Ruling Keeps the Public in Dark About Murder Case : Courts: Judge says he sealed documents to ensure fair trial, but critics argue that First Amendment rights are being violated.

In the early stages of one of the biggest Ventura County murder cases in the past decade, prosecutors went to the judge in December with a highly unusual request: seal the grand jury transcript and other key court documents from the public.

The case involves the slaying and carjacking of Westlake nurse Kellie O’Sullivan and the arrest of a 19-year-old defendant, Mark Scott Thornton of Thousand Oaks.

Superior Court Judge Charles R. McGrath went along with the prosecution’s request from the beginning and continues to support it.

The result has been that eight months later, the public still cannot look at the more than 400-page transcript from the hearing in which prosecutors established reasonable cause to try Thornton for the O’Sullivan slaying.

While McGrath has ruled that release of the transcript and other sealed documents could jeopardize Thornton’s right to a fair trial, First Amendment lawyers in California and across the country disagree.

The lawyers say there is no serious fair-trial issue with the Thornton case.

“The grand jury transcript in this case is not going to prejudice the trial of this individual,” said Harold W. Fuson Jr., San Diego-based general counsel for Copley Newspapers. “It never would have.”

Other legal experts note that famous and notorious criminal defendants from Charles Manson to John DeLorean received fair trials before impartial juries in Los Angeles County despite international publicity.

Therefore, they unequivocally say, Thornton and other lower-profile defendants can receive the same in any county in the state, including Ventura County.

Ironically, officials of the Ventura County district attorney’s office have routinely suggested that reporters look through grand jury transcripts to familiarize themselves with other high-profile criminal cases. Nor have prosecutors tried to block public access to records in other recent highly publicized murder cases in the county.

To some of the nation’s top media law experts, McGrath’s ruling to seal the transcript in the Thornton case represents a disturbing trend. They charge prosecutors, defense lawyers and judges with slowly sealing off the criminal justice system from public scrutiny.

“It seems to me that it’s a judge’s primary duty to avoid any erosion of the public’s confidence,” said Bruce Sanford, a Washington lawyer who represents the media in First Amendment cases. “And that means expediting access to public information, and that includes the grand jury.”

Other legal experts agree.

“I think the more the public knows, the better position they are in to understand what’s going on in their courts,” said Bob Sack, a well-known New York First Amendment lawyer. “And it is their courts. It’s not a court that belongs to the governor, to the prosecutor, to the judge or to the defendant. It’s the people’s court.”

“This is one of dozens of small steps that have been taken over the past few years to make it more and more difficult for the public to examine its judicial system,” Fuson said.

“Most of these steps have been taken in the name of protecting someone’s privacy or the rights of the accused,” he added. “They are steps for supposed high purposes, but in fact reflect a growing social discomfort that personal information (in criminal cases) is widely available and in great demand today.”

In the Thornton case, McGrath should not have sealed any of the transcript unless he first had read the entire document, which is unlikely, some legal experts said.

If he had read the document, he would have at least unsealed the portions that were clearly not even close to dealing with evidence that might cause fair trial rights to be violated, they agreed.

“The court has to be familiar with the transcript,” said Sharon J. Waters, a Riverside attorney who won an appeal forcing a trial judge to unseal a grand jury transcript earlier this year. “I would be surprised that the entire transcript (in the Thornton case) has to be sealed. I would tend to think there are some parts of that that could be released.”

The experts conceded that McGrath and other trial judges in California will continue to make their own decisions, until the California Supreme Court establishes some guidelines on the grand jury access issue.

But some guidance is already on the books.

Proposition 115, enacted in 1990, gives prosecutors permission to forgo public preliminary hearings in favor of secret grand jury proceedings. But it also requires the courts to make grand jury transcripts public within 10 days following an indictment.

In Kellie O’Sullivan’s death, prosecutors did not want to do that, and McGrath said they did not have to.

The body of 34-year-old O’Sullivan, a single mother of a young son, was found amid some brush in the Santa Monica Mountains 12 days after her Sept. 14 disappearance. She had been shot twice in the back and once in the chest.

In a search that mobilized the Thousand Oaks community, hundreds of people, most of whom didn’t know O’Sullivan, joined in a massive air-and-land search.

When arrested in Reno, during the height of the search, Thornton was in possession of a handgun and O’Sullivan’s 1991 Ford Explorer. He admitted stealing her vehicle but denied ever seeing the woman.

The Ventura County grand jury issued a 14-count indictment Dec. 6 that accused Thornton of murder, kidnaping and a special circumstance that qualifies him for the death penalty. More than 40 witnesses testified about evidence linking Thornton to O’Sullivan’s disappearance and death.

Two days after the indictment, Deputy Dist. Atty. Peter D. Kossoris, worried that defense lawyers would seek to move the trial out of the county because of the publicity, received permission from McGrath to seal the transcript.

Kossoris declined to comment for this story. But in previous interviews and in court records, prosecutors have said they believe that there is a “substantial probability” that release of the transcript and several other sealed documents could harm Thornton’s fair trial rights.

Thornton’s attorneys also agree that McGrath made the right call in sealing the court documents. The defense believes too that many people have become emotionally attached to the case.

“I think the public’s imagination was caught by the type of woman Kellie O’Sullivan was,” Deputy Public Defender Susan R. Olson said in an interview. “A mother, a fine woman trying to raise a child.

“Because of that, Mark Thornton has become the symbol to the public of what violence has become,” she added. “There seems to be a tremendous amount of anger and revulsion directed toward him. And I think that will make it difficult for him to get a fair trial.”

After The Times and Ventura County Newspapers requested him to unseal the documents, McGrath said in open court in April that he eventually intended to grant the newspapers’ requests. He later said he would not make a decision on the matter before late July, when he was set to hear a change-of-venue motion filed by Thornton’s lawyers.

But he changed his mind and ordered them indefinitely sealed after the papers asked the 2nd District Court of Appeal to intervene and order the documents unsealed. The appeals court, without comment, refused July 21 to intervene in the matter. And four days later, McGrath abruptly took a tougher stance, ordering the records sealed indefinitely.

In his written ruling, the judge said he found a substantial probability that release of the documents would prejudice Thornton’s right to a fair trial. But in the change-of-venue hearing in late July, he also ruled that Ventura County is populous enough to find an impartial jury in the case--a ruling that strikes legal experts as inconsistent.

Normally, the experts said, the same criteria is used for deciding whether to grant a change-of-venue hearing and whether to grant access to a grand jury transcript.

Why, then, does McGrath believe that the Thornton trial should remain in the county while maintaining that the transcript and other key documents should not be released?

“It’s wholly inconsistent, no question about that,” Sanford said. “Time and time again, it has been shown that fair and impartial juries can be impaneled in criminal cases, even in the O. J. Simpson case.”

Others find it inconsistent with a decision handed down by an appeals court in San Bernardino in February. The 4th District Court of Appeal overruled a Riverside County trial judge and released a grand jury transcript in a high-profile case there.

“It’s hard to reconcile what the trial judge is doing in Ventura County with the Court of Appeal decision in Riverside County,” media lawyer Kelli L. Sager of Los Angeles said.

In that case, defendant David Lynn Scott, known as the “Ninja Prowler,” was accused of a string of rapes and one murder. The trial judge read the transcript and released all but about 3% of it, saying that portion was prejudicial to the defendant’s fair trial rights.

“(There) is no basis for concluding that publicity of the contents of the entire grand jury transcript would be so extensive and widespread that it threatens to prejudice the entire jury pool so that twelve unbiased jurors could not be found,” Justice Art W. McKinster wrote in the unanimous ruling.

Said Waters, who filed the appeal on behalf of the Riverside Press-Enterprise: “The trial judge in (Ventura County) should have followed that decision. It wouldn’t necessarily determine the outcome, but it would provide a structure on that case.”

Glen A. Smith, a lawyer representing The Times, said the newspaper is evaluating its options, but has not yet decided whether to again attempt to have McGrath’s decision overturned.

Jury selection in the Thornton case is set Sept. 6.