Justices Order Open Pretrial Proceedings

The Supreme Court, significantly expanding access to the courtroom, ruled Monday that the public has a constitutional right to attend pretrial hearings in criminal cases.

In a 7-2 decision, the justices said that, under the First Amendment, judges may close pretrial proceedings only in rare circumstances when there is no other way to protect the defendant’s right to fair trial.

The court upheld a challenge to closed preliminary hearings made by the Riverside Press-Enterprise, a California newspaper that just two years ago won a ruling by the justices establishing the public’s right to observe jury selection in criminal trials.

In 1980, the court, citing the nation’s “long tradition” of open courts, had ruled that trials generally may not be closed, even if the defendant objects to an open trial.

Monday’s decision was of key importance because the vast majority of criminal prosecutions are resolved before trial, largely through pleas of guilty, and the preliminary hearing may be the only open airing of evidence in the case.

In preliminary hearings, defendants have the right to counsel and may present evidence, cross-examine witnesses and seek the suppression of evidence as a judge weighs the prosecution’s case to determine whether there is “probable cause” to hold the defendant for trial. In California, some of these proceedings have taken weeks to conclude.

Case of Mass Killer

The justices, in overturning a ruling by the California Supreme Court, held that the public and press had been improperly prohibited from attending a 41-day preliminary hearing for Robert R. Diaz, a nurse later found guilty and sentenced to death for murdering 12 patients with overdoses of heart medicine.

“We have already determined . . . that public access in criminal trials and the selection of jurors is essential to the proper functioning of the criminal justice system,” Chief Justice Warren E. Burger wrote for the court. “California preliminary hearings are sufficiently like a trial to justify the same conclusion.

“The preliminary hearing in many cases provides the sole occasion for public observation of the criminal justice system,” he said.

The court said that such pretrial proceedings may be closed only when a judge makes specific written findings that there is “substantial probability” that a defendant’s rights would be prejudiced by publicity and that “reasonable alternatives” to closing the proceedings could not protect those rights.

Questioning of Jurors

Such alternatives can include the questioning of potential jurors to disqualify those whose impartiality is affected by pretrial publicity or the transferring of the trial to another location.

The ruling was widely praised by lawyers for news organizations as a far-ranging affirmation of open court proceedings.

“The court has given us a very broad statement of the right of access to all proceedings before trial,” said James D. Ward of Riverside, the attorney who represented the Press-Enterprise in the case. “The public now has a right to be there and hear what is going on.”

Howard H Hays Jr., the paper’s editor and publisher, said: “We went to considerable effort and expense, not only to protect our own rights and those of other newspapers, but because of our belief that openness is the most important characteristic of free government.”

Diaz was charged in 1981 with 12 counts of murder. At his preliminary hearing, he sought to exclude the public under a state law that permits such exclusion to protect the right to fair trial.

Hearing Held in Secret

The defendant’s request was granted, and the 41-day hearing was conducted in secret. At the conclusion of the hearing, the Press-Enterprise sought a transcript of the proceedings, but its request was denied.

Later, the state Supreme Court ruled that there is no general First Amendment right of access to preliminary hearings, saying that such a right applied only to actual criminal trials.

The newspaper, backed by news organizations, civil libertarians and state Atty. Gen. John Van de Kamp, appealed the ruling to the justices, saying that the state court had failed to recognize and protect the public’s constitutional right of access.

Burger’s opinion for the court (Press Enterprise vs. Superior Court, Riverside County, 84-1560), said that the First Amendment’s requirements of open proceedings may not be outweighed by the “conclusory assertion” that publicity might deprive a defendant of the right to fair trial.

In dissent, Justice John Paul Stevens, joined by Justice William H. Rehnquist, said that the traditional right of access to the courts did not apply to pretrial proceedings and that those who framed and ratified the Constitution “could not have intended such proceedings to remain open.”

Decision on Whaling

In other action, the court:

--Ruled 5 to 4 that federal law does not require the Reagan Administration to restrict Japan’s right to fish in U.S. waters in retaliation for the killing of whales by the Japanese in the North Pacific.

In an opinion by Justice Byron R. White, the court overturned a ruling by a federal appeals court that would have forced the Administration to levy sanctions against the Japanese, even though the United States has agreed to allow Japanese whaling to continue until April, 1988.

Greenpeace, one of several environmental groups that had urged the justices to affirm the appellate court ruling as a means of helping save the sperm whale population of the North Pacific, called Monday’s decision “a tremendous disappointment.” (Japan Whaling Assn. vs. American Cetacean Society, 85-954.)

--Let stand a decision by the California Supreme Court ordering the dismissal of a libel suit by Synanon and its founder, Charles E. Dederich, against the Reader’s Digest. The suit grew out of a Digest article describing how David and Cathy Mitchell, publishers of the Point Reyes Light, had won the Pulitzer Prize for public service with a series of articles critical of Synanon. (Synanon vs. Reader’s Digest, 84-1304.)