Secret Justice: Star Treatment

Courts are clamping down on

public access to cases

involving the rich and

famous, from the criminal

trials of Michael Jackson

and Kobe Bryant to the

divorce case of billionaire

investor Ron Burkle. The

reasoning judges often use —

that increased public interest

justifies tightening

access — denies the

public information

in the very cases

that show them the Spring 2005 most about how the judicial The Reporters Committee For Freedom of the Press system works. Secret Justice: Star treatment: celebrities, A continuing series justice and journalism The American judicial system has, historically, been open to the public, Imagine getting your criminal indict- v. Jackson) and the U.S. Supreme Court has con- ment sealed from the public until the day of The trial court maintains a secret docket tinually affirmed the presumption of your arraignment. Blocking the release of a for the Jackson case. It also required all openness. However, as technology ex- transcript of your interview with police materials containing potentially “sensitive” pands and as the perceived threat of violence grows, individual courts investigators because you say its disclosure information that could be covered by the attempt to keep control over proceed- invades your privacy. Paying a private judge gag order — virtually anything of substance ings by limiting the flow of information. nearly $75,000 to handle your divorce case — to be filed under seal. Any documents Courts are reluctant to allow media ac- and convincing him to seal all the financial related to the search warrant also had to be cess to certain cases or to certain pro- records. Persuading a court clerk to conceal filed with an accompanying motion to seal. ceedings, like jury selection. Courts your divorce file in a super-secret system In July 2004, media attorney Theodore routinely impose gag orders to limit hiding more than100 other cases. J. Boutrous Jr. of Gibson, Dunn & Crutch- public discussion about pending cases, That’s exactly what happened in high- er filed a challenge to what he called the presuming that there is no better way to profile cases recently. Courts are clamping “presumption of secrecy” in the Jackson ensure a fair trial. Many judges fear that down on public access to cases involving the case to the California Court of Appeal in having cameras in courtrooms will some- how interfere with the decorum and rich and famous. And such “star treatment” Ventura (2nd Dist.), essentially arguing solemnity of judicial proceedings. Such doesn’t just happen in Hollywood. From there is no celebrity exception to the First steps, purportedly taken to ensure fair- California to Colorado to Connecticut, Amendment. But the court rejected the ness, may actually harm the integrity of courts are shielding documents in high- media’s argument as to all documents ex- a trial because court secrecy and limits profile criminal and civilcases at the ex- cept the indictment, ruling on April 27 that on information are contrary to the fun- pense of the public’s right to know. Melville “carefully balanced the defendant’s damental constitutional guarantee of a “The celebrity trials of recent years seem right to a fair trial and the public’s right to public trial. to be resulting in a willingness on the part know.” The public should be the beneficiary of judges to abandon the very strong pre- Some of the documents at issue, includ- of the judicial system. Criminal pro- sumption in favor of access,” said media ing the grand jury transcript and the indict- ceedings are instituted in the name of “the people” for the benefit of the pub- attorney Thomas B. Kelley, who challenged ment, had been made public since the appeal lic. Civil proceedings are available for secret proceedings and documents in the was filed, prompting the appellate court to members of the public to obtain justice, former rape case against NBA all-star Kobe ask Boutrous during oral argument in Feb- either individually or on behalf of a Bryant. “In effect, once the publicity level ruary why the appeal was not moot. Boutrous “class” of persons similarly situated. The reaches a certain intensity, [they] presume responded “that an opinion that considers public, therefore, should be informed that access is harmful to the process, at least the appeal at the time the motions to unseal — well informed — about trials of pub- during the pretrial stages.” were made would establish useful prece- lic interest. The media, as the public’s The child sexual abuse case against pop dent,” presiding Justice Arthur Gilbert representative, needs to be aware of superstar Michael Jackson offers an egre- wrote in the Court of Appeal’s decision. threats to openness in court proceed- gious example of star treatment. Long be- “We therefore journey in an imaginary ings, and must be prepared to fight to ensure continued access to trials. fore the trial began in late January, Superior judicial time machine to last year,” Gilbert In this series, the Reporters Com- Court Judge Rodney S. Melville issued a wrote. “We temporarily disarm our powers mittee takes a look at key aspects of gag order on all participants barring them of hindsight so that our perception of events court secrecy and how they affect the from discussing details of the charges, iden- at the time the motions [to unseal] were newsgathering process. We will exam- tities of potential witnesses, or any evidence made will not be distorted.” ine trends toward court secrecy, and in the case. He also sealed most of the The court, which noted its difficulty in what can be done to challenge it. documents in the case, including the grand shielding itself from news of Jackson’s case, The previous installments of this “Se- jury transcript, search warrant affidavits — said it was “unlikely” that potential jurors cret Justice” series concerned anony- even the indictment itself. would not be influenced by exposure to mous juries (Fall 2000), gag orders on “We began covering this trial basically details of the alleged crimes. The need to trial participants (Spring 2001), access to alternative dispute resolution proce- not knowing what it was about,” veteran safeguard the privacy of the minors in- dures (Fall 2001), access to terrorism Associated Press reporter Linda Deutsch volved as well as Jackson’s right to a fair trial proceedings (Winter 2002), secret dock- said. “The indictment had been sealed, and the government’s then-ongoing inves- ets (Summer 2003), judicial speech which was quite extraordinary.” tigation justified the orders to seal, the (Spring 2004), and grand juries (Fall The California Court of Appeal in April court said. 2004). ordered Melville to unseal the indictment, Boutrous said many documents related to but with the names of Jackson’s alleged co- the case remain sealed, and the media fears This report was researched and written conspirators redacted. Jackson, who is that the trial court’s actions could serve as a by Kimberley Keyes, the 2004-2005 Mc- charged with plying a 13-year-old boy with model for future cases if allowed to stand. Cormick-Tribune Legal Fellow at the Re- alcohol and sexually molesting him, is cur- “There was no reason to have to get in porters Committee. rently on trial in Santa Maria, Calif. (People the time machine — the public’s rights

PAGE 2 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS SPRING 2005 continue to be violated to this day,” said Bou- trous, who represents a coalition of 10 news outlets. He and his cli- ents were considering their next step in early May. Others also decry the extraordinary — perhaps unprecedent- ed — degree of secrecy Melville imposed in the Jackson case. Loyola Law School professor Laurie Levenson not- ed that at one point, it was “taken to the ludi- crous level where the judge was trying to re- dact language out of Supreme Court deci- AP PHOTOS sions,” referring to a Judge Rodney S. Melville, left, “carefully balanced” Michael Jackson’s fair trial rights against the defense document re- public interest in open courts — and decided virtually everything about the case must be secret. leased by Melville from which references to pornography or ob- the court released heavily redacted versions pealed to the California Supreme Court to scenity had been excised. of the warrant and inventory, as well as the keep his grand jury transcript sealed after a “Excuse me, if the Supreme Court “general introductory material” from the trial judge ordered it to be released. thought it was OK to publish those deci- affidavit. “Basically the argument of the celebrity sions, who is Judge Melville in Santa Maria Melville also issued a broad gag order defendant is, I can’t get a fair trial [because to second-guess that decision?” Levenson barring the parties, lawyers and potential of negative pretrial publicity.] I’m so fa- said. “I had to shake my head.” witnesses from discussing details of the mous, the jury will really pay attention to Boutrous said that the secrecy “really charges, identity of witnesses, and state- it,” said attorney Susan Seager of Davis has gotten extreme and out of control in ments about evidence. Indeed, anyone sub- Wright Tremaine, who represented the Los that sense.” ject to the order must get the trial court’s Angeles Times in getting the Spector tran- Gaining access to celebrity cases is not permission before making any public state- script unsealed. “But it sort of turns the always so difficult. The judge who presided ment about the case — leading to a famous whole idea of public access on its head over actor Robert Blake’s spring 2005 mur- bit on “The Tonight Show.” When it ap- because really, there is increased public der trial was “a lot more inviting” to the peared that host Jay Leno might be subpoe- interest because they are a celebrity — and media, Levenson said. And anyone with naed to testify, he enlisted his guests to tell you can’t use that to keep the public out. Internet access can read 2,400 pages of FBI jokes about Jackson for him. (Melville later “You can’t say, ‘You should be punished, files on Frank Sinatra, including the record clarified that the order did not stop Leno public, for your interest in this trial, and of his arrest at age 22 in Hackensack, N.J., from telling Jackson jokes.) we’re going to keep you out, we’re going to on a charge of “seduction.” In April 2004, a grand jury returned a seal the documents.’ That’s not the way it But judges made it far more difficult to 10-count felony indictment against Jack- works. But that’s sort of how it’s been see documents in the sex crime cases against son, charging him with conspiracy to com- working,” Seager said. Jackson and basketball star Bryant. mit child abduction, false imprisonment Police searched Jackson’s Neverland and extortion; commission of a lewd act Not on candid camera ranch in Santa Barbara, Calif., in Novem- upon a child; and administering an intoxi- Melville has banned electronic devices ber 2003. Melville sealed the executed cating agent (alcohol) to assist in the com- from the Jackson courtroom, including cam- warrant, the inventory of seized items, mission of a felony. Melville released a eras. (See sidebar.) Some observers say that and the supporting affidavit until Jack- heavily redacted version of the indictment judges presiding over celebrity trials fear son’s arraignment — even though under at the time, specifying only the counts, not being another Lance Ito, the judge per- California law, such records usually be- the details of the charges — not even the ceived by some as having lost control of the come public 10 days after the search. NBC identities of Jackson’s alleged co-conspira- O.J. Simpson trial. moved in January 2004 to unseal the search tors. He refused to unseal the other por- But Levenson said the presence of tele- warrant documents. tions of the indictment, citing the same vison cameras in the O.J. courtroom had no Melville held a hearing on the media’s concern for the integrity of the jury pool. impact on the outcome of the case. motion on Jan. 16, 2004, the same day Although grand jury transcripts in Cal- “I think that the behavior by some of the Jackson was arraigned. He later found that ifornia are generally released to the public people in the courtroom would have been the “privacy of the minors involved” and 10 days after an indictment is issued, Jack- different — there was a lot of mugging for the need to avoid tainting the jury pool son’s remained sealed for months. In con- the camera — but I don’t think the verdict justified sealing the entire 82-page search trast, record producer Phil Spector, who is would have been different,” she said. warrant affidavit, except some “general in- charged with fatally shooting an actress at Deutsch said television cameras in the troductory material.” In February 2004, his Los Angeles home, unsuccessfully ap- Jackson courtroom would show the world

SPRING 2005 SECRET JUSTICE: STAR TREATMENT PAGE 3 cy argument to shield a criminal inves- tigation indicates celebrities may en- joy a different kind of justice, Kelley said. “I can’t imagine a statement being made to a police officer in a criminal case treated as a matter of privacy for any defendant but a celebrity,” he said. The Vail Daily newspaper later ob- tained a tape of the police interview and published excerpts. Kelley said he thought the transcript portrayed Bry- ant credibly and was not overly preju- dicial. “But it certainly was not going to bring his endorsements back any faster,” he noted. Prosecutors dropped the felony sex- ual assault charge against Bryant last September after the accuser decided not to pursue the case. But Kelley said the case may have ended sooner if more light had been shed on the pros- AP PHOTOS ecution’s stumbling blocks and efforts Documents in Kobe Bryant’s rape case, including his statement to police, were kept under seal by Judge W. Terry Ruckriegle. to overcome them. “That benefit of public scrutiny was that Melville is a “very strong taskmaster” “This is a judge who had taken some lost,” he said. who is conducting things differently than pride in his ability to manage high-profile Kelley cited four factors that he said Ito did in the Simpson trial. cases in the past, and he assigned this case to fueled the court’s desire to restrict public “People who complained during the O.J. himself for that reason,” media lawyer Kelley access. Bryant was accused of date rape, trial that what they saw on TV was a very lax said of District Judge W. Terry Ruckriegle. raising issues of consent and the alleged proceeding will see, in this case, one that is “It was clear he just didn’t anticipate the victim’s sexual history. The case involved very regimented and regulated,” Deutsch intensity of the media coverage that would race, a sensitive issue which Kelley said was said. occur, and I think he started to feel very part of the reason the judge closed the jury “They’d also see some of the most in- uncomfortable with his inability to control selection to the public. It involved sex, teresting witnesses that have ever testified what was going on outside his courthouse.” which many people are uncomfortable dis- in a courtroom,” she continued. “If the Although Ruckriegle ruled favorably for cussing in a public courtroom. accuser’s mother” — who reportedly af- the press on some issues, such as keeping a And, of course, it involved a celebrity, fected a German accent during her testi- public docket, Kelley said his attitude may “which tends to add a certain show-like mony — “had been testifying in a televised have shifted after the preliminary hearing atmosphere to the case,” Kelley said. trial, people would have accused her of in which certain facts, including the results Both he and Levenson, a frequent TV playing to the cameras, but there are no of DNA tests on the accuser’s underwear, commentator on legal affairs, said courts cameras. It proves the point that witnesses were publicly disclosed. treat celebrities differently. will be witnesses.” “The judge was somewhat horrified by “That doesn’t mean they’re treated bet- Levenson, who has attended the Jackson the extent to which all of this information ter — sometimes they’re treated more harsh- proceedings, said televising the trial would got published world-round, and wanted to ly — but we have a hard time just treating give the public a greater sense of the pros- do something about it,” said Kelley, a part- them like everyone else,” said Levenson, ecution witnesses’ credibility. ner at Faegre & Benson in Denver, Colo. noting that judges and other officials can be “What the public is hearing is these “What he did was essentially close any starstruck by a celebrity presence in their witnesses make these claims of very sordid filing and most hearings where arguably courtroom — and the media glare that goes behavior by Michael Jackson, but the pub- sensitive material might be disclosed.” with it. “I think people get worried when lic has no way of assessing the credibility of Ruckriegle sealed the transcript of Bry- there’s a lot of attention focused on them in the people making those claims,” she said. ant’s 2003 interview with Eagle County any regard, and if you have a celebrity case “It’s not just what a witness says, it’s how sheriff’s investigators about a rape accusa- there’s attention focused on you, so you they say it. And the problem for the media tion made by a 19-year-old woman Bryant tend to bend over backwards in either di- is, you can tell people what they say, [but] had met at a resort near Vail, Colo. The rection — either to be overly fair, or to not you can’t make the judgment for them as to defense claimed that portions of the tran- appear to be overly fair. whether it was said in a truthful manner.” script — which contained references to the “I think it’s hard to just treat the celeb- married Bryant’s sexual proclivities and in- rity like everyone else.” Public scrutiny lost fidelities — were inadmissible and should Ruckriegle, in Kelley’s opinion, “was Although the rape charge was dropped be sealed to protect Bryant’s right to priva- really overwhelmed by the intensity of the before the case went to trial, the Colorado cy, Kelley said. spotlight and his inability to maintain con- judge presiding over the criminal case “To me [that was] a novel contention, trol over it.” against all-star basketball player Kobe Bry- but it’s clear the judge accepted it to some What the judge failed to appreciate was ant in 2004 also tried to limit how much degree,” he said. that shutting down access “at this point information reached the public. That the court accepted Bryant’s priva- really can’t remedy what’s already out there.

PAGE 4 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS SPRING 2005 It really just assaults the First Amendment,” all divorce records that contain certain fi- California Supreme Court case involving Kelley said. “That’s the perspective I nancial information violates the First the palimony contest between Clint East- thought was lost in this case.” Amendment. wood and Sondra Locke, in which the court Billionaire investor Ron Burkle had asked held that the First Amendment grants a Not-so-civil proceedings Paul, under Section 2024.6 of California’s right of public access to civil court proceed- Courts have restricted public access to Family Code, to seal certain documents in ings and documents. (NBC v. Superior Court) civil cases as well as criminal. The good his divorce file that contained identifying “These rights do not disappear merely news is, the media is fighting back — and information about financial assets, “which because the proceedings involve wealthy, winning. Mr. Burkle interpreted to mean street ad- powerful public figures,” the media argued Thanks to media intervention in a high- dress,” said media attorney Seager, who in the Burkle case. “[T]o the contrary, the profile divorce case, Los Angeles Superior represented a coalition of press groups that public’s interest in ensuring that equal treat- Court Judge Roy L. Paul recently declared opposed the sealing request. ment is given in such cases arguably is even that a hastily passed law designed to shield The media coalition relied on a 1999 stronger.”

Dollar signs of the times

Local court officials who once saw small press contingents Not so with the Jackson case. The media and Santa Barbara arrive in their communities to cover high-profile trials now County officials originally negotiated a fee of $7,500 a day in frequently greet the descending media hordes with two words: May 2004. Boutrous and Shaplen renegotiated to $1,500 earlier Pay up. this year. The cost is shared by the various broadcast and print Today the press pool covering the Michael Jackson sex abuse outlets that cover the trial. trial in Santa Maria, Calif., pays $1,500 a day in media “impact” Both Boutrous and Shaplen acknowledge concerns about the fees to defray the county’s cost of hosting some 1,600 creden- perception of charging money for access to a public court tialed journalists. Media lawyer Theodore J. Boutrous Jr. esti- proceeding. mated the press has already paid $100,000 to cover the case, “There’s a real aversion, as there should be, to paying to which isn’t expected to go to the jury until sometime in June. cover a public trial,” said Boutrous, a partner at Gibson, Dunn “It’s a whole new unfortunate world of covering trials,” said & Crutcher in Los Angeles who represents 10 news organiza- special correspondent Linda Deutsch, who has covered courts tions battling access issues related to the Jackson trial. for The Associated Press for more than 30 years. “It’s not what “It’s been a real challenge to strike that balance” between I grew up with.” maintaining a system to defray legitimate costs to the county, In the old days, said Deutsch, a small corps of mostly and making sure no one is denied access because they can’t newspaper reporters traveled the country covering big trials. afford to chip in, he said. Today, the media — complete with satellite trucks, TV camer- If you’re not a regular media presence at the trial, according as, lights, wires, microphones, soundstages, podiums and, of to Shaplen, who handles billing, it costs up to $45 just to drop course, lots and lots of people — set up a virtual tent city outside in for the day. (Unless you’re a local station or newspaper. Then a courthouse where a high-profile case is unfolding. it’s free, by order of the county.) Shaplen stresses that the daily Running that mini-city costs money for overflow rooms, fee is not an admission ticket to the courtroom, which contains extra security, trash removal, even portable restrooms. And 47 seats for the media and 45 for the public. public officials — as well as some members of the press — balk “We conduct our courts in the open. Anyone should be able at passing those added costs along to taxpayers. to go in; there should never be a ticket cost. That’s not what “After O.J. and after Court TV began, they [the news media] we’re talking about,” he said. realized people were really interested in this, and that’s when What they’re talking about is the impact of a press corps that has everybody started committing to covering trials,” Deutsch said. exploded in recent decades. Today you have a number of networks “And that’s when people who were in these little towns where — CNN, CourtTV, even E! Entertainment — that thrive on court the press descended upon started to realize there was money to coverage, and have spawned generations of TV lawyers, as Shaplen be made. pointed out. “Trials,” he said, “have become big media.” “Obviously it costs them money to have us there as well, and “Who can afford to cover those trials?” Shaplen asked. “Who we were willing to pay for that,” she added. “But it’s gotten out can afford not to?” of hand.” So far no one has refused to pay the impact fee, he said, When the murder trial of Scott Peterson moved from Modesto although some have grumbled about it. If someone flat-out to San Mateo, Calif., county officials in San Mateo immediately refused, they would not be barred from covering the trial, told TV networks that it would cost $51,000 to secure an anchor Shaplen insisted. “I would never put the pool into the position position on the plaza in front of the courthouse, said media of being a roadblock to the First Amendment,” he said. coordinator Peter Shaplen, who served as the liaison between But he would disclose their refusal to everybody else who the press pool and courthouse officials for the Peterson case. He ponied up, he said. now has the same role in the Jackson case. One of the challenges of the negotiations was persuading the “That was the first example that I know where a jurisdiction county to make the fees reasonable while making the media said, ‘Hi, welcome to our community. Pay up,’” said Shaplen, a understand what exactly they are paying for, according to former TV producer with 33 years in the news business. Shaplen. It’s an issue that’s not likely to go away. The press ended up renting space in an adjacent building and “This is the dilemma that we face in contemporary trials, and paying the county nothing, he said. I think we’re going to see more of it,” he said. — KK

SPRING 2005 SECRET JUSTICE: STAR TREATMENT PAGE 5 Burkle hired a private temporary judge action compels parties to disclose personal porary judges act as a court of public record, under a system in California disparagingly information in a public forum. “I think the and court rules mandate that the same pub- called the “rent-a-judge” system because law needs to recognize that there needs to lic access requirements apply to the pri- litigants can hire their own judges to re- be some parameters here.” vately paid judge’s proceeding as any other solve disputes, to try his divorce from wife “I happen to believe there is far too court proceeding, according to Seager. Janet. He persuaded the temporary judge, much made of people’s private [lives.] Why Glaser said that a member of the press Stephen M. Lachs, to seal documents in the shouldn’t that be kept private?” would be entitled to sit in on the hearings. case, although Lachs apparently lacked the Protecting privacy, especially that of However, when asked if notices of such authority to do so. Lachs vacated the sealing high-profile people, is important because hearings are posted publicly, she said, “Not order in April after Seager argued that under disclosure of such information can lead to to my knowledge.” To find out about them, court rules, only the “presiding” judge — in problems such as identity theft and kidnap- one would “ask the parties,” she said. this case, Paul — can issue such orders. ing threats, Glaser said. She said Burkle had Because the hearings are often held be- Section 2024.6 of California’s Family to get a court order to restrain a “stalker” hind closed doors, away from a courthouse, Code, which took effect in June 2004, re- who was following him and his son. “the public and the press kind of lose track quires a court to seal upon request any The state legislature cited similar con- of these things,” Seager said. divorce-related document that lists a per- cerns when it hurriedly passed Family Code She said public oversight is particularly son’s financial assets and liabilities and “pro- section 2024.6 in June 2004. important in divorce cases, which often vides the location or identifying information” “It is necessary that this act take effect involve issues such as child custody and about such assets and liabilities. immediately as an urgency statute because property division that have significant and “What is so dangerous about this law is the records that this act seeks to protect widespread impact. it would allow people to just stick a piece of may disclose identifying information and “These are very important, fundamental financial information in a footnote, and ask location of assets and liabilities, thereby issues that society has a stake in making sure the court to seal the entire document,” subjecting the affected parties and their that they’re being done fairly, and also Seager, who intervened in the case on be- children, as well as their assets and liabili- monitoring the law that changes which it half of the Los Angeles Times, The Associat- ties, to criminal activity, violations of priva- has in this area,” Seager said. ed Press and the California Newspaper cy, and other potential harm,” a note to the Californians aren’t the only ones who’d Publishers Association, said. “In that way statute says. like to keep their divorce records secret. someone could seal every single pleading The Los Angeles Times noted in court While looking into the divorce of former that was filed in a divorce case.” papers that the law was enacted “shortly General Electric chairman Jack Welch, Judge Paul invalidated the law because it after Mr. Burkle and his companies donat- Connecticut Law Tribune reporter Thomas is not narrowly tailored to protect sensitive ed $147,800 to the governor’s political com- B. Scheffey learned in December 2002 that financial data and it “unduly burdens” the mittees and the State Democratic party.” state courts maintained a secret docketing public’s right of access to civil court pro- Glaser said the Times has referred to system for certain cases. (See also “Secret ceedings. Family Code section 2024.6 as the “Burkle Dockets,” a Summer 2003 installment of “The court concludes the statute is over- statute” without any basis in fact. She de- this “Secret Justice” series.) broad because it mandates sealing entire nounced any alleged connection between The Hartford Courant reported in Feb- pleadings to protect a limited class of spec- the two as “defamatory.” ruary 2003 that for years, Connecticut judg- ified material,” Paul wrote in his Feb. 28 Glaser said Burkle “had nothing to do es had “selectively sealed divorce, paternity ruling. with the passage of the statute,” adding that and other cases involving fellow judges, He would have had to grant Burkle’s if she was wrong and there was evidence to celebrities and wealthy CEOs that, for most request if the Times and AP had not asked to the contrary, the Los Angeles Times should people, would play out in full view of the intervene, Paul wrote. reveal it. Otherwise, she said, “please don’t public. . . .” Among the files hidden in the Attorney Patty Glaser, who represents throw in scurrilous” accusations. She also super-secret system were a paternity action Ronald Burkle, said her client is appealing said the statute’s reason for being “is not against E Street Band saxophonist Clar- both Judge Paul’s ruling that Family Code relevant to the issue” of its constitutionali- ence Clemmons and the divorce records of section 2024.6 is unconstitutional and Judge ty. The issue, she said, is “should the public University of Connecticut President Philip Lachs’ decision to vacate his sealing order. have [access to] very private information?” E. Austin. “I think the Court of Appeal will hope- The law applies to any party to a divorce, The cases were filed according to three fully see it our way,” said Glaser, a partner she pointed out. “Being rich doesn’t help levels of secrecy. Level 3 cases were public at Christensen, Miller, Fink, Jacobs, Gla- you one iota,” she said. except for certain sealed documents in the ser, Weil & Shapiro in Los Angeles. She She also denied that wealthy people en- file. Level 2 designation allowed disclosure said the law gives judges the appropriate joy special treatment by the courts. of the parties’ names and case number, “but amount of discretion to determine if what is “No, I don’t think rich people get more nothing more,” according to a June 2000 being sealed qualifies as the requisite infor- privacy. I think they get far less privacy, memo to trial court administrators and clerks mation under the statute. If documents are thank you very much,” she said. from Court Manager Judith D. Stanulis. improperly sealed, “any member of the But Seager said only the wealthy typical- For Level 1, the highest degree of secre- public can get them unsealed,” she said. ly can afford privately paid temporary judg- cy, no information whatsoever about a case Glaser said although Lachs agreed with es like the one Burkle hired. According to was available to the public — it was simply the media that as a privately paid temporary court documents, Burkle paid Lachs up to invisible. judge, he lacked the power to seal court $400 an hour for services rendered between The media estimated that the courts records, “he thinks the statute doesn’t go November 2003 to December 2004, total- concealed more than 10,000 cases using far enough” — a view she personally shares. ing more than $73,000. Seager said Lachs this cryptic system during a period that “I really believe there is so much indicia also presided over Michael Jackson’s di- spanned nearly 40 years. in our society of privacy being eroded,” vorce from ex-wife Debbie Rowe. In the Austin case, lawyer Eliot J. Neren- Glaser said, pointing out that a divorce Under California law, privately paid tem- berg wrote to Superior Court clerk Krista

PAGE 6 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS SPRING 2005 Keeping the beat on the Santa Maria Death March

You arrive at the courthouse by 7:30 a.m. and stay until 2:30 p.m. with no break for lunch. You get three recesses, each lasting 10 or 15 minutes, during which you may use the bathroom, grab a snack or file a story. Don’t even try to do all three, because if you’re late getting back, you won’t get back in. No laptops, cameras, cell phones, pagers or Blackberrys are allowed inside the courtroom. If you acci- dentally bring one in and, God for- bid, it goes off, you’re banished for a week. No exceptions. Interviews? Absolutely prohibit- ed outside the designated areas. Even saying hello to an official or just looking at a lawyer can land you in hot water. They call it the Melville Diet — a forced feeding by the judge pre- siding over the Michael Jackson tri- AP PHOTO al. And the reporters covering the Reporters wait outside the courthouse during the Michael Jackson trial. case must stick to it, or else. “This is a hard trial,” media pool co- would heed the wisdom of her late friend meaning and unprofessional” way, said ordinator Peter Shaplen said. “Jackson is Theo Wilson of the New York Daily News, Loyola Law School professor Laurie brutally hard. The schedule has been who used to say, “No reporter ever killed a Levenson. not-so-laughingly called the Santa Maria good trial.” “Now I can understand the media Death March. It has been referred to as “Reporters don’t cause trouble for offi- doesn’t always behave itself, but I frankly the ‘Melville Diet’ by the judge himself. cials unless they are incited in some way, [if] have been shocked, and I think it’s fairly It doesn’t give the media time to file a the officials become so oppressive that you undeserving in that situation,” Levenson story, go to the bathroom and get some- feel like you may have to answer back at said. thing to eat in 10-minute breaks. It’s some point,” Deutsch said. Deutsch — who has covered hun- hard, really hard.” “But in this one, everybody’s afraid to dreds of trials, starting with Charles Man- So hard, said AP special correspon- even speak.” son’s in 1970 — says she’s never seen a dent Linda Deutsch, that it’s actually Attorney Thomas B. Kelley, who repre- trial quite like Jackson in terms of the way causing health problems for some. sented the media covering the Kobe Bryant the press is treated. The closest one, she And Judge Rodney S. Melville’s me- case in Colorado, said most judges are not said, was the 1972 trial of Angela Davis, dia decorum order, limiting where the accustomed to the intense publicity that a former UCLA professor charged in press can go and whom they can speak to, surrounds celebrity trials. connection with a shootout at the Marin is “a nightmare,” she said. Journalists’ “I think when there’s media camped County, Calif., courthouse that left four complaints that court personnel inter- outside, they have a sense of having to people dead, including a judge. Deputies pret the restrictions too broadly have contend with barbarians at the gate, if you marched the reporters around with guns prompted a request to Melville to clarify will,” said Kelley, who described the “mead- drawn, Deutsch recalled. the order. ows” of satellite trucks, tents, soundstages But “their concern was at least based “We’re not allowed to talk to anybody and podiums that sprung up outside the on something you could understand,” outside the courtroom — we can’t talk to Eagle County, Colo., courthouse during she said. the lawyers, we can’t talk to the fans,” the Bryant proceedings. “The thing that bothers me the most, Deutsch said. “They tell us that we have “It took the last generation of judges a I think, is that the people who regulate white badges, so we can talk to each while to get used to TV. It’s going to take this case don’t seem to respect us as other, but you can’t talk to anyone with this generation a while to get used to the people who are doing a job,” Deutsch any other color badge. It’s unbelievable, proliferation of media that we now have,” said. “The mood that pervades every- it’s truly unbelievable. I don’t know why Kelley said. thing is that somehow we’re there for they’re thinking this way.” By all accounts, the press covering the fun. And it’s anything but fun. It’s the The veteran journalist wishes that Jackson trial has conducted itself in an most grueling work that I have encoun- court personnel — whom she suspects orderly, respectful manner. But some tered on a trial, ever. And that says a are acting under someone else’s orders — court personnel treat the press in a “de- lot.” — KK

SPRING 2005 SECRET JUSTICE: STAR TREATMENT PAGE 7 Hess to inform her that the parties had asked case, has received copies of the sealing or- to listen to our arguments. He has changed Judge Linda Pearce Prestley to seal the file. ders in all Level 1 cases and some Level 2 his approach, and as the case rolled on, he “We explained to Judge Presley [sic] the cases. released more and more information,” he importance of having this file sealed from The judicial branch filed for summary said. the public because the defendant husband is judgment, claiming that the docket sheets Klau said if a reporter learns of a secret the President of the University of Connect- are covered by the sealing orders that have docket, he or she should ask the court clerk icut,” Nerenberg wrote in a letter dated been provided to Chatigny. The media says to see the file. If a verbal request is denied, May 1, 2001. it needs to see the sealing orders to respond make it in writing. If the clerk still says no, Prestley, at their request, had sealed the to the summary judgment motion. the press has to decide whether to pursue case under a Level 2 designation, “so that if “How do you challenge the legitimacy legal action. [someone] put their name into the judicial of a sealing order, and whether or not it The problem, he said, may be finding department computer, it would not even applies to a docket sheet, if you can’t even out about the secret case in the first place. show up as a file,” Nerenberg wrote. But see that?” Klau asked. He said he will move “At least in these high profile cases, the lawyer soon realized that they meant to to compel disclosure if the judicial branch whether it’s Michael Jackson or Kobe Bry- request a Level 1 designation. He asked refuses to comply with the discovery re- ant or Martha Stewart, the existence of the Hess to correct the error and give the par- quests. case is a matter of public record, and the ties a code number they would need to No one knows which judges ordered press can challenge specific sealing orders,” recognize court motions when they ap- “super-sealing” in the vast majority of the Klau said. “But when the entire case disap- peared on the docket. concealed cases — “and the judicial branch pears, unless you’re lucky and somebody’s A handwritten note in the lower right- doesn’t want us to know,” Klau said. telling you there’s something funny going hand corner of the letter reads, “Per Gren- He said the Courant and Law Tribune on, nobody knows.” del, J. — Seal file @ level 1,” with the initials asked, in front of Judge Chatigny, for the And as the public grows ever more inter- KH and the date, May 2, 2001. Herbert names of those who signed the sealing or- ested in high-profile cases, the press likely Gruendel was another Superior Court judge ders, but lawyers for the judiciary were will have to continue to wage the battle for at the time. He now sits on the state Appel- adamant that the identities of those judges access. late Court. be kept secret. Ultimately the sealing or- “It looks to me like trials are going to be “It’s crystal clear from this letter that ders were submitted to Judge Chatigny an even bigger story than they’ve ever been,” there was no hearing. This was just a very with the names of the judges who issued Deutsch said. “People are fascinated with . . . cozy relationship between the lawyers them redacted, Klau said. them, and we have to somehow get a handle and the judge,” said attorney Daniel J. Klau on this and get our message across that the of Pepe & Hazard in Hartford, who repre- How to fight it public has a right to know what’s going on sents the Law Tribune. “Why none of the Lawyers say the press has to be aggres- at trials. It’s as simple as that. judges thought this was highly inappropri- sive in challenging court secrecy right from “I’m sure that most of the judges in these ate is beyond me.” the start. Cases such as Richmond Newspa- high-profile trials would be very happy if The Courant and the Law Tribune sued pers, Inc. v. Virginia and Press-Enterprise Co. they could have them private — have their the chief court administrator and the chief v. Superior Court (“Press Enterprise II”), in own private trial! But there are huge justice in federal court to gain access to which the United States Supreme Court amounts of money being expended, public summary information in Level 1 and Level declared the public’s First Amendment right money, on these cases, and the justice sys- 2 cases. But a federal district judge dis- of access to court proceedings and docu- tem itself is on trial in these cases,” Deutsch missed the case in November 2003, saying ments, provide the ammunition. said. the defendants lacked power to alter sealing “I actually blame the media somewhat “Trying to shut it down is not the an- orders previously entered by other judges. [for the secrecy in the Jackson case] because swer.” The media appealed to the U.S. Court I think initially they backed down to Judge of Appeals in New York (2nd Cir.), which Melville, thinking if they were compliant Cases cited: ruled last summer that the public has a he wouldn’t be so tough. Wrong,” Leven- qualified First Amendment right of access son said. “The media should be the media ABC, Inc. v. Stewart, 360 F.3d 90 (2d Cir. to docket sheets. The court remanded the of the Press-Enterprise time, and the media 2004) case to the federal district court determine should be constantly filing and appealing Burkle v. Burkle, No. BD390479 (Cal. whether, in each particular case, there was and asserting First Amendment interests — Super. Ct. Feb. 28, 2005) a judicial order to seal the docket sheet. because if they don’t, no one else can.” Hartford Courant Co. v. Pellegrino, 380 (Hartford Courant v. Pellegrino) Boutrous, whose appellate brief says his F.3d 83 (2d Cir. 2004) Since the system was uncovered, all but clients fought for public access “from the NBC v. Superior Court, 980 P.2d 337 (Cal. a few hundred Level 2 cases have been very beginning” of the Jackson case, said it 1999) unsealed, “so the fight now is pretty much is important to take a strong position based People v. Bryant, No. 03 CR 204 (Colo. about the Level 1 cases,” said Klau. purely on the law. “The law is very much on Dist. Ct. Aug. 3, 2004) The judicial branch identified 185 Level our side on these points,” he said. People v. Jackson, 2d Civil No. B176587, 1 civil and family cases as of December At the same time, he advised, “do your 2005 WL 958201 (Cal. Ct. App. Apr. 2002. Although the Connecticut Supreme best to get what you can as soon as you can 27, 2005) Court passed new court rules that abolished get it.” Press-Enterprise Co. v. Superior Court, 478 Level 1 secrecy in July 2003, the change did In addition to arguing vigorously in fa- U.S. 1 (1986) (“Press-Enterprise II”) not apply retroactively. About 42 cases re- vor of access, the media have tried to keep Richmond Newspapers, Inc. v. Virginia, 448 main classified as Level 1, according to the lines of communication open with the U.S. 555 (1980) Klau. court and persuade Melville to disclose as “Secret Justice: Secret Dockets” is He said U.S. District Judge Robert much information as possible, Boutrous available at www.rcfp.org/secretjus- Chatigny, who is now presiding over the said. As a result, the judge has been “willing tice/secretdockets

PAGE 8 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS SPRING 2005