CalAware Today

Comment: Private Judges Undermining Justice

OPEN COURTS

By Anne Lowe

California law allows attorneys to conduct private trials even though they have not been sworn in as a judge—and that, Anastasia Blackwell contends, is threatening to create a two-tiered system where money determines justice.

State Media Endorse Improved Court Access Ideas

By Anne Lowe

OPEN COURTS – The California Newspaper Publishers Association (CNPA), Los Angeles Times, Associated Press and New York Times Co. have issued a “wholehearted” endorsement of suggested changes to court access policies that would improve its relations with the news media.

Courts Want Comment on Transparency Proposals

By Anne Lowe

OPEN COURTS – The Judicial Council of California is inviting the public to comment on a proposal that would increase news media access to court proceedings and records.

No Remote Video of Final Prop 8 Trial Aguments

OPEN COURTS -- The only people able to watch next week's closing arguments in the trial over same-sex marriage in California will be the ones who are in the federal courtroom or an adjoining room linked by closed circuit television, reports Bob Egelko for the San Francisco Chronicle.

Prop 8 Challenge Closing Arguments on Video?

OPEN COURTS -- A federal judge overseeing a lawsuit challenging California's same-sex marriage ban is considering whether to allow closing arguments to be broadcast on television or the Internet, reports the Associated Press.

Criminal Defendants Entitled to Open Voir Dire

OPEN COURTS -- Adam Liptak, writing in the New York Times, reports that the U.S. Supreme Court decided today in a case from Georgia that a criminal defendant's presumed fair trial rights under the Sixth Amendment—separate and apart from the rights of the press and public under the First Amendment—include a courtroom open to the public during jury selection.

The Legal Case That Dare Not Show Its Face

OPEN COURTS -- By a 5-4 vote, the Supreme Court today made permanent its Monday order banning video coverage of the federal court Proposition 8 trial in San Francisco, ruling that the defenders of the ban on same-sex marriage would likely face "irreparable harm" if a video of the proceedings were made available for viewing in linked federal courtrooms around the nation.

Judge OKs Taping, YouTube Release of Prop 8 Trial

OPEN COURTS -- "Next week's trial in San Francisco of a lawsuit challenging the initiative that banned same-sex marriage in California won't be televised live, but it will be videotaped for delayed Internet release on YouTube," reports Bob Egelko for the San Francisco Chronicle.

Former Court PIO: O.J. Trial Cost Camera Access

OPEN COURTS/FREE PRESS -- "Fourteen years ago today—shock and awe. After 16 tawdry months of the Simpson case wallpapering the public square, a Los Angeles criminal court jury found O.J. Simpson not guilty of the hideous murders of his ex-wife, Nicole, and her friend, Ron Goldman," recalls Patt Morrison in the Los Angeles Times, introducing her interview with the former court public information officer who's written a book about her experiences with the media in that episode.

Stock Fraud Defendant Wants Hearing Closed

OPEN COURTS -- Henry Samueli, the co-founder of Broadcom Corp., is fighting to keep the public out of a pending hearing before the 9th U.S. Circuit Court of Appeals in which he is seeking to reinstate a plea deal that he reached last year with prosecutors, reports Amanda Bronstad for the National Law Journal.

Specter: Supreme Court Should Allow TV in

OPEN COURTS -- Senator Arlen Specter (D-PA), a senior member of the Senate Judiciary Committee, writing in the National Law Journal, has two suggestions for the U.S. Supreme Court: start producing more decisions and let TV cameras in your courtroom.

Press Groups Sue for Transcript of Closed Trial

OPEN COURTS -- Brian Baxter reports for The AmLaw Daily that four press organizations are suing for access to the transcript of a civil lawsuit tried almost entirely behind closed doors in a federal courtroom in Los Angeles recently—an almost unheard of use of judicial secrecy outside the realm of national security.

Judge Closes Entire Civil Trial in Los Angeles

OPEN COURTS -- A Los Angeles federal judge took the almost unprecedented step of closing a two-day civil trial this week in a case involving the 2005 prison killing of Jewish Defense League activist Earl Krugel, reports Carol J. Williams for the Los Angeles Times.

Suit Paints a Hidden Juvenile Court out of Dickens

OPEN COURTS -- The California court system and Sacramento Superior Court in particular are being sued by a child welfare rights group for allegedly failing adequately to fund the dependency court processes that remove supposedly abused or neglected kids from their homes and farm them out to foster parents, report Cybthia Hubert and Denny Walsh for the Sacramento Bee.

Judge Sotomayor No Foe of Cameras in Court

OPEN COURTS -- Among other issues around which Judge Sonia Sotomayor found herself tapdancing in her second session of Senate Judiciary Committee confirmation hearings today was the question of cameras in the courtroom—including in the chamber of the U.S. Supreme Court.  Short answer: She's not afraid of video coverage herself, but would not try to rock the boat as a freshman justice.  Of course, she said it much better.

Immigration Judges Respectful—When Watched

OPEN COURTS -- Jacqueline Stevens, an associate professor in the Law and Society Program at the University of California, Santa Barbara, reports in The Nation, "You don't need to go to Iran or North Korea to find secret courts. They're alive and well right here in the United States."

On March 26, 2009, I was denied access to immigration courts in Eloy and Florence, Arizona, even though a federal regulation states, "All hearings, other than exclusion hearings, shall be open to the public" with a narrow range of exceptions—none of which were cited as a reason for excluding me.

I'd heard horror stories about mass hearings and the humiliation of detainees by Immigration and Customs Enforcement (ICE) attorneys and judges, and I wanted to see for myself. But a guard told me only family members or attorneys could be admitted. An attorney in the lobby affirmed the legality of my request and invited me to attend his hearing. After waiting forty-five minutes and missing his hearing, I was told by the head of security to go to my car and call Eloy's ICE office. That's when I learned that detention centers across the country were restricting public access to immigration courts.

*****

In an interview, Representative Zoe Lofgren, a California Democrat and chair of the House subcommittee overseeing immigrant rights, expressed concern about the public's exclusion from immigration courts in detention centers. "A federal regulation requires proceedings to be open. The public has a right to attend these hearings under this regulation and any limit of this is in violation of this regulation," with the exceptions, Lofgren noted, of restrictions imposed at the discretion of the judges—for asylum claims, cases of sexual abuse or at the request of the respondent.

The Executive Office of Immigration Review (EOIR), an agency in the Department of Justice charged with managing immigration courts, reports that in 2008 its judges decided 134,117 deportation cases, of which 48 percent were for detainees. The individuals facing deportation hearings in these remote sites—far from their families, indigent and without attorneys—are the most legally fragile population in the country. The least the government can do is follow the law and allow public access to the courts. ICE is physically barring entry into the immigration courts in detention centers, but the real culprit is the EOIR. If that agency, under the Department of Justice, cannot arrange to allow the public into immigration courts in detention centers, then the Justice Department should house the courts in other facilities.

*****

Mary Naftzger, a member of the Chicago New Sanctuary Coalition who frequently attends immigration hearings, said, "We have feedback from lawyers who say the judges are more respectful when court watchers are there." She explained that most of the respondents do not have attorneys and that judges ask them questions en masse "rather than examine their cases individually, a practice that changes once the court watchers arrive."

TV Editorial Worries about Courtroom Closure

OPEN COURTS -- KSBW TV (Salinas) President and General Manager Joseph Heston editorializes about a judge's decision to close the courtroom for a preliminary hearing in a murder case, especially in light of the current celebration of Sunshine week.

In that “light” we can’t help but call attention to a Santa Cruz County judge’s decision on Wednesday in a Watsonville criminal trial. It’s the case of Veva Virgil; she’s accused of killing her three-year-old child, and during Wednesday’s preliminary hearing -- that’s the hearing where the judge decides if there’s enough evidence to proceed to trial -- the judge closed the courtroom! Nobody except the defendant, her attorney, and the prosecutor were allowed in the court to witness the hearings.
    Now to be clear: this isn’t a simple matter of the judge prohibiting cameras from the court. As broadcasters, we are repeatedly mystified by the provincial mindset of judges who think cameras have no place in a courtroom. But that’s another editorial for another day. In this case, Judge John Salazar has said NOBODY is allowed to witness these hearings. And that should be of grave concern to anybody and everybody who cares about how our government operates.

The closure of preliminary hearings has become a lot more rare than the heyday of such practices in the late 70s and early 80s, mostly because of a U.S. Supreme Court decision stemming from the closure of such a hearing in Riverside.  In Press-Enterprise v. Superior Court, then Chief Justice Burger wrote for the court:

Since a qualified First Amendment right of access attaches to preliminary hearings in California . . .  the proceedings cannot be closed unless specific, on-the-record findings are made demonstrating that "closure is essential to preserve higher values, and is narrowly tailored to serve that interest." . . . If the interest asserted is the right of the accused to a fair trial, the preliminary hearing shall be closed only if specific findings are made demonstrating that, first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights.

478 U.S. 1, 13 (1986).  Three facts are striking in the sole print news report about this closure.  The first is that no reference is made to any findings by the Watsonville court, as required by the First Amendment.  The second is that although the order banished no fewer than five news organizations from the courtroom, none appears to have summoned a lawyer—a response that would have been certain a generation ago.  The third is that the closest newspaper even to report the banishment was in San Jose, 47 highway miles away. Do we see where the collapse of the daily press is leading?

Question on Court Cameras Gets Scalia's Goat

OPEN COURTS -- Tony Mauro reports in Legal Times that a student's question about cameras in the Supreme Court provoked Justice Antonin Scalia—in West Palm Beach promoting a book—to spurn the query as a cheap shot.

"That's a nasty, impolite question," said Scalia, himself an expert on tough questioning, and he at first refused to answer it.
    On Wednesday Legal Times tracked down student Sarah Jeck, the Florida Atlantic University honors college junior who incurred Scalia's wrath, and she seemed a little stunned, but not cowed, by his reaction. "He can dish it out, but he can't take it, I guess," she says. "I'm generally a very polite person. I'm really surprised the way it turned out. It was not a preposterous question."   
    So what did Sarah Jeck ask that caused the volatile justice to erupt? According to her own notes and this account in Wednesday's Sun-Sentinel, Jeck asked whether the rationale for Scalia's well-known opposition to cameras in the Supreme Court was "vitiated" by the facts that the Court allows public visitors to view arguments and releases full argument transcripts to the public, and that justices go out on book tours.

Court Administrator Calls Editorial a Cheap Shot

OPEN COURTS -- Writing in the Woodland Daily Democrat, Yolo County Superior Court Executive Officer Jim Perry defends the court against a Sacramento Bee editorial that suggested that a lawyer's motion to remove the press from his client's civil trial—recently withdrawn—typified a secrecy trend in the court itself.

The genesis of the editorial was a motion made by a defense lawyer, Michael Rothschild, on behalf of a dentist accused of sexual battery on his patients. In that motion, the dentist asked the judge to bar the media from all trial proceedings, including jury selection. So, what's wrong with making a motion? Attorneys file motions all the time. Motions are filed, they are often opposed, and a neutral judicial officer then makes a decision. Some motions are granted and some are denied. The right to file motions and to have a fair hearing on the motion by a neutral judicial officer is as important a right as open court proceedings. Yet the Bee, in its editorial opines as follows:
    "But the fact that Rothschild would even seek this court closure says much about Yolo County. In recent years, Yolo has shown itself to be indifferent, at best, toward ensuring open courts."

Docs Seek Closed Courts in Sex Prosecutions

OPEN COURTS -- The Sacramento Bee reports that a Woodland dentist accused of fondling more than a dozen female patients has asked a judge to bar the media from covering his trial—while a motion to close a preliminary hearing in a surprisingly similar case was granted just days ago in Riverside County.

Jury selection in the trial of Mark Anderson is scheduled to start next week in Yolo Superior Court. Opening statements are expected in mid-January.
    In the meantime, Anderson's lawyer, Michael Rothschild filed a one-sentence motion asking the court to "exclude all media from all trial proceedings, including but not limited to jury selection, opening statement and witness testimony, in this matter."
    Rothschild's motion gave no legal basis for the request.
    Constitutional law experts say the motion runs counter to the legal presumption that criminal proceedings in the United States should be open to the public.

Meanwhile the Press-Enterprise in Riverside reports that a judge closed a preliminary hearing to the public and the media Tuesday morning, siding with a defense attorney's claim that it would prevent a Hemet doctor charged with 141 counts of sexual assault and burglary from receiving a fair trial.

Judge Paul I. Metzler, a retired Los Angeles County superior judge on special assignment, ordered that the court proceedings be closed to the public after a defense attorney argued that they may taint a prospective jury pool.
    David Joseph Mata is a Hemet doctor charged with sexually assaulting and burglarizing his patients, including young teenage girls, at his practice. He is free on $1 million bond and still practicing medicine under a chaperone.

Mata was ordered Wednesday to stand trial after a detective testified in the one-day hearing that the doctor admitted he may have acted inappropriately on occasion.