|
Trend toward secrecy alarms some observers
Privacy issues pitted against public access
By CHUCK SCHULTZ
NEWS-PRESS STAFF WRITER
Each time worldwide attention refocuses on the Michael Jackson
case, the lid of court-imposed secrecy slams shut again on specifics
of the criminal allegations against the pop superstar.
The latest example of what some observers called an alarming trend
toward secrecy came Friday as a 10-count indictment against Mr.
Jackson was finally unsealed — but only partially for the
public. Prosecutors and defense attorneys are privy to the entire
13-page indictment, but a judge deleted large portions in the public
version of the document charging Mr. Jackson with conspiracy, four
counts of felony child molestation, one count of attempting a lewd
act with a minor and four counts of administering alcohol to the
boy he allegedly molested.
There are blank spots where the names of Mr. Jackson's alleged
co-conspirators would be and more than six pages are missing that
detail 28 "overt acts" allegedly done to further the conspiracy
to commit child abduction, extortion and false imprisonment.
Superior Court Judge Rodney Melville in Santa Maria said he wanted
to keep those details sealed to protect the identity the alleged
victim, a minor, and to ensure a fair and impartial jury for Mr.
Jackson.
His order was only the most recent of a string of court orders
blocking media and public access to information and individuals
since Mr. Jackson first appeared in Judge Melville's courtroom for
arraignment on child molestation charges in January.
From day one, the judge has imposed a gag order prohibiting attorneys
or any other involved parties from discussing the case publicly.
He also sealed indefinitely warrant affidavits filed with the court
to justify an exhaustive search of Mr. Jackson's Neverland Ranch
in the Santa Ynez Valley on Nov. 18 and his pre-arranged arrest
several days later.
There also were weeks of secret grand jury proceedings last month
before an indictment was handed down on April 22. When hundreds
of local residents were summoned in March to appear as prospective
grand jurors, Santa Barbara's presiding judge ordered reporters
not to contact or approach any of those individuals, even after
they were excused from serving.
While some legal experts say the access restrictions imposed in
the Jackson case are unprecedented, others avoid that term but acknowledge
that steps such as masking key details of the indictment are highly
unusual. Deleting names, addresses or other identifying information
is sometimes done in narcotics or gang-related cases to protect
the safety of victims or confidential informants, but no such concerns
have surfaced in the Jackson case.
Legal observers theorized that the other names may have been left
out of this indictment because the prosecution is trying to keep
the identities of Mr. Jackson's alleged co-conspirators secret while
negotiating to have them testify against him, perhaps in exchange
for immunity or a lesser charge.
"I'm going to guess the prosecution is trying to protect the
privacy of their witnesses," said UC Hastings Law Professor
Rory Little in San Francisco. "I would say it's very unusual
to see the names of co-conspirators blanked out. It's also unusual
to have co-conspirators not charged (or indicted), unless they're
cooperating" with prosecutors.
Mr. Jackson's celebrity status puts his case under the intense
spotlight of the international media, so efforts to protect the
privacy of government witnesses becomes paramount, Mr. Little and
others said.
"I can see why they ended up doing certain redactions in the
indictment," said defense attorney Jack Earley, president of
the California Attorneys for Criminal Justice group. "There
are many reasons why that may happen. Obviously, they're looking
at going to trial (eventually) and there may be concerns about protection
of witnesses," or issues relating to the admissibility or ability
to prove any evidence referred to in the indictment.
"In this case, it may be the extraordinary public interest
generated by the press itself that compelled the judge to seal it,
to ensure a fair trial," he said. "The press creates its
own need for secrecy sometimes."
In 2002, the Irvine attorney defended David Attias against charges
of killing four people and critically injuring a fifth by running
them down with his speeding car on a crowded Isla Vista street the
year before. Mr. Attias was convicted of four counts of second-degree
murder by a Superior Court jury, which also concluded he was insane
during the Feb. 23, 2001, rampage.
In cases like Mr. Jackson's, "you do have to do this (order
secrecy) to protect the jury pool" because of the unusually
high media attention, Mr. Earley contended.
But the irony of limiting information and access more in high-profile
cases — where the public's desire to know is greatest —
is clear to attorney Theodore Boutrous of Los Angeles. He is representing
numerous media outlets lobbying for more public access and disclosure
in the Jackson case. He and other legal experts see the case's heightened
level of secrecy as evidence of a disturbing trend within the judicial
system.
"It seems in cases where there's great public attention and
interest, there's a great pressure for secrecy," Mr. Boutrous
said after Friday's hearing in Santa Maria, where Mr. Jackson pleaded
innocent to all of the charges against him. "Our opinion is
that it is those (high-interest) cases that are most important to
allow the public to see how the court process works."
That viewpoint is wholeheartedly embraced by Michael Cooney, a
Santa Barbara civil attorney in practice for 35 years who has long
championed greater public and media access to court proceedings
and documents. He was aghast when told Friday that much of the indictment
against Mr. Jackson was being kept secret, at least until a May
28 hearing when Judge Melville will rule on the media's efforts
to free up more information.
"That's ridiculous!" Mr. Cooney said of key portions
of the indictment being deleted from the public version. "The
public is being left to guess what the charges are until the time
of trial. I haven't seen any other high-profile case where this
level of nondisclosure" of specific allegations has occurred.
"They're just turning the criminal justice system on its head"
here, Mr. Cooney asserted. "Basically, what they're saying
is, 'We're not going to tell the public what we're charging this
individual (Mr. Jackson) with.' It's contrary to basic principles
of our open form of government. I think it's an alarming trend toward
secrecy."
However, high courts have typically said public information and
access must be balanced against a defendant's right to an impartial
jury and a fair trial.
"The (U.S.) Supreme Court has ruled there's a balancing test
to be applied," said Mr. Little at Hastings. "There's
a fair amount of discretion for (trial) courts to seal documents
in criminal cases, for the protection of witnesses or the prosecution's
case. On the other hand, there's a competing First Amendment interest"
in freedom of the press and the public's right to know what occurs
in the judicial process.
A trial judge "has very broad powers to protect the victim,
the defendant, and ongoing investigations," echoed Dave LaBahn,
executive director of the California District Attorneys Association
in Sacramento. Although the right to a fair and public trial are
a given, "this is not a trial yet," he noted.
The need for keeping a tight lid on information may be even greater
in Mr. Jackson's case because the pool of potential jurors is relatively
small — and therefore more easily tainted — in Santa
Barbara County than somewhere like Los Angeles or San Francisco,
said attorney Mr. Earley, the CACJ president.
Some observers contend that a fair trial can be ensured without
the degree of secrecy imposed in Mr. Jackson's case, though. For
instance, the identity of the victim or witnesses could be protected
by deleting their names from the indictment, while retaining other
details of the "overt acts" behind the alleged conspiracy.
"I've never seen that done before (leaving large sections
blank)," said Steve Balash, a prominent defense attorney who
has practiced locally for almost 33 years. "I suppose there's
no law against it if both sides agree to do that."
Normally, "the indictment is really a public record once it's
unsealed."
Deleting large sections "really is unusual," but perhaps
not unprecedented, said another Hastings law professor, Gordon Van
Kessel.
"There's going to be a lot of balancing of the defendant's
right to a fair trial and other issues, such as privacy and the
safety of individuals," he added. "It's one thing to limit
the public's right to know now, and another to limit the public's
right to know at trial."
Mr. Cooney wonders how fully disclosing the charges against a defendant,
"including all the alleged overt acts, is something that that's
going to offset his rights to a fair trial."
Trial judges, he asserted, increasingly are overstepping their
bounds when ordering such intense secrecy.
"We're worried about the public's right to know what's going
on in the criminal courts."
Senior writer Scott Hadly contributed to this story. E-mail
Chuck Schultz at cschultz@newspress.com.
|
