THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS SPRING 2005PAGE 2

The American judicial system has,historically, been open to the public,and the U.S. Supreme Court has con-tinually affirmed the presumption ofopenness. However, as technology ex-pands and as the perceived threat ofviolence grows, individual courtsattempt to keep control over proceed-ings by limiting the flow of information.Courts are reluctant to allow media ac-cess to certain cases or to certain pro-ceedings, like jury selection. Courtsroutinely impose gag orders to limitpublic discussion about pending cases,presuming that there is no better way toensure a fair trial. Many judges fear thathaving cameras in courtrooms will some-how interfere with the decorum andsolemnity of judicial proceedings. Suchsteps, purportedly taken to ensure fair-ness, may actually harm the integrity ofa trial because court secrecy and limitson information are contrary to the fun-damental constitutional guarantee of apublic trial.

The public should be the beneficiaryof the judicial system. Criminal pro-ceedings are instituted in the name of“the people” for the benefit of the pub-lic. Civil proceedings are available formembers of the public to obtain justice,either individually or on behalf of a“class” of persons similarly situated. Thepublic, therefore, should be informed— well informed — about trials of pub-lic interest. The media, as the public’srepresentative, needs to be aware ofthreats to openness in court proceed-ings, and must be prepared to fight toensure continued access to trials.

In this series, the Reporters Com-mittee takes a look at key aspects ofcourt secrecy and how they affect thenewsgathering process. We will exam-ine trends toward court secrecy, andwhat can be done to challenge it.

The previous installments of this “Se-cret Justice” series concerned anony-mous juries (Fall 2000), gag orders ontrial participants (Spring 2001), accessto alternative dispute resolution proce-dures (Fall 2001), access to terrorismproceedings (Winter 2002), secret dock-ets (Summer 2003), judicial speech(Spring 2004), and grand juries (Fall2004).

This report was researched and writtenby Kimberley Keyes, the 2004-2005 Mc-Cormick-Tribune Legal Fellow at the Re-porters Committee.

Secret Justice:A continuing series

Star treatment: celebrities,justice and journalism

Imagine getting your criminal indict-ment sealed from the public until the day ofyour arraignment. Blocking the release of atranscript of your interview with policeinvestigators because you say its disclosureinvades your privacy. Paying a private judgenearly $75,000 to handle your divorce caseand convincing him to seal all the financialrecords. Persuading a court clerk to concealyour divorce file in a super-secret systemhiding more than100 other cases.

That’s exactly what happened in high-profile cases recently. Courts are clampingdown on public access to cases involving therich and famous. And such “star treatment”doesn’t just happen in Hollywood. FromCalifornia to Colorado to Connecticut,courts are shielding documents in high-profile criminal and civilcases at the ex-pense of the public’s right to know.

“The celebrity trials of recent years seemto be resulting in a willingness on the partof judges to abandon the very strong pre-sumption in favor of access,” said mediaattorney Thomas B. Kelley, who challengedsecret proceedings and documents in theformer rape case against NBA all-star KobeBryant. “In effect, once the publicity levelreaches a certain intensity, [they] presumethat access is harmful to the process, at leastduring the pretrial stages.”

The child sexual abuse case against popsuperstar Michael Jackson offers an egre-gious example of star treatment. Long be-fore the trial began in late January, SuperiorCourt Judge Rodney S. Melville issued agag order on all participants barring themfrom discussing details of the charges, iden-tities of potential witnesses, or any evidencein the case. He also sealed most of thedocuments in the case, including the grandjury transcript, search warrant affidavits —even the indictment itself.

“We began covering this trial basicallynot knowing what it was about,” veteranAssociated Press reporter Linda Deutschsaid. “The indictment had been sealed,which was quite extraordinary.”

The California Court of Appeal in Aprilordered Melville to unseal the indictment,but with the names of Jackson’s alleged co-conspirators redacted. Jackson, who ischarged with plying a 13-year-old boy withalcohol and sexually molesting him, is cur-rently on trial in Santa Maria, Calif. (People

v. Jackson)The trial court maintains a secret docket

for the Jackson case. It also required allmaterials containing potentially “sensitive”information that could be covered by thegag order — virtually anything of substance— to be filed under seal. Any documentsrelated to the search warrant also had to befiled with an accompanying motion to seal.

In July 2004, media attorney TheodoreJ. Boutrous Jr. of Gibson, Dunn & Crutch-er filed a challenge to what he called the“presumption of secrecy” in the Jacksoncase to the California Court of Appeal inVentura (2nd Dist.), essentially arguingthere is no celebrity exception to the FirstAmendment. But the court rejected themedia’s argument as to all documents ex-cept the indictment, ruling on April 27 thatMelville “carefully balanced the defendant’sright to a fair trial and the public’s right toknow.”

Some of the documents at issue, includ-ing the grand jury transcript and the indict-ment, had been made public since the appealwas filed, prompting the appellate court toask Boutrous during oral argument in Feb-ruary why the appeal was not moot. Boutrousresponded “that an opinion that considersthe appeal at the time the motions to unsealwere made would establish useful prece-dent,” presiding Justice Arthur Gilbertwrote in the Court of Appeal’s decision.

“We therefore journey in an imaginaryjudicial time machine to last year,” Gilbertwrote. “We temporarily disarm our powersof hindsight so that our perception of eventsat the time the motions [to unseal] weremade will not be distorted.”

The court, which noted its difficulty inshielding itself from news of Jackson’s case,said it was “unlikely” that potential jurorswould not be influenced by exposure todetails of the alleged crimes. The need tosafeguard the privacy of the minors in-volved as well as Jackson’s right to a fair trialand the government’s then-ongoing inves-tigation justified the orders to seal, thecourt said.

Boutrous said many documents related tothe case remain sealed, and the media fearsthat the trial court’s actions could serve as amodel for future cases if allowed to stand.

“There was no reason to have to get inthe time machine — the public’s rights

SPRING 2005 SECRET JUSTICE: STAR TREATMENT PAGE 3

continue to be violatedto this day,” said Bou-trous, who represents acoalition of 10 newsoutlets. He and his cli-ents were consideringtheir next step in earlyMay.

Others also decrythe extraordinary —perhaps unprecedent-ed — degree of secrecyMelville imposed in theJackson case. LoyolaLaw School professorLaurie Levenson not-ed that at one point, itwas “taken to the ludi-crous level where thejudge was trying to re-dact language out ofSupreme Court deci-sions,” referring to adefense document re-leased by Melville fromwhich references to pornography or ob-scenity had been excised.

“Excuse me, if the Supreme Courtthought it was OK to publish those deci-sions, who is Judge Melville in Santa Mariato second-guess that decision?” Levensonsaid. “I had to shake my head.”

Boutrous said that the secrecy “reallyhas gotten extreme and out of control inthat sense.”

Gaining access to celebrity cases is notalways so difficult. The judge who presidedover actor Robert Blake’s spring 2005 mur-der trial was “a lot more inviting” to themedia, Levenson said. And anyone withInternet access can read 2,400 pages of FBIfiles on Frank Sinatra, including the recordof his arrest at age 22 in Hackensack, N.J.,on a charge of “seduction.”

But judges made it far more difficult tosee documents in the sex crime cases againstJackson and basketball star Bryant.

Police searched Jackson’s Neverlandranch in Santa Barbara, Calif., in Novem-ber 2003. Melville sealed the executedwarrant, the inventory of seized items,and the supporting affidavit until Jack-son’s arraignment — even though underCalifornia law, such records usually be-come public 10 days after the search. NBCmoved in January 2004 to unseal the searchwarrant documents.

Melville held a hearing on the media’smotion on Jan. 16, 2004, the same dayJackson was arraigned. He later found thatthe “privacy of the minors involved” andthe need to avoid tainting the jury pooljustified sealing the entire 82-page searchwarrant affidavit, except some “general in-troductory material.” In February 2004,

the court released heavily redacted versionsof the warrant and inventory, as well as the“general introductory material” from theaffidavit.

Melville also issued a broad gag orderbarring the parties, lawyers and potentialwitnesses from discussing details of thecharges, identity of witnesses, and state-ments about evidence. Indeed, anyone sub-ject to the order must get the trial court’spermission before making any public state-ment about the case — leading to a famousbit on “The Tonight Show.” When it ap-peared that host Jay Leno might be subpoe-naed to testify, he enlisted his guests to telljokes about Jackson for him. (Melville laterclarified that the order did not stop Lenofrom telling Jackson jokes.)

In April 2004, a grand jury returned a10-count felony indictment against Jack-son, charging him with conspiracy to com-mit child abduction, false imprisonmentand extortion; commission of a lewd actupon a child; and administering an intoxi-cating agent (alcohol) to assist in the com-mission of a felony. Melville released aheavily redacted version of the indictmentat the time, specifying only the counts, notthe details of the charges — not even theidentities of Jackson’s alleged co-conspira-tors. He refused to unseal the other por-tions of the indictment, citing the sameconcern for the integrity of the jury pool.

Although grand jury transcripts in Cal-ifornia are generally released to the public10 days after an indictment is issued, Jack-son’s remained sealed for months. In con-trast, record producer Phil Spector, who ischarged with fatally shooting an actress athis Los Angeles home, unsuccessfully ap-

pealed to the California Supreme Court tokeep his grand jury transcript sealed after atrial judge ordered it to be released.

“Basically the argument of the celebritydefendant is, I can’t get a fair trial [becauseof negative pretrial publicity.] I’m so fa-mous, the jury will really pay attention toit,” said attorney Susan Seager of DavisWright Tremaine, who represented the LosAngeles Times in getting the Spector tran-script unsealed. “But it sort of turns thewhole idea of public access on its headbecause really, there is increased publicinterest because they are a celebrity — andyou can’t use that to keep the public out.

“You can’t say, ‘You should be punished,public, for your interest in this trial, andwe’re going to keep you out, we’re going toseal the documents.’ That’s not the way itworks. But that’s sort of how it’s beenworking,” Seager said.

Not on candid cameraMelville has banned electronic devices

from the Jackson courtroom, including cam-eras. (See sidebar.) Some observers say thatjudges presiding over celebrity trials fearbeing another Lance Ito, the judge per-ceived by some as having lost control of theO.J. Simpson trial.

But Levenson said the presence of tele-vison cameras in the O.J. courtroom had noimpact on the outcome of the case.

“I think that the behavior by some of thepeople in the courtroom would have beendifferent — there was a lot of mugging forthe camera — but I don’t think the verdictwould have been different,” she said.

Deutsch said television cameras in theJackson courtroom would show the world

AP PHOTOS

Judge Rodney S. Melville, left, “carefully balanced” Michael Jackson’s fair trial rights against thepublic interest in open courts — and decided virtually everything about the case must be secret.


that Melville is a “very strong taskmaster”who is conducting things differently thanIto did in the Simpson trial.

“People who complained during the O.J.trial that what they saw on TV was a very laxproceeding will see, in this case, one that isvery regimented and regulated,” Deutschsaid.

“They’d also see some of the most in-teresting witnesses that have ever testifiedin a courtroom,” she continued. “If theaccuser’s mother” — who reportedly af-fected a German accent during her testi-mony — “had been testifying in a televisedtrial, people would have accused her ofplaying to the cameras, but there are nocameras. It proves the point that witnesseswill be witnesses.”

Levenson, who has attended the Jacksonproceedings, said televising the trial wouldgive the public a greater sense of the pros-ecution witnesses’ credibility.

“What the public is hearing is thesewitnesses make these claims of very sordidbehavior by Michael Jackson, but the pub-lic has no way of assessing the credibility ofthe people making those claims,” she said.“It’s not just what a witness says, it’s howthey say it. And the problem for the mediais, you can tell people what they say, [but]you can’t make the judgment for them as towhether it was said in a truthful manner.”

Public scrutiny lostAlthough the rape charge was dropped

before the case went to trial, the Coloradojudge presiding over the criminal caseagainst all-star basketball player Kobe Bry-ant in 2004 also tried to limit how muchinformation reached the public.

“This is a judge who had taken somepride in his ability to manage high-profilecases in the past, and he assigned this case tohimself for that reason,” media lawyer Kelleysaid of District Judge W. Terry Ruckriegle.“It was clear he just didn’t anticipate theintensity of the media coverage that wouldoccur, and I think he started to feel veryuncomfortable with his inability to controlwhat was going on outside his courthouse.”

Although Ruckriegle ruled favorably forthe press on some issues, such as keeping apublic docket, Kelley said his attitude mayhave shifted after the preliminary hearingin which certain facts, including the resultsof DNA tests on the accuser’s underwear,were publicly disclosed.

“The judge was somewhat horrified bythe extent to which all of this informationgot published world-round, and wanted todo something about it,” said Kelley, a part-ner at Faegre & Benson in Denver, Colo.“What he did was essentially close anyfiling and most hearings where arguablysensitive material might be disclosed.”

Ruckriegle sealed the transcript of Bry-ant’s 2003 interview with Eagle Countysheriff’s investigators about a rape accusa-tion made by a 19-year-old woman Bryanthad met at a resort near Vail, Colo. Thedefense claimed that portions of the tran-script — which contained references to themarried Bryant’s sexual proclivities and in-fidelities — were inadmissible and shouldbe sealed to protect Bryant’s right to priva-cy, Kelley said.

“To me [that was] a novel contention,but it’s clear the judge accepted it to somedegree,” he said.

That the court accepted Bryant’s priva-

cy argument to shield a criminal inves-tigation indicates celebrities may en-joy a different kind of justice, Kelleysaid.

“I can’t imagine a statement beingmade to a police officer in a criminalcase treated as a matter of privacy forany defendant but a celebrity,” he said.

The Vail Daily newspaper later ob-tained a tape of the police interviewand published excerpts. Kelley said hethought the transcript portrayed Bry-ant credibly and was not overly preju-dicial. “But it certainly was not goingto bring his endorsements back anyfaster,” he noted.

Prosecutors dropped the felony sex-ual assault charge against Bryant lastSeptember after the accuser decidednot to pursue the case. But Kelley saidthe case may have ended sooner ifmore light had been shed on the pros-ecution’s stumbling blocks and effortsto overcome them.

“That benefit of public scrutiny waslost,” he said.

Kelley cited four factors that he saidfueled the court’s desire to restrict publicaccess. Bryant was accused of date rape,raising issues of consent and the allegedvictim’s sexual history. The case involvedrace, a sensitive issue which Kelley said waspart of the reason the judge closed the juryselection to the public. It involved sex,which many people are uncomfortable dis-cussing in a public courtroom.

And, of course, it involved a celebrity,“which tends to add a certain show-likeatmosphere to the case,” Kelley said.

Both he and Levenson, a frequent TVcommentator on legal affairs, said courtstreat celebrities differently.

“That doesn’t mean they’re treated bet-ter — sometimes they’re treated more harsh-ly — but we have a hard time just treatingthem like everyone else,” said Levenson,noting that judges and other officials can bestarstruck by a celebrity presence in theircourtroom — and the media glare that goeswith it. “I think people get worried whenthere’s a lot of attention focused on them inany regard, and if you have a celebrity casethere’s attention focused on you, so youtend to bend over backwards in either di-rection — either to be overly fair, or to notappear to be overly fair.

“I think it’s hard to just treat the celeb-rity like everyone else.”

Ruckriegle, in Kelley’s opinion, “wasreally overwhelmed by the intensity of thespotlight and his inability to maintain con-trol over it.”

What the judge failed to appreciate wasthat shutting down access “at this pointreally can’t remedy what’s already out there.

AP PHOTOS

Documents in Kobe Bryant’s rape case, including his statement to police, were keptunder seal by Judge W. Terry Ruckriegle.


It really just assaults the First Amendment,”Kelley said. “That’s the perspective Ithought was lost in this case.”

Not-so-civil proceedingsCourts have restricted public access to

civil cases as well as criminal. The goodnews is, the media is fighting back — andwinning.

Thanks to media intervention in a high-profile divorce case, Los Angeles SuperiorCourt Judge Roy L. Paul recently declaredthat a hastily passed law designed to shield

all divorce records that contain certain fi-nancial information violates the FirstAmendment.

Billionaire investor Ron Burkle had askedPaul, under Section 2024.6 of California’sFamily Code, to seal certain documents inhis divorce file that contained identifyinginformation about financial assets, “whichMr. Burkle interpreted to mean street ad-dress,” said media attorney Seager, whorepresented a coalition of press groups thatopposed the sealing request.

The media coalition relied on a 1999

California Supreme Court case involvingthe palimony contest between Clint East-wood and Sondra Locke, in which the courtheld that the First Amendment grants aright of public access to civil court proceed-ings and documents. (NBC v. Superior Court)

“These rights do not disappear merelybecause the proceedings involve wealthy,powerful public figures,” the media arguedin the Burkle case. “[T]o the contrary, thepublic’s interest in ensuring that equal treat-ment is given in such cases arguably is evenstronger.”

Dollar signs of the timesLocal court officials who once saw small press contingents

arrive in their communities to cover high-profile trials nowfrequently greet the descending media hordes with two words:Pay up.

Today the press pool covering the Michael Jackson sex abusetrial in Santa Maria, Calif., pays $1,500 a day in media “impact”fees to defray the county’s cost of hosting some 1,600 creden-tialed journalists. Media lawyer Theodore J. Boutrous Jr. esti-mated the press has already paid $100,000 to cover the case,which isn’t expected to go to the jury until sometime in June.

“It’s a whole new unfortunate world of covering trials,” saidspecial correspondent Linda Deutsch, who has covered courtsfor The Associated Press for more than 30 years. “It’s not whatI grew up with.”

In the old days, said Deutsch, a small corps of mostlynewspaper reporters traveled the country covering big trials.Today, the media — complete with satellite trucks, TV camer-as, lights, wires, microphones, soundstages, podiums and, ofcourse, lots and lots of people — set up a virtual tent city outsidea courthouse where a high-profile case is unfolding.

Running that mini-city costs money for overflow rooms,extra security, trash removal, even portable restrooms. Andpublic officials — as well as some members of the press — balkat passing those added costs along to taxpayers.

“After O.J. and after Court TV began, they [the news media]realized people were really interested in this, and that’s wheneverybody started committing to covering trials,” Deutsch said.“And that’s when people who were in these little towns wherethe press descended upon started to realize there was money tobe made.

“Obviously it costs them money to have us there as well, andwe were willing to pay for that,” she added. “But it’s gotten outof hand.”

When the murder trial of Scott Peterson moved from Modestoto San Mateo, Calif., county officials in San Mateo immediatelytold TV networks that it would cost $51,000 to secure an anchorposition on the plaza in front of the courthouse, said mediacoordinator Peter Shaplen, who served as the liaison betweenthe press pool and courthouse officials for the Peterson case. Henow has the same role in the Jackson case.

“That was the first example that I know where a jurisdictionsaid, ‘Hi, welcome to our community. Pay up,’” said Shaplen, aformer TV producer with 33 years in the news business.

The press ended up renting space in an adjacent building andpaying the county nothing, he said.

Not so with the Jackson case. The media and Santa BarbaraCounty officials originally negotiated a fee of $7,500 a day inMay 2004. Boutrous and Shaplen renegotiated to $1,500 earlierthis year. The cost is shared by the various broadcast and printoutlets that cover the trial.

Both Boutrous and Shaplen acknowledge concerns about theperception of charging money for access to a public courtproceeding.

“There’s a real aversion, as there should be, to paying tocover a public trial,” said Boutrous, a partner at Gibson, Dunn& Crutcher in Los Angeles who represents 10 news organiza-tions battling access issues related to the Jackson trial.

“It’s been a real challenge to strike that balance” betweenmaintaining a system to defray legitimate costs to the county,and making sure no one is denied access because they can’tafford to chip in, he said.

If you’re not a regular media presence at the trial, accordingto Shaplen, who handles billing, it costs up to $45 just to dropin for the day. (Unless you’re a local station or newspaper. Thenit’s free, by order of the county.) Shaplen stresses that the dailyfee is not an admission ticket to the courtroom, which contains47 seats for the media and 45 for the public.

“We conduct our courts in the open. Anyone should be ableto go in; there should never be a ticket cost. That’s not whatwe’re talking about,” he said.

What they’re talking about is the impact of a press corps that hasexploded in recent decades. Today you have a number of networks— CNN, CourtTV, even E! Entertainment — that thrive on courtcoverage, and have spawned generations of TV lawyers, as Shaplenpointed out. “Trials,” he said, “have become big media.”

“Who can afford to cover those trials?” Shaplen asked. “Whocan afford not to?”

So far no one has refused to pay the impact fee, he said,although some have grumbled about it. If someone flat-outrefused, they would not be barred from covering the trial,Shaplen insisted. “I would never put the pool into the positionof being a roadblock to the First Amendment,” he said.

But he would disclose their refusal to everybody else whoponied up, he said.

One of the challenges of the negotiations was persuading thecounty to make the fees reasonable while making the mediaunderstand what exactly they are paying for, according toShaplen. It’s an issue that’s not likely to go away.

“This is the dilemma that we face in contemporary trials, andI think we’re going to see more of it,” he said. — KK


Burkle hired a private temporary judgeunder a system in California disparaginglycalled the “rent-a-judge” system becauselitigants can hire their own judges to re-solve disputes, to try his divorce from wifeJanet. He persuaded the temporary judge,Stephen M. Lachs, to seal documents in thecase, although Lachs apparently lacked theauthority to do so. Lachs vacated the sealingorder in April after Seager argued that undercourt rules, only the “presiding” judge — inthis case, Paul — can issue such orders.

Section 2024.6 of California’s FamilyCode, which took effect in June 2004, re-quires a court to seal upon request anydivorce-related document that lists a per-son’s financial assets and liabilities and “pro-vides the location or identifying information”about such assets and liabilities.

“What is so dangerous about this law isit would allow people to just stick a piece offinancial information in a footnote, and askthe court to seal the entire document,”Seager, who intervened in the case on be-half of the Los Angeles Times, The Associat-ed Press and the California NewspaperPublishers Association, said. “In that waysomeone could seal every single pleadingthat was filed in a divorce case.”

Judge Paul invalidated the law because itis not narrowly tailored to protect sensitivefinancial data and it “unduly burdens” thepublic’s right of access to civil court pro-ceedings.

“The court concludes the statute is over-broad because it mandates sealing entirepleadings to protect a limited class of spec-ified material,” Paul wrote in his Feb. 28ruling.

He would have had to grant Burkle’srequest if the Times and AP had not asked tointervene, Paul wrote.

Attorney Patty Glaser, who representsRonald Burkle, said her client is appealingboth Judge Paul’s ruling that Family Codesection 2024.6 is unconstitutional and JudgeLachs’ decision to vacate his sealing order.

“I think the Court of Appeal will hope-fully see it our way,” said Glaser, a partnerat Christensen, Miller, Fink, Jacobs, Gla-ser, Weil & Shapiro in Los Angeles. Shesaid the law gives judges the appropriateamount of discretion to determine if what isbeing sealed qualifies as the requisite infor-mation under the statute. If documents areimproperly sealed, “any member of thepublic can get them unsealed,” she said.

Glaser said although Lachs agreed withthe media that as a privately paid temporaryjudge, he lacked the power to seal courtrecords, “he thinks the statute doesn’t gofar enough” — a view she personally shares.

“I really believe there is so much indiciain our society of privacy being eroded,”Glaser said, pointing out that a divorce

action compels parties to disclose personalinformation in a public forum. “I think thelaw needs to recognize that there needs tobe some parameters here.”

“I happen to believe there is far toomuch made of people’s private [lives.] Whyshouldn’t that be kept private?”

Protecting privacy, especially that ofhigh-profile people, is important becausedisclosure of such information can lead toproblems such as identity theft and kidnap-ing threats, Glaser said. She said Burkle hadto get a court order to restrain a “stalker”who was following him and his son.

The state legislature cited similar con-cerns when it hurriedly passed Family Codesection 2024.6 in June 2004.

“It is necessary that this act take effectimmediately as an urgency statute becausethe records that this act seeks to protectmay disclose identifying information andlocation of assets and liabilities, therebysubjecting the affected parties and theirchildren, as well as their assets and liabili-ties, to criminal activity, violations of priva-cy, and other potential harm,” a note to thestatute says.

The Los Angeles Times noted in courtpapers that the law was enacted “shortlyafter Mr. Burkle and his companies donat-ed $147,800 to the governor’s political com-mittees and the State Democratic party.”

Glaser said the Times has referred toFamily Code section 2024.6 as the “Burklestatute” without any basis in fact. She de-nounced any alleged connection betweenthe two as “defamatory.”

Glaser said Burkle “had nothing to dowith the passage of the statute,” adding thatif she was wrong and there was evidence tothe contrary, the Los Angeles Times shouldreveal it. Otherwise, she said, “please don’tthrow in scurrilous” accusations. She alsosaid the statute’s reason for being “is notrelevant to the issue” of its constitutionali-ty. The issue, she said, is “should the publichave [access to] very private information?”

The law applies to any party to a divorce,she pointed out. “Being rich doesn’t helpyou one iota,” she said.

She also denied that wealthy people en-joy special treatment by the courts.

“No, I don’t think rich people get moreprivacy. I think they get far less privacy,thank you very much,” she said.

But Seager said only the wealthy typical-ly can afford privately paid temporary judg-es like the one Burkle hired. According tocourt documents, Burkle paid Lachs up to$400 an hour for services rendered betweenNovember 2003 to December 2004, total-ing more than $73,000. Seager said Lachsalso presided over Michael Jackson’s di-vorce from ex-wife Debbie Rowe.

Under California law, privately paid tem-

porary judges act as a court of public record,and court rules mandate that the same pub-lic access requirements apply to the pri-vately paid judge’s proceeding as any othercourt proceeding, according to Seager.Glaser said that a member of the presswould be entitled to sit in on the hearings.However, when asked if notices of suchhearings are posted publicly, she said, “Notto my knowledge.” To find out about them,one would “ask the parties,” she said.

Because the hearings are often held be-hind closed doors, away from a courthouse,“the public and the press kind of lose trackof these things,” Seager said.

She said public oversight is particularlyimportant in divorce cases, which ofteninvolve issues such as child custody andproperty division that have significant andwidespread impact.

“These are very important, fundamentalissues that society has a stake in making surethat they’re being done fairly, and alsomonitoring the law that changes which ithas in this area,” Seager said.

Californians aren’t the only ones who’dlike to keep their divorce records secret.

While looking into the divorce of formerGeneral Electric chairman Jack Welch,Connecticut Law Tribune reporter ThomasB. Scheffey learned in December 2002 thatstate courts maintained a secret docketingsystem for certain cases. (See also “SecretDockets,” a Summer 2003 installment ofthis “Secret Justice” series.)

The Hartford Courant reported in Feb-ruary 2003 that for years, Connecticut judg-es had “selectively sealed divorce, paternityand other cases involving fellow judges,celebrities and wealthy CEOs that, for mostpeople, would play out in full view of thepublic. . . .” Among the files hidden in thesuper-secret system were a paternity actionagainst E Street Band saxophonist Clar-ence Clemmons and the divorce records ofUniversity of Connecticut President PhilipE. Austin.

The cases were filed according to threelevels of secrecy. Level 3 cases were publicexcept for certain sealed documents in thefile. Level 2 designation allowed disclosureof the parties’ names and case number, “butnothing more,” according to a June 2000memo to trial court administrators and clerksfrom Court Manager Judith D. Stanulis.

For Level 1, the highest degree of secre-cy, no information whatsoever about a casewas available to the public — it was simplyinvisible.

The media estimated that the courtsconcealed more than 10,000 cases usingthis cryptic system during a period thatspanned nearly 40 years.

In the Austin case, lawyer Eliot J. Neren-berg wrote to Superior Court clerk Krista


You arrive at the courthouse by7:30 a.m. and stay until 2:30 p.m.with no break for lunch. You getthree recesses, each lasting 10 or 15minutes, during which you may usethe bathroom, grab a snack or file astory. 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 allowedinside the courtroom. If you acci-dentally bring one in and, God for-bid, it goes off, you’re banished fora week. No exceptions.

Interviews? Absolutely prohibit-ed outside the designated areas. Evensaying hello to an official or justlooking at a lawyer can land you inhot water.

They call it the Melville Diet —a forced feeding by the judge pre-siding over the Michael Jackson tri-al. And the reporters covering thecase must stick to it, or else.

“This is a hard trial,” media pool co-ordinator Peter Shaplen said. “Jackson isbrutally hard. The schedule has beennot-so-laughingly called the Santa MariaDeath March. It has been referred to asthe ‘Melville Diet’ by the judge himself.It doesn’t give the media time to file astory, go to the bathroom and get some-thing to eat in 10-minute breaks. It’shard, really hard.”

So hard, said AP special correspon-dent Linda Deutsch, that it’s actuallycausing health problems for some.

And Judge Rodney S. Melville’s me-dia decorum order, limiting where thepress can go and whom they can speak to,is “a nightmare,” she said. Journalists’complaints that court personnel inter-pret the restrictions too broadly haveprompted a request to Melville to clarifythe order.

“We’re not allowed to talk to anybodyoutside the courtroom — we can’t talk tothe lawyers, we can’t talk to the fans,”Deutsch said. “They tell us that we havewhite badges, so we can talk to eachother, but you can’t talk to anyone withany other color badge. It’s unbelievable,it’s truly unbelievable. I don’t know whythey’re thinking this way.”

The veteran journalist wishes thatcourt personnel — whom she suspectsare acting under someone else’s orders —

would heed the wisdom of her late friendTheo Wilson of the New York Daily News,who used to say, “No reporter ever killed agood trial.”

“Reporters don’t cause trouble for offi-cials unless they are incited in some way, [if]the officials become so oppressive that youfeel like you may have to answer back atsome point,” Deutsch said.

“But in this one, everybody’s afraid toeven speak.”

Attorney Thomas B. Kelley, who repre-sented the media covering the Kobe Bryantcase in Colorado, said most judges are notaccustomed to the intense publicity thatsurrounds celebrity trials.

“I think when there’s media campedoutside, they have a sense of having tocontend with barbarians at the gate, if youwill,” said Kelley, who described the “mead-ows” of satellite trucks, tents, soundstagesand podiums that sprung up outside theEagle County, Colo., courthouse duringthe Bryant proceedings.

“It took the last generation of judges awhile to get used to TV. It’s going to takethis generation a while to get used to theproliferation of media that we now have,”Kelley said.

By all accounts, the press covering theJackson trial has conducted itself in anorderly, respectful manner. But somecourt personnel treat the press in a “de-

Keeping the beat on the Santa Maria Death March

meaning and unprofessional” way, saidLoyola Law School professor LaurieLevenson.

“Now I can understand the mediadoesn’t always behave itself, but I franklyhave been shocked, and I think it’s fairlyundeserving in that situation,” Levensonsaid.

Deutsch — who has covered hun-dreds of trials, starting with Charles Man-son’s in 1970 — says she’s never seen atrial quite like Jackson in terms of the waythe press is treated. The closest one, shesaid, was the 1972 trial of Angela Davis,a former UCLA professor charged inconnection with a shootout at the MarinCounty, Calif., courthouse that left fourpeople dead, including a judge. Deputiesmarched the reporters around with gunsdrawn, Deutsch recalled.

But “their concern was at least basedon something you could understand,”she said.

“The thing that bothers me the most,I think, is that the people who regulatethis case don’t seem to respect us aspeople who are doing a job,” Deutschsaid. “The mood that pervades every-thing is that somehow we’re there forfun. And it’s anything but fun. It’s themost grueling work that I have encoun-tered on a trial, ever. And that says alot.” — KK

AP PHOTO

Reporters wait outside the courthouse during the Michael Jackson trial.


Hess to inform her that the parties had askedJudge Linda Pearce Prestley to seal the file.

“We explained to Judge Presley [sic] theimportance of having this file sealed fromthe public because the defendant husband isthe President of the University of Connect-icut,” Nerenberg wrote in a letter datedMay 1, 2001.

Prestley, at their request, had sealed thecase under a Level 2 designation, “so that if[someone] put their name into the judicialdepartment computer, it would not evenshow up as a file,” Nerenberg wrote. Butthe lawyer soon realized that they meant torequest a Level 1 designation. He askedHess to correct the error and give the par-ties a code number they would need torecognize court motions when they ap-peared on the docket.

A handwritten note in the lower right-hand corner of the letter reads, “Per Gren-del, J. — Seal file @ level 1,” with the initialsKH and the date, May 2, 2001. HerbertGruendel was another Superior Court judgeat the time. He now sits on the state Appel-late Court.

“It’s crystal clear from this letter thatthere was no hearing. This was just a very. . . cozy relationship between the lawyersand the judge,” said attorney Daniel J. Klauof Pepe & Hazard in Hartford, who repre-sents the Law Tribune. “Why none of thejudges thought this was highly inappropri-ate is beyond me.”

The Courant and the Law Tribune suedthe chief court administrator and the chiefjustice in federal court to gain access tosummary information in Level 1 and Level2 cases. But a federal district judge dis-missed the case in November 2003, sayingthe defendants lacked power to alter sealingorders previously entered by other judges.

The media appealed to the U.S. Courtof Appeals in New York (2nd Cir.), whichruled last summer that the public has aqualified First Amendment right of accessto docket sheets. The court remanded thecase to the federal district court determinewhether, in each particular case, there wasa judicial order to seal the docket sheet.(Hartford Courant v. Pellegrino)

Since the system was uncovered, all buta few hundred Level 2 cases have beenunsealed, “so the fight now is pretty muchabout the Level 1 cases,” said Klau.

The judicial branch identified 185 Level1 civil and family cases as of December2002. Although the Connecticut SupremeCourt passed new court rules that abolishedLevel 1 secrecy in July 2003, the change didnot apply retroactively. About 42 cases re-main classified as Level 1, according toKlau.

He said U.S. District Judge RobertChatigny, who is now presiding over the

case, has received copies of the sealing or-ders in all Level 1 cases and some Level 2cases.

The judicial branch filed for summaryjudgment, claiming that the docket sheetsare covered by the sealing orders that havebeen provided to Chatigny. The media saysit needs to see the sealing orders to respondto the summary judgment motion.

“How do you challenge the legitimacyof a sealing order, and whether or not itapplies to a docket sheet, if you can’t evensee that?” Klau asked. He said he will moveto compel disclosure if the judicial branchrefuses to comply with the discovery re-quests.

No one knows which judges ordered“super-sealing” in the vast majority of theconcealed cases — “and the judicial branchdoesn’t want us to know,” Klau said.

He said the Courant and Law Tribuneasked, in front of Judge Chatigny, for thenames of those who signed the sealing or-ders, but lawyers for the judiciary wereadamant that the identities of those judgesbe kept secret. Ultimately the sealing or-ders were submitted to Judge Chatignywith the names of the judges who issuedthem redacted, Klau said.

How to fight itLawyers say the press has to be aggres-

sive in challenging court secrecy right fromthe start. Cases such as Richmond Newspa-pers, Inc. v. Virginia and Press-Enterprise Co.v. Superior Court (“Press Enterprise II”), inwhich the United States Supreme Courtdeclared the public’s First Amendment rightof access to court proceedings and docu-ments, provide the ammunition.

“I actually blame the media somewhat[for the secrecy in the Jackson case] becauseI think initially they backed down to JudgeMelville, thinking if they were complianthe wouldn’t be so tough. Wrong,” Leven-son said. “The media should be the mediaof the Press-Enterprise time, and the mediashould be constantly filing and appealingand asserting First Amendment interests —because if they don’t, no one else can.”

Boutrous, whose appellate brief says hisclients fought for public access “from thevery beginning” of the Jackson case, said itis important to take a strong position basedpurely on the law. “The law is very much onour side on these points,” he said.

At the same time, he advised, “do yourbest to get what you can as soon as you canget it.”

In addition to arguing vigorously in fa-vor of access, the media have tried to keepthe lines of communication open with thecourt and persuade Melville to disclose asmuch information as possible, Boutroussaid. As a result, the judge has been “willing

to listen to our arguments. He has changedhis approach, and as the case rolled on, hereleased more and more information,” hesaid.

Klau said if a reporter learns of a secretdocket, he or she should ask the court clerkto see the file. If a verbal request is denied,make it in writing. If the clerk still says no,the press has to decide whether to pursuelegal action.

The problem, he said, may be findingout about the secret case in the first place.

“At least in these high profile cases,whether it’s Michael Jackson or Kobe Bry-ant or Martha Stewart, the existence of thecase is a matter of public record, and thepress can challenge specific sealing orders,”Klau said. “But when the entire case disap-pears, unless you’re lucky and somebody’stelling you there’s something funny goingon, nobody knows.”

And as the public grows ever more inter-ested in high-profile cases, the press likelywill have to continue to wage the battle foraccess.

“It looks to me like trials are going to bean even bigger story than they’ve ever been,”Deutsch said. “People are fascinated withthem, and we have to somehow get a handleon this and get our message across that thepublic has a right to know what’s going onat trials. It’s as simple as that.

“I’m sure that most of the judges in thesehigh-profile trials would be very happy ifthey could have them private — have theirown private trial! But there are hugeamounts of money being expended, publicmoney, on these cases, and the justice sys-tem itself is on trial in these cases,” Deutschsaid.

“Trying to shut it down is not the an-swer.”

Cases cited:

ABC, Inc. v. Stewart, 360 F.3d 90 (2d Cir.2004)

Burkle v. Burkle, No. BD390479 (Cal.Super. Ct. Feb. 28, 2005)

Hartford Courant Co. v. Pellegrino, 380F.3d 83 (2d Cir. 2004)

NBC v. Superior Court, 980 P.2d 337 (Cal.1999)

People v. Bryant, No. 03 CR 204 (Colo.Dist. Ct. Aug. 3, 2004)

People v. Jackson, 2d Civil No. B176587,2005 WL 958201 (Cal. Ct. App. Apr.27, 2005)

Press-Enterprise Co. v. Superior Court, 478U.S. 1 (1986) (“Press-Enterprise II”)

Richmond Newspapers, Inc. v. Virginia, 448U.S. 555 (1980)

“Secret Justice: Secret Dockets” isavailable at www.rcfp.org/secretjus-tice/secretdockets

star treatment and public’s right to know

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