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

Supreme Court, U.S.

Fi! 2

6 FEB 20 1986

1 12 r. IN.

No. 84-1560

In the Supreme Court

OF THE

United States

—QyA—— —

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.

ON WRIT OF CERTIORARI TO THE

CALIFORNIA SUPREME COURT

REPLY BRIEF OF PETITIONER

JAMES D. WARD

SHARON J. WATERS

THOMPSON & COLGATE

3610 Fourteenth St.

Riverside, California 92501

(714) 682-5550

Counsel for Petitioner

Bowne of Los Angeles. Inc. Law Frinters. (213) 742-6600

TABLE OF CONTENTS

I

NEITHER RESPONDENT NOR REAL PARTY

IN INTEREST ADEQUATELY JUSTIFY

DENIAL OF CONSTITUTIONAL PROTEC-

TION OF THE PUBLIC’S RIGHT OF ACCESS

TO PRELIMINARY HEARINGS.............

A. That the Preliminary Hearing Does Not

Involve a Final Adjudication of Guilt or Inno-

. 6 oc ccc ccccccccncccccecs

B. Characterizing a Proceeding as “Accusatory”

Phase or Final“ Adjudication Does Not Aid

in Determining the Publie's Constitutional

ED 463

C. Deference To The State Court For The Reso-

lution Of This Case Is Unwarranted........

D. Potential Pretrial Publicity Cannot be Used

To Deny a Constitutional Right of Access ..

II

THE TRIAL COURT’S SUBSEQUENT RELEASE

OF THE TRANSCRIPT CANNOT BE USED TO

JUSTIFY THE INITIAL DEPRIVATION OF

THE PUBLIC’S — RIGHTS

ne

III

THE PUBLIC’S FIRST AMENDMENT RIGHT

OF ACCESS EXTENDS TO JUDICIAL PRO-

CEEDINGS WHERE ACCESS WOULD FUR-

THER THE STRUCTURAL AND SOCIETAL

! ˙· * „

e

8

il

TABLE OF AUTHORITIES CITED

Cases

Page

Duncan v. Louisiana, 391 U.S. 145 (19689) 11

Gannett Co. v. De Pasquale, 443 U.S. 368 (1979) ... 8

Globe Newspaper Co. v. Superior Court, 457 U.S. 596

REE ˙Ü˙Að ii. T . 2, 8, 9, 10

Hawkins v. Superior Court, 22 Cal. 3d 584, 586 P. 2d

916, 150 Cal. Rptr. 435 (1978) ù0)ʒꝶ)¶õ) 00: 5

Landmark Communications, Inc. v. Virginia, 435 U.S.

PMD ccvtvcsccdevecsvessevonesesesones 6

Press-Enterprise v. Superior Court, 464 U.S. 501

bree ee 3, 4, 8, 12

Pruneyard Shopping Center v. Robins, 447 U.S. 74

„„ de 6

Richmond Newspapers v. Virginia, 448 U.S. 555

bbb neee 9, 10

Waller v. Georgia, 467 U.S. 39 (1984) )))) 3, 10

Williams v. Florida, 399 U.S. 78 (1970) .......... 11

Constitution

United States Constitution, First Amendment .. . passim

United States Constitution, Sixth Amendment... .2, 6, 8

Statutes

Penal Code, Section 88d. 3. 6

Other Authorities

California Department of Justice, Bureau of Crimi-

nal Statisties (1978) .......cccccccccccveseces 11

Los Angeles Times, January 18, 1986 ............ 3

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 CouNnTY OF RIVERSIDE,

Respondent.

,

ON WRIT OF CERTIORARI TO THE

CALIFORNIA SUPREME COURT

REPLY BRIEF OF PETITIONER

I

NEITHER RESPONDENT NOR REAL PARTY IN IN-

TEREST ADEQUATELY JUSTIFY DENIAL OF

CONSTITUTIONAL PROTECTION OF THE PUB.

LIC’S RIGHT OF ACCESS TO PRELIMINARY

HEARINGS

Respondent and real party in interest fail to provide

any supportable justification for precluding the public’s

First Amendment right of access to preliminary hearings.

The thrust of both parties is that access to preliminary

hearings cannot be granted as a matter of constitutional

2

right because to do so would jeopardize the defendant’s

right to a fair trial. This does not follow.

As this Court has acknowledged, circumstances may

exist in a particular case warranting overriding the pub-

lie’s constitutional right of access in order to assure the

defendant’s right to a fair and impartial trial. However,

as this Court also has recognized, the instances where the

defendant’s Sixth Amendment right competes and possi-

bly conflicts with the publie's First Amendment right are

extremely rare, both at the trial stage as well as the

pretrial stage. Globe Newspaper Co. v. Superior Court, 457

U.S. 596 (1982). Nothing presented by either respondent

or real party in interest refutes the fact that the interests

of the defendant can be properly accommodated by the

standards set by this Court in prior decisions.

A. That the Preliminary Hearing Does Not Involve a

Final Adjudication of Guilt or Innocence is

Irrelevant

Respondent and real party in interest’s contention that

the First Amendment right of access should not extend to

preliminary hearings simply because these hearings do

not involve a final adjudication of guilt or innocence is

without merit. Neither party explains why this fact alone

should preclude constitutional protection of the public’s

right of access. While the preliminary hearing is not a

final adjudication of guilt or innocence (indeed, the trial

itself may not be the final phase either), it is nonetheless

an adjudicatory proceeding which seriously impacts on

the criminal prosecution.

At the preliminary hearing the magistrate determines

which charges will be prosecuted and, indeed whether

prosecution will continue at all. Without a right of access

to this hearing, the public will have no opportunity to

3

determine independently whether further prosecution is

warranted.’

Also, to contend that the constitutional right of aecess

is limited only to proceedings involving the final adjudica-

tion of guilt or innocence is inconsistent with the deci-

sions of this Court. In Press-Enterprise v. Superior Court,

464 U.S. 501 (1984), the Court recognized that the consti-

tutional right of access extends to the selection of the

jury, notwithstanding the fact that the jury selection

process clearly is not the final adjudication of guilt or

innocence. Nonetheless, this Court determined that as the

jury selection was an important part in the effective and

fair administration of criminal justice, the public had a

constitutional right of access to that proceeding. Simi-

larly, in Waller v. Georgia, 467 U.S. 39 (1984), while not

For example, the Los Angeles District Attorney has recently

decided not to prosecute five of the seven defendants in the McMartin

ease after a 14-month open preliminary hearing. This announcement

by the district attorney’s office came after the magistrate had deter-

mined that there was probable cause to hold all seven defendants for

trial. Los Angeles Times, January 18, 1986. But for the fact that the

preliminary hearing in the McMartin case was open, the publie would

have had no opportunity to evaluate not only the magistrate’s deter-

mination of probable cause but also the district attorney’s decision

not to prosecute.

Contrasted with the McMartin case is the situation which occurred

in the case of People v. Angelo Buono, Los Angeles Superior Court

Case No. 354-231, commonly referred to as the “Hillside Strangler”.

In that case, after a 10-month closed preliminary hearing held under

the old Penal Code, Section 868, and the determination of probable

cause by the magistrate, the district attorney sought dismissal of the

charges because of the credibility of a key witness. The trial court

refused to dismiss the action and the prosecution was ultimately

turned over to the state attorney general. Because the public was

precluded from attending the preliminary hearing, it had no opportu-

nity to evaluate independently the credibility of the key witness, nor

to evaluate the district attorney's request for dismissal.

4

deciding the First Amendment issue, this Court deter-

mined that the hearing on a motion to suppress evidence,

which also does not involve a final adjudication of guilt or

innocence, must be open unless closure is justified under

the standard set in Press-Enterprise.

The publie's constitutional right of access must extend

to the preliminary hearing because it is an important

component in the effective and fair administration of

criminal justice to which the recognized societal and

structural values embodied in publie access apply.

B. Characterizing a Proceeding as “Accusatory”

Phase or “Final” Adjudication Does Not Aid in

Determining the Public’s Constitutional Right of

Access

Respondent, while not questioning the value open

judicial proceedings, raises the spectre of open grand jury

proceedings and public access to the district attorney’s

office by characterizing the preliminary hearing as part of

the “accusatory” phase as opposed to the adjudicatory

phase of criminal prosecution. Respondent fails, however,

to provide any historical, legal, or common definition of

“accusatory.” Respondent also fails to delineate where a

criminal prosecution would change from accusatory to

adjudicatory. Using the everyday meaning of accusatory,

the entire prosecution remains accusatory up to the time,

at the earliest, when the matter is submitted to the jury

for a verdict. Indeed, the criminal prosecution remains

accusatory until all appellate review has been exhausted.

Characterizing the preliminary hearing as an accusa-

tory process — contended to be analogous to the grand

jury — overlooks that it is a judicial proceeding. A deter-

mination by this Court that the values of open judicial

proceedings apply to preliminary hearings would not

inevitably lead, as claimed by respondent, to open grand

jury proceedings or ready access to the district attorney's

' 5

investigations. The grand jury is, in California, an arm of

the prosecution. Hawkins v. Superior Court, 22 Cal.3d

584, 586 P.2d 916, 150 Cal.Rptr. 435 (1978). The extent of

the publie's constitutional right of access to non-judicial,

investigatory proceedings is clearly beyond the scope of

the issues presented in this petition and cannot be used to

deny the public a constitutional right of access to prelimi-

nary hearings.

Similarly, real party in interest’s contention that the

constitutional right of access should only extend to pro-

ceedings which involve a “final” adjudication is indefinite

and confusing. Real party in interest characterizes pro-

ceedings such as the trial, hearings on motions ‘to sup-

press evidence, demurrers, motions to dismiss, and

motions for change of venue as proceedings involving this

undefined “final” adjudication. If by “final” real party in

interest means an end to the prosecution, he is clearly

incorrect. While any one of these proceedings could in

fact terminate the prosecution, the same is equally true of

the preliminary hearing. One reason the right of access

should not be limited to the trial is the fact that the

criminal prosecution could in fact be terminated as a

result of any one of these earlier judicial proceedings.

Thus, characterizing proceedings on the basis of “final-

ity” fails to aid in determining the public’s constitutional

right of access.

C. Deference To The State Court For The Resolu-

tion Of This Case Is Unwarranted

It is undisputed that this Court is the final arbiter of

constitutional matters. Yet both respondent and real

party in interest argue that this Court should defer to the

state court’s determination of the proper accommodation

of United States Constitutional rights. This position is

without support. Deference to a state’s determination

~~

6

cannot limit judicial inquiry when First Amendment

rights are at stake. Landmark Communications, Inc. v.

Virginia, 435 U.S. 829 (1978).

Real party in interest argues that the states are free to

interpret their own state constitutional rights more ex-

pansively than federal constitutional rights. Even if this

point were conceded, such state interpretation must be

overruled should it violate United States Constitutional

rights. Pruneyard Shopping Center v. Robins, 447 U.S. 74

(1980).

Further, deference to the state court’s interpretation of

its state’s constitution is not an issue in this case. The

California Supreme Court standard for closure was not

based on any expansive interpretation of a state constitu-

tional right. Rather, it was based on a misinterpretation

of this Court’s prior decisions and on the erroneous

conclusion that the publie has no First Amendment right

of access to preliminary hearings. Accordingly, in setting

the standard for closure under Penal Code, Section 868,

the supreme court failed to give proper recognition to the

publie's constitutional right and, thus, allowed for clo-

sures in violation of that right.

Contrary to the suggestion of real party in interest,

remand to the California Supreme Court is not war-

ranted. Petitioner has not contended that Penal Code,

Section 868 is unconstitutional. This statute clearly pro-

vides for open preliminary hearings except when neces-

sary to close the proceeding in order to protect the

defendant’s Sixth Amendment right. Petitioner does con-

tend that the California Supreme Court’s interpretation

of Section 868 is constitutionally impermissible.

Only this Court can determine the proper aceommoda-

tion between the defendant’s Sixth Amendment right and

the publie's First Amendment right. Once this Court

7

establishes the standard for accommodating these rights,

the state cannot impose a slighter standard or a more

stringent standard for closure. Thus, nothing further

could be accomplished by remanding this case to the state

court.

D. Potential Pretrial Publicity Cannot be Used To

Deny a Constitutional Right of Access

Both respondent and real party in interest argue that

the dangers of pretrial publicity are reason enough for

denying constitutional protection for the publie’s right of

access to preliminary hearings.

But, as aptly illustrated in the brief of Amici Curiae

American Newspaper Publisher’s Association, et al., pre-

trial publicity and its effect on the defendant’s right to a

fair trial is a non-concern in the vast majority of criminal

eases. Even in cases of substantial pretrial publicity such

as John DeLorean, John Hinkley, Claus Von Bulow, Dan

White, Maurice Stans, John Connally, Angela Davis,

Watergate and Abscam, there was no showing that ad-

verse pretrial publicity in any way affected the jury's

ability to render a fair and impartial verdict. As set forth

more fully in amici’s brief, studies have shown that,

notwithstanding pretrial publicity, jurors are able to put

aside information received prior to trial, as well as per-

sonal biases and prejudices, and render decisions based

on the evidence presented at trial.

Both parties imply that because the states have a wide variety of

criminal proceedings, this Court cannot arrive at a rule of general

application in this case without interfering with the state’s control

over its criminal justice system. This position is untenable. An

opinion from this Court establishing the publie’s First Amendment

right of aecess to preliminary hearings does not impose upon the

states an obligation to follow any procedure for eriminal justice.

Rather, it would require that the states recognize and protect the

publie's constitutional right of access.

8

As Amici ACLU, itself dedicated to the cause of per-

sonal liberties, points out, the alleged conflict between the

publie's First Amendment right and the defendant’s

Sixth Amendment right is overstated. A choice between

these rights is unnecessary in an ovewhelming number of

eases. In most instances, public access serves to ensure

the defendant’s right to a fair trial.

This Court’s standard requiring a showing of an over-

riding interest and an absence of alternatives adequately

accommodates those rare instances where pretrial publie-

ity demonstratively will affect the defendant’s Sixth

Amendment right. There is, howeve-, no adequate alterna-

tive for protecting the publie's right of access and the

values embodied in that right if judicial proceedings are

closed.®

Using prejudicial pretrial publicity, which is of no

concern in most cases, as a basis for denying the publie a

First Amendment right of access, points up the danger of

using variables to establish a right. Rights must be

determined on constants, not variables. In this case, the

sole constant is that access to judicial proceedings fur-

thers important societal and structural values already

identified by this Court. Variables noted by respondent

and real party in interest inelude pretrial publicity. In

mosv cases this would not be a threat; in some it might.

But the variables should be dealt with by issuing guide-

lines in applying constitutional rights exactly as this

Court has done in Press-Enterprise, 464 U.S. 501; Glebe

The transeript of the proceedings is not an adequate alternative to

access to the proceeding in the first instance. Gannett Co. v. De Pas-

quale, 443 U.S. 368, 441, n.17 (1979) (Blackman, J. concurring in

part.)

9

Newspaper, 457 U.S. 596, and Richmond Newspapers v.

Virginia, 448 U.S. 555 (1980). Using the possibility of

harm or any other variable as a basis for denying a

constitutional right of access would allow for unnecessary

and easy closures, causing irreparable harm to the values

underlying this right.

II

THE TRIAL COURT’S SUBSEQUENT RELEASE OF

THE TRANSCRIPT CANNOT BE USED TO JUS-

TIFY THE INITIAL DEPRIVATION OF THE PUB-

LIC’S CONSTITUTIONAL RIGHTS OF ACCESS

Respondent attempts to use the trial eourt’s later

release of the transcript as justification for its initial

action in refusing to unseal the transeript. Nothing in the

trial court’s subsequent action illustrates that the trial

court recognized the publie's constitutional right of ac-

cess or considered any alternatives other than a complete

ban on such access. The fact that the trial court ulti-

mately released the transcript when defendant was una-

ble to show even the slightest possibility of prejudice to

his fair trial right does not mean its earlier action was

constitutional. More importantly, the issue here is no

longer the trial court’s action but rather that of the

supreme court’s denial of a First Amendment right of

access.

III

THE PUBLIC’S FIRST AMENDMENT RIGHT OF AC-

CESS EXTENDS TO JUDICIAL PROCEEDINGS

WHERE ACCESS WOULD FURTHER THE

STRUCTURAL AND SOCIETAL VALUES

Respondent and real party in interest acknowledge that

access to judicial proceedings furthers societal and struc-

10

tural values. They acknowledge the propriety of constitu-

tional protection for the righ. of access to various judicial

proceedings. But neither can accept protection for access

to preliminary hearings.

Respondent attempts to deny publie access to the

preliminary hearing by asserting, without support, that

this proceeding is held exclusively for the benefit of the

accused, that it is not intended to benefit the public. Real

party in interest claims that only proceedings which

involve a so-called but undefined “final” adjudication

carry a constitutional right of access. Real party in

interest even argues that a preliminary hearing may

inelude portions which should be presumptively open and

therefore it could be open and closed as necessary to

accommodate the publie's right of access. (Real party in

interest’s brief, p. 38, fn. 24.) Such a fragmented ap-

proach to the question of the right of access compels

petitioner to reexamine the basic reasoning behind the

constitutional right.

Open judicial proceedings are essential to the integrity

of our judicial system. Globe Newspaper, 457 U.S. at 606.

Openness helps to insure fairness and the appearance of

fairness by acting as a check on all government officials

and by insuring that all participants in the court proceed-

ing perform their duties conscientiously and fairly. Wal-

ler v. Georgia, 467 U.S. 39. Additionally, open judicial

proceedings serve to educate the publie and lead to a

more informed discussion of the functioning of our judi-

cial system. Globe Newspapers, 457 U.S. at 604; Richmond

Newspapers, 448 U.S. at 572.

These are constant values which this Court has recog-

nized as the basis of the publie’s First Amendment right

of access to judicial proceedings. N othing in the nature of

these values compels the conclusion that the publie’s

First Amendment right is restricted to the trial which is

11

only one part of the criminal prosecution. Nothing in the

nature of these values precludes a constitutional right of

access to the preliminary hearing. If the public is pre-

cluded from evaluating this earlier stage of the criminal

prosecution, a proceeding which vitally affects the trial

phase, the publie's right of access to the trial itself will

have little meaning.

The criminal judicial process is less a pure adversarial

eontest than it is the test of the prosecution’s case.

Frequently the defense will offer little or no evidence at

either the preliminary hearing or at the trial itself. The

real objective, in both instances, is to put the prosecution

to its proof. The fact that this is the “moment of truth”

for the prosecution is one of the compelling reasons for

allowing the public access to the proceedings. There is no

real difference under this rationale between the prelimi-

nary hearing and the evidence-taking portion of the trial

itself. In both instances, the prosecution’s evidence is

being tested. Indeed, the need for publie access to the

preliminary hearing, is perhaps more significant since

these judicial proceedings do not have the additional

protection afforded by the presence of the jury. See, e.g.,

Williams v. Florida, 399 U.S. 78, 100 (1970) (quoting

Duncan v. Louisiana, 391 U.S. 145, 159 (1968) ).

Real party asserts that the publie's concern for fairness

ean be adequately protected by the presence of the ac-

eused and counsel as well as the judicial tribunal. Real

party contends that the public must depend upon the

participants themselves for the proper and fair adminis-

tration of justice at all times prior to the trial. This

proposition shows a gross misunderstanding of human

‘In fact it is not uncommon for the “trial” to consist solely of the

preliminary hearing transcript. California Department of Justice,

Bureau of Criminal Statistics, 1978.

12

nature, of the intimidation caused by authority exercised

under cover, and of the way people perceive that assur-

ances of fairness are not a sham. Worse, it fails to

understand or follow the clear reasoning of this Court in

several cases in its recognition of a First Amendment

right of access. “(T]he sure knowledge that anyone is

free to attend gives assurances that established proce-

dures are being followed and that deviations will become

known.” Press-Enterprise, 464 U.S. at 508.

Without constitutional protection for the publie's right

of access, the recognized values of access are in jeopardy.

When California became a state, its first laws did not

provide for closure of preliminary hearings. The second

session of the Legislature then established closure at the

simple request of the defendant. In 1983, the Legislature

gave Californians a right of access which the supreme

court limited by allowing for closure if there was a

reasonable likelihood of substantial prejudice. Unless this

Court pronounces a constitutional right, the state is free

to change yet again and eliminate or further cireumscribe

the publie’s right. The values of access are far too impor-

tant to be subject to such inconsistent treatment.

CONCLUSION

Petitioner seeks recognition by this Court that when

the values of openness attach to a judicial proceeding, so

must the constitutional right of access. Specifically, peti-

tioner seeks to establish a constitutional right of access to

preliminary hearings.

Respectfully submitted,

JAMES D. WARD,

SHARON J. WATERS,

THOMPSON AND COLEGATE

Attorneys for Petitioner

PROOF OF SERVICE BY MAIL

I am a citizen of the United States and a resident of the

City and County of Los Angeles; I am over the age of

eighteen years and not a party to the within action; my

business address is: 1706 Maple Avenue, Los Angeles,

California.

On February 19, 1986, I served the within Reply Brief of

Petitioner in re: “The Press-Enterprise Co. v. The Supe-

rior Court of the State of California” for County of

Riverside in the United States Supreme Court, October

Term 1985, No. 84-1560;

on the Attorney in said action, by placing 3 copies thereof

enclosed in a sealed envelope with postage fully prepaid,

in the United States post office mail box at Los Angeles,

California, addressed as follows:

Riverside County Counsel

Joyce E. Reikes Esq.

3535 Tenth Street, Suite 300

Riverside, California 92501;

Ephriam Margolin

Sandra Coliver

240 Stockton St., 3rd Floor

San Franciseo, CA 94108

Attorneys for Real Party in Interest,

Robert Rubane Diaz

Baker & Hostetler,

Bruce W. Sanford (1)

818 Connecticut Avenue

Washington, D.C. 20006

Gray, Cary, Ames & Frye,

Edward J. Melntyre (1)

2100 Union Bank Building

San Diego, California 92101

Harold W. Fuson, Jr.,

The Copley Press, Ine. (1)

P.O. Box 1530

La Jolla, California 92038;

Lawrence B. Lewis, Public Defender,

John T. Lee, Deputy (1)

3536 Tenth Street

Riverside, California 92501;

Hon. Howard Dabney,

Riverside Superior Court (1)

4050 Main Street

Riverside, California 92501;

Cooper, White & Cooper,

Mark L. Tuft (1)

101 California Street, 15th Floor

San Francisco, CA 94111;

Gibson, Dunn & Crutcher,

Richard Pachter (1)

333 So. Grand Ave.,

Los Angeles, CA 90071;

Supreme Court of the

State of California (1)

3580 Wilshire Blvd. Room 213

Los Angeles, California 90010;

Crosby, Heafey, Roach & May,

John E. Carne,

Judith R. Epstein (1)

1939 Harrison Street

Oakland, California 94612;

Court of Appeal, Fourth Appellate Dis-

trict

Division II (1)

640 State Building

303 West Third Street

San Bernardino, California 92401;

Hon. John H. Barnard,

Riverside Superior Court (1)

4050 Main Street

Riverside, California 92501;

Riverside County District Attorney,

Grover Trask (1)

4080 Lemon Street, 2nd Floor

Riverside, CA 92501;

All parties required to be served have been served.

I certify (or declare), under penalty of perjury, that the

foregoing is true and correct.

Executed on February 19, 1986, at Los Angeles,

California af *

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