Defense files appeal of open-court ruling

August 21, 2003 

Defense attorneys turned to a state appellate court Wednesday in their bid to bar the public from Scott Peterson's preliminary hearing on double murder charges.

The defense asked the 5th District Court of Appeal in Fresno to overturn a decision by Stanislaus County Superior Court Judge Al Girolami, who last week said the defense had not met the legal threshold to exclude the public.

"Unless this court intervenes and closes the preliminary hearing, there will be no chance of obtaining an unbiased jury," defense attorney Mark Geragos wrote in a 28-page request filed Wednesday.

Short of ordering the hearing closed, the defense is asking the appellate court to order another hearing by Girolami to lay out why his decision is not in "direct conflict" with earlier rulings that imposed a sweeping gag order and sealed most documents in the case.

Peterson's preliminary hearing on double murder charges is set Sept. 9. At such hearings, the prosecution presents at least some of its case, and a judge considers whether there is sufficient evidence to hold a trial.

Peterson, 30, of Modesto, could get the death penalty if convicted of murdering his 27-year-old wife, Laci, and their unborn son, Conner.

The defense requested last month that the hearing be closed, saying pervasive media attention would taint jurors and potential witnesses.

Prosecutors took no official position on the issue in court, but District Attorney James Brazelton told The Bee in June that he wants to conduct a preliminary hearing in the case -- rather than indict Peterson through a closed grand jury proceeding -- to counter misinformation.

The defense has floated theories about satanic cults, a suspicious brown van and a mystery female witness.

News organizations opposed closing the hearing, arguing that open court proceedings are a critical element of the legal system and guard against potential abuse by prosecutors or judges.

The Bee and a group of other newspapers will oppose the latest defense move, attorney Charity Kenyon said.

In denying the defense motion to close the hearing, Girolami said that "the harm expected is speculative and not unlike that in other high-publicity cases."

A range of high-profile murder cases -- including the prosecutions of O.J. Simpson, actor Robert Blake and Yosemite sightseer killer Cary Stayner -- have included open preliminary hearings.

Girolami decided Monday that he will not allow television or still cameras in the courtroom during the hearing.

The judge struck a balance between the public's right to access and the defendant's right to a fair trial, said Ruth Jones, a former prosecutor and criminal law professor at McGeorge School of Law in Sacramento.

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