Press-Enterprise Co. v. Superior Court of Cal., County of Riverside

PETITIONER:Press-Enterprise Co.
RESPONDENT:Superior Court of California for the County of Riverside
LOCATION:Superior Court of California, Riverside County

DOCKET NO.: 84-1560
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: Supreme Court of California

CITATION: 478 US 1 (1986)
ARGUED: Feb 26, 1986
DECIDED: Jun 30, 1986
GRANTED: Oct 15, 1985

ADVOCATES:
Joyce Ellen M. Reikes – on behalf of the respondent
James D. Ward – on behalf of the petitioner

Facts of the case

A nurse in California was charged with killing 12 patients by administering massive doses of heart medication. During a preliminary hearing in the Superior Court of California, Riverside County, the nurse moved to exclude the public. California law requires preliminary hearings to be open to the public unless a closed hearing is necessary to protect the accused’s right to a fair trial. The judge granted the motion because of the the national publicity surrounding the case. After the hearing, Press-Enterprise Co. requested a transcript of the proceedings. The court denied the request because the transcript might prejudice the nurse’s right to a fair and impartial trial. Press-Enterprise filed a preemptory writ of mandate in the California Court of Appeal, but the court denied the writ. The California Supreme Court also denied the writ, holding that the First Amendment does not guarantee a right of access to preliminary hearings. The court also held that once the accused establishes a “reasonable likelihood of substantial prejudice”, the burden shifts to Press-Enterprise to show there is no reasonable probability of prejudice.

Question

(1) Does the public’s constitutional right to access criminal proceedings extend to pre trial proceedings?

(2) Does the standard for closed preliminary hearings under the California Penal Code violate the constitutional rights of the public?

James D. Ward:

It does occur that the defense will put on a case, and most assuredly there is cross examination.

Joyce Ellen M. Reikes:

–The press in a suppression of evidence hearing under Waller, the way I read it, does have that First Amendment right.

James D. Ward:

I think it is fair to say that it is used as a time to test the prosecution’s case, Justice Rehnquist.

So, to the extent that the preliminary hearing involves motions to suppress, there has to be a different result?

But do you have grand juries in California?

Joyce Ellen M. Reikes:

If a preliminary hearing encompasses a motion to suppress, in other words, if one is made during the course of the preliminary hearing, certainly a motion can be made to open that portion.

James D. Ward:

Yes, we do, Justice Powell.

Joyce Ellen M. Reikes:

Because the suppression hearing unquestionably is different than the preliminary hearing itself.

And how do they function in relationship to the preliminary hearing?

Joyce Ellen M. Reikes:

There, like a trial, both sides have the incentive to prevail.

James D. Ward:

Grand juries in California are deemed by our Court to be nothing but extensions of the arm of the prosecution, and even though a grand jury may indict in a given case, the California Supreme Court has held that a defendant is entitled also to a preliminary hearing.

Joyce Ellen M. Reikes:

I believe the Court pointed this out in Gannett.

James D. Ward:

In all instances is a felony prosecution a defendant is entitled to a preliminary hearing in California.

Joyce Ellen M. Reikes:

Both sides have the incentive to prevail, whereas at a preliminary hearing you do not have this two-sided presentation of evidence.

What is the result of the preliminary hearing?

Joyce Ellen M. Reikes:

There is not the two-sided, the bilateral incentive to prevail.

James D. Ward:

The result of the preliminary hearing, Justice Marshall, is simply to hold the defendant to answer or not hold the defendant to answer to the Superior Court for trial of the action.

Well, yet, the defendant surely has an incentive to ask the magistrate to hold there is no probable cause to bind over.

Similar to the indictment?

Joyce Ellen M. Reikes:

Unquestionably that’s true.

James D. Ward:

Yes, the–

Joyce Ellen M. Reikes:

However, this is an early stage of the proceedings where the district attorney… the prosecutor may have taken some months in building his case to the point where he files a complaint, seeks an arrest and so forth, where the defendant is newly arrested.

It’s just about duplicative of the indictment?

Joyce Ellen M. Reikes:

A preliminary hearing in California may take place as early… it doesn’t often, but it may take place under the statute as early as two days after arraignment, at which time the defendant hasn’t really had a chance to prepare his defense.

James D. Ward:

–It is duplicative–

Joyce Ellen M. Reikes:

And so, if the defendant is sitting there at a preliminary hearing and he’s pretty sure, or his counsel is, that he is going to be bound over, he is not going to, as Mr. Diaz did not, put on witnesses.

No, no, except both sides can fill in?

Joyce Ellen M. Reikes:

Mr. Diaz did not put on, not one witness.

James D. Ward:

–That is true.

He may not go all out to do the best he can to prevent himself from being bound over but he will at least hold that the magistrate determines there is no probable cause, don’t he?

Under this claim–

He wants that outcome.

–During the preliminary hearing, can motions to suppress be made?

Joyce Ellen M. Reikes:

Certainly.

James D. Ward:

Yes, Justice Powell.

Joyce Ellen M. Reikes:

Interestingly, there was an article in the Riverside Press-Enterprise just last week.

And ruled on?

Joyce Ellen M. Reikes:

There is an elementary schoolteacher, a male teacher in Riverside right now, who has been accused by a complaint from the district attorney of child molestation of some 20 or so young children, and his attorney in speaking to the newspaper reporters told them that,

James D. Ward:

Yes, and frequently they are.

Joyce Ellen M. Reikes:

“This time in the preliminary hearing we’re going to do it differently.”

How about a motion to dismiss?

Joyce Ellen M. Reikes:

“We’re going to go for a dismissal.”

James D. Ward:

A motion to dismiss on the basis of the furtherance of justice may be made.

Joyce Ellen M. Reikes:

“We’re going to put on a full case.”

James D. Ward:

The magistrate has that power as well, and it does occur.

Joyce Ellen M. Reikes:

So, apparently the putting on of the full case at the preliminary hearing is the exception rather than the rule, at least in our neighborhood.

What is the difference between a preliminary hearing and a trial?

I don’t think defense counsel will agree with you at all.

James D. Ward:

Merely that in the trial there is a determination by the jury, if a jury is called for, for the determination of guilt or innocence.

You are saying that they lay down on the job?

But the burden of proof is different?

Joyce Ellen M. Reikes:

No, Your Honor.

James D. Ward:

The burden of proof is the same.

Joyce Ellen M. Reikes:

I’m not saying that they lay down on the job, no.

Oh, really?

I misunderstood you.

James D. Ward:

The presentation on the part of the prosecution is literally identical in the proceedings.

You said that the prosecutor was out to do this, he did like… but the defendant just went along?

James D. Ward:

It’s a test run, as it were, of the case.

Joyce Ellen M. Reikes:

The defendant does that, as I understand it, and as I understand it from real party in interest brief, as a matter of defense strategy, the purpose being to save his case for trial.

Does the magistrate have to find probable cause beyond a reasonable doubt?

Joyce Ellen M. Reikes:

When he is in a situation–

James D. Ward:

No, I stand corrected on that.

You mean that if he has a chance of getting his man off at the preliminary he will not do it?

James D. Ward:

The magistrate does not have to find probable cause beyond a reasonable doubt, but so far as the evidence that may be presented and the test of the evidence, it is the same in a preliminary hearing.

Joyce Ellen M. Reikes:

–No.

Yes, but the prosecutor needn’t put on more evidence than he thinks necessary to show probable cause?

Joyce Ellen M. Reikes:

I would think… I can’t speak for defense counsel and I’m not a criminal lawyer, but I would think that if any counsel has a chance of getting his client off at the preliminary hearing he would go for it.

James D. Ward:

That’s quite true, Justice White.

Joyce Ellen M. Reikes:

I would.

And often the defendant never puts on any evidence at all?

In that connection, I think you told as earlier that there might be a preliminary hearing following an indictment if the accused wants it?

James D. Ward:

Oh, that’s quite true as well.

Joyce Ellen M. Reikes:

That’s right.

James D. Ward:

Yes, certainly, it is often simply a prima facie showing on the part of the prosecution, but equally as often, I think, although there’s no empirical data to establish one way or another, the prosecution will put on its entire case, the reason being that in 90 percent… the exact figure varies from year to year… of cases there is no trial of the action and the evidence that is presented at the preliminary hearing is the case that is brought before the court for all purposes at that point.

Now, what happens if at the preliminary hearing he’s told the action will be dismissed?

You mean, then there’s a guilty plea or something, a plea bargain?

What happens to the indictment?

James D. Ward:

Yes, Justice O’Connor, that’s precisely the point.

Joyce Ellen M. Reikes:

I’ve never met the situation and I hesitate to answer because I… if you will take it in the context that I am not sure, I would imagine the indictment would be quashed but I don’t know for certain.

Mr. Ward, is there any other state to your knowledge in which a grand jury indictment must be followed by a preliminary hearing, as in California?

Are you saying you do not know of any case where the preliminary hearing resulted in negative for the prosecution?

James D. Ward:

I’m sorry–

Joyce Ellen M. Reikes:

I’m not personally familiar with one, Your Honor.

I’ve not heard of another state.

Then it would seem that the preliminary hearing has a limited utility?

James D. Ward:

–I’m sorry, Justice O’Connor.

Joyce Ellen M. Reikes:

I think it has a utility again, the same way it did at common law.

James D. Ward:

I don’t know the answer to that.

Joyce Ellen M. Reikes:

I don’t know what the statistics are as far as how many dismissals result from preliminary hearings and how many people are bound over, percentage wise, but I think it still has tremendous societal interest, in being a check on the prosecutor in terms of cutting off unwarranted prosecutions.

James D. Ward:

I’m not certain whether there are others.

Joyce Ellen M. Reikes:

It certainly is a discovery proceeding for the defendant in terms of seeing the demeanor of the district attorney’s witnesses and so forth, and some of his case.

Do you argue that the grand jury proceeding must be open to the press?

But if it has a tremendous societal interest, why shouldn’t it be open?

James D. Ward:

No, we do not argue that at this point.

Joyce Ellen M. Reikes:

Not every interest, Justice Blackmun, is… should be embellished, or worthy, or elevated to a constitutional right.

But you’ll be back next year to argue?

Joyce Ellen M. Reikes:

We do not here see a basis for declaring a constitutional right, either in history or in the Constitution itself.

James D. Ward:

I think we had this exchange once before, Justice O’Connor.

Joyce Ellen M. Reikes:

There are a number of interests in this country that are passionate interests in this society, that have never been elevated to a federal constitutional right.

James D. Ward:

No, indeed, there is no… our position is very simply that we’re dealing here with judicial proceedings.

Joyce Ellen M. Reikes:

This Court in San Antonio versus Rodriguez in 1973 spoke of public education and found that it is not a right.

James D. Ward:

We are concerned here, of course, with a preliminary hearing.

We’re talking about the Bill of Rights here.

Well, a grand jury proceeding can be characterized, many of the same attributes that you attribute to the preliminary hearing.

Joyce Ellen M. Reikes:

I realize we are, and perhaps it was a bad analogy.

James D. Ward:

Well, I suppose that is true in certain instances but so far as the scope of what we claim, Justice O’Connor, our position is that we’re dealing with adjudicatory proceedings where we have adversaries or we have parties that are presenting differing views and a neutral magistrate is making decisions upon those views.

That’s what you have to face.

James D. Ward:

We believe that the net that would be cast out on a rule based upon our case which is a preliminary hearing case should incorporate adjudicatory proceedings where opposing counsel are present.

Joyce Ellen M. Reikes:

But I see in the Bill of Rights, I see no basis for implying in any way, certainly not expressed, the Bill of Rights nowhere discusses the preliminary hearing.

James D. Ward:

That, granted, would take in most if not all of pretrial proceedings.

Joyce Ellen M. Reikes:

Certainly the preliminary hearing was known in the early Colonies.

James D. Ward:

But the reason why we so fervently believe that that is the case is because the logic that this Court has applied first to the trial in Richmond newspapers and later to the jury voir dire in the first Press Enterprise case, we thought Press Enterprise won, the logic that was applied in both of those cases is overwhelmingly similar in the application to our preliminary hearing and we believe to pretrial proceedings in general, because the values of openness that this Court has found apply in those instances as well, and to some degree the argument can be advanced even to a greater degree in those instances.

Joyce Ellen M. Reikes:

It literally crossed the ocean, I think, with the colonists.

Mr. Ward, to merely cut it, the grand jury in California and the preliminary hearing both accomplished the same results?

How widely was it used in those days, as opposed to grand jury indictments?

James D. Ward:

Yes, to cause the defendant to be brought before the Superior Court, except that the preliminary hearing is paramount in that it is required for all defendants, Justice Marshall, yes.

Joyce Ellen M. Reikes:

I cannot say which was used more or which was used less.

Well, what if the grand jury brings up an indictment?

Joyce Ellen M. Reikes:

The only thing I do know is that it existed in the colonies, one, and number two, when the framers put together the Bill of Rights they did not include it.

James D. Ward:

If the Grand Jury–

Joyce Ellen M. Reikes:

They did, however, include it in the grand jury indictment in the Fifth Amendment.

I’m not trying to… I’m trying to… say you’re entitled to go to one but not the other?

Joyce Ellen M. Reikes:

Additionally, what is even more interesting is that this Court through its doctrine of selective incorporation has never incorporated the grand jury right to the states through the Fourteenth Amendment.

James D. Ward:

–I understand, but–

Joyce Ellen M. Reikes:

It is one of the very few provisions of the Bill of Rights or the first state amendments that has not been so incorporated.

–a one sentence reason, why you’re entitled to go to the preliminary hearing but not to go before the grand jury.

Oh, it isn’t very few.

James D. Ward:

–I understand the question, Justice Marshall, and I feel uncomfortable arguing foreclosure of any proceeding, but arguments could be advanced that the grand jury proceeding is an investigatory process.

There are many others.

James D. Ward:

We do not seek access to the police investigatory process.

Joyce Ellen M. Reikes:

Forgive me, Justice Blackmun.

But do you have to go as far as say it’s not the judiciary–

Does it often happen, or does it ever happen that the prosecution simply puts on no evidence at the preliminary hearing and simply stands on the grand jury indictment?

James D. Ward:

Yes, we suggest that that is a logical line to be drawn, dealing only here with adjudicatory proceedings where the parties… where opposing parties are present to litigate the matter before a neutral magistrate.

Joyce Ellen M. Reikes:

In terms of a grand jury indictment, I do not know, Chief Justice Burger.

–Court there be, could there be some preliminary hearing in which the Court could be justified in the exercise of discretion to close it to the public?

Joyce Ellen M. Reikes:

However, where it is an information filed by the prosecutor, in other words a criminal complaint, there are many instances, I am told by criminal lawyers, that that occurs.

James D. Ward:

Yes, we believe so, Justice Burger.

Joyce Ellen M. Reikes:

This case is an example.

James D. Ward:

We think that our right is obviously a qualified right to access, as this Court has found, as it has found it in all other instances, and that qualified right requires definition, and frankly we seek nothing new in connection with the definition of the standard that we propose in connection with the preliminary and with pretrial proceedings.

Joyce Ellen M. Reikes:

Mr. Diaz submitted some five exhibits.

James D. Ward:

We suggest that the standards that have been set by this Court in the cases that you have determined on access are adequate to define the standard for the pretrial proceedings as well.

Joyce Ellen M. Reikes:

I’m not sure what they are.

That, I take it, means that a hearing on closure or not?

Joyce Ellen M. Reikes:

However, the record which the Court has of the preliminary hearings, some 4400 pages, I think, contains not one witness.

James D. Ward:

Yes, a hearing would be part of it, Justice Brennan, yes.

Joyce Ellen M. Reikes:

He put on no witnesses.

James D. Ward:

We feel that hearing and notice to the parties is imperative.

Well, I think the Chief Justice’s question as directed, whether the prosecutor… unless I’m… whether the prosecutor simply stood on an information or indictment if that’s permissible without putting on witnesses.

James D. Ward:

It is our position that the parties seeking closure must establish the necessity for closure.

Is that permissible at all?

James D. Ward:

We feel that closure must… any closure would have to be narrowly tailored to meet a specific governmental or societal interest.

Joyce Ellen M. Reikes:

I do not see how he would meet his burden of probable cause if he did.

James D. Ward:

We feel that before any closure, that all less restrictive alternatives must be looked to for the purpose of seeing if they could solve the perceived problem, and finally–

Especially when the defendant demands a preliminary hearing.

Well, what, Mr. Ward, if the person seeking closure, the defendant, says, having this preliminary hearing in Riverside County is going to prejudice my chancre of a fair trial in Riverside County.

Joyce Ellen M. Reikes:

That’s correct.

Would the Superior Court judge in Riverside County have to say, well, we could transfer it to Yolow County to try it.

So, it has to be live witnesses at a preliminary hearing?

Would you say he would have to go that far in order to… he would have to accept that sort of an alternative rather than close the preliminary hearing?

Joyce Ellen M. Reikes:

Insofar as I’m aware, plus exhibits.

James D. Ward:

–The use of change of venue, Justice Rehnquist, has always been one of the alternatives available to the Court to avoid closure, and an alternative available to the Court to provide a fair trial to the defendant, and our answer is yes, that that would have to be considered by the Court as one of the alternatives that would be available before closure could be pronounced.

Joyce Ellen M. Reikes:

In other words, the same type of evidence that would be admissible at trial, in California we do not allow evidence that would be inadmissible at trial to be admitted at the preliminary hearing.

So, the defendant would have to be tried in a county in a different part of the state so that the Riverside County proceeding could be opened up to the press?

Joyce Ellen M. Reikes:

Our evidence code deals with that specifically.

That’s what you’re saying.

So that is a distinction, then, from the grand jury proceedings?

James D. Ward:

We’re dealing, of course–

Joyce Ellen M. Reikes:

That’s correct, yes.

that’s what you’re saying, isn’t it?

What is… what provision is there under California law for television access to trials?

James D. Ward:

–In the end if the only alternative to provide a fair trial is a motion for change of venue, and that contrasts with the right of access, our answer is yes, that the values attaching to access and open proceedings predominate and they must of necessity… the proceedings must be open regardless of the possibility that a change of venue must be one of the alternatives that can–

Joyce Ellen M. Reikes:

I do know that we… I don’t know the specific code section.

Mr. Ward, I share Justice O’Connor’s feeling that California must be the only state in which a preliminary hearing is a matter of right after an indictment.

Joyce Ellen M. Reikes:

I believe there was an experimental pilot program under the Rules of Court in California.

I don’t think that kind of thing prevails elsewhere in these United States.

You mean, there’s no regular, ongoing procedure for televising criminal trials?

I suppose you wish the term were not “preliminary”, period.

Joyce Ellen M. Reikes:

I believe there probably is, but I… and I believe there may have been that in Mr. Diaz’s trial because I believe… and I’m not entirely sure, I believe I remember seeing parts of it on TV myself, but it’s something that I am just not familiar with at this point.

It certainly is different from a preliminary hearing elsewhere, outside California, and you’re swimming upstream with that term “preliminary hearing”, as you refer to the Chief Justice’s special writing in Gannett, for instance, where he emphasized the pre-nature of a pretrial or preliminary hearing.

Joyce Ellen M. Reikes:

I do know that there were a number of requests in this case for press coverage of the trial, all of which were granted.

James D. Ward:

–Respectfully, Justice Blackmun, I do not think we are swimming upstream.

Joyce Ellen M. Reikes:

In this case, I think again and I cannot emphasize this strongly enough, that we must consider what happens when a pretrial hearing is open and there is significant pretrial publicity.

James D. Ward:

I think we are in the mainstream of this Court’s–

Joyce Ellen M. Reikes:

We now have a defendant who is being trial before a pool of… or of jurors taken from a pool who may or may not have unconscious or conscious prejudices.

All I am saying is, I think you must wish you had a different title for the procedure that you have in California.

Joyce Ellen M. Reikes:

Certainly if they have conscious prejudices I would expect that they would reveal that on voir dire and they would be challenged and removed.

James D. Ward:

–Well, I think the use of the title has presented a problem to us, and in some of your analysis in Gannett as well, looking to the history of the proceeding, I think it’s important to consider what we’re dealing with here by way of a preliminary hearing.

Joyce Ellen M. Reikes:

However, do we really know what the effect of pretrial publicity is on anyone’s mind?

James D. Ward:

First, I would not want to say that the California preliminary is so unique that a rule that could come from this case should not be applied to other parts of the country.

Joyce Ellen M. Reikes:

And I submit that we cannot really know that.

James D. Ward:

Preliminary hearings in other parts of the country are equally important, in our view.

Joyce Ellen M. Reikes:

Certainly if we have a case in which there is an acquittal we may safely presume that the defendant was not adversely prejudiced.

James D. Ward:

But secondly, we must look to the history of the proceedings for some guidance in this regard.

Joyce Ellen M. Reikes:

However, in a case where he is convicted, perhaps we can never be able to show that prejudice like we did in Rideaux versus Louisiana, to the level of a reversal or reversible error, but maybe it is still there and we have no way of ever discerning that.

James D. Ward:

It isn’t the final, infallible rule, but it is certainly a guide to it.

Joyce Ellen M. Reikes:

I think, is this Court pointed out in Sheppard versus Maxwell, we have a number of palliatives.

James D. Ward:

The history which is set out in our amicus brief, which I hope the Court will be able to read, is a history which establishes that when the preliminary hearing, quote unquote, as it was referred to in ancient England, or we’re referring to that proceeding from ancient England, transferred itself from an inquisitorial, investigatory process where the magistrate admittedly did it in secret, when that proceeding switched from that to a proceeding whereby it was a neutral fact finder with opposing counsel involved in the proceeding, it became an open process and logically so.

Joyce Ellen M. Reikes:

We have a number of things that may cure pretrial prejudice to that defendant in terms of what it has done to jury, or potential jury.

That history has been gone over in these other cases.

Way not close them all?

I don’t think we have to worry about it.

Joyce Ellen M. Reikes:

Because–

I think we have it in mind.

I mean, on the argument that you are now making?

James D. Ward:

Well, I think–

Joyce Ellen M. Reikes:

–Because, Chief Justice Marshall, I think… excuse me, Justice Marshall… I think it is again a decision that a defendant has to make to ask for it, because we do have a societal interest in openness.

Some of us do anyway.

Joyce Ellen M. Reikes:

We do not stand here, Respondent Court does not stand here today saying, “close everything”.

James D. Ward:

–Thank you, Justice Blackmun, but I think one of the things that has come out of late is, in our investigation, was for instance the Aaron Bird trial was one of the more fascinating matters of investigation.

Joyce Ellen M. Reikes:

We feel that proceedings should be open where possible.

James D. Ward:

That celebrated trial had involved in it two preliminary hearings, during the course of which the crowd that attended the preliminary hearing was so great that they had to adjourn from the courtroom and move to another chamber in order to accommodate it, and Justice Marshall in handling that matter had to fashion a specific voir dire in order to in his mind overcome the elements of pretrial publicity that he believed existed.

What you recommend is not that the state close it but that the defendant close?

Would you think, Mr. Warren, that one of the reasonable candidates for closure would be the motion to suppress evidence in the California procedure?

Joyce Ellen M. Reikes:

That the defendant requests that it be closed and that under the standards fashioned by the California Supreme Court in this case where the trial judge or the magistrate finds a reasonable likelihood of substantial prejudice–

James D. Ward:

I think that the circuit courts and some of the reasoning… well, I will not refer to this Court but some of the circuit courts have found that the suppression hearing is not a candidate for closure.

What was the reasonable likelihood of prejudice in this case that this Court found?

James D. Ward:

Indeed, it is so similar to the trial itself because it involves the presentation of trial evidence, that in fact it is a definite candidate–

Joyce Ellen M. Reikes:

–In this particular case the magistrate indicated, and the record… it was very spare, admittedly, but he said there has been national publicity.

Let me put the question another way.

Joyce Ellen M. Reikes:

There was a concern there.

Is it within the discretion, sound judicial discretion of the trial judge, the person presiding, the person presiding over the preliminary hearing to say that if all the evidence which is sought to be suppressed is disclose and is on the evening newspapers and television stations, it’s going to impair the right of the defendant to a fair trial if the evidence is suppressed at the preliminary hearing?

Joyce Ellen M. Reikes:

He felt that there had been… and he said that perhaps after the fact of the time he sealed the transcript at the end of the preliminary hearing–

James D. Ward:

–We suggest, Justice Burger, that the problem of prejudicial pretrial publicity is not real.

I was asking… my question was, the defendants had closed the trial.

James D. Ward:

We suggest, as this Court has held, that it is a manageable problem.

What reason did the judge give for closing the hearing?

James D. Ward:

We feel that the–

Joyce Ellen M. Reikes:

–The defendant’s fair trial rights.

Let me get back to my question.

What was it?

Are you saying it is not within the discretion of the Court to close on that ground?

Joyce Ellen M. Reikes:

The defendant’s fair trial… right to a fair trial, to protect him from that publicity, yes.

James D. Ward:

–We feel it should not be, simply on the discretion of the Court to close on that ground.

And that was the only reason given?

James D. Ward:

That’s correct.

Joyce Ellen M. Reikes:

Yes, at that time.

James D. Ward:

Our position regarding pretrial publicity is simply that it is a very manageable problem.

Joyce Ellen M. Reikes:

However, the standard remains, California has taken that public interest and embodied it in a statutory right.

James D. Ward:

There are a number of alternatives that are available.

Joyce Ellen M. Reikes:

Petitioner in this case, and it’s… have indicated in one way or another in some of their briefs that their fear is that if we have merely a statutory right as opposed to a constitutional right, that what the legislature have given, if you will, the legislature may take away.

James D. Ward:

This Court has weighed the problem in different contexts and has found, in fact, that prejudicial pretrial publicity is a rare instance.

Joyce Ellen M. Reikes:

We have no reason to believe that in California.

James D. Ward:

The statistical data available indicates that a miniscule number of cases were ever reversed on the basis of prejudicial pretrial publicity.

Joyce Ellen M. Reikes:

The legislature has given this right.

Mr. Ward, can I go back to one thing that troubles me.

Joyce Ellen M. Reikes:

California is a vocal state in terms of its citizenry as I’m sure this Court is aware.

You’ve been arguing about access to the hearing and not access to the transcript, and I guess you relief have both problems in this case, the hearing… closing the hearing and originally denying access to the transcripts.

Joyce Ellen M. Reikes:

It is a rare election that we do not have a ballot proposition.

And in the Court’s response they argue, you’ve got the wrong party here, it was the municipal court that closed the hearing and the Superior Court that denied access to the transcript.

Joyce Ellen M. Reikes:

We have changed our constitution, or I should say attempted to change it before Reichtman versus Molke in that state, via a ballot proposition.

What’s your response to that, the appeal from the closure order itself, I mean, the review of it?

Joyce Ellen M. Reikes:

I can see people being heard in the legislature, being heard at the ballot box, should that public interest in openness ever be attempted by the legislature to be quashed.

James D. Ward:

Justice Stevens, our specific appeal is from the closure of the transcript.

Joyce Ellen M. Reikes:

I do not think it will be.

Right.

Joyce Ellen M. Reikes:

I think the fear is unrealistic.

James D. Ward:

And that brings us to this Court today.

Joyce Ellen M. Reikes:

I think, however, that the press’s characterization of the problem of pretrial publicity in terms of its potential to prejudice a defendant’s right to a fair trial, in the unusual case… this is not in every case… in the unusual circumstance, a case like the Diaz case, an unusual kind of crime that attracted nationwide interest, I think we have a situation there where that defendant must be protected.

James D. Ward:

But the reasoning is that we are of necessity engaging in, or the exchange that we are engaging in, involves the same process in connection with the closure of the preliminary hearing itself.

Joyce Ellen M. Reikes:

California has protected his right to a fair trial.

James D. Ward:

The fact of the matter is that there’s no real difference in consideration of the arguments on the case.

Joyce Ellen M. Reikes:

California has recognized the public interest.

James D. Ward:

We have the right party in that it was a Superior Court judge who refused to grant us access to the transcript.

Joyce Ellen M. Reikes:

We feel that that is all that is warranted.

James D. Ward:

Our first application for relief followed the completion of the preliminary, and all that there remained was the transcript.

As I understand your argument, though, you are saying that there is no First Amendment right at all to access?

So, what is specifically before us is the refusal to grant access to the transcript, when you say that in effect a fortiori if you were entitled to the transcript we should at least have to decide the other issue to decide that one, that’s what you–

Joyce Ellen M. Reikes:

We see no basis for even declaring one.

James D. Ward:

Yes, I believe so, or actually saying it another way, that the right of access to the transcript of necessity litigates the issue of right of access to the preliminary hearing because without access to the preliminary hearing there would not of necessity be any right of access to the transcript.

Let’s assume we disagree with you.

–But at least it would be possible to hold that you were entitled to the transcript but you were not entitled to be physically present in the courtroom?

I take it that your position is that the statute adequately protects any First Amendment right?

James D. Ward:

Yes, thank you, Justice Stevens.

Joyce Ellen M. Reikes:

It does.

James D. Ward:

That’s precisely the point I made earlier, that I’m happy you see that point.

Joyce Ellen M. Reikes:

However, the petitioner–

James D. Ward:

I agree with that point, yes.

There has to be some findings, now, under you ’82 amendment?

Well, you have another problem about the grand jury being a part of the judiciary hearing.

Joyce Ellen M. Reikes:

–The statute does not specifically require that the magistrate make findings.

In the regular hearings in most states you have a preliminary hearing and at the preliminary hearing they bind you over to the grand jury.

Joyce Ellen M. Reikes:

However, I think that it is incumbent upon any judge to make findings so that a higher court will know what he has done.

Well, as I understand, your rule is that the preliminary hearing is a part of the judicial procedure but the grand jury is not.

Well, the higher… the California Supreme Court said that the statutory requirement for closure was satisfied in this case?

That makes a hiatus between the two.

Joyce Ellen M. Reikes:

Yes, they did.

James D. Ward:

Well, the rule–

Well, what if we disagree with you on the applicability of the First Amendment, or the existence of a First Amendment right to access?

Does that bother you?

Should we remand?

James D. Ward:

–No, it does not, Justice Marshall, for this reason: that the rule that we seek is a rule regarding access to judicial proceedings or adjudicatory proceedings involving a neutral magistrate or judge.

After all, your Attorney General, doesn’t your… what’s your Attorney General’s position?

James D. Ward:

Our position is that the values of openness attach to those types of proceedings.

Joyce Ellen M. Reikes:

I’m not sure if the Attorney General in his amicus brief asked for a remand.

James D. Ward:

Now, as Justice O’Connor observed, possibly another day will come when the argument will arrive regarding the grand jury proceedings, but we are dealing here with a judicial proceeding, an adjudicatory proceeding, and a rule derived from this, we do not believe would encompass necessarily–

Joyce Ellen M. Reikes:

I believe that the district attorney did.

But you consider the grand jury as sort of an exception to the rule?

Yes, he does.

James D. Ward:

–I would say… the phraseology I would prefer to use is that it doesn’t fall within the ambit of the rule in the first instance.

He says there’s an error, the court erred in not finding a First Amendment right and says that the… we should remand.

Because you know, sometimes in the preliminary hearing in both places, if certain cases like possession of cocaine, if you lose a suppression hearing you lose your case.

Joyce Ellen M. Reikes:

And the real party in interest also asks for that same remand.

James D. Ward:

That’s quite true, Justice Marshall, and another thing regarding openness of pretrial suppression hearings is consideration of the fact that you’re dealing there with the potential for government wrongdoing, and the observation of that process is most important to the public and it is essential–

Joyce Ellen M. Reikes:

I would have no objection to a remand, were that to be found, but again our initial objection is that the right does not exist, has no basis for existing.

If you have the transcripts a little bit later on, is there any problem about that?

Joyce Ellen M. Reikes:

A statutory right, certainly.

James D. Ward:

–Yes, I believe so, Justice Burger, because I think this Court has held that the transcript is only a second best alternative.

Joyce Ellen M. Reikes:

A right, the Sixth Amendment right of that defendant, particularly at that early stage of the proceeding, must remain paramount.

Second best?

Joyce Ellen M. Reikes:

And California recognizes the interest but we feel in California that it has been adequately taken care of.

James D. Ward:

The first is to be there, and the–

Joyce Ellen M. Reikes:

Thank you.

But isn’t there… seriously, isn’t the transcript going to be more accurate than what some person can take down in longhand when he’s hearing testimony?

Warren E. Burger:

Do you have anything further, Mr. Ward?

James D. Ward:

–Except, Justice Burger, to this degree, that timeliness is lost, and in so many of these instances we’re dealing with the problem of timeliness of the proceedings, as in the instant case as cited… as indicated in our briefs, we were involved in an allegation by one counsel regarding the alleged misconduct or statements that should not have been made by a trial judge.

Yes, Mr. Chief Justice.

Changes in the life of that judge took place.

Respondent refers to the right, and indicate that there is a statutory right but that it does not elevate itself to the level of a constitutional right.

He was elevated to another bench in the interim, and during a time when the proceedings were sealed.

I need not remind this Court, I think, of the values that this Court has attached to openness of a judicial proceeding, and those values certainly, in our opinion, must apply to the critical, the pivotal, the most important preliminary hearing in California, and that’s–

The public lost access to the–

That’s the answer to my question.

You want to print a picture of the defendant with his hands over his face, don’t you?

What happens to the indictment if there’s… if it’s followed by a preliminary hearing and they dismiss it?

James D. Ward:

–I’m sorry, Justice Rehnquist.

–The preliminary hearing is paramount, Justice Brennan.

Don’t you want to print a picture of the defendant with his hands over his face, trying to prevent being photographed?

How is that done, by court decision?

James D. Ward:

I think not, Jutice Rehnquist.

If the defendant is not held to answer, that’s the disposition of the–

That isn’t precisely the point.

It just neutralizes and negates and overrules the indictment, then?

James D. Ward:

But I think that you do raise an important point, that there… at least your question raises a point that I think should be made, that the process of criminal justice in this country is replete with publicity.

–That’s correct, in my understanding.

It begins from the moment of arrest until the final disposition of the case.

The point of the matter is, in our opinion, that these important values must be protected in some way.

All that this Court and this rule would concern itself with would be the preliminary hearing which is but a small part of it.

We cannot have secret hearings.

Well, Mr. Ward, I don’t suppose if you’re worried… not worried, but if you think an important part of your submission is that preliminary hearings really dispose of a very high percentage of all the cases, that literally isn’t true, something has to happen after the preliminary hearing and when cases are disposed of later, or without a trial, something else has happened, there’s been a plea bargain, and there’s been bargaining, there’s been a process going on.

James D. Ward:

We cannot have closed proceedings.

I would think you’d be much more interested in that process which actually disposes of the case, than with the preliminary hearing.

James D. Ward:

And a California preliminary hearing must in our opinion be open.

Justice White, consider for a moment in the context–

We just extent the logic of that, we believe, to pretrial proceedings in general.

Well, wouldn’t you think… would you make some claim of access to the plea bargaining process?

James D. Ward:

Our position is–

–Only if it were an adjudicatory process.

Well, what’s your standard, if we agree with you on the applicability of the First Amendment, which one of our cases do you think most narrowly states the standard that would have to be satisfied to justify closure?

Adjudicatory?

James D. Ward:

–The last time that we appeared in Press Enterprise One, where the Court was considering the voir dire of the jury, the standard that was promulgated there was that the closure has to be narrowly tailored to satisfy an overriding governmental, societal interest and that reasonable alternatives must be looked to.

That is, if the judge were hearing the matter before opposing counsel.

Do you think this is very far from Waller?

Do you know whether any judges in California sit in on plea bargaining negotiations?

James D. Ward:

Waller used the reasoning, I believe totally, of Press Enterprise One in its decision.

Yes, as a matter of fact, they do.

If it stated some specific standards that had to be met, would you be satisfied with those?

And there is the judge and there is where the meat may be out… I suppose your next claim would be to sit in on those?

James D. Ward:

We have no quarrel with the language or the standards of this Court as they have been promulgated.

James D. Ward:

Well, just for clarification, we make no claim of access to the plea bargaining process from the–

What we quarrel with–

I know you don’t now, but as Justice O’Connor says, you may be here tomorrow on that?

How about my specific question?

James D. Ward:

–Well, but of course, we look to the logic of what we’re dealing with here.

How about the Waller standard?

James D. Ward:

We’re dealing with values of openness that this Court–

Would those satisfy you?

I think the logic of your argument would say, a fortiori we should get in on the real bargaining.

James D. Ward:

–The Waller standard, yes, because the Waller standard as we recall it referred specifically to the Press Enterprise One standard.

–Well, the question was, Justice White, whether there ever would be instances when the matter of plea bargaining would be cases where we would seek openness, and my response was, when it was an adjudicatory process.

What we quarrel with is the California Supreme Court standard which did not call for reasonable alternatives, which did not call that it be narrowly tailored, which did not call that there be an overriding interest, which did not require articulated findings.

The fact of the matter is that the people of the State of California through an initiative process limited plea bargaining in California.

The California standard has none of the constitutional underpinnings that this Court has found essential in connection with evaluating openness.

They specified in certain crimes that there were limits.

The standards set by the California Supreme Court is, simply put, constitutionally deficient.

They’re interested in that process.

It doesn’t have within it all of the safeguards which this Court has heretofore provided.

Consider further, in answer to your question, the McMartin pretrial case which went on with a preliminary hearing of some 14 months after which five of the defendants were dismissed.

It is our opinion that the California Supreme Court in the standard that it has set has violated our constitutional rights and must be reversed.

It was fortunately an open process, because if it had not been, consider the potential outrage of the community at having had a secret process going on for that length of time.

Three times this Court has called for openness of various judicial proceedings, at least three times.

Well, of course, the community can remedy its outrage by requiring that the proceedings be open, if really the majority is outraged.

James D. Ward:

Twice the California Supreme Court since 1982 has not heeded that admonition at all but has instead found for closure of proceedings and provided an easy standard for closure which we believe will result in a denial of the rights of the citizens of the State of California to access to the proceedings, which they need to achieve the values which this Court has thus far recognized.

Your hypothesis is really, the majority has decided otherwise so you have to put it on a constitutional basis.

Warren E. Burger:

Thank you, counsel.

James D. Ward:

We seek constitutional right of access, definitely; beyond that, the statutory right that is currently given to us.

Warren E. Burger:

The case is submitted.

What is it, counsel, that you said took 14 months, a moment ago?

James D. Ward:

The McMartin preschool case.

The preliminary hearing took 14 months?

James D. Ward:

Yes, Justice Burger, 14 months.

And during that time a number of laws were enacted regarding child abuse.

It was a celebrated child abuse case arising out of Los Angeles.

Five of the defendants were dismissed after the completion of that proceeding.

We submit there is a need for the community catharsis, which has been said by the Court before.

If I could reserve my remaining time.

Warren E. Burger:

Ms. Reikes.

Joyce Ellen M. Reikes:

Mr. Chief Justice, and may it please the Court, rather than begin with an opening statement I would like to bring to this Court the difference between a preliminary hearing and a trial, in terms of the incentive of the parties to prevail.

At a trial we are dealing with the issue of guilt or innocence of the defendant.

It is in effect, in terms of society’s goal, a search for truth, for what really happened, who committed this crime, and if guilt is found, punishment for the guilty.

At a preliminary hearing we are looking to determine probable cause, probable cause the crime was committed, and that this defendant committed it.

Probable cause is sufficient–

What does the grand jury do before that in California?

What do they determine?

Joyce Ellen M. Reikes:

–The grand jury may also determine that this person should be indicted and charged with a crime.

Is that not a determination of probable cause in California?

Joyce Ellen M. Reikes:

I am not familiar with what burden the grand jury would consider, but I do know that, for instance, one who is indicted by the grand jury in California still has a right under the penal code and under Hawkins versus Superior Court it’s virtually constitutional right under the California Constituion to a preliminary hearing if he wishes to have it.

To continue, the preliminary hearing, we do not have a situation as we do at trial.

At trial both parties have an incentive to prevail.

The District Attorney is going to pull out all of his stops.

The defendant is going to do likewise.

His life, his very liberty is at stake, and in a capital case, possibly his life.

However, at a preliminary hearing all they are determining, all that magistrate is determining, is whether he should be bound over to stand trial or whether this is an unwarranted prosecution and it should be cut off, if you will, at the pass, right here.

But then, why does it take 41 days?

Joyce Ellen M. Reikes:

It took 41 days in this case, I believe, and perhaps I’m speculating, because there was a good deal of very highly technical medical information.

In this particular case, and I think this is exemplary of preliminary hearings in serious criminal cases generally in California, the prosecution put on some 25 witnesses.

In the supplemental appendix in this case, first 30 or so pages, it contains a summary prepared by our district attorney who tried the case, of their testimony.

Was that because there were a number of alleged victims?

Joyce Ellen M. Reikes:

There were 12 victims.

Joyce Ellen M. Reikes:

There were 12 counts, all with special circumstances, each of which carried the potential death penalty.

On the practical side of it, does that mean that the prosecutor is trying to make out such a strong case that there be a guilty plea without a trial?

Joyce Ellen M. Reikes:

I think the prosecutor here had a highly technical case, again because this is a killing that was alleged to have occurred through the use of Lidocaine.

There was a good deal, I believe, of circumstantial evidence and this had to be shown, the effect of Lidocaine leaving the body and how it would affect the person’s body after so many hours.

And I believe that if you look at the supplemental appendix that we filed in this case, you will see that a good deal of the testimony was not simply of the nurses and other personnel with whom Mr. Diaz, but physicians and chemists and so forth.

Ms. Reikes, do you think there are any differences at stake here in opening a hearing itself and giving access subsequently to the transcript of the preliminary hearing?

Joyce Ellen M. Reikes:

I think that is a decision, in the first instance, that must be made by the defendant and his counsel.

Warren E. Burger:

Mr. Ward, I think you may proceed when you are ready.

Joyce Ellen M. Reikes:

Does he want to have that hearing closed, is he, and does the inspector, of the pretrial publicity which will ultimately prejudice the–

James D. Ward:

Mr. Chief Justice, and may it please the Court, this is a court closure case involving specifically the question of access to the preliminary hearing in a criminal case.

I’m talking about for our purposes, and for purposes of determining what the Constitution requires.

James D. Ward:

We are asking this Court to pronounce that because of societal and structural values attached to openness, and the values attached to the preliminary hearing specifically, the constitutional right of access be declared to the courtroom during the preliminary hearing.

Joyce Ellen M. Reikes:

–I think the Constitution requires, and there is no question, the First and Fourteenth Amendments require that state trials be open.

James D. Ward:

We further seek a determination by this Court that the standard set forth by the California Supreme Court for closure does not conform to the standards of this Court.

Joyce Ellen M. Reikes:

I think there is no question at this time that the Constitution does not require that preliminary hearings be open to the public.

James D. Ward:

In the case below, Robert Diaz, a nurse, was charged with the murder of 12 hospital patients by administering massive doses of the heart drug, Lidocaine.

Joyce Ellen M. Reikes:

In California we certainly have served… our legislature has served the public interest, and it is an important interest, a passionate interest in openness by amending Section 868 to declare a statutory right.

James D. Ward:

At the time of the preliminary hearing representatives of the media were present.

Joyce Ellen M. Reikes:

That first sentence of Penal Code Section 868, a statute which remained virtually stable for 130 years, it was hardly amended at all except to add some minor changes, that statute now reads since 1982, quote,

James D. Ward:

Mr. Diaz’s motion under California Penal Code Section 868 brought an order from the Court for closure of the proceedings.

Joyce Ellen M. Reikes:

“the examination shall be open and public.”

James D. Ward:

After the preliminary, which lasted for 41 days, and after which the defendant was held to answer–

Joyce Ellen M. Reikes:

The California Supreme Court as directed by the legislature, impliedly, has fashioned a standard.

Which preliminary hearing lasted 41 days?

Joyce Ellen M. Reikes:

It’s a workable standard, and we feel that this is all that is necessary, to take a defendant’s Sixth Amendment right which as Justice Burger said in Press Enterprises 1984 case, no right ranks higher.

James D. Ward:

–Yes, Mr. Chief Justice.

Joyce Ellen M. Reikes:

And to subject it to a competing constitutional right for which we can see no basis to declare is to in a sense dilute the defendant’s right at that point, to place upon the defendant the burden of fulfilling a constitutional standard at a very early stage in the proceeding when he may not be able to do this, when the spectre of pretrial publicity may be looming before him but may not be concrete enough that he can show to the Court to fulfill a standard of an overriding governmental or a compelling–

James D. Ward:

This preliminary lasted 41 days.

In California may a preliminary hearing be closed over the objection of the defendant?

James D. Ward:

Preliminaries in California from time to time, not uncommonly now, assume rather lengthy proportions.

Joyce Ellen M. Reikes:

–The preliminary hearing may be closed upon the request of the prosecutor, only to exclude a particular witness, and that is a statute which is due to expire, I believe January–

James D. Ward:

One just completed lasted in excess of 14 months.

Well, what about… do you agree that in order to sustain a statute like that, or a ruling like that, that the Sixth Amendment is involved, that the defendant says,

What do they have, magistrates or judges sitting on those things?

“I don’t want this hearing closed at all, any part of it, even for that witness, and I have a Sixth Amendment right to an open and public trial.”

James D. Ward:

Perhaps, Justice Burger, it has to do with the importance that we attach to the preliminary hearing in California.

Now, do you agree that to that extent it’s covered by–

James D. Ward:

The entire matter is litigated at that time.

Joyce Ellen M. Reikes:

–What you’re really talking about is like the situation that occurred in Waller versus Georgia.

James D. Ward:

The defendant receives all of the rights accompanying a defendant in a trial of an action.

Joyce Ellen M. Reikes:

I think there the defendant has certainly a Sixth Amendment concern if the closure will affect his right to trial.

James D. Ward:

The magistrate is given virtually the same powers that are given to the trial judge in connection with the action, and the matters are extensively litigated in many preliminary hearings in California.

–Do you think that the result, in my example, should be the result that was reached in Waller?

Well, does the defendant take the opportunity to cross examine witnesses the way he would at a trial?

Joyce Ellen M. Reikes:

Yes.

My own experience in Arizona would indicate that they did not.

So, if a motion to suppress were made at the preliminary hearing in California and the defendant wanted the proceeding open, he would have that right under the Sixth Amendment?

You don’t want… let me ask you another… does the defendant put on witnesses of his own?

Absent the findings?

James D. Ward:

The defendant has the right to put on witnesses, and it does occur.

Joyce Ellen M. Reikes:

I believe that he would, and again where–

James D. Ward:

I cannot represent that it is a common occurrence.

But you would say the press does not have an equivalent?