SPECIAL REPORT * Legal experts see an increasing trend by judges to seal court records, issue gag orders and otherwise restrict access. At issue is the effect . . . : When Secrecy Denies the Public’s Right to Know

Los Angeles County Deputy Dist. Atty. Lea Purwin D’Agostino spent two years preparing the prosecution against suspected serial killer Glen Rogers. Then she got kicked off the case.

D’Agostino says she was the victim of Dist. Atty. Gil Garcetti’s political retribution, and that the public, including the family of one of Rogers’ victims, is paying the price.

Whether Garcetti, an elected officer who is the official representative of the people in court, booted her because of politics or some other reason is unclear.

The answer is under seal--by order of the court.

The court order--which locked up the records of the Civil Service Commission, with which D’Agostino filed her complaints--is another example of what legal experts say is an increasing trend in the judiciary that keeps the public out of courtrooms and blocks its access to public records.

“Based on tracking we do, there has certainly been a marked increase, and a lot of it originates out of your state,” said Jane Kirtley, head of the Virginia-based Reporters Committee for Freedom of the Press.

From coast to coast, restrictions on public access to court cases have blocked citizens’ ability to keep tabs on government, the judiciary and issues that directly affect their lives.

This is especially true in civil court. In that forum, both sides usually settle disputes in private to avoid a trial and win the judge’s permission to seal the agreement from public view. These secret settlements often hide issues that are immensely important to the public.

Nevertheless, if anyone reveals the secret, judges sometimes react harshly.

Earlier this year in Wilmington, N.C., a federal judge, who had been presiding over a civil trial concerning the contamination of a community’s water supply, forced a newspaper to pay the contaminating firm $500,000 because a reporter wrote a story about the firm’s secret $36-million settlement. The story was based on information that a court clerk mistakenly gave to the reporter.

In California, the trend toward secrecy has been especially prevalent during the past year:

* An appeals court has prevented disclosure of secret grand jury testimony that could shed light on how county officials lost more than $1.6 million in the 1994 Orange County bankruptcy. The testimony also could help answer questions about Dist. Atty. Michael Capizzi’s abrupt decision to halt the 30-month grand jury investigation into the role of Merrill Lynch after the brokerage agreed to pay the county a $30-million penalty.

* In Los Angeles County, judges handling the high-profile Ennis Cosby murder case have sealed court records that are usually open, gagged lawyers to prevent them from discussing the case outside the courtroom and blocked release of grand jury transcripts, which by state law are open to the public after an indictment.

* In the Steven Spielberg stalking case, judges did not stop at sealing records and transcripts. One judge also gagged the press in a hearing in open court by ordering reporters not to write about an exchange between two lawyers over whether the jury should be told that the defendant was wearing a restrictive device. The judge did not give media lawyers a chance to contest the gag until two days later, when he reversed himself.

Simpson Trial Legacy

Some legal experts say the trend toward secrecy is a legacy of the O.J. Simpson trial and the product of increased interest in the courts by television, the tabloid press and mainstream newspapers.

The heightened exposure comes at a time when most judges have little training or experience in dealing with disputes over public access and fair trial, according to law professors.

Although judges can use several tactics to accommodate public access to the court without jeopardizing fairness, they usually take the safest and quickest way out, which is to seal court records, close courtrooms, and gag lawyers and sometimes reporters.

“Their instinct is, ‘Let’s do it, and see how hard and fast the press fights back,’ ” said Laurie Levenson, a Loyola Law School professor.

Los Angeles Superior Court Judge John Reid has been among the quickest to restrict public access. He sealed records in the Cosby case and in D’Agostino’s Civil Service complaint.

In an interview, Reid said he usually restricts media coverage of records only when he decides it might jeopardize a defendant’s right to a fair trial and an impartial jury. Like other judges, he says massive media coverage inevitably will expose jurors to information and opinions that they should not get.

If jurors get such information, trying to persuade them not to consider it is like “trying to un-ring a bell,” he said.

In the Cosby case, Reid said in court papers that the press coverage has been smothering. While the victim, the son of entertainer Bill Cosby, has been portrayed in glowing terms, coverage of the accused assailant, Mikail Markhasev, has been more negative, he said. Such coverage could prejudice someone against Markhasev.

Although court officials concede that media coverage does not make selection of an impartial jury impossible, they say it makes it more difficult.

“The more publicity, the more difficult it is to find a jury,” said Robert Heflin, chief deputy district attorney for Los Angeles County.

But U.S. Supreme Court rulings have said repeatedly that such “difficulty” is not sufficient reason to violate the 1st Amendment to the Constitution. Court rulings have said a judge has to show compelling evidence that pretrial publicity will probably influence a jury.

Despite judges’ fears, pretrial publicity rarely, if ever, has prompted appeals courts to overturn convictions.

“There has never been a case that I’m aware of in which a criminal conviction was overturned or a civil judgment reversed because of prejudicial pretrial publicity,” said Douglas Mirell, a lawyer with the American Civil Liberties Union.

Weighing Media Coverage

Legal experts and media lawyers say judges overestimate the influence of news stories on potential jurors, assume that every story is prejudicial, and believe that every candidate for jury duty reads or listens to them all.

“It’s a nonissue,” said Karl Manheim, professor of constitutional and communications law at Loyola Law School. “What they read in the press is the least important influence on their bias. It’s their upbringing and culture, education, their whole persona that will determine their bias.”

Most media coverage of court cases consists of routine reports on developments in the case.

When newspapers and television carry pretrial stories that report on evidence or analyze the merits of a case, there are procedures judges can use to find people who were not exposed to those articles or newscasts. Judges can question them very closely to find out precisely what stories they have read or seen and how those stories have influenced them.

If the coverage is pervasive, as in the Simpson case, judges can increase the size of the jury pool to help make sure it will yield 12 neutral panelists who were not overwhelmed by media coverage.

But court officials say fair trials are not the only reasons for restricting coverage.

Heflin, the chief deputy district attorney in Los Angeles, said prosecutors also fear that coverage sometimes can damage investigations, reveal informants’ names and jeopardize the safety or privacy of witnesses and victims.

Fear of damaging an investigation is the reason the district attorney’s office has given for requesting the sealing of D’Agostino’s Civil Service Commission files. Prosecutors say they sought closure for fear that information would jeopardize the prosecution of Rogers, the cross-country killer who is on Florida’s death row and is scheduled to stand trial in Los Angeles for the 1995 slaying of Sandra Gallagher.

Heflin said replacing D’Agostino, a veteran prosecutor in the Van Nuys division who has prosecuted several high-profile cases, had nothing to do with politics. D’Agostino has said she was reassigned because she once encouraged someone to run against Garcetti.

Heflin said D’Agostino was replaced in accordance with policy because the Rogers case was classified as a major crime and transferred to the central office’s major crimes division in downtown Los Angeles.

Diane Marchant, D’Agostino’s lawyer, rejected that explanation, saying the case had been listed as a major crime from the outset. Moreover, she said Garcetti could have temporarily transferred D’Agostino to the major crimes unit.

Marchant also rejected the contention that unsealing the Civil Service files could hamper the prosecution. She said she has agreed to black out anything that deals with the merits of the case.

“We contend that all those explanations and the sealing is just a cover-up of the political retaliation,” Marchant said.

Extraordinary Circumstances

Resolving political controversies is at the heart of the Orange County bankruptcy.

But that case had a different twist. In most cases, court records are sealed by the Superior Court at the request of either the prosecutor or defendants. But this time, the Superior Court rejected the requests of the prosecutors and the targets of the investigation and ordered the records unsealed.

The records are transcripts of the grand jury’s investigation into the role of Merrill Lynch in the bankruptcy. The firm was a key player in leading Orange County into some risky investments that eventually resulted in bankruptcy. For more than two years, Capizzi’s office sent witnesses to the grand jury to explain Merrill Lynch’s role.

When Capizzi aborted the investigation in June in exchange for Merrill Lynch’s agreement to pay the county $30 million, his action gave the firm grounds to prevent release of the grand jury’s transcripts. Because California law provides for release of the transcripts only after indictments, Merrill Lynch argued that the transcripts should be forever sealed.

Ever since the agreement, which provided $2 million for Capizzi’s office to offset the costs of the investigation, Capizzi has supported Merrill Lynch’s opposition to unsealing the transcripts.

But Superior Court Judge David O. Carter, exercising his claim to jurisdiction over the grand jury’s actions, issued an order to release the transcripts.

The transcripts remain sealed pending Merrill Lynch’s appeal.

Capizzi said last week that he would release the transcripts if the law allowed.

Carter, calling the case unprecedented and Capizzi’s deal “suspect,” wrote in his order that the law doesn’t prohibit him from releasing transcripts in such an unusual case. He said the Legislature never anticipated such extraordinary circumstances as those surrounding the bankruptcy or Capizzi’s handling of the investigation.

“There is a compelling and fundamental right on behalf of all citizens to have access to vital information relating to the loss of over $1.67 billion,” he said.