Open Peterson hearing urged

08/01/2003 9:15 AM

11/19/2007 1:38 PM

A coalition of newspapers urged a judge Thursday to keep open the preliminary hearing for accused double murderer Scott Peterson, saying closing the proceeding would inflict a "loss of public confidence in the criminal justice system."

Prosecutors are expected to lay out closely guarded evidence at the preliminary hearing, which is scheduled for Sept. 9. At its close, Judge Al Girolami will decide whether there is enough evidence to proceed to trial.

District Attorney James Brazelton said in June that he wanted to conduct a preliminary hearing in the case -- rather than indict Peterson through a closed grand jury proceeding -- to counter misinformation.

Peterson, who is accused of murdering his wife, Laci, and the couple's unborn son, Conner, has asked a judge to close the hearing.

Lead defense attorney Mark Geragos warned that prosecutors could introduce bogus evidence during the proceeding.

Geragos also argued that widespread publicity would harm Peterson's right to a fair trial and tip off the "actual perpetrators" in the case.

But extensive publicity does not legally justify closing the hearing, countered newspaper coalition attorney Charity Kenyon in a legal brief filed Thursday in Stanislaus County Superior Court. The Bee is a member of the coalition.

Under California law, a preliminary hearing can only be closed if a judge finds it is essential to preserve the defendant's right to a fair trial, and closing the hearing will be effective in preserving that right.

Even then, the hearing cannot be closed if there are other means available to ensure a fair trial.

In the Peterson case, those remedies could include moving the trial to another county, delaying the trial until media attention has subsided or sequestering the jury, Kenyon wrote.

Open courts are an integral part of the justice system and serve as an invaluable deterrent against "corrupt or overzealous prosecutor(s) and ... compliant biased or eccentric judge(s)," Kenyon noted, citing the 1986 U.S. Supreme Court case that set the bar for closing court proceedings.

"The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed," Kenyon, wrote. "Public scrutiny is a primary safeguard of the defendant's rights."

Prosecutors have asked for the hearing to be open but to have cameras banned from the courtroom.

A hearing on the issues is scheduled for Aug. 14.

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

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