SPECIAL REPORT * As L.A. judges seek to limit media access to civil trials, journalists argue they are infringing on rights of the public. It comes down to a question of . . .Guaranteeing Free Press and Fair Trials

Judges of the Los Angeles Superior Court are challenging a higher court ruling which holds that news reporters, as members of the public, have a right to attend civil trials.

Arguing that the public and press have no constitutional right of access, the judges have angered journalists and media companies, which have accused them of engaging in an “unseemly” attempt to keep the public from its own courtrooms.

The judges counter that they need discretion to regulate access, so that they can minimize chances that the media will learn about inadmissible evidence whose publication could prejudice jurors and keep litigants from getting fair trials.

Revolving around the question of how to balance society’s interests in a free press and fair trials, the conflict is the latest in a long series between representatives of two powerful institutions with clashing purposes and styles.

The latest clash stands out because of the high degree of distaste for the media that normally restrained trial judges and their representatives have expressed. Their comments suggest that they remain upset over what many of them saw as the media’s intolerable excesses in covering the 1995 O.J. Simpson murder trial.

Concern about pushy media behavior in that case spilled over to a much-less-publicized celebrity lawsuit that became the launching pad for the latest controversy. That case, which reached trial about a year after Simpson was found not guilty, was brought by actress Sondra Locke, an ex-girlfriend of actor and former Carmel Mayor Clint Eastwood. She claimed that he plotted vengefully with a movie studio to harm her career.

The jurist in the Eastwood case, Los Angeles Superior Court Judge David Schacter, decided on his own, without any request from Eastwood or Locke, to take the highly unusual steps of kicking the public and the media out of his courtroom any time the jury was not present and of keeping the transcripts of what happened a secret until after the trial.

Schacter characterized his actions as a minor delay in making information available--a “very, very small intrusion on the 1st Amendment” guarantee that the government make no laws abridging freedom of the press. He argued that it was necessary because his primary obligation, as he saw it, was to enforce another constitutional guarantee, that of a fair trial.

When attorneys for KNBC-TV (Channel 4) and the Los Angeles Times protested that Schacter had an obligation to enforce both guarantees, and could have done so with more conventional approaches--such as warning jurors to ignore outside information or sequestering them--he dismissed their solutions as impractical and met their argument with obvious sarcasm.

According to a transcript of a hearing he conducted with the media lawyers, from which the public and the media were barred, Schacter characterized their claim as that of “a new 1st Amendment right [to] the dissemination of information for commercial exploitation.”

He briefly suggested that the media could pay to secure its right by footing the bill for sequestration, since the government could not afford to take that step. But he ultimately rejected sequestration as an undue hardship for jurors.

While discussing why other options would have been ineffective or undesirable, Schacter made a series of indirect references to the Simpson trial.

“As you know,” he told news media lawyers, “certain things have happened in the past couple of years that have put a whole new light on protecting juries.”

He also suggested a lack of faith in jurors, speculating that, if they were not sequestered but somehow managed to avoid a blizzard of coverage in supermarket tabloids and elsewhere, the customary admonition to avoid out-of-court information still would not work. Their spouses might use information garnered from the media to question them about the case, he said.

Schacter also indicated he was worried that sequestration might bias the jury and implied that it had in the Simpson case, implying further that he believed the jurors’ verdict in the Simpson case was incorrect.

“As we know from another infamous case--not this being infamous, but from another case--sequestration sometimes works to detriment,” he told the media lawyers.

KNBC lawyer Kelli Sager knew which case he was talking about. She responded that the Simpson case “was quite different . . . and whether or not sequestering a jury for nine . . . months ultimately works to the detriment of one of the parties, I don’t think that’s analogous to . . . this case. . . . I know of no [evidence that sequestering] a jury in a short-term case causes harm to anyone.”

Appeals Panel Overrules Judge

Within days, on Sept. 17, 1996, a three-judge panel of the California Court of Appeal overturned Schacter. The appellate court ruled that the public and press have a constitutional right to attend civil trials and told Schacter he should have used a less drastic alternative to make sure that press coverage did not prejudice jurors.

But by then, the trial was nearly over.

When transcripts of portions of the trial that had taken place outside the presence of jurors were released, they contained a couple of surprises.

In one instance, Schacter indicated he had an additional motive in excluding the news media--a personal desire to enjoy operating without the pressure and inconvenience of media scrutiny.

Schacter said as much in soothing an attorney for Locke, who complained a day after he issued his closure order that her adversary was maligning her reputation.

“Do you notice,” the judge asked her, “that I’ve made it so we can have these discussions, that we can say anything we want and there’s no press here? There’s nobody else here. Everybody can say what they want. That’s why we do it that way.”

The second surprise involved a claim of media excess. The bailiff reported that he had been told by a reporter that a man who had visited the courtroom carrying a baby was a paparazzi concealing a camera.

In their opinion on the Eastwood case, Court of Appeal Justice Paul Turner and two colleagues broke new ground in California law. Their opinion explicitly extended to civil trials the U.S. Supreme Court’s nearly 20-year-old decision that the public, including the news media, has a constitutional right to attend criminal trials.

The U.S. Supreme Court has implied that such a right extends to civil trials, but has never clearly stated it. The California Supreme Court has never addressed the matter.

Appeal Filed to State Supreme Court

Assistant Los Angeles County Counsel Frederick Bennett, who for years has functioned as the lawyer for the local Superior Court, showed Turner’s opinion to the Superior Court’s presiding judge and to other unnamed judges who felt, he said in a declaration, that it had “the potential for broad, adverse impact on the court’s operation.”

Bennett said these judges, whom he declined in an interview to identify, asked him to petition the appeals court to reconsider.

When the Court of Appeal declined, Bennett filed a pending appeal on the judges’ behalf to the California Supreme Court.

The presiding judge for Los Angeles Superior Court at the time, Gary Klausner, said in a brief interview that it would be inappropriate for him to discuss a pending case and, in any event, he could not remember much about it. The trial judge, Schacter, also declined to comment.

Bennett peppered his legal briefs with a recurrent phrase describing the dilemma facing the courts: How to cope with “modern press and broadcast mania.”

Asked in an interview to explain his use of the word “mania,” he said it grew out of his experience as the Superior Court’s lawyer in the “circus-like” Simpson case.

He said what he believes was the media’s excessive interest in that case showed itself in many ways, including fistfights over courtroom seating, dominance of courthouse hallways, frenzied competition to be first even at the expense of accuracy, endless “analysis and analysis of analysis,” the assignment of Pulitzer Prize-winning photographers to operate a remote-controlled still camera in the court, and coverage of sideshows as unconnected with the trial as an effort to extricate a cat from a tree across the street.

“I spent more days than I care to acknowledge at the O.J. trial,” he said. “Daily or weekly I had to put out some fire caused by the media, some disruption or something.”

Reporters who covered the trial for The Times acknowledged the frenzied atmosphere, but said that although they could recall some heated disputes about seats, they did not remember any coming to blows.

Media Blamed for Simpson Trial Costs

Bennett said that the media’s behavior in the Simpson case cost Los Angeles County millions of dollars in areas such as lost time, facilities and the need for added security.

“We are not trying to argue in any fashion that public trials are not an important, useful and essential part of our society and government and what makes it work well,” he said. “The press serves many useful purposes. What we are saying is that in the final analysis, courts are ultimately responsible to provide a means for the solemn and fair ascertainment of the truth. . . . It’s just wrong and unsupported by history to say that the also important right of the press vetoes that or is more important than that.”

That is the way these arguments usually turn. One side says--or at least seems to imply--that its constitutional right is more important than the other’s and the courts usually side with themselves, promulgating vague standards for trial judges to determine when the presumption that courts should be open can be overcome. The current standard, as set forth by the U.S. Supreme Court for criminal cases, holds that it “may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values.”

(News media lawyers are also urging that the court interpret a California statute in their favor. The law, dating from the last century, says that all but a handful of court proceedings are open. It was written to allow divorce, seduction or breach of promise of marriage cases to be heard in private. Judges counter that, despite the statute’s specificity, that they retain an “inherent” power to close any court case if they believe it necessary for a fair trial.)

KNBC, Times Seek Federal Standard

Lawyers for KNBC and The Times have urged the California Supreme Court simply to apply the federal standard to civil cases.

In doing so, they argue that contemporaneous access to civil cases advances important societal interests, such as protection from judicial tyranny and education of the public about its institutions. But they also acknowledge the court-ordered reality that one constitutional right must yield to another--in as limited a fashion as possible--when there is a clash.

Some legal commentators have challenged the wisdom of this kind of prioritizing of constitutional rights, noting that was one exercise the authors of the Constitution did not undertake.

These commentators suggest that the constitutional right requiring the government to safeguard a free press should be as inviolate as the right requiring the government to provide a fair trial.

The perceived clash between these rights could more often be resolved, they suggest, if society just put more faith in the ability and integrity of jurors to compartmentalize their knowledge.

In a speech last year at Santa Clara University School of Law, former Federal Communications Commission Chairman Newton Minow noted that, when the jury system began in 11th century England, the concept of a jury of your peers “meant--believe it or not--[people] who knew you. . . . If you were a stranger, you could not serve. . . .

“Somehow, over the centuries we’ve turned that upside down.”

Minow relied on humorist Mark Twain to describe the sometimes comical results.

“A noted desperado killed Mr. B., a good citizen, in the most wanton and cold-blooded way,” Twain wrote of his experience watching jury selection in a murder trial in Virginia in 1871. “Of course, the papers were full of it. All men capable of reading read about it, and of course all men not deaf and dumb and idiotic talked about it.”

One by one, Twain continued, all such men were excluded from jury service, even though they were known to be honorable and claimed they could put aside their knowledge and render an unbiased judgment on the evidence in court.

“Such men could not be trusted with the case,” Twain concluded. “Ignoramuses alone could mete out unsullied justice.”