Metropolitan News-Enterprise


Tuesday, August 28, 2007


Page 3


Court of Appeal Limits Public Access to Grand Jury Transcripts


By a MetNews Staff Writer


The First Amendment right of access to court proceedings does not extend to grand jury transcripts, the First District Court of Appeal has ruled.

Div. One Friday overturned a San Mateo Superior Court judge’s order that would have forced public disclosure of the transcripts in the highly publicized shooting of a police officer.

The panel held that the standard for release of grand jury transcripts is that set forth in Penal Code Sec. 938.1, which provides for disclosure after an indictment issues, unless the court finds a “reasonable likelihood” that their release will prejudice the defendant’s right to a fair trial.

That standard, the court acknowledged, sets a lesser threshold for continued secrecy than the First Amendment, which the state and U.S. high courts have held guarantees the press and the public a right to access some judicial proceedings and prevents their closure unless the court finds that access will create a “substantial probability” of prejudice to a defendant.

The case was sent back to the trial court so that the judge could reconsider the order under the proper standard.

Presiding Justice James Marchiano, who wrote for the appellate court, said the trial court improperly decided the defendant, Alberto Alvarez, had to show a “substantial likelihood” of prejudice.

Officer Richard May was shot and killed last year. Alvarez was arrested a few days later.

The news media covered the case extensively and numerous articles appeared in print and on the Internet.

After the indictment issued, the trial judge ordered that the grand jury transcripts be given to the district attorney and the defendant, but remain sealed pending further order. Alvarez filed a motion to seal the transcripts until the completion of his trial.

The company that publishes the San Jose Mercury News opposed the motion, and the defendant replied by challenging the company’s standing to participate. A hearing was held on the issue.

The defendant presented two expert witnesses in support of his motion.

Both said that the amount of media coverage on the case had been extensive, that the defendant had been portrayed negatively, and that release of the grand jury transcripts would reignite public interest in the case and increase media coverage.

The trial granted the motion to unseal the transcripts, concluding that the public and press have a qualified First Amendment right of access to grand jury transcripts after an indictment has issued, unless doing so creates a substantial probability of prejudice. The defendant argued, and the court rejected, that he need only show a reasonable likelihood of prejudice.

Writing for a unanimous court, Marchiano disagreed with the trial judge.

“We conclude that Mercury News had standing to participate in the hearing, but agree with defendant that the court should have applied the reasonable likelihood standard of section 938.1, subdivision (b),” Marchiano said.

The newspaper company had standing because, according to Craemer v. Superior Court, a member of the public may petition or apply to unseal a record, Marchiano wrote. Unlike many other jurisdictions, California permits the release of grand jury transcripts to the public once an indictment has been returned.

“We noted in Craemer that a trial court may limit disclosure of grand jury transcripts in cases where doing so is necessary to limit pretrial publicity that could impair a defendant’s right to a fair trial,” Marchiano explained. It soon became apparent that there was a need for a procedure to determine whether and on what terms grand jury transcripts should be withheld from the public pending a defendant’s trial, he added.

The Legislature responded to Craemer by amending Sec. 938.1 in 1971 to include subdivision (b), he noted, explaining:

‘The [grand jury] transcript shall not be open to the public until 10 days after its delivery to the defendant or his attorney. Thereafter the transcript shall be open to the public unless the court orders otherwise on its own motion or on motion of a party pending a determination as to whether all or part of the transcript should be sealed. If the court determines that there is a reasonable likelihood that making all or any part of the transcript public may prejudice a defendant’s right to a fair and impartial trial, that part of the transcript shall be sealed until the defendant’s trial has been completed.”

The justice said that when deciding whether to release transcripts, a court must determine if such a release will jeopardize a criminal defendant’s right to a fair trial by exposing jurors or prospective jurors to prejudicial and inadmissible information about the case. According to case law, he ssid, there are two considerations to analyze when deciding to release transcripts: whether the place and process have historically been open to the press and general public, and whether public access plays a significant positive role in the functioning of the particular process in question.

Historically, there has never been a First Amendment right for the press and public to attend grand jury proceedings, he pointed out. . Additionally, the Constitution does not require that transcripts of completed grand jury proceedings be made available publicly, but it is permitted by statute, Marchiano said.

The case is Alvarez v. Superior Court (San Jose Mercury News, Inc.), 07 S.O.S. 5339.


Copyright 2007, Metropolitan News Company