Judges Dim the Media Spotlight

In plain sight on a Saturday afternoon, sheriff’s deputies from two counties away swarmed a stately home in Calabasas. They served a warrant on the occupant and searched the premises. Wide-eyed neighbors looked on.

Weeks later, however, the Santa Barbara County Sheriff’s Department still would not confirm that it had raided the home, or even that the search had taken place. Were the neighbors hallucinating?

“I just can’t talk about it,” sheriff’s spokesman Chris Pappas said.

News organizations reported that the Santa Barbara department conducted the search, but they quoted anonymous or secondhand sources. A judge had sealed the warrant, the official record of what went on.

The reason for the covert treatment: The Calabasas operation concerned a celebrity case: the prosecution of pop star Michael Jackson on child molestation charges.

Secrecy has become common in A-list court proceedings. When a headliner lands in the dock, the government is increasingly restricting access to legal documents and hearings and imposing gag orders to silence lawyers and investigators.

Open courts and public scrutiny of the justice system are cornerstones of American democracy. But judges say the hush-hush measures are sometimes necessary to prevent news coverage from influencing the jury and thus damaging the prospects of a fair trial.

“It’s a balancing,” said David Horwitz, a recently retired judge who helped set access rules for the Los Angeles Superior Court during his 22 years on the bench. “Some judges believe that by issuing gag orders, by sealing documents, you preserve the information for the courtroom and the trial.”

Prosecutors and defense lawyers often agree.

“It’s partly because of a very substantial increase in the amount of coverage,” said E. Michael McCann, district attorney for Milwaukee County, Wis., who prosecuted serial killer Jeffrey Dahmer in 1992. He pointed to a boom in gavel-to-gavel trial reporting by cable outlets such as Court TV.

“There seems to be an insatiable appetite for these trials,” McCann said. “Trial by jury is not entertainment.”

Jack Earley, president of California Attorneys for Criminal Justice, an association of defense lawyers, said: “In some cases, there is an interest in not having everything going out to the public.”

The curtain-lowering trend has stung 1st Amendment advocates, who trace it to an anti-media backlash after the O.J. Simpson murder trial in 1995. They say that secrecy might have contributed to jury problems in high-profile trials, and that numerous appellate court decisions have reaffirmed openness in prosecutions not involving national security.

Those precedents hold that a watchful public is crucial to the competent and impartial administration of justice. But the precedents are being tested again and again in lower courts caught in the spotlight’s glare -- high-interest cases like those involving Jackson, Martha Stewart, Kobe Bryant and the suddenly famous Scott Peterson, the Modesto fertilizer salesman charged with killing his wife, Laci, and the unborn son she was carrying.

“Despite the case law, it is becoming virtually routine to keep information from the public,” said Terry Francke, general counsel for the California First Amendment Coalition.

He noted that a search warrant typically is available for anyone’s inspection no later than 10 days after the search, along with a sworn affidavit from investigators and an inventory of any evidence collected.

The affidavit spells out what the authorities sought in the search and why. Disclosure is supposed to ensure that the government doesn’t invade private domains willy-nilly or confiscate property without the court’s permission.

That transparency has turned opaque in People vs. Jackson. Every warrant in the probe, going back to the November search of Jackson’s Neverland ranch in Santa Barbara County, has been sealed or released only after heavy editing.

And the clock can run for years. Two key warrants from a 1993 investigation of Jackson on similar allegations apparently remain unrevealed to this day. The warrants are so old that the Los Angeles Superior Court, in clearing the yellowing clutter from its files, destroyed them.

Francke says he believes such tactics don’t rile the public because of a sense that the media provide more than enough coverage of celebrity cases.

“People aren’t starved for information about Michael Jackson’s plight,” he noted.

Search warrants also have been sealed in the rape case against Laker basketball player Bryant and the murder prosecution of Peterson.

Faith in Juries

“It seems to be a reflex action,” said Gregg Leslie, legal defense director for the Reporters Committee for Freedom of the Press, which battles to unseal court documents in cases big and small. “We tend to have more faith in juries, and believe they can follow instructions and base their decisions on what they hear in court.”

Joshua Marquis, an Oregon prosecutor on the board of the National Assn. of District Attorneys, wasn’t so sure. “I believe celebrity is the great corruptor of our society,” he said.

Marquis said feeding documents into the maw of tabloid TV shows and websites such as the Smoking Gun, which specializes in posting court records, always risks polluting the jury pool. “If you have an affidavit, it’s going to be on the Internet in 24 hours,” he added.

Miami defense attorney Albert Krieger, who once represented New York mobster John Gotti, said lawyers now have to worry about made-for-TV movies tainting juries in cases that haven’t even been tried. USA Network aired a dramatization of the Peterson investigation in February.

“It sure raises issues about a fair trial,” Krieger said. “The media is more pervasive and more penetrating into our homes and lives than it’s ever been.”

The crush of media in Stewart’s stock fraud trial prompted a federal judge to close jury selection, an extraordinary step.

“Throughout history, we’ve had public selection of juries,” said David Schulz, a New York lawyer for newspapers and broadcasters covering the case.

The U.S. attorney’s office had asked for the secret proceeding -- the court released transcripts after each session -- saying prospective jurors might not answer questions candidly with the media present.

In granting the request, U.S. District Judge Miriam Goldman Cedarbaum cited a precedent in the 1998 fraud trial of black boxing promoter Don King. Jury selection was shuttered in that case on grounds that panel members might lie about their racial attitudes if journalists were in the courtroom.

Schulz argued for his clients that it was a stretch to apply the King reasoning to the Stewart trial. An appellate court set aside Cedarbaum’s order, saying “openness acts to protect, rather than threaten, the right to a fair trial.”

By that time, however, the jurors had been seated and the trial was underway. “It was too late,” said Schulz, who added that he hoped the appellate ruling would dissuade judges from slamming the doors in the future.

A lesser degree of jury secrecy is an issue in the Peterson trial. The judge has allowed prospective jurors to be questioned in open court, but decreed that their names not be revealed. The prosecution and defense had sought that order, suggesting that the media might bother the jury.

Judge Alfred Delucchi also sealed the list of witnesses.

“It’s kind of bizarre,” said Karl Olson, a San Francisco attorney for The Times, Associated Press and other media companies. He said appellate courts have held that witness lists must be public, and that juries should be anonymous only when the panel could be in danger, such as in organized crime cases.

Even in mobster trials, shielding jurors can be perilous. In a federal prosecution of Gotti, an anonymous juror had undisclosed ties to an Irish American crime group. Juror George Pape was convicted later of soliciting a bribe from Gotti to orchestrate an acquittal.

“The public did not have the opportunity to investigate Pape’s background,” Leslie said.

In Simpson’s 1997 civil trial, an anonymous juror had a daughter who worked for the district attorney’s office. The court did not discover the relationship until after the jury had begun deliberations. The juror was dismissed for potential bias.

“Anyone in a position of making important decisions should be accountable in some way, and the ultimate decision-makers are the jurors,” Olson said. “People should know who they are.”

Attorneys in the Peterson case can’t comment on the judge’s actions because a gag order forbids all parties to the trial to discuss anything about it.

Gag orders have become a fairly regular feature in celebrity court dramas -- the Jackson and Bryant cases among them.

Sheriff’s spokesman Pappas invoked the Jackson order in refusing to acknowledge the Jan. 31 search in Calabasas at the home of pornography producer Marc Schaffel, an associate of the singer. (A judge has unsealed part of the warrant.)

“I’m constrained,” Pappas said.

Some judges have gone to greater lengths to draw the shades on star-powered cases.

In 1997, a Los Angeles jurist erased filmmaker Steven Spielberg’s name from an indictment that charged a Los Angeles man with stalking him. Spielberg became “John Doe” in the document.

A newspaper eventually learned Spielberg’s identity as the alleged victim -- before the defendant’s attorney did. At the time, legal experts could recall no other case in which the name of a prominent alleged victim was concealed after an indictment had been returned and a suspect arrested.

Eight years ago, in a fraud lawsuit filed by actress Sondra Locke against actor-director Clint Eastwood, the judge closed every hearing in which the jury wasn’t hearing testimony.

An appellate court quickly reversed the judge. Later, the California Supreme Court upheld the appellate ruling in what is considered a landmark decision promoting openness in civil suits.

“It looks really good on the books,” said Tom Newton, general counsel for the California Newspaper Publishers Assn. “But when the rubber hits the road, these [decisions] are often ignored or subordinated to other interests.”

The Simpson case echoes through the access debate. The football legend was acquitted in the killings of his ex-wife Nicole Brown Simpson and her friend Ronald Goldman. The trial was televised, and no gag orders were issued. A spectacle ensued, with attorneys playing to the cameras and seeking to spin the evidence in interviews.

Los Angeles Superior Court Judge Lance Ito was widely criticized for his stewardship of the trial. He sequestered the jurors, kept their names secret, initially closed some hearings in which panelists were questioned, and threatened to throw out the cameras. On the other hand, he cooperated with a multipart television profile of himself.

“Every judge is scared to death of becoming the next Lance Ito,” Leslie said.

Ito declines to give interviews.

L.A. courts are less likely to admit cameras these days. Advocates of the 1st Amendment contend that cameras are the best means of public scrutiny in high-profile cases, the modern equivalent of an unlocked door to the village courthouse.

But in the Simpson case, the camera “exposed a judge not doing a good job managing his courtroom,” said David Greene, executive director of the First Amendment Project. “Judges don’t want that.”

After Simpson, the California Judicial Council gave jurists more leeway to ban photography and television. Judges have barred cameras in the Jackson and Peterson cases. A decision is pending in the Bryant prosecution in Eagle County, Colo.

Federal courts historically have excluded cameras. As the Simpson case unfolded, the U.S. Judicial Conference abandoned a three-year pilot project to allow them.

“There is no instance in which a verdict has been altered because of the presence of cameras,” said Barbara Cochran, president of the Radio-Television News Directors Assn., a booster of courtroom TV.

Earlier Cases

Cochran and others noted that the courts tightened up after sensational trials in the more distant past. They included the 1935 prosecution in the murder of aviator Charles Lindbergh’s son, the wife-killing case of Ohio osteopath Sam Sheppard in 1954, and the 1962 fraud trial of Texas financier Billy Sol Estes.

The American Bar Assn. persuaded courts to prohibit cameras and radio after the Lindbergh case, an edict that lasted nearly two decades. The U.S. Supreme Court overturned the convictions of Sheppard and Estes after finding that prejudicial publicity had interfered with their right to a fair trial.

Gradually, the courts relaxed. They determined that judges could safeguard justice in media-saturated cases by changing the trial venue, sequestering jurors and admonishing them to avoid the coverage.

Then came the Simpson hangover.

“There has to be some restraint,” said Marquis, the Clatsop County, Ore., district attorney. “I completely understand what Tom Sneddon is doing.”

He was referring to the Santa Barbara County district attorney who is heading the Jackson prosecution. Early in the case, Sneddon held a freewheeling, somewhat jokey news conference on the charges against Jackson.

His on-camera performance drew fire from Jackson’s attorneys and legal commentators. Later, when the gag order arrived, Sneddon welcomed it.

And he would confirm nothing about the Calabasas search.