Tuesday, September 23, 2008
Page 7
PERSPECTIVES (Column)
Judge Finds Younger in Contempt…a Badge of Honor, Taken in Context
By ROGER M. GRACE
Seventy-Second in a Series
EVELLE J. YOUNGER, while serving as district attorney—on Sept. 1, 1970, to be precise—was found in contempt of court. This was not on a par with a predecessor DA, Thomas Lee Woolwine, being adjudged in contempt for slugging opposing counsel in the courtroom, nor Ira Reiner, a successor, incurring a censure by the State Bar. Younger’s act reflected not contumacy but valor, and he wound up vindicated, and a hero to First Amendment advocates.
Younger had the notion that his office should provide factual updates on the status cases in the criminal justice system. He had no desire to argue for convictions by way of public statements or try to mould public sentiment, and no one has alleged that he did. But his self-assigned task of information dissemination was impeded by the proliferating use of gag orders, prohibiting lawyers from talking with the press.
The orders tended to be mindless overreactions to the U.S. Supreme Court’s 1966 decision in Sheppard v. Maxwell invalidating a murder conviction because pervasive and prejudicial press coverage trounced the defendant’s fair trial rights.
Younger’s battle against gag orders began not in the case in which he was found in contempt, but two years earlier. The case was People v. Sirhan Sirhan, the defendant being the slayer of U.S. Sen. Robert Kennedy. Sirhan shot Kennedy at the Ambassador Hotel on June 5, 1968, and the following day, before the presidential contender died, Mayor Sam Yorty disclosed to reporters at a press conference some non-public information on the suspect based on his notebooks. On June 7, then-Los Angeles Superior Court Judge Arthur Alarcon (now a senior judge of the Ninth U.S. Circuit Court of Appeals) issued an order re publicity which was promptly served on Yorty, but applied to all officials, lawyers in the case, court attaches, witnesses, and others. In general, it forbade public statements in connection with the proceeding.
Younger had been critical of Yorty’s public utterances, and said he would “do anything to stop” comments to the press that could put the prosecution’s case in jeopardy. On the other hand, Alarcon’s order barred even disclosures which could have no conceivable prejudicial effect.
On Sept. 10, Younger filed in the Court of Appeal a petition for a writ of mandate, seeking a directive that the gag order be lifted, or at least narrowed. His memorandum points and authorities charged:
“Never before in the history of American judicial relations with the public has the voice of responsible law enforcement been more effectively muted than in this case.”
Younger contended that “[i]mplicit in the constitutionally guaranteed freedoms of speech and press is the right of the public to be informed of all relevant facts of a major event.”
The judicial response? As then-Court of Appeal Presiding Justice Otto Kaus of this district’s Div. Five (later a member of the California Supreme Court) was to digress in the 1973 opinion dealing with Younger’s contempt adjudication, “What he got for his pains [in contesting the order] was mostly post cards: one from this court, denying his petition without issuance of an alternative writ, another from the California Supreme Court, denying his petition for a hearing.”
Kaus’ opinion also makes note of the United States Supreme Court’s published order of Dec. 16, 1968, which says, merely: “Petition for writ of certiorari to the Court of Appeal of California, Second Appellate District. [¶] Denied.”
Younger kept up his efforts to bring about a curbing of gag orders. Discretionary writ review not having proved an avenue leading to appellate consideration of his contentions, he tried a different route. At a press conference on Dec. 17, 1969, he virtually challenged Pasadena Municipal Court Judge John F. Hassler to find him in contempt after he openly and deliberately defied the judge’s secrecy directive, knowing that if Hassler accommodated him, he would have had a right of appeal.
“If the judge cites me for contempt this would be a good starting point” an Associated Press dispatch from Los Angeles quotes Younger as saying. “I think the whole thing should be considered by the Supreme Court.”
Hassler’s keep-mum fiat came in the case of a Los Angeles Superior Court judge, Lloyd Davis, who had been charged with assault with a deadly weapon after stabbing his wife in the back with a knife. The preliminary hearing had been held behind closed doors—which Younger did not contest because it was in consonance with the law, at least as California courts had construed it.
(Since 1872, Penal Code §858 has conferred a right of a criminal defendant to a cleared courtroom at a preliminary hearing upon “a finding by the magistrate that exclusion of the public is necessary in order to protect the defendant’s right to a fair and impartial trial.” Under case law existing in 1969, prejudice was presumed, so if a defendant asked for a closed hearing, the defendant got it. The U.S. Supreme Court in 1986 held that the statute must be applied so as to take into account the public’s conditional right of access. It decreed that a preliminary hearing “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.”)
At a press conference, Younger breached the order by disclosing that the judge’s wife declined to testify at the hearing; that Hassler found her in contempt, then rescinded the order; that expert medical testimony showed that the wound was not self-inflicted; and Davis was bound over for trial in the Superior Court.
The Van Nuys News and Green Sheet’s edition the next morning quotes Younger as saying:
“It is my feeling that the community is entitled to know what transpired at the time of that hearing once the defendant is held to answer in the Superior Court and to deny this information to public is to deny the First Amendment right to the freedom of fair expression.”
The article recites that Younger told reporters: “We never have and never will make comments prejudicial to any defendant,” and that he went on to note that the “most harmless comment” would be violative of the order.
The account in the Times that morning says that Younger scored “the ‘muzzling order’ which, according to Younger, is ‘invalid…bad law…bad logic…and absurd.’ ”
The AP account contains this quote:
“Taken together, the closed session and the gag order effectively prevent public review of a case….How do you insure that no hankey pankey has gone on if the media has no access?”
Later in the day on Dec. 17, Hassler announced he would not hold Younger in contempt because the DA’s disclosures were not prejudicial.
An editorial in the Dec. 19 issue of the Pasadena Star News says:
It’s a shame that District Attorney Evelle Younger’s dare wasn’t taken by Pasadena Municipal Court Judge John Hassler.
The DA, who has gagged on gag rulings before, had the magnificent intestinal fortitude to publicly reveal what went on at a closed preliminary hearing, even though Judge Hassler had issued an order against participants in the case—including prosecutors, defense attorneys and court attaches—making any statements regarding the testimony.
Although Younger begged to be cited for contempt so that a court test of such rulings could be made, Judge Hassler declined the challenge, as was his privilege.
….
Under different circumstances, public revelation of pre-trial facts can prejudice a trial. Invoking a gag rule in the Sirhan Sirhan trial may have served a good purpose, although Younger was opposed to it even then….
But it serves no purpose in the Davis case. The defendant is charged with assault with a deadly weapon, an extremely common charge in the daily work of the criminal courts. Only because Judge Davis is a well-known man and is accused of stabbing his wife is the case of anything but pedestrian interest. If it weren’t for the personages involved, the entire case would go unnoticed—as do dozens of the same nature.
….
[T]he district attorney is to be commended for attempting to do something about gag rulings and taking dramatic action to bring his concern into public focus.
An editorial the same day in the Fresno Bee opines:
The whole nation, the precept of justice and especially the press, owe Dist. Atty. Evelle J. Younger of Los Angeles County a debt of gratitude for defying a court gag order.
….
The big thing the public doesn’t understand is that the more you conceal concerning the administration of justice, the more you risk the integrity of the system.” The communications media overreacted to the case in Cleveland in which Dr. Samuel Sheppard was found guilty of murdering his wife. The United States Supreme Court set the verdict aside on the ground the sensational conduct of the press made it impossible for Sheppard to receive a fair trial.
Subsequently, much of the communications media began to grow fearful of publishing news outside an actual trial. Court and enforcement officers either through uncertainty or arrogance began to shroud many publishable facts in secrecy.
This sudden theft of the people’s right to know became so extreme the high court itself had to warn that the Sheppard case was an extreme example of a saturnalia of pretrial arrest and that the reactions to the case were in large part unwarranted.
Younger underscored this point.
Younger made yet another attempt to stave the routine issuance of gag orders. Again, a preliminary hearing was held in closed session and the judge issued a fiat that nothing be said as to what had transpired. The judge in this instance was Peter S. Smith, then of the Alhambra Municipal Court, later a Superior Court judge (and now retired).
After the defendant, Fred Senff, was bound over for trial on murder charges in connection with the claw-hammer slayings of his wife, son, and mother-in-law, Younger issued a press release containing these revelations:
“Fireman Ben Mathews of the San Gabriel Fire Department testified that he and other firemen were summoned to the home occupied by the defendant in the early morning hours of July 8, 1970. Mathews testified concerning his observations and actions at that time.
“Dr. Eugene Carpenter from the Coroner’s Office testified relative to cause of death of Gloria Senff, Edna Chapman and Kim Senff.
“Jenny Senff testified relative to her observations on the night in question.
“Dr. Benjamin Crue testified concerning his examination of Jenny.
“Sergeant Spiller of the Los Angeles Sheriff’s Arson Detail testified as an expert relative to the cause of the fire.
“Sergeant Rucker of the San Gabriel Police Department testified to certain statements made by the defendant before his arrest.
“Other evidence was introduced from additional witnesses which satisfied the magistrate that the defendant should be held for trial for three counts of murder, one count of attempted murder and one count of arson.”
There was nothing as to the substance of the testimony.
Smith on Aug. 21, 1970 ordered the district attorney to show cause why he should not be found in contempt. He acknowledged in his charging affidavit that the disclosures were nonprejudicial.
At the hearing on the contempt charge on Sept. 24, Smith fined the DA $50 and derided him for not being present…saying, according to report in the next day’s issue of the Times, that it was “strange conduct” for someone who wanted a hearing not to show up for it, calling it “amusing” and an “anomaly.” Younger was represented by Chief Deputy District Attorney Joseph P. Busch (who was to be his successor as DA) and Deputy District Attorney Harry Sondheim, the latter, inexplicably—since Younger sought a hearing—arguing lack of jurisdiction. In retrospect, since Busch and Sondheim were prosecutors, use of them as Younger’s defense counsel might be questioned.
In any event, Smith saw no defense. “Civil disobedience by the district attorney of the largest county in the United States is inexcusable,” the Times quotes Smith as saying.
Kaus did see a defense, one provided by Smith’s concession that the press release was not prejudicial. The Jan. 23, 1973 opinion reversing the contempt judgment says:
“While one must agree with Judge Smith that Younger’s press release was at least a technical violation of that portion of the order which prohibited ‘any statement outside of court as to the nature, substance or effect of any testimony that has been given,’ no plausible argument can be made that an order purporting to prohibit nonprejudicial, ‘sterile’—to use Judge Smith’s own apt description—statements of that kind should be upheld. Any power to interfere with everybody’s basic right to communicate which may inhere in a court for the purpose of insuring a fair trial to a defendant accused of crime is necessarily limited by its justification. When that court correctly determines that a particular utterance has no tendency to prejudice a pending criminal prosecution, but nevertheless punishes the utterer because he is in literal or technical violation of an order designed to curb potentially prejudicial pre-trial publicity, the court inferentially admits that the order covers more ground than the First Amendment allows—that it is overbroad.”
The decision was not as expansive as Younger had wished. Nor was it from as high a court as he hoped (the California Supreme Court having spurned a petition for review and the U.S. Supreme Court having denied certiorari). But he won…and the cause of public access to information as to what transpires in public courtrooms got a boost.
Younger’s actions played a meaningful role in bringing about a stemming of the then-prevalent knee-jerk issuance of judicial fiats that nothing could be spoken by persons connected with cases as to what had happened or was anticipated would occur in the proceedings.
Copyright 2008, Metropolitan News Company