Secrecy proves costly

When the case against Laker superstar Kobe Bryant finally ground to its wasteful and melodramatic conclusion Wednesday, the prosecution’s explanation boiled down to this:

Excessive media scrutiny and fear of more to come had intimidated a long-suffering young victim into forgoing her day in court. Over time, that conveniently pat conclusion will harden into conventional wisdom in the minds of many judges and media commentators. It will become, in other words, “the lesson of the Bryant case.�

There is something to learn from this debacle, but it has nothing to do with media excess. The real problem in the Bryant case was not too much press attention or disclosure -- inadvertent or otherwise -- but too much legal secrecy. It was judicially sanctioned secrecy and the ability to hold things out of the public eye that allowed the prosecution to stagger forward with what clearly was, from the very start, an extraordinarily weak case. If you accept that, then it follows that more, and more-detailed, press coverage would have better protected not only Bryant’s rights but also the interests of the public in Eagle County, Colo., which now is stuck with the bills from this fiasco.

“The public often forgets that criminal prosecutions don’t proceed by rote, but by a series of decisions and judgments on the part of prosecutors,� said Jane Kirtley, the Silha Professor of Journalism and Law at the University of Minnesota. “Because so much that was important in this case was done in secret or filed under seal, the taxpayers of Eagle County are left to throw up their hands over this result. Even if they were following the reports in the press closely, they don’t yet have a clue as to what really went wrong.�

In fact, increasing judicial acquiescence to secret proceedings in cases involving celebrity defendants now poses a serious and immediate threat to the integrity of America’s criminal justice system.

Across the country and at all levels of jurisdiction, a malevolent fog of convenience and expediency is descending on our courts, denying the public its right to witness, through the surrogacy of a free press, the justice administered in its name.

Curtailing access

In some instances, the erosion of access is being checked. For example, when a coalition of news organizations challenged a federal judge’s decision to bar the press and public from jury selection in the Martha Stewart case, the U.S. 2nd Circuit Court of Appeals held that he had erred. “To hold otherwise would render the First Amendment right of access meaningless,� the appellate justices wrote, noting that open proceedings “protect rather than threaten the right to a fair trial.�

In the Bryant case, by contrast, the Colorado Supreme Court upheld the trial judge’s order restraining seven news organizations -- including The Times -- from publishing anything in sealed court documents accidentally transmitted to them by a clumsy clerk. The U.S. Supreme Court never has upheld such a prior restraint on the news media’s ability to publish or broadcast what it deems newsworthy, even when the information contained in the report has been obtained illegally. For now, however, the precedent established in the Bryant case ominously stands in Colorado.

Meanwhile, in Santa Barbara County, where pop star Michael Jackson has been charged with child molestation, what Kirtley calls “a virtually secret trial� is being conducted by Superior Court Judge Rodney Melville.

“This judge simply believes the public can’t handle information,� said Linda Deutsch, the Associated Press’ special correspondent and America’s premier courtroom reporter. “Judge Melville actually said that the only way to give Jackson a fair trial is hold everything that hasn’t been released so far in secret. We still don’t know, for example, what the 28 overt acts alleged in Michael Jackson’s indictment are. This trial has reached such a point of absurdity that even the motions to file motions are under seal.�

Deutsch, who covered the William Kennedy Smith rape case in Florida and O.J. Simpson’s murder trial, pointed out that, by contrast with the Bryant and Jackson prosecutions, both were carried out in full public view and ended in acquittals.

“Everyone wants to have a secret trial now, but it’s not the way the American system is intended to work,� she said. “Whether it’s Eagle, Colorado, or Santa Barbara County, the public is paying for these proceedings, but when this kind of secrecy is allowed, they don’t know whether they’re paying for a legitimate case or whether they’re paying for something that never should have been allowed to go on.�

Kirtley notes that the conduct of the Jackson case clearly demonstrates a growing legal trend in which “the defense and prosecution are in happy unanimity about the virtues of secrecy. A lot of judges are equally happy to go along. The only party left out of their harmonious little arrangement is the public, which is why you need the press.�

Attorney Theodore Boutrous, who represents a coalition of 10 news organizations -- including The Times -- that have petitioned the Court of Appeals to open crucial documents in the Jackson case, said that the defense, prosecutor and judge seem “united in seeking a blanket celebrity exception to the 1st Amendment.�

Boutrous said he has “never seen a case where fundamental documents such as the allegations contained in the indictment remain under seal. It is unprecedented and precludes the public from exercising its right to scrutinize the arguments.�

Two tiers of justice?

One of the most disturbing implications of this new judicial predilection for secrecy is its potential to promote further inequality. Deutsch, for example, has pointed out that the secrecy imposed in the Bryant, Stewart and Jackson cases “has some media experts and scholars warning that America is developing a two-tiered justice system -- one for celebrities and one for everyone else.�

As Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, asked, “Does the public understand what preferential treatment these [celebrities] are receiving from the system?�

At the end of the day, this level of courtroom secrecy becomes a kind of self-fulfilling prophecy. Attorneys and judges argue that their ability to impanel impartial juries and fair trials are compromised by excessive and sensational press coverage. But when the actual legal proceedings are closed and evidentiary documents sealed, even conscientious journalists have nothing to fall back on but leaks, often from self-interested parties -- and speculation, often ill-informed.

“The real danger of secret trials,� said Deutsch, “is that things leak out piecemeal anyway, and that becomes the basis for reporting. I’m trying to give the public an accurate picture of whether their justice system is working and I can’t be sure I’m doing that when things are done in secret.�

Boutrous puts the issue clearly: “Secrecy is not a protection because it fosters an atmosphere that is detrimental to the defendant’s rights and the state’s interests. Openness is the best protection.�

That’s the real lesson of the Kobe Bryant case. Do we really need to relearn it in the Michael Jackson trial?