# Reply Brief — Press-Enterprise Co. v. Superior Court of Cal., County of Riverside > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0322%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1986 - **Citation:** 478 U.S. 1 ## Text 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 * / Af v fa r 2 / 4 77 > a 4. . L. S07 Lee CE CE MEDINA --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0322%3A10. Public record. Not legal advice.