Preliminary Hearings, Tainted Juries and Public Rights

Today the U.S. Supreme Court will hear arguments in the case of Riverside Press-Enterprise vs. Superior Court. The argument marks the second time in two years that the feisty California newspaper has gone to the high court seeking expansion of the First Amendment right of access to criminal proceedings.

In 1984 the Press-Enterprise won a ruling that jury selection in criminal trials must be open to press and public unless a compelling need for secrecy is demonstrated by the state. This time the newspaper is challenging the closure of the preliminary hearing during the prosecution of Robert Diaz, a nurse accused of murdering 12 patients.

The case raises fundamental issues about the nature of preliminary hearings in the wake of what was certainly the longest and probably the most frustrating of such hearings ever conducted in California: the McMartin Preschool child-molestation case. After following those proceedings for 17 months, many Californians were left wondering whether a preliminary hearing is really any different from a trial.

That similarity is the essence of the argument that the Press-Enterprise is presenting to the Supreme Court: Since preliminary hearings function as “mini-trials” in California, they should be protected by the same constitutional right of access.

The lawyers who are defending the closure for Riverside County argue that a preliminary hearing is fundamentally different from a trial, because the only issue to be decided is whether there is “probable cause” to justify holding a trial, and that issue is decided by a judge rather than by a jury. They compare the proceedings to grand jury investigations, which have a long tradition of secrecy.

Lawyers for nurse Diaz argue that a broader right to demand closed preliminary hearings is essential to preserve the right to a fair trial. Widespread exposure of the evidence presented at the preliminary hearing may make it so difficult to find impartial jurors that the trial must be moved to a different county.

The weight of these arguments has diminished in recent years. By virtue of a California Supreme Court ruling in 1978, every defendant has a right to a preliminary hearing, even after a grand jury investigation has been completed. The preliminary hearing provides a full opportunity to cross-examine prosecution witnesses and present witnesses for the defense. In nine cases out of 10 it’s the only such opportunity, since more than 90% of the cases are disposed of by plea bargains before trial. And courts today are seldom granting motions to change the venue of a trial because of pretrial publicity. They are finding few jurors actually tainted by what they saw or read about the case in advance, if they even remember it.

Perhaps it’s a sad commentary on our times, but we are no longer shocked by the details of even the most outrageous multiple murders. The “Skid Row slashers” and “hillside stranglers” become such an indistinguishable blur that we can’t even sort out what we heard about each one. In denying a closed preliminary hearing in the Richard Ramirez “Night Stalker” case, Municipal Court Judge James F. Nelson expressed confidence that, regardless of the sordid nature of the evidence to be disclosed, an impartial jury will still be found.

The strongest argument for public access to preliminary hearings is the same argument that succeeded in the first Press-Enterprise case. As U.S. Supreme Court Justice John Paul Stevens put it, what is at stake is the process of self-governance. Public access to jury selection was necessary for public understanding of the process, “thereby enabling critical examination of its workings to take place.” Chief Justice Warren E. Burger added: “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”

Proposals are pending before the California Legislature to admit hearsay evidence at preliminary hearings, and to abrogate the right to such hearings after a grand jury indictment. It is essential that the public debate over these measures be fully informed.

The first step to meaningful reform of the criminal-justice system is public understanding of how the system works, and occasionally doesn’t work. To allow preliminary hearings to be closed to the public without a showing of the compelling necessity required by the First Amendment can only increase public suspicion of the outcome.

If the McMartin hearing accomplished nothing else, at least its openness focused public attention on the need for some fundamental changes in the way we conduct criminal prosecutions. Its openness also permitted objective evaluation of the district attorney’s decision not to proceed with the case against five defendants.

Whether preliminary hearings are open to the public cannot be left up to tactical decisions by the participants in those proceedings. Critical scrutiny of the criminal-justice system deserves the full protection of the First Amendment.