Radio & Television News Association

Tuesday, August 02, 2005

Another Setback for Open Access to Trials

Court Allows Jackson Case Secrecy to Stand


A recent court decision allowing the Michael Jackson case to stand as a precedent on secrecy could shut off public access to information in high-profile cases, some legal experts say.

In a one-sentence decision Wednesday, the California Supreme Court denied a request by news organizations, including The Associated Press, to "depublish" the ruling -- meaning it will stay on the legal books and can be used by judges and lawyers on the issue of sealing documents in other cases. The ruling was made available Friday.

"It is a very dangerous precedent because it gives the court an opportunity to close out the public from critical information during a high-publicity trial," said Loyola Law School professor Laurie Levenson. "This formalizes the celebrity exception to the First Amendment."

A three-member panel of the 2nd District Court of Appeal ruled in April that the judge in Jackson's child molestation trial had been justified in sealing dozens of court records. The judge has said releasing the documents could have prejudiced the jury pool. He said he was protecting the fair trial right of the pop superstar who was acquitted of all charges in June.

News organizations protested the unprecedented secrecy before and during the trial. When much of it was upheld by the appeals court they moved to "depublish" the opinion so that it could not be cited as precedent in the future. The high court refused, without comment. Attorney Theodore Boutrous Jr., who argued the case on behalf of the news media, said in an interview Monday that he hopes the case will not be applied in future cases. "The argument that the Jackson lawyers made for secrecy was that this was a special case," Boutrous said. "It should have extraordinarily limited application, but there is the danger it will be applied to other cases."

County Counsel Stephen Shane Stark said in a letter that the case could help judges in other high-profile cases decide whether to seal court documents. "The media's insatiable quest for stories that showcase criminal behavior illustrates why this decision is significant and should remain published," Stark said. "While admittedly a Michael Jackson case does not happen very frequently, the media presents for public consumption a new crime story seemingly every day."

Attorney Thomas Mesereau Jr., who represented Jackson at his trial, did not return phone calls for comment on the ruling. He had pressed the judge to keep secret several documents, including details of the indictment and the grand jury transcripts. The appeals court did say the indictment should have been public before trial.


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