Respondents Brief — Press-Enterprise Co. v. Superior Court of Cal., County of Riverside

No. 84-1560

——_——— — —

OF THE

United States

OCTOBER TERM, 1985

THE PRESS-ENTERPRISE COMPANY,

a California corporation

Petitioner.

VS.

THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF RIVERSIDE,

Respondent.

ROBERT RUBANE DIAz,

Real Party in Interest.

On Writ of Certiorari to the

Supreme Court of the State of California

BRIEF OF REAL PARTY IN INTEREST

ON THE MERITS

EPHRIAM MARGOLIN

Counse! Of Record

SANDKA COLIVER

240 Stockton St., 3rd Floor

San Francisco, CA 94108

Telephone: (415) 421-4347

Attorneys for Real Party

In Interest, Robert Rubane Diaz

BEST AVAILABLE COPY

TABLE OF CONTENTS

Page

CONSTITUTIONAL PROVISIONS INVOLVED 1

STATIITORY PROVISIONS INVOLVED 1

STATEMENT OF FACTS 2

SUMMARY OF ARGUMENT 5

ARGUMENT 8

I. CALIFORNIA PENAL CODE SECTION 868

REFLECTS A LONG-STANDING LEGISLATIVE

INTENT TO ACOORD DEFERENCE TO A

CRIMINAL DEFENDANT'S INTEREST IN

CLOSING HIS PRELIM.NARY HEARING. 8

II. ANY FIRST AMENDMENT RIGHT OF ACCESS

TO PRELIMINARY HEARINGS IS NOT A

FUNDAMENTAL INTEREST AND CERTAINLY

IS LESS COMPELLING THAN THE RIGHT OF

ACCESS TO TRIALS, 12

A. Public access to preliminary hear-

ings does not further the same objec-

tives as access to criminal trials.

1. The crucial difference between

preliminary hearings and trials

for purposes of analyzing the

objectives served by access is that

preliminary hearings are

not final adjudications.

2. Access to preliminary hearings

does not contribute to the fair-

ness of either the preliminary

hearings themselves or the crim

inal justice system in general.

13

18

21

3. Access to preliminary hearings

does not significantly serve

the appearance of fairness or

community catharsis.

4. Access to preliminary hearings

does not substantially further

the public's interest in

obtaining information about

important government functions.

B. The defendant's right to close his

preliminary hearing has long been

recognized, particularly in

California.

III. IF THE COURT FINDS A RIGHT OF ACCESS

TO PRELIMINARY HEARINGS, THEN IT

SHOULD REMAND TO THE CALIFORNIA

SUPREME COURT FOR DETERMINATION OF

HOW THE COMPETING INTERESTS ARE TO

BE WEIGHED.

IV. IF THE COURT DBCIDES TO ARTICULATE

A BALANCING TEST, THEN "REASONABLE

ERE BER EOF PREJUDICE” IS

CONCLUSION

26

31

39

47

53

55

TABLE OF AUTHORITIES

Cases

Coleman v. Alabama, 399 U.S.

30 Cal.3d 498, 638 P.2d 55 (1982) ll, 21,

1 (1970) 33, 53

Estes v. Texas, 381 U.S. 532 (1965) 16, 22

Gannett v. DePasquale, 443, U.S.

368 (1979) 14 passim

Gerstein v. Pugh, 420 U.S. 103 (1975) 53

Globe Newspaper Co. v. Superior

Court, 457 U.S. 596 15, 16, 49

Hawkins v. Superior Court, 22

Cal.3d 584, 586 P.2d 916 (1978) 24, 33, 53

Hooper v. Deukmejian, 122 Cal.App.3d 87 10

In re Oliver, 333 U.S. 257 28

Levine v. United States, 362 U.S. 610 (1960) 48

Nebraska Press Assn. v. Stuart,

427 U.S. 531 (1976) 22

People v. Elliot, 54 Cal.2d 498 9, 10, 53

Press-Enterprise Co. v. Superior Court,

37 Cal.3d 772 (1984) ll, 14, 16, 22, 48, 49

Pruneyard Shovping Center v. Robins,

447 U.S. 74 (1980) 12, 50

Richmond Newspapers v. Virginia,

448 U.S. 555 (1980) 13, 16, 15, 16, 32, 39

Robins v. Pruneyard Shopping Center,

23 Cal.3d 889, 592 P.2d 341 51

San Jose Mercury News v. Municipal Court,

24

Three Affiliated Tribes v. Wold Enginecringa.

U.S. , 81 L.Ed.2d 113 (1984) 50

U.S. v. Well, 464 F.2d 667 (2d Cir.)

cert.den. 409 U.S. 991 (1972) 54

U.S. v. Cianfrani, 573 F.2d 835 (3d Cir. 1978) 54

Waller v. Georgia, 457 U.S. 39,

81 L.Ed.2d 31 (1984) 13, 22, 51

California Statutes

Commission on Practice & Pleadings, Code of

Criminal Procedure, § 202 (1850) 47

Penal Code §868 Ll2 6&6 & iL, & @

Penal Code § 868.7 12

Penal Code §1191.1 31

Penal Code § 1192.7 34

Welfare and Institutions Code, § 3043 31

Welfare and Institutions Code, § 1767 31

Other Statutes

New York Field Code of Criminal

Procedure, rev. 1888 44

Constitutional Provisions

California Constitution, Article I, Section 2 1

California Constitution, Article I, Sectionl 1

California Constitution, Article I, Section 15 l

California Constitution, Article I, Section 16 1

U.S. Constitution, First Amendment 39, 43, 51

Other Authorities

Geis, "Preliminary Hearings,"

8 U.C.L.A. Rev. 397 (1961) 42

Webster's New International Dictionary (2d ed.

1959), p. 1635 49

No. 84-1560

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1985

THE PRESS-ENTERPRISE COMPANY,

a California corporation

Petitioner,

VS.

THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF RIVERSIDE,

Respondent.

ROBERT RUBANE DIAz,

Real Party in Interest.

On Writ of Certiorari to the

Supreme Court of the State of California

BRIEF OF REAL PARTY IN INTEREST

ON THE MERITS

Fo

cat

i

0

ae

\

a

*

as

CONSTITUTIONAL PROVISIONS INVOLVED

California Constitution, Art. 1, sec. 1:

"All people are by nature free and

independent and have inalienable rights.

Among these are . . . pursuing and

obtaining safety, happiness, and privacy."

California Constitution, Art. 1, sec. 2:

"(a) Every person may freely speak,

write and publish his or her sentiments on

all subjects, being responsible for the

abuse of this” right. A law may not

restrain or abridge liberty of speech or

press."

Calfornia Constitution, Art. 1, sec. 15:

"The defendant in a criminal cause has

the right to a speedy public trial ....

"Persons may not ... be deprived of

life, liberty or property without due

process of law."

California Constitution, Art. 1, sec. 16:

"Trial by jury is an inviolate right

and shall be secured to all ...."

STATUTORY PROVISIONS

California Penal Code, sec. 868. Open and

public examination; exclusion of public

upon request of defendant and finding by

magistrate, exceptions, person for moral

support of prosecuting witness

"The examination shall be open and

public. However, upon the request of the

defendant and a finding by the magistrate

that exclusion of the public is necessary

in order to protect the defendant's right

to a fair and impartial trial, the

magistrate shall exclude from the

examination every person except [various

identified functionaries] ...."

STATEMENT OF FACTS

Real party in interest, Robert

Rubane Diaz, was charged by a complaint

filed on December 23, 1981 with having

murdered twelve hospital patients’ by

administering overdoses of a heart drug.

At the commencement of his

preliminary hearing on July 6, 1982, real

party moved to close the hearing to the

press pursuant to California Penal Code,

Section 868. Although many representa-

tives of television stations were present

(Cal.S.Ct. opn., attached to petition, A-

1), neither the press nor the prosecutor

objected to closure. The magistrate found

that "the motion should be granted in

order to protect the defendant's right to

a faie trial” (er. Felk<' he PB 12) and

accordingly closed the hearing.

oo

The hearing lasted a total of 41

days. The defendant was held to answer on

all counts and the reporter's transcripts

of the preliminary hearing were sealed

until further order of the court. (J.A.,

p. 37.)

On January 21, 1983, more than six

months after the initial closure order,

the prosecution moved in respondent

Superior court to unseal the transcripts

of the preliminary hearing. Two weeks

thereafter, on February 7, petitioner

joined in the prosecution's motion.+ Real

party filed an opposition, claiming that

the release of the transcripts would

result in prejudicial publicity. On

February 10, respondent court found that

there was “a reasonable likelihood that

release of all or any part of the trans-

1 We note that the opinion of the

California Supreme Court mistakenly represents

that the press made the initial motion, joined in

by the prosecution.

aga

cript might prejudice defendant's right to

a fair trial.” (J.A., p. 60.) Accordingly,

the court declined to uhseal the

transcripts.

On September 30, 1983, the defen-

dant waived his right to a jury trial.

Resvondent court ovromptly ordered the

transcripts of the preliminary hearing

unsealed,

The Court of Appeal of the State

of California, Fourth Appellate District,

Division Two, denied petitioner's petition

for writ of mandate for review of respon-

dent court's actions. The California

Supreme Court granted the petition and

retransferred to the Court of Appeal. The

—— of Appeal again declined to disturb

the trial court's ruling. The Supreme

Court again granted review, and on

December 31, 1984 issued its opinion which

forms the basis of this proceeding.

~~ =

SUMMARY OF ARGUMENT

At issue in this case is the right

of a California criminal defendant, in a

highly publicized case, to close his

preliminary hearing to the press’ and

public when necessary to protect his right

to a fair trial. Equally significant is

the question of the proper deference to be

accorded the states in recognizing

individual liberties under their own

constitutions more expansive than those

guaranteed by the Fec« al Constitution so

long as those liberties do net infringe

upon weighty © pederal constitutional

rights.

Real party in interest, Robert

Diaz, was successful in closing his

preliminary hearing pursuent to recently

amended California Penal Code section 868,

which authorizes closure upon reques* of

the defendant and a showing that closure

is necessary to protect his right to a

7.

~_ =

fair trial. The California Supreme Court

upheld the constitutionality of the

statute and further determined that

closure had been proper in the instant

case because real party had met his burden

of showing a “reasonable likelihood of

substantial prejudice" to his fair trial

right.

| nies Section 868 has provided strong

protection of a defendant's right to close

his preliminary hearing for more than one

hundred and thirty years. The right has

long been considered a "fundamental

safeguard" of a defendant's right to a

fair trial as well as his right to protect

his reputation.

Those rights may well be more

expansive than analogous rights recognized

by the Federal Constitution. Nevertheless,

the federal interest upon which they

imoinge -- the public's right of access to

preliminary hearings -- is not so substan-

=~

= Pas

tial as to justify interference with the

state's weighing of those rights. Access

to preliminary hearings does not further

the same weighty interests advanced by

criminal trials primarily because the

preliminary hearing is not a final adjudi-

cation and so, on the one hand, is not so

critical as the trial itself or other pre-

trial hearings that do result in final

rulings on issues other than culpability,

and, on the other hand, creates a signifi-

cant risk of prejudice to the defendant's

right to a fair trial. Whatever the

parameters of the federal interest in

access to preliminary hearings, that

interest is adequately accommodated by

California's requirement that a defendant

he entitled to closure only upon a showing

of a “reasonable likelihood of prejudice"

to his fair trial right.

-8-

ARGUMENT

# CALIFORNIA PENAL CODE SECTION 868

REFLECTS A LONG-STANDING LEGISLATIVE

INTENT TO ACCORD DEFERENCE TO A

CRIMINAL DEFENDANT'S INTEREST IN

CLOSING HIS PRELIMINARY HEARING.

California Penal Code section 868

was amended in 1982 to require’ the

magistrate to exclude from the preliminary

hearing all but persons necessary to the

proceeding, "upon the request of the

defendant and a finding by the magistrate

that exclusion of the public is necessary

in order to protect the defendant's right

to a fair and impartial trial". (Full text

set forth, supra, at p.l.)

For a hundred and thirty years

prior to the 1982 amendment, section 868

had afforded the defendant the right to

close his preliminary hearing at will.?

2 In 1851, the California legislature

adopted the Field Code on Criminal Procedure's

provision on mandatory closure. tn 1872 the

legislature amended the provision so as to further

emphasize its mandatory nature by changing “shall

(Continued)

~=

Provision for mandatory closure was

motivated by the concern that publicity

poses a threat to an accused's fair trial

rights>. While mandatory closure was

recognized as a limita ion on press access

(People v. Elliot, supra, 34 Cal.2d at

504), the defendant's rights to a fair

trial by jury and “to protect his name

from being maligned at a_ preliminary

n4

examination were deemed to be

wes exclude” to “must... exclude". (Geis,

"Preliminary Hearings and the Press," 8 U.C.L.A.

Rev. 397, 410 (1961).) Thereafter the Legislature

declined to remove the mandatory language for

another 110 years despite the fact that during

that 110-year period the legislature amended the

Statute five times (four times since 1957),

reflecting considerable legislative attention.

(See West's Annotated California Codes, historical

note following Penal Code section 868.)

3 The 1872 Code Commissioners, in

explaining their strengthening of the section's

mandatory Language, commented:

"Tf the examination is ‘necessarily public’...

the testimony will be spread before the community,

and a state of oninion may be created which will

render it difficult to obtain an unprejudiced jury

.o San Jose Mercury News v. Municipal

Court, 30 Cal. 3d 498, 509, 638 °.2d 55 (1980).

(Continued)

-10-

paramount. (People v. Elliot, 54 Cal.2d

498, 504-505, 354 P.2d 225 (1960).)°

Accordinalv, section 868 was viewed as a

"fundamental safeguard" of a “substantial”

right, the violation of which was per se

reversible error. (id.) The right to

protect one's reputation was given

increased stature in 1974 when it was

expressly incorporated into the list of

inalienable rights guaranteed by the

California Constitution. °

4 The Legislature has specifically

conferred upon an accused the right to protect his

name from being maligned at a_ preliminary

examination. This protection is too important to

the innocent, as well as the guilty to permit it

to be ignored by the committing magistrate."

People v. Elliot, 54 Cal.2d at 505.

> "The right to unbiased and unprejudiced

jurors is an inseparable and inalienable part of

the right to a trial by jury guaranteed by the

constitution." People v. Elliot, 54 Cal.2d at 54.

6 "All people are by nature free and

independent and have inalienable rights. Among

these are pursuing and obtaining safety, happiness

and privacy." Cal. Const., Art. 1, § 1. See,

e.g., Hoover v. Deukmejian, 122 Cal.App.3d 987,

1015 (failure of the Attorney General to seal

conviction records that were required to be sealed

alle

In 1982, the California Supreme

Court unanimously confirmed the

constitutionality of section 868,

deferring to the Legislature's’ limited

discretion to articulate narrow exceotions

to the judicial weighing of ‘Cundamental

interests. San Jose Mercury News vv.

Municipal Court, 30 Cal.3d 498, 514, 638

P.2d 55 (1982) (opn. by Newman, J.).

In response to that decision, the

California Legislature amended the section

to read as set forth above. The

Legislature clearly intended "that

preliminary hearings should he public

unless there was conflict with’ the

defendant's right to a fair’ trial."

(Press-Enterprise Co. v. Superior Court,

37 Cal.3d 772, 779 (1984).) However, its

rejection of various bills’ proposing

Standards for closure reflected its intent

that “the courts should determine the

Standard to be applied in weighing the

oo} Dus

public's right of access against the

defendant's fair trial right.” (1a.)?

II. ANY FIRST AMENDMENT RIGHT OF ACCESS

TO PRELIMINARY HEARINGS IS NOT A

FUNDAMENTAL INTEREST AND CERTAINLY IS

LESS COMPELLING THAN THE RIGHT OF

ACCESS TO TRIALS.

This Court has recognized that

states have a "sovereign right to adopt in

[their] own Constitution{[s] individual

Liberties more expansive than those

conferred by the Federal Constitution.

Pruneyvard Shopping Center v. Robins, 447

5 ae a | (1980). That right is

entitled to deference unless the state-

y Cf. Penal Code section 868.7, enacted

at the same time as the amendment to section 868,

which provides for closure, upon motion of the

prosecutor, of the preliminary examination, during

the testimony of witnesses whose "life would be

subject to substantial risk in appearing before

the general public", and minor sex crime victims,

"where testimony would be likely to cause serious

psychological harm to the witness". For both

categories of witnesses, closure is to be ordered

only "where no- alternative procedures. are

available" that would avoid the perceived harm

and, in any case, “a transcript of the testimony

of such witness[es] shall be made available to the

nublic as soon as is practicable."

oi 3e

recognized liberty infringes upon a

substantial Federal constitutional right.

(Id, at 93, Marshall, J. conc.) For the

reasons urged below, Robert Diaz, real

party in interest and the defendant in the

preliminary hearing below, respectfully

submits that the federal interest in

public and press access to preliminary

hearings conducted in California is not so

substantial as to merit interference with

the state's accommodation of the competing

rights at issue.

B. Public access to preliminary

hearings does not serve the same

objectives as access to criminal

trials.

In several recent cases, this

Court has found that the press and public

have a qualified First Amendment right to

attend criminal trials. Globe Newspaper

Co. v. Superior Court, 457 U.S. 596, 606;

Waller v. Georgia, 467 U.S. 39, 81 L.Ed.2d

31, 37 =(1984); Richmond Newspapers v.

=) =

Virginia, 448 U.S. 555, 569 (1980)

(olurality opinion). That right extends

to the jury voir dire proceeding. (Press-

Enterprise Co. v. Superior Court, 464 U.S.

501.) In addition, Justices Blackmun,

Brénnan, Marshall, White and Powell have

noted the existence of a qualified

constitutional right to attend pretrial

suppression hearings, although all but

Justice Powell based that right on the

sixth Amendment right to a public trial.

(Gannett _v. DePasquale, 443 U.S. 368

(1979).) Moreover, all five suggested

distinctions between suppression hearings

and preliminary examinations for purposes

of the public's right of access. Thus,

this case presents the Court with its

first opportunity to squarely address the

question of whether the First Amendment

Quarantees a right of access to pretrial

hearings, and if so, how significant a

right it is.

@-15-

The Court has identified "two

features of the criminal justice system .

. . [that] serve to explain why a right of

access to criminal trials in particular is

properly afforded protection by the First

Amendment": (1) “the right of access to

criminal trials plays a particularly

significant role in the functioning of the

judicial process and the government as a

whole"; and (2) “the criminal trial

historically has been open to the press

and general public". (Globe Newspaper,

457 U.S. at 605-606.)

The right of access to criminal

trials gives rise to a presumption of

access to pre-trial (or even non-trial)

proceedings only to the extent that the

societal objectives served by openness are

similar. The Court's decisions. in

Richmond Newspapers and Globe Newspaper

may not “carry any implications outside

the context of criminal trials." Globe

-16-

Newspaper, 457 U.S. at 611 (O'Connor, Be

conc.). "Analysis is not advanced by

rhetorical statements that all information

hears upon public issues; what is crucial

in individual cases is whether access to a

particular government process is important

in terms of that very process." Richmond,

448 U.S. at 589 (Brennan and Marshall,

wee, COonc.).

Societal objectives that public

access to trials is deemed to advance

include: (1) assurance of a fair and

accurate adjudication of guiit or

innocence (E.qg. Estes v. Texas, 381 U.S.

532, 538-539 (1965); Richmond Newspapers,

448 U.S. at 593 (Brennan and Marshall,

JJ., conc.)); (2) appearance of fairness,

maintenance of public confidence in the

criminal justice system, and community

catharsis (Press-Enterprise, 464 U.S.

at , 78 L.Ed. at 637; Globe Newspaper,

457 U.S. at 606); and (3) public education

o} J=

about important government functions.

information (Gannett, 443 U.S. at 397

(Pcwell, J., conc.)).

Petitioner and amici urge two main

reasons -- procedural similarities between

trials and preliminary hearings, and the

increasing importance of | preliminary

hearings in California - why access to

preliminary hearings advances the same

values as access to trials. We submit

that such arguments are unconvincing

hecause of significant differences’ in

function and form between. preliminary

8 and because

hearings and trials,

preliminary hearings do not result in

final adjudications and so "are not

critical to the criminal justice system"

in the way that trials and suppression-of-

8 "([P]reliminary hearings are not

critical to the criminal justice system... and

they are not close equivalents of the trial itself

in form." Gannett, 443 U.S. at 437.

o}9-

at 437.)?

The crucial difference between

preliminary hearings and trials

for purposes of analyzing the

objectives served by access is

that preliminary hearings are

not final adjudications.

r

.

A highly significant difference,

however obvious, between trials (and

suppression hearings) and preliminary

hearings is that preliminary hearings are

not final adjudications. !9 Thus, while

defendants undoubtedly desire to prevail

at preliminary hearings, the prosecution's

burden of establishing probable cause is

generally so readily met that Setentents

rarely offer any defense, recognizing that

9 We note that our analysis does not rely

upon a characterization of the preliminary hearing

as "“non-adjudicatory" or as part of _ the

"accusatory phase" of a prosecution. (Cf.

Respondent's Brief, hereafter "RB", p. 2.)

10 Other pre-trial proceedings that

result in final decisions on issues other than

quilt or innocence include hearings on demurrers,

motions to dismiss, bail motions, change of venue

motions in the suverior court, and motions to

o19=

the liabilities of revealing their

Strategy and evedence far outweigh any

slight possibility of defeating the

charges at that stage. Defense counsel

may decide not to make even those defenses

that depend only on undermining’ the

prosecution's case, due to concern that

any defect exposed at the preliminary

hearing will later be cured by the

prosecution's "discovery" of new

ul While charges are dismissed

evidence.

or reduced in a significant proportion of

cases following the preliminary hearing,

those reductions are often obtained by

suvpressing evidence or otherwise exposing

holes in the prosecution's case than by

disclose the identity of an informant.

IL In California, the trial court,

without. setting aside the information, “may order

further proceedings to correct errors alleged by

the defendant [at the preliminary hearing] if the

court finds that such errors are minor errors of

omission, ambiguity, or technical defect .. .

. (California Penal Code Section 995a(b) (1).)

=-20<

proving an affirmative defense. Counsel's

reluctance is likely to be particularly

stronq in high publicity cases because

thev generally involve a multiplicity of

reovulsive allegations, thus making

dismissal of charges by the magistrate all

the more unlikely.

A feature related to the prelim-

inary nature of preliminary hearings is

120 “as with other pretrial

their timing.

proceedings, the climate they may generate

in advance ot trial cannot always’ be

nullified by relatively simple controls,

such as sequestration and exclusion of

witnesses, that are available to counter

inflammatory publicity at the time of

The prosecution may refile charges if the first

information is set aside. (Penal Code Section

999.)

\

12 Chief Justice Burger, in declining to

find the existence of a sixth amendment right of

access to pretrial suppression hearings, noted

that “at common law, the courts recognized that

the timing of a proceeding was likely to be

a2ie

trial. (San Jose Mercury News v. Muni-

cival Ccurt, supra, 30 Cal. 3d 498,

511.)33 Although this point is almost too

obvious to state let alone emphasize, it

nevertheless is central to any analysis of

access rights and must be weighed heavily.

2. Access to _ preliminary hearings

does not contribute to the fair-

ness of either the preliminary

hearings themselves or the crim-

inal justice system in general.

ThiXourthaxoncludechat,

"Openness in court proceedings

may improve the quality of

testimony, induce unknown

witnesses to come forward with

relevant testimony, [and] cause

all trial participants to

perform their duties more

conscientiously ...."

critical." (Gannett, 443 U.S. at 395). For him,

"the essence [of the discussion! . .. is that by

definition ‘pretrial proceedings’ are exactly

that." Gannett, 443 U.S. at 397.

13 See also, Richmond Newspapers, 448

~~;

Gannett, 443 U.S. at 383. See _ also,

Waller, 81 L.Ed. at 38; Press-Enterprise,

78 L.Ed.2d at 637.)

Fairness is the overriding objec-

tive to he served by public access. "The

central aim of a criminal proceeding must

be to try the accused fairly ...." (Waller

v. Georgia, 467 U.S. 39, 81 L.Ed.° 2d at 38

(1984). See also,e.g., Estes v. Texas, 381

U.S. 532, 540 (1965). in Nebraska Press

Assn. v. Stuart, 427 U.S 531, 586 (1976).)

Justices Blackmun, Brennan, White,

and Marshall have suggested that it is

precisely the fact that "[e]ach side has

incentive to prevail" at trials and

Suppression hearings that publicity of

those hearings advances their actual

fairness. (Gannett, 443 U.S. at 434.)

The defendant's lack of incentive to

prevail at his preliminary hearing seri-

ously detracts from any contributions to

~9%e

fairness to be gained by public access.

In the vast majority of cases, the effect

of press access to the preliminary hearing

is that the potential jury pool is exposed

Only and overwhelmingly to the prosecu-

tion's evidence.

Petitioner and its amici urge that

the procedural similarities between pre-

liminary hearings and trials constitute a

strong reason for access. However, it is

orecisely due to the procedural, even

visual, Similarities that preliminary

hearings bear such high potential for

causing prejudice, As noted by the

California Supreme Court:

\

"Prejudice at times may be

acute because of the superficial

resemblence between preliminary

hearing and trial. . . . The

distinct functions served by the

two proceedings are not always

clear to non-lawyers. They may

ascribe to a one-sided prelim-

inary hearing the legitimacy and

credibility of a trial. Accord-

ingly, a defendant denied the

protection of section 868 might

feel compelled to abandon his

oB@<

right of silence at the hearing

and to embrace a_ tactic of

trying the case in the media."

San Jose Mercury-News v. Municipal Court,

supra, 30 Cal.3d 498, 512.

Moreover, real party questions

whether public access to preliminary

hearings does in fact encourage witnesses

to come forward and testify truthfully.

California's Attorney General, in defend-

ing the value of the secrecy of grand jury

proceedings has urged, inter alia, that

"witnesses may fear testifying in court;

the case may have potential for prejudici-

al publicity; [and] publicity may

jeopardize a continuing investigation. .

. ." (Attorney .General's brief, cited in

Hawkins v. Superior Court 22 Cal.3d 584,

593, n. 6, 586 P.2d 916 (1978). In the

instant case, neither the California

Attorney General (see brief at pp. 6-8)

nor the Riverside County District Attorney

(see brief at pp. 8-9), the two represen

o2S=

tatives in the instant case most familiar

with the prosecutorial view of the

realities of criminal prosecutions in

California, contend that open preliminary

hearings will have the salutory effect of

encouraging witnesses to come forward and

testify truthfully. /4 Certainly, in

highly publicized cases, which are chiefly

the only ones relevant to the instant

inquiry, any additional publicity of the

preliminary hearing could hardly be

expected to be significant in encouraging

new witnesses to identify themselves.

In a@dition, we question whether

public access to. preliminary hearings

imp:oves the participants’ conscientious-

ness, or only the arpoearance of conscien-

tiousness. While public access’ may

14 For the above-given reasons we

strongly disagree with petitioner's suggestion

that “the ferreting out of additional witnesses

with relevant testimony" may be even more

compelling at the preliminary hearing stage.

o%6—

improve the decorum of all participants,

access logically increases the pressure on

the magistrate, particularly in high pub-

licity cases, to take public opinion into

account in determining whether probable

cause exists.'> A magistrate may be more

susceptible to public opinion than a trial

judge because his decisions are not final

and accordingly he may feel less responsi-

bility to exercise his discretion properly.

3. Access to preliminary hearings

does not significantly serve

the appearance of fairness or

community catharsis.

Appearance of fairness is less

significant a value when procedures can be

evaluated for actual fairness. Fairness

and the avpearance of fairness are both

satisfied by procedural protections and by

(Petitioner's Brief, hereafter "PB", at pp. 13-

14.)

15 See, e.g., Winsett v. McGinness, 617

F.2d 996 (3d Cir. 1980) (en banc) ("consideration of

public reaction could be dangerous to and

destructive of procedural due process" in

ro,

=2F<

the right to appellate review. Fairness of

procedures is to be contrasted with the

fairness of particular adjudicators.

Whether a judge is actually biased is

difficult to evaluate; what is accessible

to evaluation are concrete indicators that

raise an appearance of fairness or lack of

fairness. For those reasons, ®appearance

of fairness plays a far more significant

‘ee “regarding adjudicators than

procedures, 16

The interest in assuring’ the

appearance of fairness is “for the benefit

of the accused; that the public may see he

is fairly dealt with and not unjustly

condemned ...." (In re Oliver, 333 U.S.

determining inmate's entitlement to work release),

cert. den. sub nom., Anderson v. Winsett, 449 U.S.

1093 (1981).

16 To the extent that the appearance of

fairness is deemed a significant value, real party

submits that it must give way not only to

protections of fairness in fact but also to the

presumotion of defendant's innocence. One danger

ot

257, 270, n. 25, cited in Gannett, 443

U.S. at 380.) Thus, a closure request by

the defendant himself should not impair

7 In any

the appearance of fairness.

event, release of the transcripts of the

preliminary hearing at such time when the

risk of prejudice to the defendant's fair

trial right has passed, should dissipate

any lingering concern over any appearance

of unfairness.

Community catharsis is the objec-

tive served by the appearance of fairness

regarding crimes that arouse shock and

18

outrage in the community. Catharsis is

posed by an open preliminary hearing is that

because of the low burden of proof placed on the

prosecution the decision to hold the defendant for

trial may turn the presumption of innocence on its

head.

17 Both Oliver, 33 U.S. 257 and Levine v.

United States, 362 U.S. 610, 616 (1960), cited by

Various Justices involved closure of a contempt

trial over the defendant's objection. (See, €.g.,

Richmond Newspapers, 443 U.S. at 594 (Rehnquist,

3J., conc.).) Accordingly, appearances of fairness

were doubly offended by the summary nature of the

proceeding as well as by closure over the defend-

(Continued)

=29-

achieved less by access to the proceedings

themselves than by harsh penalties. Thus,

for example, in the case of Dan White, the

man who shot to death the mayor and the

first gay supervisor of San Francisco in

1979, community catharsis was not

achieved, despite public access to and

extensive press coverage of the trial,

because White was convicted only of

manslaughter. Catharsis was only realized

upon White's suicide six years later.

Petitioner suggests that "“[n]Jo

greater frustration of this fundamental,

natural yearning to see justice done'

{citation omitted] can occur than when,

after a secret preliminary hearing, the

Suspect is released." (PB at p. 15.) For

the above-described reasons, we strongly

ant's objection. Those cases, we respectfully

submit, hardly stands as compelling precedent for

a broad public interest in the appearance of

fairness of preliminary hearings.

18 "When a shocking crime occurs, a

"=

Aisagree with the suggestion that such

frustration is a result of secrecy. We

submit that the public would be equally

frustrated if after a public hearing,

charges were dismissed for such reasons as

procedural fairness not readily appreci-

ated by the public. The Court's recogni-

tion of the ‘existence of the public's

frustration, even rage, at lenient

punishments in notorious cases suggests

all the more reason- for insulating

preliminary decisions from intense,

contemporaneous public scrutiny and

pressure.

More important to the achievement

of catharsis than public’ access to

preliminary proceedings is the community's

opportunity to have the trial occur

promptly and within its midst. Open

preliminary, examinations threaten those

interests in that they may force venue

changes or delays to dissipate any effects

ao

-3l<

of publicity.

In California, catharsis is

further served by the recently created

right of victims and their families to

attend and speak at sentencing and parole

hearings. (See Penal Code sections 1191.1

and 3043 and section 1767 of the Welfare

and Institutions Code.) Because of the

court's fairly broad sentencing discretion

for serious crimes, input at sentencing

and parole hearings provides a more

effective and rational method of

Satisfying the community's desire for

catharsis than does access to preliminary

hearings.

4. Access to preliminary hearings

does not substantially further

the public's interest in

obtaining information about

important government functions.

Access rights also depend in part

on the value of exposing particular

government functions to public view. 19

However, "because the stretch of this

«92a

protection is theoretically endless ... it

must be invoked with discrimination and

temoerance.”" (Richmond Newspapers, 448

1.S. at 588 (Brennan and Marshall, JJ.,

conc. ).)

Petitioner and some of its amici

contend that the public has an interest in

access to preliminary hearings because the

preliminary hearing is a “critical stage"

of criminal prosecutions in California.

(See Petitioner's Brief at p. 8.) In

reaching this conclusion they rely on

cases that have found the preliminary

hearing to be a critical stage for

purposes of determining the existence of

the defendant's right to counsel. (See,

community reaction of omtrage and public protest

often follows. [Citation omitted.] Thereafter

the open processes of justice serve an important

prophylactic purpose, providing an outlet for

conmunity concern, hostility, and emotion.

Richmond Newspapers, 448 U.S. at 571.

19 this value arises from the “assumption

that valuable voublic debate--as well as other

civic behavior—must be informed" (Richmond

o33<

e.g., Petitioner's Brief, at p. 8, citing

©-9-

Hawkins v. Superior Court, 22 Cal.3d 584,

588 (1978) and Coleman v. Alabama, 399

U.S. 1, 9-10 (1970). But, there is no

rational relation between the fact that

the defendant is entitled to the

assistance of counsel at ae particular

Stage and the importance of that stage to

public debate. Such a contention would

argue for access to such procedures as

Line-ups and in-custody interrogation

after the defendant's assertion of his

right to counsel. 29

Petitioner argues that preliminary

hearings are critical stages because,

"with relatively fewer criminal cases

actually going to trial" (PB, pp. 6-7),

preliminary hearings are becoming the only

Newspapers, 448 U.S. at 487 (Brennan and Marshail,

JJ., conc.)) and, more particularly, from "the

importance of the public's having accurate

information concerning the operation of its

criminal justice system." (Gannett, at 397

o%geo

formal judicial hearings held in an in-

creasing number of cases. (PB, DPD. 17-18.)

First, that contention is based on

a false premise. Available statistics

Suggest that the percentage of trials in

California is actually increasing. 2+

Moreover, contrary to petitioner's

suqgestion (PB, at p. 17, n. 6), recently

added Penal Code section 1192.7,

precluding plea bargaining after

preliminary hearings except in certain

limited circumstances, logically should

increase the number of trials in

California. 72

(Powell, J., concurring.)

20 A logical extension would be to allow

access to any proceedings at which an accused was

represented by counsel, such as_ parole hear ings

and prison disciplinary hearings.

21 According to petitioner's figures, in

the 1983-84 fiscal year, slightly more than 10% of

felony arrests were disposed of by trial.

However, in 1978, “only 3.2 % of all felony-arrest

dispositions in [California] involved trials. San

Jose Mercury News, supra, 30 Cal.3d 498, 511, 638

P.2d 655. See also Gannett, 443 U.S. at 435, fn.

(Continued)

«3S

Second, and more importantly, it

is a weak argument that access to

Preliminary hearings should be made a

Significant right simply because trials,

clearly the critical stage of a criminal

prosecution, occur less frequently. As

noted by respondent (see RB, at p. 10)

that argument logically would imply a

right of access to the prosecutor's files,

which reflect the most important decisions

made -- regarding which charges to press

and what plea bargains to make -- in most

cases that do not go to trial.

Moreover, public education is

equally well served by release of

transcripts once danger of taint due to

Dublicity has passed as by public access

to the proceedings themselves. To the

extent that timeliness of news reporting

is important in order to catch the

public's interest, sufficient timely

information may be provided to the press

= 36-

and public by counsel. Running newspaper

commentary is more likely to distort the

information and its’ significance’ than

would release of the transcripts in toto

at some time past the period of likely

prejudice.

To the extent that legislative

reform is prompted by reactions to ungoing

proceedings, as petitioner contends,

experience shows that prosecutors’) and

family members of victims -- who are

entitled to access despite closure to the

general public -- are the people most

Likely to spearhead any reform efforts. 23

23 While petitioner points to one

notorious California child molestation case, the

MMartin Pre-School case, as having spawned

numberous legislative bills, its conclusion that

access to the preliminary hearing played a

significant role in generating public interest is

not as self-evident as petitioner would have the

reader believe. (See PB, at p. 16.) That case

received a tremendous amount of publicity at the

time that charges were filed, generating suffici-

ent public attention as to attract legislative

interest, thus creating a climate in which parents

of witnesses, prosecutors, and prosecutor's

(Continued)

=37=

Justice Powell, in noting a

limited First Amendment access right to

oretrial proceedings, was careful to

observe that "not all pretrial matters are

sO important for public scrutiny as is a

Suppression hearing...." (Gannett, 443

U.8.. 6 397, tea. 3.3

"(T]he issues considered at

fsuppression] hearings are of

great moment beyond their

importance to the outcome of a .

particular prosecution. A

motion tO suppress’ typically

involves eee allegations’ of

misconduct by police and prose-

cution that raise constitutional

issues. ... The searches. and

interrogations that such hear-

organizations were able to carry their legislative

campaigns forward on their own.

The McMartin case equally dramatically

illustrates the adverse effects of publicity on

fairness of the preliminary hearing itself, threat

of prejudice to fair trial rights, and massive

damage to defendants', and even witnesses', repu-

tations. All of the out-of-custody defendants

have moved from their homes, many to different

states. Daily reportage collapses 7 hours of

hearings into a few paragraphs of print or seconds

of T.V. time. Because the media tend to be more

interested in a case at its beginning and more

interested in the beginning of each witness's

testimony, media attention is paid to the prosecu-

tion's case almost exclusively.

-38-

ings evaluate do not take place

in public. The hearing there-

fore usually presents the only

opportunity the public has to

learn about police and prosecu-

torial conduct, and about

allegations that those respon-

sible to the public for the

enforcement of law themselves

are breaking it." (Gannett, 443

U.S. at 435 (Blackmun, Brennan,

White, and Marshall, JJ. conc.

and dis.))

In contrast, preliminary hearings rarely

involve such issues of general public

concern. 24

24 We disagree with petitioner's

assessment that suppression motions are "a

standard part of the bill of fare" of preliminary

hearings in California. (PB, at Pp. 11.) However,

it is undeniably true that preliminary hearings

may be joined with suppression hearings, motions

to dismiss and other motions that raise constitu-

tional objections. Some witnesses may be called

to testify regarding facts relating to more than

one hearing. However, the hearings remain

distinct and it should be possible to separate the

testimony, close the preliminary hearing, and open

the others.

= 39-

C. The defendant's right to close his

Preliminary hearing has long been

recognized, Darticularly in

California.

In Richmond, six Justices stressed

the importance of the long history of

Public trials. in recognizing a First

Amendment right of access to trials.

(Burger, C.J., and White and Stevens, JJ.

at p. 580; Brennan and Marshall, JJ. at

589-590; and Blackmun, J. at 601.) The

centrality of the tradition of openness is

reflected in the court's holding "that the

right to attend = criminal trials is

implicit in the gurantees of the First

Amendment; without the freedom to attend

such trials, which people have exercised

for centuries, important aspects of

freedom of speech and of the press could

be eviscerated. [Citation omitted.]"

Richmond, 448 U.S. at 580 (emphasis

added). Justice Blackmun, in a concurring

opinion, noted with gratification that the

-49-

Court had moved beyond its denial of the

importance of legal history in Gannett

and was “now looking to and relying upon

legal history in determining the fundamen-

tal public character of the criminal

trial." Id., at 601.

In its historical inquiries, this

Court has looked for more than a tradition

25. tn addition, it

of de facto openness.

has considered : (1) whether there was an

historical recognition of any countervail-

ing rights or interest# in closure; (2)

whether any such presumptions or interests

were recognized at the time of the First

Amendment's adoption?® and (3) whether

25 As noted by the Court, "This argument

. . « that since exclusion of members of the

pbulic is relatively rare, there must be a

constitutional public right to a public trial. .

. confuses the existence of a constitutional right

with the common-law tradition of open civil and

criminal proceedings. Gannett, 443 U.S. at 388, n.

19.

26 See, e.g., Richmond, 448 U.S. at 569:

"Alt the time when our organic laws were adopted,

(Continued)

o4)<

openness waS considered an _ instrinsic

aspect of the proceeding. 27

Consideration of the three above-

noted factors argues against finding a

tradition of open access to preliminary

hearings over a defendant's objections.

Tn Gannett, seven members of this Court

concluded that preliminary hearings his-

torically were subject to closure. As

Justice Stevens, writing for the Court,

criminal trials both here and in England had long

been presumptively open."; Richmond, at 576: "the

First Amendment guarantees of speech and press

prohibit government from summarily’ closing

courtroom doors which had long been open to the

public at the time that Amendment was adopted".

(Emphasis added. ) See also, Press-Enterprise:

"(T]he question we address--whether the voir dire

process must be open--focuses on First ..

Amendment values and the historical backdrop

against which the First Amendment was enacted." 78

L.Ed. 2d at 638, n. 8).

27 "(C]ontemporary writings confirm the

recognition that part of the very nature of a

criminal trial was its openness to those who

wished to attend." Richmond Newspapers, 448 U.S.

at 568. That “criminal trial both here and in

England had long been presumptively open ... is no

quirk of history; rather, it has long been

recongized as an indispensable attribute of an

Anglo-American trial." Id. at 569.

~42~

noted:

"(Tl here exists no persuasive

evidence that at common law members

of the public had any right to

attend pretrial proceedings; indeed,

there is substantial evidence tc the

contrary. [Footnote omitted. ] By

the time of the adoption of the

Constitution, public trials were

clearly associated with the

protection of the defendant.

[Footnote omitted.] And _ pre-trial

proceedings, precisely because of

the same concern for a fair trial,

were never characterized by the same

degree of openness as were actual

trials. [Footnote omitted.]"

Gannett, 443 U.S. at 387-388.

This historical assessment is

consistent with the research of the main

authority relied on by petitioner and

amici to support a contrary conclusion.

(Geis, "Preliminary Hearings, 8 U.CL.A.

Rev. 397 (1961), quoted in Petitioner's

Brief, at vo. 20 and, e.g., brief of amici

California news organizations, at pp. 19-

Ziel Geis notes that "“{p]reliminary

hearings in the American colonies closely

followed the prescriptions of the

[English] statutes" which were closed to

-43-

the accused as well as the press and

public. Geis, pp. 399, 406.

The American statutes remained

unchanged until the mid-nineteenth

century. Id. at 407. Thus, at the time

of the adoption of the First Amendment,

American laws provided for closed

preliminary hearings. Whether or not

there was a practice of opening them to

28 there can hardly be said to

the public

have been a presumption or right of public

access at that time.

The new generation of U.S.

statutes enacted in the mid to late

nineteenth century was. typified by the

28 Geis notes that at some point, a trend

developed of opening preliminary hearings in

practice. (Geis, p. 407.) However, the earliest

case he cites as evidence of this developing trend

was reported in 1898. Id., n. 54. Most of the

cases are from the 1920s and '30s. Id., nn. 53

and 54, Moreover, during the same period,

preliminary examinations were presumptively closed

in England. See F. Maitland, Justice and Police

129 (1885), quoted in Gannett, 443 U.S. at 389.

~y

provision of the New York Field Code of

Criminal Procedure, as revised in

1888.79 That statute read:

"The magistrate may also, upon

request of the defendant, exclude

from the examination, every person,

except [various named functionaries

and] . . . the defendant and his

GUGRSGL « « «& *”

Id. at 407-408. California and five other

States adopted Field Code provisions which

varied from the above only in that they

made closure mandatory rather than discre-

tionary upon request of the defendant. Id.

at 409, 39 Other states adopted similar

29 Geis recounts that the original

statute required the magistrate to close the

preliminary hearing upon- request of _ the

defendant. In changing the mandatory "must" to

"may", the New York legislature “conform[ed] to

the general practice elsewhere in the United

States... ." Id. at 409.

30 Geis calls the Field Code provisions

"a significant exception to the general practice

of public preliminary hearings". Id. at 407.

But, practice and law are distinct phenomena. It

makes no sense to say that the laws themselves

formed an exception to the practice.

Significantly, Geis elsewhere suggests that the

practice of the Field Code states differed little

(Continued)

-45-

provisions; still others allow closure of

pretrial hearings without Statutory

authorization. Gannett, 443 U.S. at 390,

is 23s Thus, in both Field Code and non-

Field Code states, the defendant was and

continues to be entitled to close his

preliminary hearing at will or upon a

loose showing that did not need _ to

outweigh any competing interests or comply

with any guidelines. That the general

practice in Field Code and non-Field Code

states may have been to hold open hearings

does not detract from the historical right

of defendants to close their hearings.

Rather the practice appears to be due to

lack of interest of defendants in

asserting their right to closure. >!

from the majority because the statutes remained in

"judicial dormancy and day-to-day disuse." (Id. at

407)

31 As Geis notes, "Litigation concerning

the Field Code provision has been sparse, and in

most of the states che measure has apparently only

rarely been called into use, and then only in

(Continued)

-46-

Finally, there is no evidence of

an historical recognition of the value of

press and public access to preliminary

hearings. To the contrary, English common

law clearly distinguished between’ the

privilege accorded the reporting of

trials, and the absence of such a

privilege of, or of any legitimate

societal interest in, reporting pretrial

proceedings. 22

Similarly, the New York Commission

that in 1850 recommended adoption of the

cases which would ordinarily have been heard in

“Losed chambers in any event." (P. 409.)

32 AS declared by one presiding Lord:

"Trials at law, fairly reported, although

they may occasionally prove injurious to

individuals, have been held to be privi-

leged. Let them continue so privileged.

... But these preliminary examinations have

no such privilege. Their only tendency is

to prejudge those whom the law still

presumes to be innocent, and to poison the

sources of justice.”

Rex v. Fisher, 2 Camp 563, 570-571 (NP 1811),

quoted in Gannett, 443 U.S. at 389, n. 20.

en

~~ =

Field Code's mandatory closure provision

reasoned that public access could “render

it difficult to obtain an unprejudiced

jury" particularly “in cases of great

public interest". Commission on Practice

& Pleadings, Code of Criminal Procdure,

Final Rep., § 202 (1850), cited in Geis,

at ov. 408.

The tradition of the defendant's

right to close his preliminary hearing is

even stronger in California. (See pp. 8-

10.)

ITI. IF THE COURT FINDS A RIGHT OF ACCESS

TO PRELIMINARY HEARINGS, THEN IT

SHOULD REMAND TO THE CALIFORNIA

SUPREME COURT FOR DETERMINATION OF

HOW THE COMPETING INTERESTS SHOULD BE

WEIGPED.

For the foregoing reasons, we

respectfully submit that the Court need

find no constitutional right of access to

preliminary hearings. TF the Court

should find

-48-

that there does exist such a right, then

we would urge that Penal Code section 868

and the California Supreme ‘* Court's

construction of it fully comport with the

Federal standard and accordingly that the

case should be remanded to afford the

California Court the opportunity to

reevaluate its own state law in light of

any misverception of the Federal law.

The Federal test for evaluating

whether a particular criminal proceeding

should be open to the voublic, once a right

of access has been found, is set forth in

Press-Enterprise:

"The pr»sumption of openness may be

overces™ only by an_- overriding

ints.2 . based on findings’ that

closure is essential to preserve

higher values and is narrowly

tailored to serve that interest.

The interest is to be articulated

along with findings specific enough

that a reviewing court can determine

whether the closure order was

properly entered."

Press-Enterprise, 78 L.Ed.2d at 638. In

addition, the magistrate should "consider

~49-

alternatives to closure and to total

suppression of the transcript." (Id. at

640.)

California Penal Code S 868,

permitting closure of a preliminary

hearing only upon a showing that closure

is necessary to protect the defendant's

right to a fair trial, clearly satisfies

that test. The right to a fair trial is

paramount and may override even the

public's interest in access to trials.

(Globe Newspaper, 457 U.S. 596.) A

showing that closure is "necessary" surely

satisfies the requirement that closure be

proved to be “essential”. (See Webster's

New Internat. Dict. (2d ed. 1959) p.

1635) The requirements that the

magistrate narrowly tailor the closure,

articulate findings and consider

alternatives are consistent both with

section 868 and with the California

Supreme Court's holding.

-50-

Questions left open by Press-

Enterprise include: (1) the standard to be

apolied in assessing the necessity of

closure, and (2) the party who is to bear

the burden of showing the effectiveness or

ineffectiveness of reasonable alternatives

to closure.

Real party submits that those

questions properly should be left to the

states.

"If [a] state court has proceeded on

an incorrect perception of federal

law [in interpreting state law] it

has been this Court's practice to

vacate the judgment of the state

court and remand the case so that

the court may reconsider the state

law question free of misappre+

hensions about the scope of federal

law." Three Affiliated Tribes v.

Wold Engineering, U.S. , 81

L.Ed. 2d 113, 124, 104 S.Ct.

(1984).

Remand is particularly appropriate

in the instant’ case becauge of this

Court's policy of allowing states a

measure of discretion in -prescribing

Standards and procedures by which to weigh

lee

@8l-

individual liberties. Thus, in Pruneyard

Shonoping Center v. Robins, supra 447 U.S.

74 (1980), the Court deferred to the

California Supreme Court's decision

(reported as Robins v. Pruneyard Shopping

Center, 23 Cal.3d 899, 592 P.2d 341 ‘opn.

by Newman, J.)) to balance free speech and

property rights under its own Constitution

so as to give greater weight to the free

speech right than this Court had done

under the Federal Constitution. This

Court's balancing under the Federal

Constitution did not limit the state's

"sovereign right to adopt in its own

Constitution individual liberties more

expansive than those conferred by the

Federal Constitution." (Id. at 81, and

Suora, at p. 12.) In so ruling, this

Court did not go so far as to suggest

"that rights of property are to be defined

solely by state law, or that there is no

federal constitutional barrier to the

@$ 20

abrogation of common-law rights by ...a

State government." (Id. at 93, Marshall,

Je, conc.) Rather, the Court concluded

that the federal interest violated --

namely, the right to exclude others from a

large private shopping mall -- was not so

weighty as to preclude’ states from

weighing other individual liberties more

heavily. While the Court found that the

right to exclude others from private

property is “one of the essential sticks

in the bundle of property rights" (id. at

82, emphasis added), where the private

property at issue is a large shopping

mall, no "core" right has been infringed.

(Id. at 93) (opn. by Marshall, conc.)

Similarly, we submit that, while

the right of access to "critical" stages

of criminal proceedings may be "“essenti-

al", state limitation of access to prelim-

inary hearings does not impinge upon any

"core" rights. 23 Accordingly, this Court

~§%

should remand the case to allow the

California Supreme Court to set its own

Standards and procedures for permitting

closure of preliminary hearings upon the

defendant's request.

TV. IF THE COURT DECIDES TO ARTICULATE A

BALANCING TEST, THEN “REASONABLE LIKE-

LIHOOD OF PREJUDICE" IS APPROPRIATE.

If this Court should decide that

the right of access to preliminary

hearings is a core First Amendment right

and so decides to articulate the standard

for permitting closure as requested by

petitioner (PB p. 22-23), real party

submits that a showing of a “reasonable

33 California's weighing of the

defendant's right to a fair trial more heavily

than the public's interest in access to

preliminary hearings does not. signify any

disregard for First Amendment rights. As

Pruneyard demonstrates, California affords greater

protection for some speech rights than does the

Federal Constitution. Rather, California has

forthrightly recognized the extent of the conflict

between fair trial and speech-and-press rights in

the preliminary hearing context, and has chosen to

grant greater deference to the fair trial right.

-S4-

Likelihood of prejudice" to the

defendant's fair trial rights is

appropriate. In Waller v. Georgia, 467

1.5. 39, 81 L.Ed.2d 31 (1984) this Court

concluded that:

"the party seeking to close [a

pretrial suppression] hearing must

advance an overriding interest that

is likely to be prejudiced, the

closure must be no _ broader’ than

necessary to protect that interest,

the trial court must consider

reasonable alternatives to closing

the proceeding, and it must make

findings adequate to support the

closure." (Id. at 39, emphasis

added. )

For the reasons advanced in

II.B.4., supra, closure of a preliminary

hearing should certainly require no

greater a showing than closure of a

preliminary hearing. In particular, we

urge rejection of the "substantial

probability of irreparable harm" test

advocated by petitioner. That standard,

articulated by the dissenters in Gannett,

and adopted by the Ninth Circuit in U.S.

laine —

)

|

=

8

:

:

/

:

;

)

;

7

:

:

'

»$S—

v. Brooklier, 685 F.2d 1162 (9th Cir.

1982) should be rejected for. several

reasons. First, the standard is unduly

burdensome. It is the same standard

adopted by the Court in Nebraska Press

Assn. v. Stuart, supra, 427 U.S. 539 for

imosing a gag order, "‘one of the most

extraordinary remedies known to our

jurisprudence" (id, a 562). Second, the

dissenters based the standard on the sixth

amendment right to attend pretrial

suppression hearings which, as noted

above, they deemed "[u]nlike almost any

other proceeding apart from the trial

itself, implicates all the policies that

require that the trial be public."

(Gannett, 443 U.S. at 436.)

CONCLUSION

For the foregoing reasons, real

party in interest, Robert Diaz, through

counsel, urges the Court to find that

public access to the California

-56-

preliminary hearing is not such a

substantial federal interest as to warrant

interference with California's weighing of

fair trial and free-speech-and-press

rights.

Nated: January 13, 1986

Respectfully submitted,

EPHRAIM MARGOLIN

SANDRA COLIVER

. a X

EPHRAIM MARGOLIN

Attorneys for Real Party

In Interest

* Robert Diaz and his counsel gratefully

acknowledge the volunteer critique of Frank C.

Newman, retired Justice of the California Supreme

Court and Ralston Professor of International Law.