Open hearing for Peterson upheld

08/28/2003 9:00 AM

11/19/2007 1:40 PM

Scott Peterson's much-anticipated preliminary hearing on double-murder charges will remain open to the public and the press, a state appellate court ruled Wednesday.

Hoping to keep the hearing secret, Peterson's attorneys had appealed a local judge's decision favoring an open proceeding. The 5th District Court of Appeal in Fresno issued a one-sentence denial Wednesday.

Some legal experts said the move was expected, noting a long history of judicial preference for open proceedings. They include high-profile prosecutions of O.J. Simpson, actor Robert Blake and Yosemite sightseer killer Cary Stayner.

"Keeping it closed would keep the public ignorant of what's in the record, the exhibits and the testi- mony," said Terry Francke, general counsel for the California First Amendment Coalition.

It would be a long shot for the defense to appeal the ruling to the state Supreme Court, legal observers said.

Peterson, 30, is charged in the deaths of his 27-year-old wife, Laci, and their unborn son, Conner. Prosecutors are seeking the death penalty.

A court-imposed gag order has heightened anticipation for Peterson's preliminary hearing, scheduled to start Sept. 9. At the hearing, prosecutors are expected to unveil much of the evidence that has been under wraps, including information from sealed autopsy reports, wiretap recordings and search warrant affidavits.

Preliminary hearings conclude with a judge determining whether there is enough evidence to hold a suspect for trial.

Peterson's lead defense attorney, Mark Geragos of Los Angeles, had argued that exposing such evidence could hopelessly taint public opinion, and by extension, prospective jurors.

"Unless this court intervenes and closes the preliminary hearing," Geragos wrote in a court document, "there will be no chance of obtaining an unbiased jury."

Argument: Key to legal system

News organizations including The Bee argued against closing the hearing, saying open proceedings are a critical element of the legal system and guard against potential abuse by lawyers or judges. Stanislaus

County Superior Court Judge Al Girolami agreed two weeks ago, citing previous appellate court decisions that appeared to assume Peterson's preliminary hearing would be open.

Prosecutors took no official position in court, but District Attorney James Brazelton told The Bee in June that he favors a preliminary hearing over a closed grand jury proceeding. The open hearing, Brazelton said, would allow his prosecutors to counter misinformation with evidence that "might open some eyes."

Judge can use discretion

Prominent Los Angeles defense attorney Bradley Brunon noted that Girolami still can close sensitive portions of the hearing or seal exhibits or testimony.

Francke said that if the public were barred from the hearing and once it was over Girolami were to set Peterson free, "You could imagine most people's reaction."

Similarly, if Girolami ordered Peterson to stand trial after reviewing the evidence behind closed doors and if Peterson plea-bargained rather than go to trial, the public -- still in the dark -- might be outraged, Francke said.

"The so-called preliminary hearing may be the final one," Francke said. "If people are going to understand what happened, there may be just one chance to do so."

Bee staff writer Garth Stapley can be reached at 578-2390 or gstapley@modbee.com.

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