Copyright, The Press-Enterprise 2008

Docket cites attorney-client issues in judge's decision to clear court

By Richard K De Atley and Laurie Lucas
5/5/2008

Judges can close a criminal case hearing to the public, but the circumstances are narrow and the reason needs to be clear and on the record -- even if that record itself is sealed -- legal observers said Monday.

Riverside County Superior Court Judge W. Charles Morgan on Friday closed two separate hearings in a murder case, and while he did not explain why from the bench, docket records entered later show it was to protect attorney-client privilege.

That is one of the few circumstances when a court legitimately can close a criminal hearing, Assistant Public Defender Robert Willey said Monday.

Others include juvenile hearings, those that deal with requests from defense counsel for investigator funding and hearings that involve review of police officers' personnel files.

Juvenile matters are not public because of the defendant's age, Willey said.

Investigator-funding requests may disclose strategies in the defense's case, and the review of an officer's record may reveal information that legally cannot be disclosed, he added.

"In each case, it's not so much to exclude the press and public as it is to exclude the opposing counsel," Willey said.

While legal experts disagree with when and how a judge may decide to close a criminal case hearing, the law does provide for it when there is a compelling reason.

Judges should be selective about how much of the hearing is shut, said Peter Scheer, executive director of the California First Amendment Coalition.

The Press-Enterprise is a member of the coalition.

Speaking by telephone Monday, Scheer said, "The judge has closed the proceeding to protect the reputation of the defense lawyer from potentially erroneous and unfounded assertions by the defendant. Even so, that is not enough to close an entire proceeding."

Morgan's decision Friday involved the cases of Frank Bazzo and Jose "Joe" Olivarez. Both were convicted in March of killing Mostafa Shirazi in Riverside on Aug. 15, 2005.

The prosecution also alleged that Shirazi's ex-wife, Blythe dentist Epifania Nicolas, planned the murder, but a separate jury acquitted her.

Bazzo and Olivarez wrote letters to the court after they were convicted.

Olivarez's attorney, Frank Peasley, told the court Friday that it appeared his client was seeking a new trial by claiming ineffective counsel.

Bazzo's attorney, Michael Duncan, said what his client was requesting would raise concerns with attorney-client privilege. He said Bazzo has questioned how he could be found guilty when Nicolas wasn't.

Morgan ordered the hearings closed and cleared his courtroom.

The judge initially declined to accept a letter from a lawyer representing The Press-Enterprise that sought to open the afternoon hearing.

Court docket notes on Monday indicate the letter was later received and filed.

"The United States Supreme Court and the California Supreme Court have made clear that court proceedings and court records must be presumptively open to the public and the press," argued the letter filed by the attorney, Alonzo Wickers IV.

Wickers noted that included sentencing hearings in criminal cases -- the original purpose of the Friday appearances for Bazzo and Olivarez. Both are scheduled to appear today before Morgan.

When the news media intervenes in such a fashion, it can muddy the waters for readers, Scheer said.

"It makes the newspaper ... a participant in the story," he said.

Willey said there is nothing compelling a judge to make any public announcement for why he or she is closing a hearing, as long as it is entered on the record of the hearing. And that can be sealed.

"He just has to say it on record, but not necessarily the public record," Willey said.

But the absence of any explanation can leave the public in the dark, said John T. Nockleby, a law professor and the director of the Civil Justice Program at Loyola Law School in Los Angeles.

"If you can't find out why the proceeding was closed, you would at least be entitled to an explanation," he said by phone. "Without knowing, it is not possible to make that judgment" about whether it was legitimately closed, he said.