Motion to Maintain Seal on Affidavits; Declarations; and Order
FILED
May 6, 2003
Michael A. Tozzi, Clerk
By [signature]
DEPUTY
JAMES C. BRAZELTON
District Attorney
Stanislaus County Courthouse
Modesto, California
Telephone: 525-5550
Attorney for Plaintiff
STANISLAUS COUNTY SUPERIOR COURT
STATE OF CALIFORNIA
D.A. No. 1056770
THE PEOPLE OF THE SATE OF CALIFORNIA
Plaintiff,
vs.
SCOTT LEE PETERSON,
Defendant.
No. 1056770
MOTION TO MAINTAIN SEAL ON AFFIDAVITS;
DECLARATION; AND ORDER
Hrg: 5-27-03
Time: 8:30 a.m.
Dept: 2/8
Comes now the People of the State of California to submit the following Points and Authorities in
support of a MOTION TO MAINTAIN SEAL ON AFFIDAVITS:
FACTS
During the later part of December, 202 the Modesto Police Department commenced an investigation which has resulted in the filing of this herein action. During the course of the investigation the police obtained numerous search warrants and/or an arrest warrant. The media, in separate actions (Stanislaus County Superior Court #1045098 - The Modesto Bee; and Stanislaus County Superior Court #1045188 - Contra Costa Newspapers, Inc. and San Jose Mercury News, Inc.) and separate from the instant
action have attempted to unseal and or obtain access to the warrants, affidavits and returns. On May 5, 2003 the Fifth District Court of Appeal ruled on a writ taken in action #1045098 that the above sought materials should remain sealed. The Appellate Court's order is not final in that action and is not a published decision.
The People and the Defense are hereby moving for an order that a new search warrant issued on 4-24-03 and the affidavit in support of the Ramey warrant be sealed. This request is made for the following reasons and Pursuant to Rule of Court 243.1 and 243.2 now that a criminal action has been filed.
ARGUMENT
1. The search warrant and arrest documents should be sealed and remain sealed until defendant can review them and make any objection prior to release.
The change in procedural posture since the Modesto Bee filed its request -- the defendant's arrest and the filing of a complaint against him -- requires that the defendant have an opportunity to review the search warrant and arrest documents and make any objection prior to any potential release of the material. A failure of the court to seal the new documents and or a lifting of the seal challenged by the media in the other two actions would undoubtedly result in pervasive disclosure of the documents' contents in the local and national press. Without arguing the factual or legal merits of an such assertion at this time, failure to seal or lifting of the seal might possibly implicate defendant's right to a trial free of prejudicial publicity.
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Regarding pre-trial publicity, the United states Supreme Court states that "[w]e have always held that the atmosphere essential to the preservation of a fair trial - the most fundamental of all freedoms -- must be maintained at all costs.1 In holding that pre-trial proceedings on the admissibility of a confession be held in camera, our Court of Appeal quoted this language, and further observed:
"It is the same right of a fair trial, to one accused of crime, that guarantees all other freedoms, including freedom of speech and of the press. For without the right to a fair trial those freedoms would lack any means of vindication in the face of governmental oppression."2
Craemer v. Superior Court3 and Rosato v. Superior Court4 hold that a defendant's right to a fair trial outweighs any statutory or common law right of pre-trial public access to public documents. A defendant whose fair-trial rights are implicated by the potential lifting of a seal on public records must be given the opportunity to review those documents and to object before a seal is lifted.5 A court's duty to provide a fair trial justifies maintaining a seal on public documents until such time as the parties can litigate the admissibility of the materials contained in those documents.6
1Estes v. Texas (1965) 381 U.S. 532, 540.
2Allegreza v. Superior Court (1975) 47 Cal.App.3d 948, 952.
3(1968) 265 Cal.App.2d 216, 226-227 ["Craemer"].
4(1975 51 Cal.App.3d 190
5Craemer, at pp. 226-227.
6Id, at p. 226; Oziel v. Superior Court (CBS Inc.) (1990) 223 Cal.App.3d 1284, 1294-1295 ["Oziel"].
2. Despite any right of public access to court records, this court has the inherent authority to seal search warrant records if there is a probability that disclosure will result in prejudicial pre-trial publicity.
Members of the press have no greater right to sealed court records than any other members of the public. "At issue here are rights of public access to public court records and in this respect members of the press have no greater rights or privileges than do members of the general public."7 Nor is an order to seal judicial records a "gag order." "Accordingly, the so called 'clear and present danger test' does not apply, and the issue is the reasonableness of the trial court's sealing and unsealing orders under the circumstances of the case. [Citations.]"8 Although not a party to this criminal action, any member of the public, including the press, can assert the common law privilege granting public access to most judicial records.9
The United States Supreme Court has recognized that this is a qualified right which must on occasion yield when there is a compelling and overriding need to maintain secrecy of court proceedings, records and exhibits. "[T]he Court has made clear that the right to an open trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure
7Estate of Hearst, supra, 67 Cal.App.3d, at p. 785, emphasis added.
8Id, at p. 783.
9Globe Newspaper Co. v. Superior Court (1982) 457 U.S. 596, 609, fn. 25 [73 L.Ed.2d 248, 102 S.Ct. 2613]; Wilson v. Science Applications Internat. Corp. (1997) 52 Cal.App.4th 1025, 1031-1032. "But this opportunity extends no farther than the persons actually present at the time the motion for closure is made, for the alternative would require substantial delays in trial and pretrial proceedings while notice is given to the public." (Gannet Co. v. DePasquale (1979) 443 U.S. 368, 401 [61 L.Ed.2d 608, 99 S.Ct. 2898] [Powell, J., concurring].)
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of sensitive information."10
The holding and analysis of Craemer, supra, which decides a news-media challenge to a trial court's order sealing grand jury transcripts, is significant here. Grand jury transcripts, like search warrant documents, are made confidential by statute pending certain procedural events. The indicted defendants had been arrested, and trial was pending. The news media argued that former Penal Code section 938.1, making grand jury transcripts confidential until arrests are made, no longer applied and freedom of the press and the right to a public trial required unsealing the transcripts.11
Craemer holds that the seal did not implicate the right to a public trial, and only indirectly implicated any issue of a free press. Rather, it states:
"The key issue here is whether access to and inspection of public records may be withheld in order to insure that a defendant in a criminal action will receive a fair trial, a right which is guaranteed by the United States and California Constitutions."12
After analyzing the constitutional principles involved, Craemer applied a "countervailing public policy" test and determined that the need to protect fair-trail rights outweighed the public right of access.13 It holds that the trial court, in order to "reduce the appearance [in the press] of prejudicial material by
10Waller v. Georgia (1984) 467 U.S. 39, 45 [81 L.Ed.2d 31, 104 S.Ct. 2210].
11Craemer, at pp. 218-219. Former section 938.1 provided, in relevant part, that after an indictment has been found "The county clerk shall not exhibit the transcript to any person other than the district attorney nor divulge any of its contents until after the defendant is in custody."
12Craemer, at pp. 219-220.
13Id, at pp. 219-223.
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removing, through its directive, a public record from the inspection of the public," properly sealed the transcripts.14 This action was justified because grand jury transcripts often contain information which might later be ruled inadmissible at trial,15 just as search warrants affidavits do.
In performing the court's duty to protect a defendant from prejudicial publicity, "...a judge may require the removal from public scrutiny of a public record containing data or material which, if publicized prior to trail, could result in publicity so inherently prejudicial as to endanger a fair trial." Craemer found that an order sealing public records need not be based on evidence showing a reasonable likelihood of prejudice from disclosure, but merely upon "the probability of unfairness."16 Another court has found the "reasonable likelihood" test applies.17
3. No First Amendment right exists to challenge this court's inherent discretionary power to seal and protect its search warrant and arrest records; the issue is one for this court's sound discretion.
"While the law favors disclosure of judicial records, the right of access is not absolute. Nondisclosure may be appropriate 'or compelling countervailing reason.' [Citations.]"18 "Clearly, a court has inherent power to control its own records
14Id, at pp. 225-226.
15Id, at p. 226.
16Id, at pp. 225-226.
17Rosato v. Superior Court, supra, 51 Cal.App.3d 190, 208
18People v. Rhodes (1989) 212 Cal.App.3d541, 550, original italics, quoting Pantos v. City and County of San Francisco (1984) 151 Cal.App.3d 258, at p. 263; citing Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645, 651-652; Gov. Code, §6255. See also Oziel, supra, 223 Cal.App.3d, at p. 1295.
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to protect rights of litigants before it... ."19 However, "...where there is no contrary statute or countervailing public policy, the right to inspect public records must be freely allowed."20 Only one California case, Oziel v. Superior Court (CBS Inc., et al.),21 addresses these principles in the context of search warrant documents after warrant service and after charges have been filed. Under Oziel, no First Amendment claim exists, and maintenance of the seal on the search warrant and arrest documents here is a matter of this court's sound discretion.22
Oziel decides a public-access claim by news organizations to items seized under a search warrant. At issue were video recordings of a special master's service of the warrant on the offices of a psychotherapist who had treated two brothers charged in a high-profile case with murdering their parents.23 The psychotherapist challenged an order releasing a redacted version of the recordings two months after service of the warrant,24 arguing a violation of his right to privacy and his Fourth Amendment rights, as well as tortuous consequences in release of the tapes.25 The news media intervenors argued a First Amendment right of access, and "'disclosure of the videotapes will allow the public to monitor the activities of police authorities in carrying out their duties.'"26 Oziel frames the issue as:
19Estate of Hearst (1977) 67 Cal.App.3d 777, 783; see also: Oziel, supra; Pantos v. City and County of San Francisco, supra.
20Craemer, at p. 222
21Oziel, supra, 223 Cal.App.3d 1284.
22Id., at p. 1302.
23Id, at pp. 1288-1289.
24Id, at p. 1289.
25Id, at p. 1290
26Id, at p. 1295
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"whether the public, including the media, has any right to disclosure of the videotapes before they have been offered as an exhibit or admitted into evidence in any court proceeding, and before either [the therapist or the defendants] have been afforded a hearing on the issues of the suppression or return of the videotapes or suppression of any items depicted thereon."27
Most important here is the denial of a First Amendment claim. Although Oziel treats the tapes as property seized under the warrant, and holds that items of seized property are not "documents and records of the court relating to the warrant' under section 1534,28 it assumes the contrary in dismissing the First Amendment claim to pre-trial access to search warrant records.29
Even if the tapes were judicial records, Oziel decides, there is no First Amendment right to pre-trial public access to them. The United States Supreme Court, in Press Enterprise Co. v. Superior Court [II], set out a two-part standard for addressing First Amendment claims of access to criminal proceedings.30 The High Court stated:
"Our decisions have emphasized two complementary considerations. First ... we have considered whether the place and process have historically been open to the press and general public. ... [¶] Second, in this setting the Court has traditionally considered whether public access plays a significant positive role in the functioning of the particular process in question.31
Facts satisfying both prongs of this test will establish a
27Id, at pp. 1294-1295.
28Id, at p. 1299.
29Id, at p. 1295
30(1986) 478 U.S. 1.
31Id, at pp. 8-9
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qualified First Amendment right of public access.32 Oziel decides that its facts satisfy neither. In brief, the court found the intervenors had not shown any historical right of public access to property seized under a warrant, nor demonstrated any positive public benefit from disclosure of the tapes.33 The same applies here.
Intervenors in Oziel failed to establish any historical right of public access to search warrant proceedings, because none exists. The Supreme Court has acknowledged the common law held no right to pre-trial public access,34 and that "[t]he investigation of criminal activity has long involved imparting sensitive information to judicial officers who have respected the confidentialities involved."35 California has established a statutory privilege against divulging "official information," and it applies to information in search warrant documents.36 Other statutory exceptions to the right of public access to court and law enforcement documents exist.37 No historic right of access exists.
The public interest in fair and effective administration of justice will be protected by the defendant and his use of the mechanisms available to deter abuse of the warrant process, not
32Id, at p. 9.
33Oziel, at pp. 1296-1297.
34Gannett Co. v. DiPasquale (1979) 443 U.S. 368, 3890390.
35U.S. v. U.S. District Court (Plamondon) (1972) 407 U.S. 297, 320-321.
36Evid. Code §§1040, et seq.; People v. Hobbs (1994) 7 Cal.4th 948, 974; People v. Luttenberger (1990) 50 Cal.3d 1, 9-11.)
37Craemer, at p. 220, and fn. 4, citing inter alia: Veh. Code §1203.10, access to probation records limited; Welf. & Inst. §827, limited access to juvenile court records; Pen. Code §25, pre-indictment grand jury transcript sealed; Evid. Code §1040, official information privileged, and; Pen. Code §1203.45, certain criminal records sealed.
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by the news media. An in camera review of the documents will show they hold nothing which might advance public knowledge about the search warrant process, in general, or the specific process here.38
Here, as in Oziel, there is no First Amendment right to public access to search warrant documents. Whether to seal or unseal the documents is a matter for this court's sound discretion.39
4. Pursuant to Rule of Court 243.1 and 243.2 the People move to seal a search warrant issued on 4-24-03 and to seal the affidavit in support of the Ramey warrant.
California Rule of Court Rule 243.2, sets forth the procedures for sealing documents:
"(a) [Court approval required] A record must not be filed under seal without a court order. The court must not permit a record to be filed under seal based solely upon the agreement or stipulation of the parties.
(b) [Motion to seal a record]
(1) A party requesting that a record be filed under seal must file a noticed motion for an order sealing the record. The motion must be accompanied by a memorandum of points and authorities and a declaration containing facts sufficient to justify the sealing.
(2) The party requesting that a record be filed under seal must lodge it with the court under (d) when the motion is made, unless good cause exists for not lodging it. Pending the determination of the motion, the lodged record will be conditionally under seal.
(3) If necessary to prevent disclosure, the motion, any opposition, and any supporting documents must be filed in a public redacted version and lodge in a complete version conditionally under seal.
(4) If the court denies the motion to seal, the clerk must return the lodged record to the submitting party and must not place it in the case file.
(c) [References to nonpublic material in public records]
38Oziel, at pp. 1296-1297, citing Gannett Co. v. DiPasquale, supra, 443 U.S., at p. 383; Times Mirror Co. v. U.S. (1989, 9th Cir.) 873 F.2d 1210, 1218.
39Oziel, at pp. 1302-1303.
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A record filed publicly in the court must not disclose material contained in a record that is sealed, conditionally under seal, or subject to a pending motion to seal.
(d) [Lodging of records that a party is requesting be placed under seal]
(1) The party requesting that a record be filed under seal must put it in a manila envelope or other appropriate container, seal the envelope or container, and lodge it with the court.
(2) The envelope or container lodged with the court must be labeled "CONDITIONALLY UNDER SEAL."
(3) The party submitting the lodged record must affix to the envelope or container a cover sheet that:
(i) Contains all the information required on a caption page under rule 201; and
(ii) States that the enclosed record is subject to a motion to file the record under seal.
(4) Upon receipt of a record lodged under this rule, the clerk must endorse the affixed cover sheet with the date of its receipt and must retain but not file the record unless the court orders it filed.
(e) [Order]
(1) If the court grants an order sealing a record, the clerk must substitute on the envelope or container for the label required by (d) (2) a label prominently stating, "SEALED BY ORDER OF THE COURT ON (DATE)," and must replace the cover sheet required by (d) (3) with a filed-endorsed copy of the court's order.
(2) The order must state whether--in addition to records in the envelope or container--the order itself, the register of actions, any other court records, or any other records relating to the case are to be sealed.
(3) The order must state whether any person other than the court is authorized to inspect the sealed record.
(4) A sealed record must not be unsealed except upon order of the court.
(f) [Custody of sealed records] Sealed records must be securely filed and kept separately from the public file in the case.
(g) [Custody of voluminous records] If the records to be placed under seal are voluminous and are in the possession of a public agency, he court may by written order direct the agency instead of the clerk to maintain custody of the original records in a secure fashion. If the records are requested by a reviewing court, the trial court must order the public agency to deliver the records to the clerk for transmission to the reviewing court under these rules.
(h) [Motion to unseal records] A party or member of the public, or the court on its own motion, may move to unseal a record. Notice of the motion to unseal must be filed and served on the parties. The motion, opposition, reply, and supporting documents must be filed in a public redacted version and a sealed complete version if necessary to comply with (c)."
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The People submit the following declarations in support of this motion and incorporate the declarations submitted by the attorneys for the defendant as part of this request to seal and to maintain said seal in this case.
Dated: May 6, 2003
Respectfully submitted,
JAMES C. BRAZELTON
District Attorney
By: [signature]
David P. Harris
Deputy District Attorney
12
JAMES C. BRAZELTON
District Attorney
Stanislaus County
Courthouse
Modesto, California
Telephone: 525-5550
Attorney for Plaintiff
STANISLAUS COUNTY SUPERIOR COURT
STATE OF CALIFORNIA
D.A. No. 1056770
THE PEOPLE OF THE SATE OF CALIFORNIA
Plaintiff,
vs.
SCOTT LEE PETERSON,
Defendant.
No. 1056770
ORDER PENDING HEARING
Hrg: 5-27-03
Time: 8:30 a.m.
Dept: 2/8
It is hereby ORDERED by the court pursuant to California Rule of Court rule 243.2 that the search warrant issued on April 24, 2003 and the affidavit in support of the Ramey warrant are hereby sealed pending further order of this court.
Dated:
[signature line]
A. Girolami
Judge of the Superior Court
JAMES C. BRAZELTON
District Attorney
Stanislaus County
Courthouse
Modesto, California
Telephone: 525-5550
Attorney for Plaintiff
STANISLAUS COUNTY SUPERIOR COURT
STATE OF CALIFORNIA
D.A. No.
THE PEOPLE OF THE SATE OF CALIFORNIA
Plaintiff,
vs.
SCOTT LEE PETERSON,
Defendant.
No. 1056770
DECLARATION OF DEPUTY DISTRICT ATTORNEY RICK DISTASO
I, Rick Distaso, declare as follows:
I am a Deputy District Attorney, and I am licensed to practice in all courts of the State of California. As an attorney of record for the Plaintiff, I am familiar with the circumstances of the case.
I request that the information in the Probably Cause Statement for the Affidavit in Support of the Ramey Warrant; and the information contained in the Search Warrant issued on April 24, 2003, the Affidavit of Probable Cause for said Search Warrant, and said Search Warrant Return, be sealed pending further hearing.
In light of extensive pretrial publicity the case has received, I believe that release of the above information, at this time, could compromise the defendant's ability to receive a fair trial. During the investigation certain specific details have been established at the scene of the search warrants, and through statements of key witnesses. Said information is contained in the above referenced documents. The details present in these documents are known to police detectives and law enforcement officials, but not the general public. Disclosure of these details to the public could compromise the defendant's ability to receive a fair trial because such information would be widely disseminated through the media. To release the information at this time with the defense not having had the opportunity to review the information might prejudice the defendant.
Further, disclosure of the information would also frustrate further law enforcement investigation for the same reasons. Detectives of the Modesto Police Department are still actively investigating this double homicide. The release of previously unknown case details would seriously jeopardize further case investigation.
I declare under penalty of perjury that the foregoing is true and correct.
Dated this 6th day of May, 2003, at Modesto, California.
[signature]
Rick Distaso
FILED
May 6, 2003
MICHAEL A. TOZZI, CLERK
By: [signature]
DEPUTY
Kirk W. McAllister, State Bar No. 47324
McALLISTER & McALLISTER, INC.
A Professional Law Corporation
1012-11th Street, Suite 100
Modesto, CA 95354
Tel: (209) 575-4844
Attorney for Defendant
SUPERIOR COURT OF CALIFORNIA, COUNTY OF STANISLAUS
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
v.
SCOTT LEE PETERSON,
Defendant.
Case No. 1056770
DECLARATION OF KIRK W. McALLISTER TO PLACE AFFIDAVITS UNDER SEAL
I am counsel of record in the above-entitled matter. I am informed and believe that there are affidavits in support of search warrants and an arrest warrant.
It is the defendant's request that these affidavits be placed under seal after a copy has been provided to the defense so that we may determine whether or not the release of this information may unfairly prejudice our client's right to a fair trial.
McALLISTER & McALLISTER, INC.
Dated: May 5, 2003
By: [signature]
Kirk W. McAllister
Attorney for Defendant
-1-
PROOF OF SERVICE
I am a citizen of the United States and am employed in Stanislaus County; I am over the age of eighteen (18) years and not a party to the within action; my business address is 1012- 11th Street, Suite 100, Modesto, California, 95354.
On May 6, 2003, I served the following document(s):
DECLARATION OF KIRK W. McALLISTER TO PLACE AFFIDAVITS UNDER SEAL
by placing a true copy thereof enclosed in a sealed envelope and served in the manner and/or manners described below to each of the parties herein and addressed as follows:
Stanislaus County District Attorney
1100 I Street, Room 200
Modesto, CA 95354
[ ] BY MAIL: I caused such envelope(s) to be deposited in the mail at my business address, addressed to the addressee(s) designated. I am readily familiar with McAllister & McAllister's practice for collection and processing of correspondence and pleadings for mailing. It is deposited with the United States Postal Service on that same day in the ordinary course of business.
{XX] BY HAND DELIVERY: I caused such envelope(s) to be delivered by hand to the address(es) designated.
[ ] EXPRESS SERVICE CARRIER: I caused such envelope(s) to be delivered by an authorized courier or driver authorized by XXX, an express service carrier to receive documents, with delivery fees paid or provided for, to the addressee(s) designated.
[ ] OVERNIGHT COURIER SERVICE: I caused such envelope(s) to be delivered by courier service, with delivery fees paid or provided for, to the addressee(s) designated.
[ ] BY FACSIMILE: I caused said document(s) to be transmitted to the telephone number(s) of the addressee(s) designated.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed at Modesto, California on May 5, 2003
[signature]
Kirk W. McAllister