be open, but would allow for partial or total exclusion of
the public based on a finding that the presence of spectators
would somehow be harmful to the child.
In particular, if there were an objection
from the child or his or her attorney, the court could exclude
the public upon a finding that admitting the public "would
cause harm to the child's best interest." If the objection
came instead from anyone else (another party to the proceeding
such as a parent, foster parent or the county child protective
services agency, or the judge on his or her own motion), the
standard would require a showing of a "serious" harm
to the child's best interest not to someone else's interest.
The court's duty would be to advise the
child or his or her attorney of the right to object to public
proceedings. The judge would have the option to adopt "less
restrictive means," including but not limited to procedures
that would keep the child from being identified by name or other
specific references on the record.
The bill would not repeal the current provision
which allows a juvenile court judge to take testimony from a
child in chambers, outside the presence of his or her parents
(so long as their attorney is present), if that procedure is
deemed necessary to ensure truthful testimony, free from intimidation.
SB 1391 also provides that it would not
operate if the director of the state Department of Social Services
made a finding that its provisions would cost the state the loss
of federal funds. This qualification was inserted June 29 in
response to a suggestion that under certain federal regulations,
the funding loss might occur if information made confidential
under federal law were released, e.g. information from child
abuse and neglect reports, or obtained from child welfare agencies,
or relating to foster care or adoption assistance,
The Assembly Judiciary Committee consultant's
June 29 analysis observes, however, that:
"LA County notes that despite this
admonition, 'there are 17 other jurisdictions, including New
York, Minnesota, Florida and Texas, where open court hearings
in child welfare cases are either mandated or permitted,' and
such states have not been financially penalized for instituting
this procedure."
The bill would sunset the presumption of
access on January 1, 2006, after a five-year trial, and at that
point would also require the Judicial Council to report to the
Legislature on how and how well - the presumption had worked.
The bill results from a May 1999 informational
hearing by the Senate Select Committee on Juvenile Justice, chaired
by Senator Schiff, whose findings he summarizes thus:
"Historically, juvenile court proceedings
have been confidential to protect an abused or neglected child
from being further traumatized. Unfortunately, confidentiality
laws have at times worked against the very children they were
designed to protect by hiding the flaws within the system.
"Concerns over the harmful effect
on children of closed 'secret' hearings were echoed in the informational
hearing last year by the Senate Select Committee on Juvenile
Justice. A long series of written and oral presentations bore
out the problem of confidentiality being invoked to hide the
flaws and misdeeds within the system. Testimony was received
from judges, child advocates, foster children, representatives
from social service agencies and attorneys representing children
and parents. Such acts of malfeasance not only resulted in harm
but sometimes the death of children."
The bill is co-sponsored by the Children's
Advocacy Institute, the Los Angeles County Board of Supervisors
and the California Newspaper Publishers Association. Supporters
include the California Judicial Council, the National Association
of Counsel for Children (Los Angeles Affiliate), the American
Federation of State, County and Municipal Employees and the Inter-Agency
Council on Child Abuse and Neglect.
Opponents include the National Association
of Social Workers (California Chapter), the Youth Law Center
and the California Psychiatric Association.
(Monitor the bill's language, history and
progress at http://info.sen.ca.gov/cgi-bin/postquery?bill_number=sb_1391&sess=CUR&house=B&site=sen)
Back to top
Proposed
New Rules 'Disfavors' Sealing Court Records (7/7/00)
The California Judicial Council,
rule-maker for the administration of the state's court system,
is proposing new rules sending a clear signal that sealing of
documents at the trial and appellate levels is "disfavored"
and must meet strict tests of necessity borrowed from a major
court access case decided by the California Supreme Court last
year.
Taking their cue from NBC Subsidiary (KNBC-TV),
Inc. v. Superior Court, 20 Cal.4th 1178, the Council's Joint
Working Group on Sealed Records of the Appellate, Civil and Small
Claims and Criminal Law Advisory Committees is responding to
a felt need for guidance to judges in an era when court records
in civil cases in particular are increasingly being filed or
placed under seal pursuant to quiet agreements between the parties.
The substantive heart of the new rule would
declare, "The public has an interest in access to court
records. Unless confidentiality is required by statute or rule,
court records are presumed to be open. Orders sealing cases or
records filed in an action or a proceeding are disfavored."
Procedurally, the central rule would state:
"The court may order that a record
be filed under seal only if it specifically finds that:
1. An overriding interest supports sealing the record;
2. There is a substantial probability that the overriding interest
will be prejudiced if the record is not sealed;
3. The proposed sealing is narrowly tailored to serve the overriding
interest; and
4. There is no less restrictive means of achieving the overriding
interest."
Consequently, courts would be barred from
allowing records to be sealed by stipulation or agreement between
the parties.
The proposed rules contain no provisions
addressing discovery materials that are not used at trial or
otherwise submitted for judicial consideration. An introductory
note points out that such discovery records are not, under the
First Amendment, presumed to be public, but adds that "public
suggestions regarding discovery provisions are welcome."
Comment is also particularly invited on
a provision that would allow a reviewing court to lift a trial
court's sealing order on its own motion after a noticed hearing.
"Although no duty is imposed, the proposal allows a court
to protect the public's interest in having access to court records
and proceedings without a formal application by a party or another
interested person" (the latter is separately addressed in
the proposed rules).
A final introductory comment notes that
the proposed rules "do not attempt to address issues that
arise concerning treatment of confidential (emphasis) records
those made confidential by statute or rule and thus not requiring
a court order.
"Those issues may be the subjects
of later rule proposals. The Appellate, Civil and Small Claims,
and Criminal Law Advisory Committees invite your proposals for
handling such confidential information and records."
The rules, which if adopted would become
effective next January 1, can be found as Item No. SPOO-3, an
Adobe Acrobat file at http://www.courtinfo.ca.gov/invitationstocomment/proposals.htm.
Comments may be submitted in an online
form linked to that page; deadline is August 11.
Back to top
Yolo
Judge Slaps Gag on Lawyer in Retrial of Biotech Feud (7/7/00)
A Yolo County Superior Court
judge has placed a gag order on comments by parties, counsel
and witnesses in the retrial of a bitterly contested intellectual
property case and has kept the lid on, despite press protests,
even after the jury's verdict last month. The judge appears to
be bowing to the news-shy preferences of the losing defendants.
The case, Wallis v. PHL Associates, is
about a scientist's frustration at being denied a share in the
commercialized profits from her research work. The subtext is
about an odd twist some would say an outrage in judicial administration
which led to more press attention than the defendants wanted
to deal with.
Tom Nadeau, Sacramento-based reporter for
the Daily Recorder newspaper, wrote a long piece last year about
the dispute, which involves who is entitled to profit and how
much from Upjohn Pharmaceuticals' purchase of the formula for
a vaccine to treat bovine mastitis, an udder infection afflicting
dairy cows.
Upjohn bought the rights from PHL Associates
of Davis for a plaintiff-estimated $2.4 million, with some $20
million more expected to flow to PHL as manufacturer of the vaccine.
The plaintiff, veterinarian Dale Wallis, invented the formula,
and contended that she deserved a proportionate slice of the
profit as a shareholder and director because her work was done
on her own time and using her own facilities before bringing
it to the company for a co-marketing effort. Not so, said PHL
she had developed the vaccine as its employee, on its hours,
in its lab.
After years of discovery the case went
to trial in late July 1999, and although to this day it remains
disputed just how clearly and definitively, the parties generally
understood that courtroom space limitations would place a six
to eight week limit on the time available for trial. But the
plaintiffs' case had consumed five weeks and was on the point
of resting when, on August 19, the then presiding superior court
judge, Thomas E. Warriner, announced that after August 31 the
county would be able to provide no further court facilities,
clerk, reporter or bailiff for the case.
On August 24, despite the plaintiff's attorney's
efforts to find an alternative accommodation, the trial judge
reluctantly declared a mistrial, leaving the plaintiff and at
least some jurors gnashing their teeth in frustration. The plaintiff's
attorney, Joanna Mendoza, estimated her firm's out-of-pocket
litigation costs to have been $100,000. That is the amount her
client, Dr. Wallis, is seeking, representing herself, in an extraordinary
damages suit which opened last week in U.S. District Court in
Sacramento -- against Judge Warriner, the Yolo County Court and
the county itself.
Wallis alleges that Judge Warriner was
influenced to curtail the trial after meeting privately with
PHL attorneys, who in return insist that the conference was open
and known to Wallis's attorney, Mendoza, all along.
Meanwhile the retrial of Wallis's original
case has come and gone, with the jury finding for her and awarding
her $3.2 million last month in combined compensatory and punitive
damages. But the new judge, Stephen L. Mock, created his own
controversy by issuing, at the beginning of the proceedings and
at the request of attorneys for PHL, an order prohibiting any
comment by parties, jurors or witnesses. He did this apparently
as a milder alternative to what PHL had asked for: exclusion
of reporters from the courtroom.
Nadeau, who was absent at the time, did
not hear about the order until so late in the trial he felt uncomfortable
about making an issue of it. When the jury was discharged last
month, he asked Judge Mock to lift the order to permit the attorneys
to provide accurate information on the verdicts and their reactions.
But Mock, who has until next month to issue a judgment, says
he is waiting to hear from all counsel. That is a position Nadeau
finds strange because Mendoza, Wallis's attorney, asked for clarification
on June 15 that the gag had been lifted, and counsel for the
three individual shareholder defendants (collectively the alter
ego of the corporate defendant, PHL) requested that the order
be kept in place.
By the end of June the Sacramento Bee had
joined Nadeau's request for a lifting of the order. Attorney
Charity Kenyon pointed out in her letter to Mock that orders
barring trial participants from speaking to the press were, under
settled law, constitutionally limited to situations where the
lack of a control on such speech posed "a serious and imminent
threat to the administration of justice," based on specific
and reviewable findings by the court, on the record.
Nadeau has never seen a written copy of
the "order," and whether there ever was one is open
to question, since Mendoza's June 15 clarification request to
Judge Mock asked if it would bar her from talking to "a
Los Angeles company regarding a possible movie production"
about the case (Mock's answer: the order was about press coverage,
not talks with Hollywood types).
That the affair might be good movie material
was suggested by a July 6 letter from Mendoza to PHL's attorney,
Dale C. Campbell, with a copy to Judge Mock, noting that
"This morning at approximately 8:30,
a large white truck was observed parked at PHL facilities off
Highway 113 with the company name 'SHRED IT' in red letters on
the side referencing a service that shreds confidential business
documents
"Given that the cause of action for
constructive trust and accounting (emphasis) is still pending
before the court your client's conduct raises the specter of
very serious legal consequences."
After mentioning conceivable criminal and
civil penalties, plus professional consequences for co-conspiring
counsel, if evidence material to Mock's continuing adjudication
of the accounting issues were to disappear, Mendoza expressed
confidence that Campbell would "advise your client that
no one should destroy any PHL books, papers, writings or other
records, including electronic data."
COMMENT: As noted in a separate story,
the California Judicial Council is poised to adopt uniform and
comprehensive rules disfavoring the currently unpoliced practices
in sealing of court records upon simple motion of the parties.
Rules are likewise overdue, as this case demonstrates, on the
corresponding casualness with which judges seal the lips of trial
participants with no other purpose than keeping a case out of
the news.
Back to top
Report:
Sealed Letters from Convicted Bribe-Taker Mention Governor Gray
Davis (2/11/00)
The Sacramento Bee has reported that letters
from attorneys seeking a shortened prison sentence for Mark L.
Nathanson, a former California Coastal Commissioner convicted
for extorting bribes, name Gray Davis as one had who consulted
with Nathanson on leads to potential campaign contributions.
The letters were kept under federal court seal since 1994 and
came to light only by accident, the Bee says.
The accident, according to the February
6 story by staff writers Denny Walsh and Sam Stanton, was the
revelation in a recently filed court document that Nathanson
had after all succeeded in having his sentence reduced by one
year.
Nathanson was released from prison in January
1997 under several conditions, and last September his probation
officer petitioned the court to have him explain why he should
not be put back behind bars for failing to live up to one of
the conditions -- paying back money extorted from one of his
victims.
Attracting the Bee's attention in that
petition was the first on-the-record disclosure that Nathanson
had been released a year early. The reduction, the Bee learned,
was upon motion by the government in U.S. District Court in Sacramento,
with no reason stated on the record -- either in the motion itself
or in the order of Judge Lawrence K. Karlton -- and with no hearing.
The government now says it supported the reduction in exchange
for Nathanson's cooperation in an unidentified civil case in
Los Angeles, and also out of humanitarian concern for his affliction
with a potentially deadly skin cancer.
But this disclosure only emerged after
the Bee took legal action to demand access to three sequentially
numbered documents which it had discovered missing from the Nathanson
case file. These turned out to be two pieces of correspondence
sent to federal prosecutors by Nathanson's lawyers at two junctures
-- one just before he was sentenced to 57 months in prison and
the second about a year later. Both sought the government's support
for a sentence reduction, and both, when approved for release
to the Bee December 7 in edited form, had names deleted at several
points.
The first attorney's letter showed Nathanson
alleging that (name deleted) had occasionally met with him at
(name deleted) restaurant in Beverly Hills. This politician was
interested in campaign contributions from people Nathanson had
helped -- as Coastal Commissioner or otherwise. Nathanson and
the politician, the letter said, "would make and go over
lists of people that Nathanson had assisted with government approvals
-- both at the Coastal Commission and elsewhere -- saying that
he, (name deleted), 'needed to call' those individuals for campaign
contributions.
"As Nathanson understood it,"
his attorney's letter continued, "in calling these people,
(name deleted) was going to suggest a link between he (sic) and
and the approvals Nathanson had helped to secure in order to
solicit campaign contributions from the individuals on the lists."
The letter sent to prosecutors a year later
-- August 1994 -- by another Nathanson attorney offered more
allegations, according to the Bee, about linkage between the
convicted extortionist and (name deleted).
Both letters were soon attached to a motion
by Nathanson's counsel, filed with the court and formally seeking
a sentence reduction. None of this paperwork was put in the court
file, but instead consigned to the clerk's safe, under a sealing
order issued by Judge Karlton but not signed.
When the Bee's court challenge persuaded
Karlton that the letters were matters of public record, he released
them with the name redactions, he explained, to preserve reputations
from unfair harm.
He acknowledged that the exact identity
of the politician mentioned by Nathanson was at least potentially
newsworthy, "if not so much for the content as for the demonstration
of how corrupted our criminal system has become by virtue of
the system of bribing people to rat on others. The problem is
that, and that is an important public issue, although I have
no doubt that is not how the Bee would play the material which
is sealed. And that's the problem."
The Bee story claims that "numerous
sources who have seen unedited versions of the letters say that
Nathanson leveled accusations...against Gray Davis, the Democratic
career politician who then was state controller and now is governor
of California."
The Bee quotes Davis press spokesman Michael
Bustamante as declining "to dignify false and reckless 7-year-old
accusations made by a convicted felon hoping to convince federal
authorities to reduce his prison sentence." The story also
quotes "federal sources close to the investigation"
as calling Nathanson's allegations, even if true, too vague to
support criminal prosecution.
But the Bee story notes one clear anomaly
aside from the secrecy surrounding the sentence reduction and
the letters seeking it. In the federal system, sentence reduction,
even on motion of the prosecution, is not authorized for reasons
of humanitarian concern or even assistance to the government
in civil cases.
Under Rule 35 (b) of the Federal Rules
of Criminal Procedure, the court may, "on motion of the
Government made within one year after the imposition of the sentence,
... reduce a sentence to reflect a defendant's subsequent, substantial
assistance in the investigation or prosecution of another person
who has committed an offense..."
COMMENT:
Judge Karlton is right, so far as he goes. The real scandal is
not that Gray Davis was served up to federal prosecutors as favor
bait by a confessedly corrupt politician, and the real eye-opener
is not that Davis is comprehensive in hoovering up campaign funds.
The worst corruption -- and that's the judge's word -- is that
prosecutors build so many cases on no proof better than a "rat's"
word, bought with reduced sentence recommendations or other favors.
But this case may illustrate even more than the judge cares to
comment on, and that's the risk that when a rat starts to name
big names, politically conscious prosecutors and judges may collude
to grant favors to shut him up -- and then may have to cover
their own tracks in having done so.
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COURT: JUDGMENT CREDITOR'S
EXAM OF DEBTOR IS OPEN TO THE PUBLIC 9/10/99
The typically pedestrian process by which
one who has obtained a money judgment against another from a
court investigates just what assets the debtor has to satisfy
the judgment is a judicial proceeding when done in a personal
"examination," in a courtroom or elsewhere. And that
means anyone has a presumptive right to observe the process.
So concluded the California Court of Appeal
for the Fourth District August 4 in Nebel v. Sulak, Case No.
E023264, in an opinion by Justice Barton C. Gaut. The case involved
several instances in which Joseph Sulak, Sr., a process server,
observed Pat Nebel, not a licensed attorney, conducting her examinations
of judgment debtors on behalf of judgment creditors in small
claims actions in the Three Lakes Judicial District courthouse
in Riverside County. Sulak watched the process either from the
back of the courtroom, when one was used, or in the corridor,
from a distance of about 10 feet, when the examination was conducted
there.
Annoyed by the observation, Nebel obtained
a superior court order that Sulak, for a period of six months,
stay 25 feet away from her at all times. The court also denied
Sulak's request for a declaration that Nebel had no authority
to conduct the examinations since she was not an attorney.
On appeal, the Fourth District sided with
Sulak on both issues. Under the Code of Civil Procedure, a judgment
debtor may be compelled to appear before either a court or a
court-appointed referee for an examination of his, her or its
assets - but under Section 708.140 (b), the referee must be a
member of the State Bar.
But even if Nebel were an attorney, she
could not properly enjoin spectators from effective observation
of the examination, since it is a judicial proceeding, and civil
proceedings are presumed to be open to the public as a matter
of First Amendment right, the court noted, citing the recent
declaration to that effect by the California Supreme Court (NBC
Subsidiary (KNBC-TV), Inc. v. Superior Court). And there was
no evidence, the court stated, that Sulak had done anything other
than quietly sit and listen to the examination - not conduct
warranting a stay-away order affecting access to a public proceeding.
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COURT: PRESUMPTION OF COURT
OPENNESS EXTENDS TO CIVIL TRIALS 7/30/99
The trial of a civil lawsuit is, under
California statute as interpreted under First Amendment case
law, as open to public attendance as a criminal trial, the California
Supreme Court has ruled. The decision finds improper a Los Angeles
judge's repeated and inadequately justified closure of portions
of the 1996 trial in a business case involving Clint Eastwood.
In NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, Case No.
S056924, the court concluded in an opinion filed Tuesday, July
27, that Code of Civil Procedure Section 124's mandate that,
apart from family law cases, "the sittings of every court
shall be public" was reinforced by U.S. Supreme Court cases
creating a constitutional presumption of public access to criminal
proceedings.
With the state statute read in the light
of these First Amendment cases -- and the fact that all other
courts confronted with the issue had extended the access principle
to civil proceedings -- the court's unanimous opinion, written
by Chief Justice Ronald George, was that the trial court was
required to observe certain procedures and make certain findings
before closing the courtroom, and had failed to meet those requirements.
The trial at issue was actress Sondra Locke's
damages action against Clint Eastwood for his alleged failure
to live up to promises to help her develop certain movie projects.
Such a Hollywood dispute, tinged with the general knowledge of
the parties' former romantic relationship, was bound to draw
unusual media attention, and the judge's concern was that certain
information which might never formally reach the jury -- because
of successful suppression motions -- would leak to them via tabloid
and other press accounts.
Since the jury was not sequestered, the
judge noted, if the press sat in on the evidentiary hearings,
jurors who were absent from the courtroom might nonetheless be
exposed to suppressed and prejudicial information while at home
-- or even at the supermarket checkout line. Accordingly, when
the court was cleared of jurors for the duration of evidentiary
arguments it was also cleared of all spectators.
But when KNBC-TV and other local media
organizations challenged the exclusion orders, the Second District
Court of Appeal ruled that they went went too far, since the
trial judge never came close to specifying on the record what
kind of inadmissible information might have emerged, since juror
exposure to inadmissible information does not necessarily yield
an unfair trial, and since in any event there are standard and
less drastic means to mitigate such exposure, including voir
dire of potential jurors and admonitions to those already empaneled.
Nor was the trial judge's exclusion order saved, the appellate
court said, by his assurance that transcripts of all the proceedings
would be available after the jury verdict.
In his lengthy opinion, Justice George
essentially reviewed the same legal, historical and policy grounds
as the court of appeal had considered, but added a new issue
not previously briefed by the parties or considered by the appellate
court: California's terse and seldom-interpreted civil procedure
statute mandating access to all court "sittings" other
than those covered by the Family Code or other statutes to the
contrary. But George's opinion concluded that this mandate was
simply given constitutional weight, in effect, by the U.S. Supreme
Court's First Amendment cases since 1980 finding a presumption
of access to criminal trials based on functional and traditional
principles.
The same factors applied to civil trials,
George said. Functionally, open civil litigation fosters confidence
that the law is being applied to resolve private party disputes
fairly and without bias or corruption. And as a matter of tradition
extending to common law jurisprudence in England, civil cases
had been dealt with as openly as criminal prosecutions.
The Locke-Eastwood trial judge, said George,
might have been able to justify partial or temporary closures
had he:
- given suitable advance notice to the public
of his intentions;
- conducted a hearing at which media or
other objectors could argue for access;
- identified the "overriding"
public interest threatened by public access during the evidentiary
motions and other business conducted in the jury's absence;
- explicitly found that alternatives (pointed
jury instructions to stay away from news accounts of the trial,
etc.) suggested by the objectors would not have been adequate;
and
- "narrowly tailored" the closure
orders to keep the public out no more than absolutely necessary
in view of the spelled-out risk of prejudice.
But the trial judge had done none of this
and had, instead, casually and with only the most conclusory
justification, exiled the press and public essentially whenever
the jury was not in the courtroom.
COMMENT:
This important case should register a resounding note to trial
judges, who with unfortunate frequency in the "Post O.J."
era, seem to equate the media's own mindless designation of a
case as "high-profile" with an imperative of "low-visibility"
and hasten to fashion orders accordingly.
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COURT: UNABOM TRIAL JUDGE'S
CONDUCT UNREVIEWABLE AS MOOT 6/11/99
The withholding of information by the federal
judge presiding in the Sacramento trial of Theodore Kaczynski
for the murders committed as the "Unabomber" was so
unique to the circumstances that it is unlikely to recur, even
if Kaczynski wins the new trial he is seeking, without an opportunity
for the press to challenge it; the media case is thus moot.
So ruled the U.S. Court of Appeals for
the Ninth Circuit Monday, June 9 in The Unabom
Trial Media Coalition v. District Court (Kaczynski), Case No.
97-71318.
In the preliminary phases of the January
1998 trial, which promised to beone of the more heavily covered
press events in any courtroom that year,U.S. District Court Judge
Garland E. Burrell:
- informed the prospective jurors privately
in advance that he would prohibit release of their and their
spouses' names, addresses, andworkplaces until after they were
discharged, and then did so;
- barred any photographs, pictures or sketches
of the jurors on courtpremises or environs;
- sealed portions of a prosecutor's motion
until it was determinedwhether the highly inflammatory material
described in it -- includingKaczynski's statements about bombings
other than those charged in theindictment -- was admissible;
and
- in ordering Kaczynski to prepare an amended
notice informing thegovernment of the specifics of his mental
status defense, treated thenotice as part of discovery and, therefore,
not subject to being filedpublicly.
Believing that the trial would be a long
one, the press coalitioninclined to challenge these secrecy moves,
including several of thestate's major newspapers and the Associated
Press, did not immediatelyseek expedited review of these orders
and procedures from the NinthCircuit, and waited several weeks.
But the trial turned out to becurtailed early by the defendant's
abrupt guilty plea, entered to avoidwhat Kaczynski felt most
repugnant -- an insanity defense probing intohis mental state
and psychological history.
The media coalition's delay, the Ninth
Circuit decided, deprived it of a convincing argument that were
the secrecy moves to be repeated, the press would have no opportunity
to challenge them. That is one leg of the test for determining
that a legal question is moot, i.e. that the assertedly improper
court secrecy is capable of being repeated in such an abrupt
way that it eludes review by a higher court. Also, the court
doubted that the particular procedures and orders issued by Judge
Burrell in 1998 would recur. In the words of the court's per
curiam opinion (particular author unspecified):
"While there will, no doubt, be other
high-profile criminal trials thatshare a few of this case's more
unusual elements, it is highly unlikely that any will substantially
mirror the circumstances presented here. Even if Kaczynski were
to succeed in setting aside his guilty plea and obtain a new
trial, any closure order would in all likelihood raise a different
set of issues. Not only has the information sought by Media become
public since Kaczynski' s guilty plea, he would likely mount
a completely different defense -- after all, his pending (new
trial) motion alleges that he was coerced into pleading guilty
because of his profound dissatisfaction with the mental status
defense that his lawyers would have allegedly forced on him at
trial. ... As for (jury selection), if Kaczynski or the government
were again to move to impanel a partiall anonymous jury, they
would have to offer up new evidence that the case still stirred
up 'deep passions' despite the passage of time."
COMMENT:
It took more than two years for the court to decide not toreview
this case, and the per curiam form of the opinion suggests thatthe
judges would have preferred to have the whole matter go away
ratherthan decide the tough issues implicated in Judge Burrell's
approach.
One disturbing aspect of what it did say,
however, is the ease with whichit finds press attempts to interview
trial participants and potentialwitnesses as "harassment,"
seeming to equate normal media activity withmore sinister contacts
by those who would attempt to influence thetrial's outcome. Nothing
in the record suggests improper conduct byreporters, and despite
the wide public interest in the case, the leveland style of media
attention was mild compared with other "high profile"trials
in recent years. If substantial media interest in a trial per
seconstitutes a menacing circumstance warranting secret promises
of anonymity to the jury, for example, it is precisely in the
most closely watched cases that even the most impeccable reporting
will by stymied secret assurances, sealed motions and other preemptive
subtractions from the public record.
A third of a century after Sheppard
v. Maxwell, in which the U.S. Supremecourt declared it to
be a trial judge's duty to control againstout-of-control invasions
of the defendant's rights by a prosecution-presscollaboration,
the pendulum's arc has swung far indeed toward black boxjustice.
The Ninth Circuit has not exactly approved Judge Burrell'sconduct,
but its tone is clearly cool toward the notion that it was unreasonable.
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COURT: VOTES BY JUDICIAL
PERFORMANCE COMMISSIONERS ARE PUBLIC
5/21/99
The public is entitled to know how members
of the state Commission on Judicial Performance -- with authority
to censure or even remove sitting judges for misconduct on or
off the bench -- vote in specific disciplinary cases. The public
voting requirement is implicit under Proposition 190 of 1994,
which amended the California Constitution.
So ruled the California Court of Appeal
for the First District in its decision filed Wednesday (May 19)
in Recorder
v. Commission on Judicial Performance, cases no. A079881\\A080466.
As summarized by Justice Michael J. Phelan
for the court:
"We conclude the vote of the members
on whether or not to impose judicial discipline is such an essential
and integral part of the formal proceedings of the commission
-- perhaps the single most important act a member takes in his
or her capacity as such-that it would be plainly unreasonable
to accept the commission' s interpretation of its authority under
sections 18(i) and 18(j) (of Article VI of the California Constitution).
That is, when California voters overwhelmingly approved a requirement
that all 'proceedings' subsequent to the filing of formal disciplinary
charges 'shall be open to the public' (ß 18(j)), they must
have intended the commission to vote in public or at least to
disclose the full results of its vote, including how each commission
member voted."
On the other hand, deciding that a disclosure
of who voted how was a matter of public disclosure did not mean
that the commission could not privately deliberate on the way
to that vote, Justice Phelan noted:
"...(L)ike an intermediate appellate
court, or an administrative agency acting in an adjudicative
capacity -- the commission is not required to conduct its 'deliberations'
in public. Section 18(j) was clearly not intended as an 'open
meeting' law but, rather, as a provision relating to adjudicatory
proceedings, as to which it is well settled and universally recognized
that the judicial 'thought process' need not be publicly revealed."
The issue arose when the Recorder, a San
Francisco newspaper covering the court community, asked the commission
who voted which way in its 1997 censure of a Monterey Municipal
Court judge, Jose Velasquez. The judge had been accused of unauthorized
handling of drunken driving cases, displaying a cross in his
court and other misconduct during his early months on the bench.
The commission disclosed that the vote
had been "8 to 2, with one commissioner abstaining."
When the Recorder threatened to sue to learn the actual vote
split, the commission changed its report to "7 to 2, with
one Commissioner recused." At the same time, it insisted
that by tradition it did not vote by written ballot and kept
no records of how individual members voted.
When the Recorder sued and obtained a writ
of mandate from the San Francisco Superior Court ordering the
commission to disclose the votes by name, the commission appealed.
It also appealed a separate order awarding the Recorder almost
$50,000 in attorney's fees.
The court of appeal upheld the fee award
in an unpublished segment of its opinion, but in the substantive
portion agreed with the newspaper that the state constitutional
amendment enacted by a ballot measure in 1994 -- Proposition
190 -- was clearly intended to make the commission's proceedings
open to the public as a matter of accountability, and that despite
the potential vagueness of the word "proceedings,"
it could not be reasonably understood to mean that the members
were not to cast their votes on the public record, as do all
judges and even jurors in California.
Comment:
The court at one point took issue with the commission's argument
that open voting would leave lawyer members of the panel (who
might have to appear before the disciplined jurist some day)
intimidated from acting candidly, or would even deter otherwise
fit citizens from wanting to serve on the commission. "(W)e
fail to see," said Justice Phelan, "the merit of a
system in which public officials, sitting in judgment of other
public officials regarding charges of official misconduct, are
allowed to hide behind a veil of secrecy when making the 'tough
calls' necessary to any adjudicatory regime. A certain amount
of courage, and a 'thick skin,' are essential attributes for
anyone who purports to perform 'judicial' functions. We should
expect, and accept, no less from members of the commission."
In 1996, Governor Pete Wilson vetoed SB 1803 by Senator Ruben Ayala (D-Chino),
which would have conformed the Bagley-Keene Open Meeting Act
(for state boards and commissions) to recent changes in the Brown
Act, including the requirement to disclose closed session votes
by name. In his veto message one of the primary reasons cited
for failing to sign the measure was that it "would require
the state body to report publicly the vote taken by each member
in the closed session. However, disclosing the vote of each board
member could subject board members to harassment. That would
particularly be the case in connection with disciplinary actions
taken by a licensing board, which might be subjected to harassment
by disgruntled, disciplined licensees."
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JUDICIAL NOMINATION LETTERS
TO BECOME PUBLIC BEFORE HEARING 5/21/99
The Commission on Judicial Appointments -- the
body which confirms appointment of judges to the state's appellate
and supreme courts -- will provide the press and public with
more information about nominees than ever before, thanks to newly
revised guidelines.
On Tuesday (May 18) Chief Justice Ronald
M. George, who also chairs the commission, announced new rules
requiring that:
- The State Bar's Judicial Nominees Evaluation
(JNE, or "Jenny") Commission must, in advance of a
confirmation hearing by the Commission on Judicial Appointments,
submit written recommendations and reasoning concerning each
nominee to the state's court of appeal or supreme court, and
must also send a representative to testify at the hearing. The
bar's JNE Commission reacts to nominations made by the governor,
either endorsing or opposing them, and makes its own recommendations
to the appointments commission.
- Public reports and correspondence concerning
nominees, including the JNE Commission's report, the attorney
general's background report and the personal data questionnaire
submitted to the appointments commission by the governor, are
to be released to the public no later than 2 p.m. two court days
(Monday through Friday except holidays) before the confirmation
hearing they concern. Under previously established and continuing
rules, the public also has access to the names of witnesses who
will testify and the names of those who have submitted written
materials.
Established in 1934, the three-member Commission
on Judicial Appointments comprises the chief justice, the attorney
general and the presiding justice of the court of appeal district
affected by the nomination or, if a supreme court vacancy is
to be filled, the person with longest seniority as a court of
appeal presiding justice.
The commission holds hearings on appellate
nominations within a "reasonable" time after they are
announced by the governor. Last year, for example, there were
hearings on 10 nominations, several bunched together on the same
date.
Other rules affecting public observation:
- The hearings themselves are open and public.
Requests to tape record, photograph or broadcast the proceedings
must be submitted by the close of business two court days before
the hearing.
- The panel's deliberation is in closed
session, but its decision is announced publicly, either on the
same day or in continued proceedings.
- After the hearings, one may inspect or
obtain copies of the witness lists, written submissions, minutes
and the audio recording of any proceeding.
Press release notice of the hearings can
be arranged through Lynn Holton, public information officer,
(415) 865-7740 or by monitoring the court system's Web site at
www.courtinfo.ca.gov.
Comment: The new rules are Chief Justice George's response
to a 1998 flap in which a nominee to the Fourth District Court
of Appeal, Terry O'Rourke, was confirmed by unanimous vote --
but not without controversy and confusion. O'Rourke, a San Diego
superior court judge and friend of Governor Pete Wilson, had
provoked strong support and opposition. Earlier he had stuck
his neck out in testifying against a fellow judge who was convicted
on corruption charges.
His supporters testified that he was fair
and dispassionate, if sometimes a bit curt. His opponents said
he was biased towards women and minorities at the expense of
white males, and was a hothead to boot.
But what complicated matters was that none
of the correspondence from either side was made public until
after the commission had voted, and the JNE Commission report
-- rating O'Rourke "unqualified" -- was not even delivered
to the commission until the hearing was in progress. The attorney
general's background check was likewise not available to the
public, although Attorney General Dan Lungren specifically referred
to it in his comments, saying it rebutted a number of the accusations
made against O'Rourke.
Several organizations, including the Press-Enterprise
in Riverside, the California Newspaper Publishers Association
and the California First Amendment Coalition, recently sent letters
supporting George's proposed sunshine measures. In CFAC's April
20 letter, General Counsel Terry Francke stated:
"One sometimes hears the objection
in contexts like this that the best- qualified candidates will
not come forth to seek public leadership positions which expose
their reputations and accomplishments to potentially embarrassing
scrutiny. At the extreme there may be some truth there. Would
Judges Bork and Thomas have agreed to their nominations had they
known in advance what they were in for (apart from whether they
would be confirmed)?
"But those are indeed extreme cases.
In the normal course of such things, one might postulate with
equal cogency that the prospect of having one's qualifications
reviewed closely and publicly tends to discourage only those
who have some real reason to be discouraged."
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"SUNSHINE IN COURTS"
BILL DEALS IN ATTORNEY GENERAL AS PLAYER 5/21/99
A bill intended to reduce the number of
secret settlement agreements in civil cases involving fraud or
injuries caused by environmental hazards or product defects has
passed its first committee test but has a significant amendment.
Even if a sealing order were granted, the attorney general could
intervene and move for public disclosure.
SB 1254
by Senator Adam Schiff was passed by the Senate Judiciary Committee
on May 13 on a 6-3 vote. But the bill's language was overhauled,
with the principal difference being the role created for the
attorney general.
In the bill's original form, parties wishing
to have documents sealed in a fraud, environmental hazard or
product defects case -- under a protective order or as part of
a settlement, would have to justify their request, get the court
to approve it based upon its independent examination, and convince
the court of "good cause" for the secrecy. All this
would be required to be done by noticed motion, with the opportunity
for non-parties to intervene and oppose the secrecy motion. If
the court concluded that the proposed secrecy would create a
sufficiently grave "public risk, danger or hazard,"
it would deny the motion for secrecy.
The recent amendment provides a third option.
The court could grant the motion for the protective order but
alert the attorney general, who would then be authorized to file
a motion with the court asking that the secrecy be lifted with
respect to any information whose secrecy would threaten the environment,
or the health or safety of one or more persons. The notice to
the attorney general would be secret, i.e. also under the protective
order, but any motion by the attorney general would be public.
Comment: The new provision allows Attorney General Bill
Lockyer and his successors to second-guess the need for secrecy
vis-a-vis the threat to public health, safety or the environment
in any financial fraud, environmental injury or products liability
case. It was Senator Bill Lockyer whose SB 711, very similar to this measure, was
passed by the legislature in 1991 but vetoed by Governor Pete
Wilson.
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JUSTICE DEPARTMENT WOULD
STUDY HOME SECRECY FOR THE ELITE 5/21/99
The home addresses of all Californians
are confidential in the files of the Department of Motor Vehicles
-- with certain business and legal exceptions where access is
permitted for defined reasons. But those on a long list of public
officials and employees get even more secret treatment, impermeable
even to DMV itself. Is this elite list necessary?
A bill on the floor of the California Assembly
would direct the Department of Justice to look into this question,
and also the issue of whether those on the elite list need even
further protection, my making their home address information
confidential in otherwise public records indicating "real
property, personal property and financial transactions."
AB 151
by Assembly Member John Longville (D-Rialto) began as a bill
that would have added active or retired parking and traffic enforcement
officers to the elite list, but was amended to call for the attorney
general's study, reflecting a growing fear that Internet and
other technology changes may threaten the anonymity given to
public officials' home addresses.
In language deleted from the legislative
findings under the recent amendments, it was stated that "The
Department of Motor Vehicles has made great strides in prohibiting
the availability of home addresses and county assessors and registrars
of voters have developed procedures for protecting the home addresses
of specified individuals. However, home addresses are still readily
available."
Comment: Despite the concern expressed in the current law
as well as the proposed amendments, public officials and employees
are probably more exposed to worst-case mischief at their workplaces
than in their homes, and in any case can simply be followed home
-- completely lawfully -- by a determined stalker. According
to some cynics, the real benefit of being on the list is that
it makes parking ticket enforcement harder to the extent that
reliance on DMV-recorded home addresses is involved. And why
should this anonymity be limited to government employees? Divorce
lawyers are at least as hated as city attorneys, yet have an
important role to play in the civil justice system. But if some
public records protection must be extended for officials' addresses,
it should at least indicate the voting precinct (which it does
not under the corresponding secrecy rules for voter registration
files). People may not need to know enough to walk up to the
front door of a police officer, judge or prosecutor, but they
should have some notion of whether they are residents of the
city -- or even county -- where they are employed or hold office.
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ASSEMBLY JUDICIARY COMMITTEE
REJECTS BILL MANDATING ANONYMOUS JURIES IN CRIMINAL TRIALS 3/19/99
On a 4-7 vote on Tuesday, March 16, the
Assembly Judiciary Committee rejected AB 310, which would have required courts in
criminal trials to suppress all personally identifying information
about jurors and instead assign them identification numbers.
Apparently influential was a committee analysis questioning the
bill's soundness under the First Amendment.
The bill, the latest in several attempts
to much the same effect, had the additional provision of barring
even defense counsel and prosecutors from obtaining jurors' names,
home and work addresses, children's names and schools, or spouses'
work addresses. That restriction, opposed by the California District
Attorneys' Association, was removed at the hearing when the author
offered an amendment to give counsel a confidential copy of the
information.
But the committee consultant's analysis
warned that a total restriction in public access to the information
in all trials, requiring no judicial finding of special threat,
would probably run afoul of U.S. Supreme Court doctrine on the
First Amendment presumption of access to, and information in
the records of, criminal trials. Several members of the committee
-- including Republican colleagues of the author -- found this
prospect sufficiently troubling to warrant a "no" vote.
The author's witnesses included a former
juror who was appalled to learn how freely her name had been
used in the jury selection phase of a murder trial, in the defendant's
presence, plus Philip Mautino, presiding judge of the Cerritos
Municipal Court. Judge Mautino, unnerved by his wife's experience
as a juror, in 1994 began the practice of allowing jurors in
his court to opt out of being identified on the record. Since
then, his records indicated that only six out of some 2,800 jurors
did not request anonymity.
Committee Chair Sheila Kuehl (D-Santa Monica)
seemed skeptical, however, about Mautino's implication that his
procedure was widespread in the Los Angeles muni court system.
And opposition witnesses, including representatives of the California
Newspaper Publishers Association and the California First Amendment
Coalition, argued that courts now possess, and are seldom reluctant
to exercise, case-by-case authority to protect plausibly jeopardized
juries with ad hoc controls, including anonymity orders.
The most distinguished opposition witness
was San Francisco attorney Ephraim Margolin, a veteran criminal
defense and civil liberties advocate, who warned the committee
that injection of an unqualified privacy presumption benefiting
criminal trial jurors would set the stage for further demands
for anonymity, extending with the same logic to prosecutors and
even judges.
The question of whether the First Amendment
precludes anonymous juries in cases with no plausible risks to
their safety is currently before the U.S. Court of Appeals for
the Ninth Circuit in Unabomber Trial Media Coalition v. District
Court, where the issue has been under submission since last spring.
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