Motion to Unseal Search Warrant and Arrest Warrant Records [Contra Costa Newspapers, Inc; San Jose Mercury News]; Memorandum of Points and Authorities in Support of Motion to Unseal Search Warrant and Arrest Warrant Records
FILED
2003 APR 28 AM 10:03
CLERK OF THE SUPERIOR COURT
COUNTY OF STANISLAUS
By <signature>
Deputy
Karl Olson (Bar No. 104760)
LEVY, RAM & OLSON LLP
639 Front Street, 4th Floor
San Francisco, CA 94111-1913
Telephone: 415-433-4949
Facsimile: 415-433-7311
Attorneys for CONTRA COSTA NEWSPAPERS, INC.
JAMES M. CHADWICK (Bar No. 157114)
SCOTT W. PINK (Bar No. 122383)
GRAY CARY WARE & FREIDENRICH LLP
1755 Embarcadero Road
Palo Alto, CA 94303-3340
Tel: 650-833-2000
Fax: 650-320-7401
Attorneys for SAN JOSE MERCURY NEWS, INC.
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF STANISLAUS
In re Sealed Search Warrants, Warrant Affidavits, and Returns, and Arrest Warrant Possible Cause Showing--Laci Peterson Investigation
CASE NO. 1045188
NOTICE OF MOTION AND MOTION TO UNSEAL SEARCH WARRANT AND ARREST WARRANT RECORDS
Date: May 5, 2003
Time: 8:30
Dept: 5
Judge: Hon. Roger M. Beauchesne
TO DEFENDANT SCOTT PETERSON, THE PEOPLE OF THE STATE OF CALIFORNIA, AND THEIR COUNSEL OF RECORD, please take notice that on May 5, 2003, at 8:30 AM or as soon thereafter as the matter may be heard, in the courtroom of the Honorable Roger M Beauchesne, Department 5 of the Stanislaus County Superior Court, 1100 I Street, Modesto, California, Contra Costa Newspapers, Inc., and the San Jose Mercury News, Inc., will move for an order unsealing the search warrants and
related documents pertaining to this case, as well as probable cause showing supporting the issuance of the warrant for the Defendant’s arrest.
This motion shall be made on the grounds that there is a presumptive right of public access to these records under the First Amendment, the California Constitution, California statute, the California Rules of Court, and the common law, which may be overcome only in exceptional
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circumstances not presented by this case. The motion will be based on this notice, on the accompanying memorandum of points and authorities in support of the motion, and on such additional evidence, argument, or authority as may be presented prior to or at the hearing on the motion.
Dated: April 25, 2003
LEVY RAM & OLSON LLP
By <signature>
KARL OLSON
Attorneys for CONTRA COSTA NEWSPAPERS, INC.
GRAY CARY WARE & FRIEDENRICH LLP
By <signature>
JAMES M. CHADWICK
Attorneys for SAN JOSE MERCURY NEWS, INC.
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Karl Olson (Bar No. 104760)
LEVY, RAM & OLSON LLP
639 Front Street, 4th Floor
San Francisco, CA 94111-1913
Telephone: 415-433-4949
Facsimile: 415-433-7311
Attorneys for CONTRA COSTA NEWSPAPERS, INC.
JAMES M. CHADWICK (Bar No. 157114)
SCOTT W. PINK (Bar No. 122383)
GRAY CARY WARE & FREIDENRICH LLP
1755 Embarcadero Road
Palo Alto, CA 94303-3340
Tel: 650-833-2000
Fax: 650-320-7401
Attorneys for SAN JOSE MERCURY NEWS, INC.
SUPERIOR COURT OF CALIFORNIA, COUNTY OF STANISLAUS
In re Sealed Search Warrants, Warrant
Affidavits, and Returns, and Arrest Warrant
Possible Cause Showing--Laci Peterson Investigation
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO UNSEAL SEARCH WARRANT AND ARREST WARRANT RECORDS
Date: May 5, 2003
Time: 8:30 a.m.
Dept: 5
Judge: Hon. Roger M. Beauchesne
I. INTRODUCTION
This motion seeks access to the core documents which gave rise to the prosecution of Scott Peterson in this case of overwhelming public interest: search warrants, search warrant affidavits and returns, and the affidavits or other probable cause showing in support of the warrant for the arrest of Defendant Scott Peterson ("Defendant"). The disclosure of the search warrants and related records is specifically mandated by California law. Both the search warrant records and the probably cause showing in support of the warrant for Defendant's arrest are court records subject to the presumption of public access established by the First Amendment, by California law, and by the California Rules of Court. Furthermore, because a prosecution has now been commenced, this case has been transformed from an investigation into a court case.
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Accordingly, the strict standards generally forbidding sealing and closure set forth by the California Supreme Court in NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178 (1999), and embodied in California Rules of Court 243.1 and 243.2 apply, and there is no sound justification for refusing to make public the documents pertaining to the investigation. Those documents should be made public, and Contra Costa Newspapers, Inc. ("Contra Costa") and the San Jose Mercury News, Inc. ("Mercury News") request that this motion be granted.1
II. FACTUAL SUMMARY
Laci Peterson, eight months pregnant, disappeared from her Modesto home shortly before Christmas last year. Due to the circumstances of the case, it has received widespread publicity. A reward that ultimately reached $500,000 was offered. The investigation into her disappearance was originally classified as a "missing person" case. Eventually, it was reclassified as a homicide case.
On April 4, 2003, this Court held a hearing on a Petition by the Modesto Bee (filed on March 12) to unseal eight search warrants and related documents. In an April 10, 2003 ruling, the Court ordered that the warrants remain sealed. Significantly, however, the Court ruled: "In the event a criminal complaint is filed or an indictment returned and made public as a result of the investigation at issue, the Court's order sealing the eight (8) search warrants, affidavits, and returns in their entirety shall be vacated and each of the documents shall become a public record." (April 10, 2003 Ruling on Petition to Unseal at p. 3, hereafter "April 10 Ruling," emphasis added.)
Eight days after this Court's ruling, Scott Peterson was arrested in San Diego. Criminal charges have been filed against him in this matter and he was arraigned on April 21. Thus, under the plain terms of the Court's April 10 Ruling, "each of the documents shall become a public record."
1Please note that this case is related to the matter initiated by the petition of the Modesto Bee for access to the search warrants and related documents, In re 8 Sealed Search Warrants--Laci Peterson Investigation, Case No. 1045098. The present motion has been filed before the Honorable Roger M. Beauchesne, and is also being provided by courtesy copy to the Presiding Judge of the Superior Court, Honorable Al Girolami, in accordance with the direction of the Executive Officer of this Court.
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The Stanislaus County District Attorney, however, as appealed this Court's April 10 Ruling, and on April 18--before the criminal complaint was filed and Mr. Peterson was arraigned--the Court of appeal stayed the enforcement of "all orders in Stanislaus County case No. 1045098" (the petition to unseal warrants) "pending determination of the petition in the above entitled action" (No. 1045098). The Modesto Bee has asked that the People's Petition in the Court of Appeals be dismissed as moot, given the arrest and arraignment of Mr. Peterson. As of the date of this motion, the writ petition remains pending.
Since the Bee's request and the District Attorney's writ petition, reporters for the Mercury News have requested access to both the search warrant materials and the affidavit or other probable cause showing supporting the issuance on April 17, 2003 by Judge Ladine of the warrant for the arrest of Defendant. The Mercury News' requests for the search warrant records have been rejected, and it has been told by representatives of the Court that the probable cause showing in support of the arrest warrant cannot be located.
III. CALIFORNIA LAW MANDATES PUBLIC ACCESS TO COURT RECORDS, AND NOW THAT CHARGES HAVE BEEN FILED NO EXTRAORDINARY CIRCUMSTANCES JUSTIFYING THE SEALING EXIST.
A. California Law and the First Amendment Mandate Public Access to Court Records.
California Rule of Court 243.1(d) provides that:
"The court may order that a record be filed under seal only if it expressly finds that:
(1) There exists and overriding interest that overcomes the right of the public access to the record;
(2) The overriding interest supports sealing the records;
(3) A substantial probability exits that the overriding interest will be prejudiced if the record is not sealed;
(4) The proposed sealing is narrowly tailored; and
(5) No less restrictive means exists to achieve the overriding interest."
Rule 243.1 codifies a well-established body of law establishing that under the First Amendment and the California Constitution provide the public and the press with a presumptive
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right of access to court records that can be overcome only by a compelling interest. "Although there is no specific statutory requirement for access to court documents, both the federal . . . and the state . . . Constitutions provide broad rights of access to judicial records in criminal and civil cases." Copley Press, Inc. v. Superior Court, 63 Cal. App. 4th 367, 373 (1998) ("Copley press III"); Copley Press, Inc. v. Superior Court, 6 Cal. App. 4th, 106, 111 (1992) (Copley Press II"). The California Supreme Court has recently emphasized that the right of access is of constitutional dimension. NBC Subsidiary (KNBC-TV), Inc., 20 Cal. 4th at 1212. Both California and federal authorities place a heavy burden on the party seeking nondisclosure to justify any such interference with the public's first amendment rights--denial of access must be "strictly and inescapably necessary" to protect a compelling government interest. Associated Press v. U.S. District court, 705 F.2d 1143, 1145 (9th Cir. 1983), quoting United States v. Booklier, 685 F.2d 1162, 1167 (9th Cir. 1982) (emphasis added). See also Copley Press, Inc. v. Superior Court, 228 Cal. App. 3d 77, 84 (1991) (Copley Press I") (any order restricting access to court records must be "based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest."); Mary R. v. & R. Corp., 149 Cal. App. 3d 308, 317 (1983) ("Since court records are public records, the burden rests on the party seeking to deny public access to those records to establish compelling reasons why and to what extent these records should be made private.").
In short, both California law and the United States Constitution establish a right of access to court records that can be overcome only in exceptional circumstances. No such circumstances exist in this case.
B. California Law Specifically Provides for Public Access to Search Warrants and Related Records, and Makes No Provision for the Sealing of Arrest Warrant Records.
California law provides that a search warrant my issue only on a showing of probably cause supported by an affidavit. Cal. Pen. Code § 1525. California law also expressly requires that search warrants and related records be made public after execution. Section 1534 of the California Penal Code provides, in pertinent part:
The documents and records of the court relating to the warrant need not be open to the public until the execution and return of the warrant or the expiration of the 10-day period after issuance.
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Thereafter, if the warrant has been executed, the documents and records shall be open to the public as a judicial record.
Cal. Pen. Code § 1534(a) (West 2000) (emphasis added).
This statute, which has been in effect in California for more than one hundred and thirty years, reflected an unambiguous Legislative mandate that search warrants and related documents (such as affidavits and returns) are to be made available to the public. The search warrants at issue have been executed and returned. Accordingly, Penal Code section 1534 mandates the unsealing of the search warrant records.
Many courts have recognized a right of public access to materials filed in support of search warrants, either under the First Amendment or under common law. See, e.g., In re Search Warrant for Secretarial Area Outside of Thomas Gunn, 855 F.2d 569, 573 (8th Cir. 1988) (First Amendment right of access); State of Vermont v. Schaefer, 157 Vt 339, 599 A.2d 337, 348 (1991), cert. denied 502 U.S. 1077 (1992) (First Amendment right of access). As one court recognized in upholding the unsealing of a search warrant affidavit:
Society has an understandable interest not only in the administration of criminal trials, but also in law enforcement systems and how well they work. The public has legitimate concerns about methods and techniques of police investigation: for example, whether they are outmoded or effective, and whether they are unnecessarily brutal or instead cognizant of suspect's rights.
In the Matter of Application and Affidavit for a Search Warrant, 923 F.2d 324, 331 (4th Cir. 1991). Accord In re Search Warrant (Gunn), 855 F.2d at 573 ("even though a search warrant is not part of the criminal trial itself . . . a search warrant is certainly an integral part of a criminal prosecution.").
Similarly, California law requires a demonstration of probable cause to support the issuance of a warrant for arrest. Cal. Pen. Code § 817. In general, the showing is made by a sworn statement in writing, and if made otherwise the probably cause showing must be recorded and transcribed. Cal. Pen. Code § 817(b),(c). Nothing in the provisions of California law pertaining to the issuance of arrest warrants provides for the sealing of the warrant or the probable
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cause showing. Thus, arrest warrants, and the affidavits, declarations, or other probable cause showings supporting their issuance, are--like other court records--presumptively public.
C. No Extraordinary Circumstances Justifying Sealing Exist, so the Requested Records Should Be Made Available to the Public and Press.
None of the findings required by Rule 243.1(d) or by the constitutional right of access can be made now that criminal charges have been filed and Defendant has been arraigned and taken into custody. Indeed, section IV of this Court's April 10, 2003 Order expressly recognized that as soon as the investigation was completed and charges were filed, the search warrants should and would be made public.
First, now that Defendant has been taken into custody, there is no "overriding interest" that overcomes the right of public access to the search warrants. The Court's concerns that revelation of information in the search warrant affidavits would harm the investigation, and that the investigation should be thorough and unhampered, no longer apply now that criminal charges have been filed, as the Court clearly found in ordering that "each of the documents shall become a public record" once a criminal complaint is filed. See April 10 Ruling, at p. 3. Defendant is now in custody, and alerting him to the investigation is no longer a concern. Nor can he destroy evidence or otherwise interfere with the investigation. Indeed, the government clearly believes that it now has evidence sufficient to prosecute Defendant. Stanislaus County District Attorney Jim Brazelton has said that the prosecution has "voluminous" evidence, both direct and circumstantial, implicating Defendant.
The Court's April 10 ruling stated, as an alternative basis for the ruling, that unsealing the documents "would likely impair any suspects' rights to a fair trial," at least at the pre-arraignment stage. There are no express factual findings to that effect, however, and Contra Costa and the Mercury News respectfully submit that there is no basis for such a finding now that charges have been filed.
Rule 243.1 also requires any party seeking to deny public access to court records to show a "substantial probability exists that the overriding interest will be prejudiced if the record is not sealed." As set forth above, no "overriding interests" of the prosecution will be jeopardized now
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that criminal charges have been filed, as this Court's April 10 Ruling recognized, Similarly, Mr. Peterson's interests in a fair trial will not be prejudiced by the unsealing of the documents.
So far as the Mercury News has been able to determine, Defendant has not asserted that any of the records in this matter should be sealed in order to protect his right to a fair trial. Should such an assertion be made, however, the Mercury News points out that prejudice to the Defendants' right to a fair trial cannot be presumed. Nebraska Press Ass'n. v. Stuart, 427 U.S. 539, 554 (1976). See also People v. Harris, 28 Cal. 3d 935, 949 (1981) (citation omitted), cert. denied, 454 U.S. 882 (1981) (the "controlling cases 'cannot be made to stand for the proposition that juror exposure to information about state defendant's prior convictions or to news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process'"); People v Mendonsa, 137 Cal. App. 3d 888, 895 (1982) ("there is no presumption that an accused suffers prejudice from unfriendly news stories"). At most, any claims of prejudice to Defendant's fair trial rights from publicity about unsealed search warrant or arrest warrant records would be "conclusionary," and such conclusionary claims do not pass the daunting tests set forth in Rule 243.1(d) for the sealing of documents." In re Providian Credit Card Cases, 96 Cal. App. 4th 292, 305 (2002).
Moreover, this case has already received a great deal of publicity, both before and immediately after Scott Peterson was taken into custody, and it is highly doubtful that whatever publicity might result from making additional records public would add measurably to the existing publicity or tip the scales in a way they haven't already been tipped. "In fact . . . the instances in which pretrial publicity alone, even the pervasive and adverse publicity, actually deprives a defendant of the ability to obtain a fair trial will be quite rare." Gannett Co. v. DePasquale, 443 U.S. 368, 404 n.1 (1979) (Rehnquist, J., concurring). As the U.S. Supreme Court observed in the Press-Enterprise Co., 478 U.S. at 14. This Court's April 10 ruling that the search warrants should be made public once a complaint is filed implicitly found that continued sealing of the search warrants would not prevent
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whatever pretrial publicity might allegedly have occurred, and that is the only reasonable conclusion.2
It is significant that since the U.S. Supreme Court set forth the "substantial probability of prejudice" test for closure of preliminary hearings (Press-Enterprise Co., 478 U.S. at 14)--a test followed by the California Supreme Court in NBC Subsidiary (20 Cal. 4th at 1207, 1218) and enacted in Rule 243.1(d)(3)--no reported case has affirmed closure of a preliminary hearing. Similarly, no reported case has affirmed sealing under Rule 243.19d). In short, there is no basis for finding that there is a substantial probability of prejudice to fair trial rights which will be prejudiced if the search warrants do not remain sealed.
Finally, Rule 243.1 compels those seeking to maintain the secrecy of court records to demonstrate that there are no less restrictive means adequate to protect the asserted interests. The U.S. Supreme Court, in the seminal Press-Enterprise decision, identified several "less restrictive means" which are sufficient to protect fair trial rights short of closing hearings or sealing documents:
"[R]isk of prejudice does not automatically justify refusing public access to hearings on every motion to suppress. Through voir dire, cumbersome as it is in some circumstances, a court can identify those jurors whose prior knowledge of the case would disable them from rendering an impartial verdict. And even if closure were justified for the hearings on a motion to suppress, closure of an entire 41-day proceeding would rarely be tolerated. The First Amendment right of access cannot be overcome the conclusory assertion that publicity might deprive the defendant of that right."
Press-Enterprise Co., 478 U.S. at 15. Not surprisingly, the California Supreme Court has also held that careful and through admonishments to the jury are presumptively adequate to ensure a fair trial: "[A]s a general matter, cautionary admonitions and instructions must be considered a presumptively reasonable alternative [to sealing]--a presumption that may be overcome only in exceptional circumstances." NBC Subsidiary, (KNBC-TV), Inc., 20 Cal. 4th at 1223-24. Careful
2Indeed, the claims of Mr. Peterson's family that there has been a "rush to judgment" themselves provide independent justification for unsealing the search warrants at this time, so that the people of Modesto -- and of California and the United States -- can assess for themselves whether there was sufficient justification to take Mr. Peterson into custody.
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pre-trail voir dire and other measures also generally provide an adequate alternative to sealing or closure. Brian W. v. Superior Court, 20 Cal. 3d 618, 625 (1978).3
Here, the less restrictive means identified by the United States Supreme Court and the California Supreme Court--and the potential alternative of a change of venue, which is likely to be sought by the defendant regardless of whether the search warrants are unsealed--are constitutionally preferable and presumptively adequate alternatives to the continued sealing of documents. Accordingly, the records should be unsealed.
IV. CONCLUSION
The sealing of documents such as those at issue here is, as the California Supreme Court has recognized, a step which can be justified "only in the rarest of circumstances." NBC Subsidiary, (KNBC-TV), Inc., 20 Cal. 4th at 1226. This Court found on April 10 that once a criminal complaint was filed, those "exceptional" circumstances would no longer exist. That finding was amply supported by the law and the facts. This motion shold be granted and the documents pertaining to the search and arrest warrants issued in this case should be made public forthwith.
Dated: April 25, 2003
LEVY RAM & OLSON LLP
By [signature] Karl Olson
KARL OLSON
Attorneys for CONTRA COSTA NEWSPAPER, INC.
GRAY CARY WARE & FREIDENRICH LLP
By [signature] James M. Chadwick
JAMES M. CHADWICK
Attorneys for SAN JOSE MERCURY NEWS, INC.
3The California Supreme Court in NBC Subsidiary rejected the argument that jurors would ignore instructions to disregard press accounts, or that sequestration of the jury is not an adequate alternative to delaying public access. NBC Subsidiary, (KNBC-TV), Inc. 20 Cal. 4th at 1222. "We must presume that jurors generally follow instructions to avoid media coverage, and to disregard coverage that they happen to hear or see . . . We repeatedly have stressed our adherence to the fundamental premise that, as a general matter, cautionary admonitions and instructions serve to correct and cure myriad of improprieties, including the receipt by jurors of information that was kept from them." Id. at 1223.1224.
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Karl Olson (Bar No. 104760)
LEVY, RAM & OLSON LLP
639 Front Street, 4th Floor
San Francisco, CA 94111-1913
Telephone: 415-433-4949
Facsimile: 415-433-7311
Attorneys for CONTRA COSTA NEWSPAPERS, INC.
JAMES M. CHADWICK (Bar No. 157114)
SCOTT W. PINK (Bar No. 122383)
GRAY CARY WARE & FREIDENRICH LLP
1755 Embarcadero Road
Palo Alto, CA 94303-3340
Tel: 650-833-2000
Fax: 650-320-7401
Attorneys for SAN JOSE MERCURY NEWS, INC.
SUPERIOR COURT OF CALIFORNIA, COUNTY OF STANISLAUS
In re Sealed Search Warrants, Warrant
Affidavits, and Returns, and Arrest Warrant
Possible Cause Showing--Laci Peterson Investigation
DECLARATION OF SERVICE
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DECLARATION OF SERVICE
I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is Gray Cary Ware & Freidenrich, 1755 Embarcadero Road, Palo Alto, California 94303-3340. On April 25, 2003, I served the within documents:
NOTICE OF MOTION AND MOTION TO UNSEAL SEARCH WARRANT AND ARREST WARRANT RECORDS; and,
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO UNSEAL SEARCH WARRANT AND ARREST WARRANT RECORDS.
by transmitting via facsimile the document(s) listed above to the fax number(s) set forth below on this date before 5:00 p.m.
by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail, at Palo Alto, California, addressed as set forth below.
by personally delivering the document(s) listed above to the person(s) at the address(es) set forth below.
by consigning such copies in a sealed envelope to an overnight delivery courier for next business day delivery to the person(s) at the address(es) set forth below.
Jim Brazelton, Esq.
Stanislaus County District Attorney
P.O. Box 442
800 11th Street, Rm. 200
Modesto, CA 95353
Tel.: 209/525-5550
Fax: 209/525-5545
Tim Bazar, Esq.
Stanislaus County Public Defender
1021 I Street, Suite 201
P.O. Box 3428
Modesto, CA 95353-3428
Tel.: 209/525-4200
Fax: 209/525-4244
Charity Kenyon, Esq.
Riegels Campos & Kenyon, LLP
2500 Venture Oaks Way, Suite 220
Sacramento, CA 95825-3287
Tel.: 916/779-7104
Fax: 916/779-7120
Courtesy Copy:
The Honorable Al Girolami
Presiding Judge
Stanislaus County Superior Court
800 11th Street, Rm. 100
Modesto, CA 95354
I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit.
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