Monday, September 12, 2005
Media Attorney, Jurists Clash at CJA Panel on Court Secrecy
By a MetNews Staff Writer
SAN DIEGO — A prominent media attorney clashed repeatedly with judges on a panel discussing public access to court documents at the California Judges Association conference in Friday.
San Francisco lawyer Ed Davis of Orrick Harrington & Sutcliffe, after several efforts to reconcile his views with those expressed by retired Alameda Superior Court Judge Alfred Delucchi and Los Angeles Superior Court Judge Richard E. Denner, eventually conceded that his role was to bring “a little bit different perspective” to the panel, which also included Los Angeles Superior Court Judge Darlene E. Schempp.
The panel, titled “Judges Under Fire: Access, Closure and Sealing vs. Judicial Independence,” was moderated by Los Angeles Superior Court Judge Amy Hogue.
Delucchi, sitting on assignment, recently presided over the high-profile Scott Peterson murder trial. Denner, a family law judge, has handled divorces or custody battles involving Janet Jackson, Erik Estrada, Bruce Springsteen, Sylvester Stallone, and Leonard Nimoy, among others.
Schempp presided over the Robert Blake murder trial.
Denner noted that family law judges have broad power to seal records under Family Law Code Sec. 2024.6 if the records include financial details.
“Since almost everything in family law is finances, almost everything could be sealed,” he commented. The judge pointed out that the statute was recently held to be unconstitutional by Los Angeles Superior Court Judge Roy L. Paul.
The matter is now before the Court of Appeal, Denner said. He agreed with Davis that there are sound public policy reasons for making such information public.
“It is where those who have assets they shouldn’t have or debts they shouldn’t have get found out,” Denner said. “There are reasons for and reasons against, and I’m not sure how the appellate courts are going to deal with this.”
But Denner and Davis clashed over how best to deal with reporters’ questions when Hogue posed a hypothetical situation in which NBC Today Show host Katie Couric quizzed Denner about why he “always rules against celebrities.”
Faced with a question that cannot be answered without conceding a reporter’s assumption or getting into specific details of a pending case, a judge’s best tactic may be to “think politically,” Denner said.
“You need extreme discipline when you do this....You don’t have to respond directly to the issue. Brush off the part you don’t want to respond to.”
Davis took issue with that recommendation, recalling that as a young assistant U.S. attorney he was advised by a superior to always either answer a judge’s question or say directly why he could not answer it. The same strategy would serve judges well in dealing with reporters, Davis said.
“Don’t slough off the question, don’t evade it,” he urged. By responding as directly as possible, or explaining your hesitation to do so, a judge can win the respect and confidence of reporters and promote more accurate coverage of court issues, Davis argued.
That might work with some members of the media, but could be disastrous with other segments, Delucchi told the audience of about 200.
“Some parts are not particularly responsible,” the jurist commented. “You’ve got to take that into consideration. You’re not there to entertain the public.”
Protecting a defendant’s right to a fair trial can require orders restricting the ability of litigants and their representatives to speak to the media, Delucchi contended, noting that ensuring fairness is a judge’s first obligation.
But Davis said that such restrictions rarely contribute to fairness and can lead to inaccurate media coverage by cutting reporters off from sources knowledgeable about the case.
“Most of the time I don’t think gag orders achieve anything other than promoting confusion,” Davis declared, adding that they can contribute to “a certain degree to lack of knowledge about what’s going on.”
“Having access to a variety of information from the actual participants is helpful.”
As for fairness, Davis said the danger of prejudice from pretrial publicity is generally overrated.
“It is incredibly difficult in most counties in California to taint an entire jury pool,” the attorney asserted.
Davis also found himself outnumbered when the discussion turned to sealing records under Rule 243.1 of the California Rules of Court. Orders issued by Santa Barbara Superior Court Presiding Judge Rodney S. Melville sealing records in the Michael Jackson child molestation case were reviewed by Div. Six of this district’s Court of Appeal in April.
Melville’s order merely “parroted” the requirements listed in the rule and enumerated in U.S. Supreme Court cases for justifying secrecy, reciting without specific factual details that each was met, Davis said.
If as a litigator he submitted a similarly conclusory brief to one of the assembled jurists, Davis said, “You would, with good reason, throw the brief back in my face.”
But Hogue responded by displaying a slide with an excerpt from Div. Six’s ruling in People v. Jackson, 128 Cal.App.4th 1009, in which the court upheld most of Melville’s sealing orders. She said she had rarely seen a judge’s work praised by an appellate court in such unreserved terms.
“You are overruled,” she told Davis.
“It isn’t the first time,” the attorney responded.
A CJA spokesperson said 520 judges attended the conference, which was held at the San Diego Marriott through the weekend and featured a variety of educational sessions on topics ranging from dealing with cases that provoke wide public condemnation of a judge’s actions to using exercise to combat stress.
The State Bar of California also met at the Marriott, and at the San Diego Convention Center next door, over the weekend, and a statewide conference of judicial branch officials took place at the same time and in the same place. Altogether about 5,000 people were expected to attend, most of them attorneys earning MCLE credits by attending professional training sessions.
Copyright 2005, Metropolitan News Company