When a Calabasas, Calif. home was searched as part of an investigation into allegations of child molestation by Michael Jackson, news organizations had to attriute wor dof the search to to anonymous or secondhand sources.
Neighbors had seen Santa Barbara deputies conduct the search, but a judge had sealed the warrant, the official record of what went on, the Los Angeles Times reports.
Secrecy has become common in A-list court proceedings. When a headliner lands in the dock, the government is increasingly restricting access to legal documents and hearings and imposing gag orders to silence lawyers and investigators.
Open courts and public scrutiny of the justice system are cornerstones of American democracy. But judges say the hush-hush measures are sometimes necessary to prevent news coverage from influencing the jury and thus damaging the prospects of a fair trial.
“It’s a balancing,” said David Horwitz, a recently retired judge who helped set access rules for the Los Angeles Superior Court during his 22 years on the bench. “Some judges believe that by issuing gag orders, by sealing documents, you preserve the information for the courtroom and the trial.”
Prosecutors and defense lawyers often agree.
“It’s partly because of a very substantial increase in the amount of coverage,” said E. Michael McCann, district attorney for Milwaukee County, Wis., who prosecuted serial killer Jeffrey Dahmer in 1992. He pointed to a boom in gavel-to-gavel trial reporting by cable outlets such as Court TV.
“There seems to be an insatiable appetite for these trials,” McCann said. “Trial by jury is not entertainment.”
Jack Earley, president of California Attorneys for Criminal Justice, an association of defense lawyers, said: “In some cases, there is an interest in not having everything going out to the public.”
The curtain-lowering trend has stung 1st Amendment advocates, who trace it to an anti-media backlash after the O.J. Simpson murder trial in 1995. They say that secrecy might have contributed to jury problems in high-profile trials, and that numerous appellate court decisions have reaffirmed openness in prosecutions not involving national security.
Those precedents hold that a watchful public is crucial to the competent and impartial administration of justice. But the precedents are being tested again and again in lower courts caught in the spotlight’s glare – high-interest cases like those involving Jackson, Martha Stewart, Kobe Bryant and the suddenly famous Scott Peterson, the Modesto fertilizer salesman charged with killing his wife, Laci, and the unborn son she was carrying.
“Despite the case law, it is becoming virtually routine to keep information from the public,” said Terry Francke, general counsel for the California First Amendment Coalition.