Judge muzzles both sides in Peterson case

06/13/2003 8:35 AM

11/20/2007 6:39 AM

Two local judges in the Peterson double-murder case came down Thursday on opposite sides of questions on court-imposed secrecy, one issuing a gag order and the other deciding to unseal search warrants.

Also Thursday, an appellate court in Fresno rejected media requests to prevent prosecutors from listening to wiretap recordings of telephone calls between accused killer Scott Peterson and newspaper and television reporters.

In the local rulings, judges revealed that:

Peterson's lawyers presented no evidence of "other suspects" in a June 6 closed hearing.

Much information from wiretaps on Peterson's phones and unidentified sealed documents is likely to be "irrelevant and/or inadmissible."

Citing "massive" media attention, Stanislaus County Superior Court Judge Al Girolami ordered attorneys and investigators on both sides not to talk publicly about most elements of the high-profile case.

The order extends to potential witnesses, law enforcement personnel, legal staff and court employees.

A few hours earlier, Judge Roger M. Beauchesne agreed with Bee lawyers that search warrants served on Scott Peterson before his April 18 arrest should be made public. But he said they will stay under wraps until July 8, the day after a court of appeal ruling on the issue is final and Beauchesne regains jurisdiction.

Prosecutors are seeking the death penalty against Peterson, 30, accused of the murders of his wife, Laci, and their unborn son, Conner. She was eight months pregnant when family members reported her missing on Christmas Eve. Both bodies washed ashore in mid-April along San Francisco Bay.

Both judges had sealed a range of court documents normally open to public review. Autopsy reports and wiretap documents, for example, remain closed despite media-led protests.

Fair trial vs. public disclosure

At odds are Peterson's right to a fair trial and press and public rights to information. Both rights are protected by amendments to the U.S. Constitution.

"It's a balancing test when you have two very fundamental constitutional rights in conflict," said Stanford law professor Miguel Mendez, who practiced law in Modesto three decades ago with California Rural Legal Assistance.

Prosecutors had favored a "limited" gag order muzzling attorneys, investigators and others close to the case, citing leaks they deem "false, misleading or biased." That was a reversal from April, when prosecutors refused to join Peterson's former lawyers in encouraging a gag order.

Defense attorneys, led by Mark Geragos, argued against any restraint, saying it would prevent them from countering four months of police-issued propaganda against their client. Gloria Allred -- representing Peterson's former girlfriend, a possible witness -- argued against the gag order because it might prevent her client from defending herself against attacks on her character.

And Charity Kenyon, a Bee attorney representing other media outlets as well, argued that judges have other options for ensuring a fair trial, such as sequestering jurors, bringing jurors in from another county or moving the trial.

But Girolami said such remedies may be ineffective in this instance, noting "the national television media has embraced this case with a passion."

"All of the rumors and gossip would be rehashed shortly before trial, thereby making it extremely difficult to select a fair and impartial jury," Girolami wrote.

He imposed a range of sweeping restrictions, including forbidding public comments about the "existence or possible existence of any document, exhibit, photograph or any other evidence" that could be admitted into evidence.

Parties also are directed not to identify prospective witnesses or make statements about the substance or effect of any testimony provided in court.

The order does allow people to quote or refer to public documents related to the case.

Rory Little, a professor at Hastings College of the Law and a former federal prosecutor, said a judge has to carefully oversee a gag order for it to be effective.

"Gag orders require management. You don't just write them and enforce them," Little said.

If there are breaches, gag orders open the possibility for violators to be held in contempt of court.

Explained Little: "The first time you yank somebody in and say, 'See the marshal over there? He's got handcuffs. They're for you unless you can demonstrate the leak didn't come from you.' Leaks seem to stop after that."

Ruth Jones of McGeorge School of Law, a former prosecutor, said gag orders have produced mixed results in the past. For example, news coverage continued practically unabated despite such orders imposed in the cases of Oklahoma City bomber Timothy McVeigh, the Robert Blake murder trial and O.J. Simpson's civil trial.

Gag orders, however, "might change the tone of what people are hearing," Jones said. "They will rely on people on CNN who have no knowledge of the facts of the case."

Search warrants to be released

Girolami's gag order overshadowed the ruling by Beauchesne to make public eight search warrants July 8.

Keeping them under wraps, as requested by prosecutors and defense attorneys, would be "unjustified," Beauchesne wrote in his decision.

Defense attorney Matthew Dalton last week 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.

As for prosecutors, Beauchesne wrote that "the entire thrust" of their argument in early April to keep the search warrants secret was to keep from tipping off other possible suspects before Peterson's eventual arrest.

That rationale disappeared, Beauchesne ruled, when Peterson was arrested April 18, particularly because authorities have provided no evidence since that they're investigating anyone else.

Sealing court documents is "the exception, not the rule," Beauchesne noted. He wrote that a "high level of publicity" accompanying the Peterson case "does not justify continued sealing."

Judges issued search warrants for the Petersons' Covena Avenue home, a warehouse Peterson used for his fertilizer sales business, a storage unit, 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 from him.

Bee Executive Editor Mark Vasché said he was disappointed with the gag order, but heartened that the search warrants might be unsealed.

"We believe strongly," Vasché said, "that justice ultimately is best served when proceedings are conducted out in the open, where they are readily accessible and available to the public."

Before Girolami imposed the gag order Thursday, Chief Deputy District Attorney John Goold said his office had not decided whether to appeal the decision to unseal the search warrants.

"There are so many different court appearances and rulings by judges in these things," Goold said, "that it's hard to get excited about anything one way or another. To be professional, you don't react happy or sad, you just deal with them."

Beauchesne did not rule on unsealing the arrest warrant, autopsy reports, a post-arrest search warrant and addenda to two other search warrants. That matter is before Girolami, who ruled last month to keep them sealed.

Mixed results for press freedom

Terry Francke, general counsel for the California First Amendment Coalition, hailed Beauchesne's decision and frowned on Girolami's. The coalition's mission is to advance freedom of the press.

Judicial secrecy is most prevalent with "horror stories," Francke said, "especially involving children or women and absolutely vile crimes. That's what moves the headlines -- and it's not lost on judges. They're not supposed to be editors, but the temptation is awfully strong to make a kind of editorial judgment to that effect, saying, 'This is just too much and I'm going to do everything I can to calm things down.'

"Often, what you have (as a result) is actually worse," Francke continued. "The stories don't stop. They just start operating on whatever people can put together, and often that's not as reliable as what's in the public record."

Bee staff writer John Coté can be reached at 578-2330 or jcote@modbee.com.

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


Thursday's developments

GAG ORDER -- Judge Al Girolami issued a gag order limiting public statements by people associated with the Scott Peterson case.

WARRANTS UNSEALED -- Judge Roger Beauchesne ruled that eight search warrants in the case should be unsealed.

REQUEST DENIED -- The 5th District Court of Appeal in Fresno rejected media requests to prevent prosecutors from listening to wiretap recordings of telephone calls between Peterson and reporters.


JULY 9 -- Hearing set on media coverage of the preliminary hearing and any potential defense request to close that hearing.

JULY 16 -- Preliminary hearing scheduled.

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