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.