Open and Shut Case

A 38-year-old man who was born sexually deformed after his mother took the drug DES during pregnancy is now suing the manufacturer of the drug in Superior Court in Torrance. A jury trial is under way there before Judge George R. Perkovich Jr. Though the trial is being conducted in open court, as it should be, efforts to report on the case have been hampered by Judge Perkovich, who has refused to allow anyone to review all but a handful of the documents in the six-year-old case--which fill a filing cabinet--until after the trial is over.

Perkovich says that he is concerned that the file contains information that might prejudice the jury if it were made public. The lawyers for both sides have declined to provide the documents that are being sought. The lawyers may do whatever they wish, but the judge is supposed to be upholding the law, which clearly envisions public access to court records and documents.

In case after case, federal courts and state courts--including California courts--have held that judicial proceedings must be fully open except in extraordinary circumstances. The public has a vital interest in the fair administration of justice, which can be met only by allowing public scrutiny of the process. The California Court of Appeal has recognized that “if public court business is conducted in private, it becomes impossible to expose corruption, incompetence, inefficiency, prejudice and favoritism.”

“It is a first principle that the people have the right to know what is done in their courts,” the California Supreme Court has said. “Absent strong countervailing reasons, the public has a legitimate interest and right of access to court records.”

Some material in the current case is highly personal and potentially embarrassing to the plaintiff, and we have no desire to publish such information. It is possible that Perkovich may be justified in keeping it out of public view. But he has gone much too far in sweepingly denying access to the documents in the case. If he wants to withhold some material, he must specifically and narrowly identify it, and he must be prepared to explain why that specific material would cause serious harm or injury if disclosed. The remainder must be open.

Closing all the records is too broad, and it is therefore wrong--if not illegal. Besides, there are other means at the judge’s disposal for keeping potentially prejudicial material from the jury without limiting the public’s constitutional rights.

A number of important questions in this case cannot be answered without seeing the closed court files. Perkovich has overstepped his authority by refusing access to them.