Ventura County judges are failing to meet guidelines set down by the Supreme Court in closing murder trials to the public. Peter Scheer of the California First Amendment Coalition says that recent court rulings require judges to state their reasons in open court when they exclude the public. -DB
Ventura County Star
May 13, 2009
By Raul Hernandez
In at least three separate murder cases between 2006 and this year, Ventura County Superior Court judges excluded the public from their courtrooms in violation of the law, according to legal experts and court records.
Before closing the courtrooms, the judges failed to carry out a three-step procedure required by law and spelled out by the U.S. Supreme Court in 1980 to protect public access. The three steps are also set forth in an official handbook published by the California Judges Association.
Legal authorities say the issue carries significant concerns for the public, the press and defendants. In Contra Costa County, a man appealed his 1990 murder conviction on grounds that part of his trial was improperly closed to the public.
Attorney Peter Scheer, executive director of the California First Amendment Coalition, a constitutional rights advocacy group, said the pattern of closures in Ventura County raises troubling questions.
“It sounds like you’ve got a systemic problem,” Scheer said. “In criminal cases, everything that happens in the courtroom is supposed to be open to the press and the public, and everything that is filed in court is supposed to be accessible to the public.”
The U.S. Supreme Court directed that before a criminal trial or hearing is closed, the judge must make — and must articulate — three findings: First, there would be immediate and irreparable damage to a defendant’s right to a fair trial; second, no other alternative method exists to protect such right, including a change of venue; and third, the closure would be “effective to prevent prejudice.”
How often the courtroom doors are closed is anyone’s guess because there are no logs or reports that have to be filed by judges to state authorities. Closures typically are done at the request of attorneys.
Ventura County’s presiding judge said he trusts his judges to follow the law. Court closures must balance the defendant’s right to a fair trial and the public’s right to have access to a trial or a hearing, said Superior Court Presiding Judge Kevin McGee.
“The decision to close the court is made by a judge based upon the evidence and testimony that he or she has on a case,” McGee said. “This evidence is provided by the parties in the case.”
McGee believes that holding a public hearing and giving specific reasons why a portion of a trial or hearing is going to be closed would defeat the purpose of the closure. He said it denies the defendant a right to a fair trial.
McGee said a judge only has to rule in public that he or she has evidence to close the courtroom before doing so.
“Those ‘statements of fact’ can be sealed and later, if necessary, be reviewed by an appellate court if the closure is later challenged by the media or a citizen,” McGee said.
Scheer strongly disagrees, citing the 1980 U.S. Supreme Court case, Richmond Newspapers vs. Virginia, as the legal authority governing courtroom closures, along with two California cases: Press Enterprise I vs. Superior Court and Press Enterprise II vs. Superior Court.
“What these cases say is that courtrooms can only be closed for compelling reasons and that a judge has to make a specific, factual finding about the compelling reasons for closure in open court,” Scheer said.
The procedure is detailed in the handbook “The Courts and the News Media,” produced by the California Judges Association and sold on the association’s Web site. George Albor, administrative staff assistant with the association, said the publication is in its seventh edition.
According to the handbook, the Supreme Court noted four benefits in keeping courtrooms open: enhancing public confidence in the trial process, serving as a check on abuses in the judicial system, promoting the “truth finding” function, and producing “a community catharsis following a serious crime.”
Two Ventura County judges presided over the three cases in which court records give no indication that the three-step procedure was followed. The omissions also were verified by a reporter for The Star while covering the cases.
The most recent example occurred this year during the prosecution of Randolph Kling, a San Bernardino County man who was found guilty this month and is expected to be sentenced in June for two counts of first-degree murder for killing two Simi Valley men.
Superior Court Judge Rebecca Riley ordered courtroom closures twice during the capital murder trial and, briefly, to talk to a juror before the trial began.
The Star’s reporter asked the judge to have the newspaper’s lawyer present to legally challenge the second courtroom closure. The judge denied the request.
Contacted recently in connection with this article, Riley declined to comment on the case, citing pending litigation. She did, however, say that in criminal cases where there is a motion made by a lawyer, she applies the facts to the law and does her best to follow the law.
Riley also ordered a court closure in the Jermaine Robair murder case on March 3, 2008, after the defense lawyer and prosecutor agreed to lock the courtroom. Subsequently, Robair was sentenced to life without parole for the 2006 murder of a welding inspector at the Santa Clara River bridge construction site.
A series of court closures occurred in the prosecution of Ernesto Charles Hall and Ivan Stine, who were charged with the drug-related killings of two Oxnard men amid allegations of possible ties to criminal street gangs and prison gangs.
In that capital murder case, Judge Brian Back closed the courtroom several times during a preliminary hearing in August 2006 despite oral opposition by The Star’s lawyer, Ron Bamieh, and two court observers.
Bamieh said Back’s decision went against the “fundamental tenants of our legal system.”
Back closed the courtroom during the entire closing arguments involving the two suspects, who now are serving long prison sentences.
In the preliminary hearing, the defense lawyers agreed to the court closure. The judge didn’t hold a finding-of-facts hearing.
Back didn’t return a reporter’s phone calls seeking an interview or a comment for this article.
Criminal attorney Jay Leiderman, who was not involved with the case of Hall and Stine, said he was surprised that the public and the press were excluded from the entire closing arguments. Although that can be done, a judge must first conduct a finding-of-facts hearing in open court, Leiderman said.
Improperly shutting out the public and media from a criminal trial can deny a defendant’s Sixth Amendment constitutional right to a speedy and public trial, which could be the basis for an appeal, Leiderman said.
Scheer said some judges believe it’s OK to lock out the public if the lawyers agree to the closure.
“It is not,” Scheer said. “Because that leaves out one other important party, and that is the public.”
The Star recently sent e-mails to county judges asking them about the policies and procedures they would follow when they believed a hearing or a trial should be closed. While most didn’t respond or declined to comment, the few who did offered varied comments.
Judge Kevin DeNoce said he is a strong supporter of the public’s right to access the courts and the First Amendment right for the press to cover the proceedings. DeNoce said he has closed a courtroom only for a Marsden hearing — when a defendant claims his defense lawyer is ineffective and wants to fire him.
The judge said the policies and procedures to close courtrooms are spelled out in case law and statutory law.
Judge David Long said judges work “diligently and scrupulously” to follow the law, “balancing competing rights according the applicable statues and appellate authority, when those competing rights are at issue.” He declined further comment.
Other judges said they haven’t presided over a criminal case where this issue has come up.
Scheer said the public and the press shouldn’t have to hire a lawyer to file a motion to challenge a closure. “Instead, judges should be sensitive to these issues and apply the constitutional standards,” he said.
Copyright 2009 E.W. Scripps Co. Ventura County Star