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Allen transcript open, but on hold

The transcript of a grand jury hearing in the case of a Stockton man accused of killing a California Highway Patrol officer should be available to the public, a judge said in a written ruling.

But the record may not be opened un-til attorneys who represent Columbus Allen Jr. II have a chance to take the matter to a higher court.

Stanislaus County Superior Court Judge Hurl Johnson ordered a five-day stay, beginning Thursday. A defense attorney said he likely will take the matter to the 5th District Court of Appeal in Fresno.

The Bee had asked the court to release the transcript.

In a written opinion, the judge noted his duty to balance the public's right to know about a case involving a slain officer with Allen's right to a fair trial.

He said disclosure of grand jury proceedings will not make it impossible to find 12 impartial jurors.

"While the court is of the opinion that publicity on subject matters contained within the grand jury transcript will make jury selection more difficult, that is not a basis for sealing the transcripts," John-son said.

In most cases, defendants are held for trial after a preliminary hearing where prosecutors lay out their case in a public forum.

The district attorney's office presented its case against Allen during a closed-door hearing before a 16-member grand jury last month, after setting and resetting the preliminary hearing six times.

An indictment signed by the grand jury foreman charges Allen, 32, with first-degree murder, using a firearm in the commission of a crime and three special circumstances that could lead to the death penalty.

Allen is suspected of killing officer Earl Scott on Feb. 17, 2006, during a traffic stop on Highway 99 near Salida. Allen was taken into custody that day and has been jailed without bail since.

Prosecutors presented 27 witnesses to the grand jury, including a passing motorist who told police he heard a pop and saw the officer drop.

Transcripts of grand jury proceedings are sealed for 10 days after they are delivered to defendants and defense attorneys, then become part of the public record.

Allen's attorneys sought to seal the record until the end of his trial, saying the grand jury heard "inflammatory" testimony that may not be admis-sible at trial.

The district attorney's office did not take a position but filed legal papers that said the media's "commercial desire" could compromise jury selection.

An attorney for The Bee argued that the record should be open for public inspection.

The judge said the only basis to close the record is the "reasonable likelihood" or "substantial probability" that Allen could not get a fair trial if the public has access to pretrial proceedings.

He noted that litigation over the admissibility of evidence is routinely handled in open court, which the public and members of the media may attend.

He said publicity alone would not make it impossible to find 12 impartial jurors among the county's 512,000 residents.

"This court has been involved as a trial lawyer and as a judge in many so called 'high publicity' cases, and it has been this court's experience that a fair and impartial jury has always been found," Johnson said.

Mark Vasché, editor and senior vice president of The Bee, said he was pleased with the ruling.

"We've always believed that the more open our justice system is, the greater the public's confidence in it will be," Vasché said. "We will continue to be diligent in fighting for openness in all areas of government."

Defense attorney Ramon Magaña, who represents Allen, said he is considering a challenge to the judge's ruling. He said Allen is eager to prove his innocence.

"If we believe it is worthy, we will file a writ," Magaña said.

Bee staff writer Susan Herendeen can be reached at sherendeen@modbee.com or 578-2338.

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