Peterson warrants to stay sealed

July 31, 2003 

Search warrants in the Scott Peterson double murder case will remain sealed indefinitely, a state appeals court ruled Wednesday, saying that releasing the information would trigger a media feeding frenzy and im- peril a fair trial.

"How a fair trial for both parties -- and particularly how an untainted jury could be found anywhere -- in the aftermath of such a frenzy escapes us," wrote a unanimous three-judge panel of the 5th District Court of Appeal in Fresno.

The 10-page ruling reverses Stanislaus County Superior Court Judge Roger M. Beauchesne's order to unseal eight search warrants secured before Peterson's arrest April 18.

It was the second time in less than three months that the court has overturned rulings by Beauchesne that would have made the warrants public.

Several attorneys who read Wednesday's ruling noted its occasionally sharp tone.

"So far as we are aware, the presumption of innocence is still a fundamental constitutional right available to all criminal defendants," the judges wrote before warning of "parades of 'experts' endlessly commenting" on television and elsewhere about "factual tidbits" if the documents are released.

The search warrants could lay out much of authorities' case against Peterson, who has pleaded not guilty to charges of murdering his pregnant wife, Laci, and their unborn son, Conner.

Judges issued search warrants for three places in Modesto -- the Petersons' Covena Avenue home, a warehouse that Scott Peterson used for his fertilizer sales business and a storage unit -- and for phone records, several vehicles and an envelope found in one of those vehicles.

Another warrant was issued for Peterson's "person"; police have said they used a warrant to obtain a DNA sample.

Affidavits among sealed items

Orders sealing the warrants indicate that the documents include affidavits outlining the Modesto Police Department's justification for the warrants and a list of items obtained.

Prosecutors and defense attorneys both had sought to keep the search warrant documents sealed.

The Bee filed a petition in March after judges sealed the documents, seeking access to what normally is made public within 10 days of searches.

Beauchesne ruled that the search warrants should be sealed until an arrest was made. The day Peterson was arrested, prosecutors asked the appeals court to overturn Beauchesne's ruling.

The appellate court on May 5 tossed out the portion of the ruling that said the warrants should be automatically unsealed when an arrest was made, and noted that an arrest did not mean that the actual perpetrator had been found.

Unsealing the warrants could alert "any potential suspect," the court wrote then. The ruling also stated that the documents could be unsealed once a "change of circumstance" occurred.

Other newspapers duplicated The Bee's civil action, and Beauchesne ruled June 12 that a change of circumstance had occurred.

He wrote that a "high level of publicity" accompanying the Peterson case "does not justify continued sealing."

By that time, Peterson had legal representation, Beauchesne noted, and access to other remedies intended to secure an impartial jury, such as moving the trial.

Sealing court documents is "the exception, not the rule," and the burden to justify it rests with the prosecution and defense, Beauchesne wrote.

The defense had persuaded Beauchesne to hear evidence of "the real killers" behind closed doors. But, "no evidence on the investigation of 'other suspects' was presented" at that hearing, Beauchesne wrote in his ruling.

Judge, appellate court split

As for prosecutors, Beau-chesne wrote that "the entire thrust" of their argument in

early April to keep the search warrants secret was to keep from alerting possible suspects.

That rationale disappeared, Beauchesne ruled, when Peterson was arrested, particularly since authorities have provided no evidence that they are investigating anyone else.

But the Court of Appeal disagreed, saying that "the investigation will continue" and it is reasonable to conclude that disclosing the documents "might compromise the investigation and the search for the perpetrator."

It is unclear whether the appellate court was privy to new information unavailable to Beauchesne. There was no mention in the ruling of new evidence being filed under seal to the court.

"Obviously the Superior Court and the Court of Appeal saw very different things when they reviewed the record," said Char-ity Kenyon, an attorney representing The Bee and other news organizations in the case.

"We're disappointed. This is a significant First Amendment issue," Bee Managing Editor Joe Demma said. "We'll be conferring with our lawyers to determine our next move."

The appellate court turned down a request by defense attorney Mark Geragos, and endorsed by prosecutors, to have Beauchesne removed from the case. The attorneys had sought to have all civil matters surrounding the case transferred to Judge Al Girolami, who is presiding over the criminal case.

Girolami has sealed a raft of documents in the matter, including the arrest warrant, autopsy reports and a post-arrest search warrant. He also has imposed a gag order forbidding people connected with the case from speaking publicly about it.

Bee staff writer John Coté can be reached at 578-2394 or jcote@modbee.com.

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