Metropolitan News-Enterprise


Thursday, April 28, 2005


Page 1


Michael Jackson Trial Judge Melville Acted Properly In Ordering Documents Filed Under Seal, C.A. Rules


By DAVID WATSON, Staff Writer


The judge in the Michael Jackson child molestation trial acted properly in ordering the grand jury transcript, search warrant affidavits and other documents in the case sealed, this district’s Court of Appeal ruled yesterday.

Presiding Justice Arthur Gilbert, writing for Div. Six, said Santa Barbara Superior Court Presiding Judge Rodney Melville “carefully balanced the defendant’s right to a fair trial and the public’s right to know” in making the decisions, which were challenged by NBC Universal, Inc., the parent of the NBC Television Network, and other media organizations.

“He displayed sensitivity and insight into these issues, and he made rulings that gave him the flexibility to maintain that balance in an ever-changing environment,” Gilbert declared.

But Gilbert said Melville went too far in ordering portions of the indictment which charged Jackson with child molestation and conspiracy to be kept secret. Jackson’s trial is now in its 13th week.

Gilbert noted that yesterday’s decision was the first published ruling to review a sealing order issued under Rule 243.1 of the California Rules of Court, and that the parties disagreed over whether Melville’s ruling should be evaluated under a de novo standard or only for abuse of discretion.

He also said the court was aware, though “notÖfrom the record,” that “most if not all” of the information sought by NBC had subsequently been leaked and was widely available over the Internet.

“We do not debate the notion held by some that appellate judges live in ivory towers,” Gilbert commented. “Such habitations, however, lack what is in abundant supply at sea level—sand in which to bury our heads.”

The court was deciding the appeal anyway because the attorneys involved said “an opinion that considers the appeal at the time the motions to unseal were made would establish useful precedent,” the presiding justice explained.

Rule 243.1 requires a judge ordering records filed under seal to make findings that there is an “overriding interest” that supports the action, that there is a “substantial probability” of prejudice to that interest from disclosure, that the order is “narrowly tailored,” and that no less restrictive means of protecting the interest exists. The order must “specifically set forth the facts that support the findings,” the rule provides.

Gilbert pointed out that the only previously published appellate ruling analyzing the rule—In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292—reviewed not an order sealing records but one which unsealed previously sealed records. The Providian court, dealing with a trade secrets case, described the procedure it would have used had the it been evaluating a sealing order:

“First we would examine the express findings of fact required by rule 243.1(d) to determine if they are supported by substantial evidenceÖ.Next, we would decide whether, in light of and on the basis of these findings, the trial court abused its discretion in ordering a record sealed.”

But those comments were dicta, Gilbert said, rejecting Jackson’s argument for a similarly deferential standard of review.

Providian’s rationale arguably is persuasive in applying an abuse of discretion standard of review when deciding the propriety of an order to unseal documents relating to trade secrets,” Gilbert wrote. “We doubt whether it is the appropriate standard when sealing the type of documents involved in the instant case.”

Instead, the presiding justice opined, the appropriate standard of review was provided by the U.S. Supreme Court ruling cited by NBC: Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485. That decision, and the state high court’s opinion relying on it in In re George T. (2004) 33 Cal.4th 620, conclude that “cases implicating First Amendment rights are subject to independent review,” Gilbert said.

Since Melville took no testimony and evaluated the demeanor of no witnesses in reaching his decision, “independent review” of his order is the equivalent of de novo review, Gilbert reasoned.

The presiding justice noted that “in many appeals the most contested issue is the standard of review, the route that often leads to the determination of substantive issues.” But despite finding that the standard of review for which NBC argued was the correct one, the appeals court yesterday upheld nearly all of Melville’s rulings.

Sealing the affidavit in support of the Nov. 18, 2003 search warrant issued for Jackson’s Neverland ranch was necessary to protect Jackson’s right to a fair trial and because the investigation was not yet complete, Gilbert said. He noted that some 65 more warrants were eventually executed at the Neverland property.

Disclosure would also have been embarrassing to the alleged minor victim involved in the current charges and to another alleged victim whom Jackson was accused of molesting in 1993, Gilbert said. Protecting minor victims of sex crimes from “the trauma and embarrassment of public scrutiny” is a reason for secrecy expressly countenanced by the state Supreme Court in NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, he noted.

The presiding justice added:

“The details of the crimes alleged are highly prejudicial. This, combined with the celebrity of the defendant, has created a torrent of pretrial publicity. Experience teaches that any new development in this case, real or imaginary, leads to intense media scrutiny. News sources from around the world—newspapers, magazines, radio, television and the Internet—are saturated with information (or disinformation) about the case. Unless one is a hermit, such information is hard to avoid. It is unlikely that potential jurors would not be influenced by exposure to the information NBC seeks.”

It would have been impossible for Melville allow release of a redacted version of the affidavit, Gilbert said, since “[b]enign information is inextricably intertwined with prejudicial information.”

But Gilbert said Melville was wrong to seal portions of the indictment and to redact from the unsealed portion more than the names of unindicted alleged coconspirators.

“The indictment summarizes the alleged acts that form the basis for the criminal charges against Jackson,” Gilbert declared. “Although unsealing it has the potential to prejudice Jackson, we believe that the general nature of the information contained in the indictment may be cured through appropriate admonishments to the jury.”

He noted that some of the information redacted in the version of the indictment released by Melville was revealed by prosecutors in open court at a hearing on Jackson’s motion to dismiss it.

Theodore J. Boutrous, Jr., William E. Thomson, Julian Poon, and Michael H. Dore of Gibson, Dunn & Crutcher represented the media organizations on appeal. Those organizations included, in addition to NBC, CBS Broadcasting, Fox News Network, ABC, CNN, the Associated Press, the Los Angeles Times, the New York Times, USA Today and the Washington Post.

Jackson was represented by Thomas A. Mesereau Jr. and Susan C. Yu of Collins, Mesereau, Reddock & Yu; Robert M. Sanger and Stephen K. Dunkle of Sanger & Swysen; and Brian Oxman of Oxman & Jaroscak.

The case is People v. Jackson, B176587.


Copyright 2005, Metropolitan News Company