Two diverse cases in Sacramento hinge on free speech issues

afurillo@sacbee.comDecember 3, 2011 

Richard Joseph Hirschfield is accused of the 1980 UC Davis "sweetheart" murders.

Flamboyant as usual, Sacramento defense attorney Linda Parisi made her way up and down the courthouse elevator Friday between two cases that seemingly placed her on opposite sides of the First Amendment.

In the morning on the third floor, the bangled Parisi argued for more than a half-hour to keep the press and public out of pretrial hearings in a sensational murder case that's on the cusp of going to trial after 31 years.

In the early afternoon on the second floor, Parisi appeared in another courtroom as part of a team of lawyers who are basing their defense of dozens of Occupy Sacramento protesters on grounds that the city has trampled on their free speech rights.

Parisi, in both instances, has raised the issue of "time, place and manner" restrictions on free speech and free press rights guaranteed under America's most fundamental amendment.

When it came to Richard Joseph Hirschfield, accused and facing the death penalty in the 1980 UC Davis "sweetheart" murders of John Riggins and Sabrina Gonsalves, Parisi asked Sacramento Superior Court Judge Michael W. Sweet to keep the press out of pretrial hearings.

Parisi based part of her argument on "time, place and manner" restrictions on the free press. She said the press could always look up transcripts of the hearings once a jury has been picked.

"Media access to the courtroom is always qualified" as a right, she said.

About two hours later, Parisi appeared in front of Judge Jack Sapunor, in Department 3. She was there on behalf of Occupy Sacramento protester Sarah Thomas-Prodan, accused of violating the city's curfew laws in the late-night October rallies in Cesar Chavez Plaza.

Like attorneys for the eight other protesters fighting the charges, Parisi has argued the curfew laws violated her client's free speech rights.

The City Attorney's Office has countered with nearly the same phraseology Parisi used Friday in the Hirschfield murder case: there is no absolute right to free speech, and governmental agencies can employ "time, place and manner" restrictions, for purposes of safety and civility.

Parisi said there are important distinctions between the two cases.

It would be "superficial," she said, to apply any sort of black-and-white analysis to her application of the restriction in Hirschfield compared to the government's use of it in Thomas-Prodan.

"The First Amendment is a cherished right, and to be well respected by the court and everyone," Parisi said in a hallway interview. "However, you have to do some balancing against an individual's right to a fair trial. That's one First Amendment analysis.

"Then we have a second First Amendment analysis when it relates to individuals expressing their right to assemble and their dissatisfaction with the government," she said. "It's a different analysis for time, place and manner. So the courts have directed us to address those situations differently, using different standards, so that's what we're doing."

Parisi argued there will be a "substantial probability" Hirschfield's fair trial right would be prejudiced if the press writes about "inflammatory" issues bound to come up in the pretrial hearings.

One of them might be the suicide note Hirschfield's brother wrote before he killed himself shortly after Sacramento County sheriff's detectives questioned him about the Gonsalves-Riggins killings. In the note, the brother blamed Richard Hirschfield. Deputy District Attorney Dawn Bladet wants the note admitted at trial. Parisi wants it out.

Another potential source of inflammation figures to be Hirschfield's criminal record. Prosecutors, who have filed a special-circumstance allegation that Hirschfield killed Riggins and Gonsalves during the course of a sex crime, want jurors to consider his three previous sexual assault convictions. The defense team would just as soon exclude it.

At Friday's hearing, attorney Karl Olsen, who represented The Bee's request to keep the hearings open, argued that their closure would represent "a drastic departure" from "well-settled" case law on the matter of open courtrooms.

Judge Sweet agreed the case law "is clear." He rejected the motion filed by Parisi and her co-counsel, Assistant Public Defender Ken Schaller.

Sweet also said from the bench he's likely to approve a a jury questionnaire to assess prospective panelists' attitudes and exposures to pretrial publicity, to weed out potential prejudice. Olsen said in an interview the judge "did the right thing."

"This case, in my mind, doesn't come anywhere close to being the kind of case where you take the drastic step of shutting the doors to the press and public," he said.

Motions in the Hirschfield case are scheduled to continue through next week and probably beyond. Attorneys have filed approximately 125 of them. Sweet so far has ruled on about 30.

Perhaps the thorniest is the defense motion to pursue third-party culpability against four suspects previously charged but then cleared by the Yolo County District Attorney's Office.

Meanwhile, in the Occupy Sacramento case, Thomas-Prodan and her eight co-defendants rejected settlement offers from the City Attorney's Office on Friday and had their trials scheduled for Dec. 13.

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