Newspaper Opposition to People's Motion to Seal Search Warrant, Addenda and Arrest Warrant

Newspaper Opposition to People's Motion to Seal Search Warrant, Addenda and Arrest Warrant

FILED MAY 16, 2003 10:49 am

CLERK OF SUPERIOR COURT

COUNTY OF STANISLAUS

BY [signature]

DEPUTY

CHARITY KENYON - 078823

JOHN E. FISCHER - SBN 65792

RIEGELS CAMPOS & KENYON LLP

2500Venture Oaks Way, Suite 220

Sacramento, CA 95833

Telephone: (916) 779-7100

Facsimile: (916) 779-7120

Attorneys for McClatchy Newspapers, Inc.

dba The Modesto Bee, and for Los Angeles Times, Hearst Communications, Inc. dba San Francisco Chronicle, Contra Costa Newspapers, Inc., and San Jose Mercury News, Inc.

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF STANISLAUS

The People of the State of California,

Plaintiff

Scott Lee Peterson

Defendant.

Case No. 1056770

Newspapers' Opposition to People's Motion to Seal Search Warrant, Addenda and Arrest Warrant

Date: May 27, 2003

Time: 8:30 a.m.

Dept: 2 (sitting in Dept. 8)

Hon. Al Girolami

_________________________________________/

TABLE OF CONTENTS

TABLE OF AUTHORITIES..... ii

FACTS..... 2

ARGUMENT..... 3

I. A GENERAL INVOCATION OF PREJUDICES IS INSUFFICIENT TO SUPPORT SEALING PRESUMPTIVELY OPEN JUDICIAL RECORDS, THE MOVING PARTIES MUST SUPPORT THEIR MOTIONS WITH EVIDENCE ..4

II. EXTENSIVE PUBLICITY IS INSUFFICIENT TO SUPPORT CLOSURE..... 5

III. THAT INFORMATION INADMISSIBLE AT TRIAL MAY BE DISCLOSED DOES PERMIT RECORDS TO BE SEALED.....7

IV. THE DEFENDANT CANNOT DEMONSTRATE THAT ALTERNATIVES TO CLOSURE ARE INADEQUATE TO PROTECT HIS SIXTH AMENDMENT RIGHTS.....7

V. THE COST FACTOR IS NOT CONTROLLING OR EVEN CONSTITUTIONALLY RECOGNIZED.....8

VI. THE PEOPLE'S CITED AUTHORITIES DO NOT SUPPORT SEALING.....9

VII. THE NEWS MEDIA DO NOT SEEK ACCESS TO THE EVIDENCE SEIZED.....11

VIII. CONCLUSION.....11

TABLE OF AUTHORITIES

CASES

Allegrezza v. Superior Court

47 Cal.App3d 948, 952 (1975).....12

Chandler v. Florida

449 U.S. 560 (1981).....9

Craemer v. Superior Court

265 Cal.App2d 216 (1968).....10-11

CBS v. United States District Court for C.D. of Calif. (DeLorean)

729 F.2d 1174 (9th Cir. 1984).....6,8

Estes v. Texas

381 U.S. 532, 540 (1965).....9

Globe Newspapers Co. v. Superior Court

457 U.S. 596 (1982).....5

Irvin v. Dowd

366 U.S. 717 (1961).....6

Nebraska Press Assn. v. Stuart.....7-9

Odle v. Superior Court

32 Cal.3d 932 (1982).....7-9

Oziel v. Superior Court

223 Cal.App.3d 1284 (1990).....11

People v. Hobbs, 7 Cal.4th 948 (1994).....3

Press-Enterprise v. Superior Court

22Cal.App.4th 498 (1994).....6,9-12

Press-Enterprise Co. v. Superior Court of California

161 U.S. 501 (1984).....3,12

Press-Enterprise II v. Superior Court of California

478 U.S. 1 (1986).....3,5,7

Rideau v. Louisiana

373 U.S. 723 (1963).....6

Rosato v. Superior Court

51 Cal.App.3d 190 (1975).....10

Tribune Newspapers West, Inc. v. Superior Court

172 Cal.App.3d 443 (1985).....5,8

-ii-

San Jose Mercury News [v. Municipal Court

30 Cal.3d 498 (1982)].....9

United States v. Brooklier

685 F.2d 1162, 1169 (9th Cir. 1982).....5

Waller v. Georgia

467 U.S. 39 (1984).....11

STATUTES

Penal Code section 1534.....2,5,9

RULES

California Rules of Court, rules 243.1 and 243.2.....2,3,4,11

-iii-

FILED MAY 16, 2003 10:49 AM

CLERK OF THE SUPERIOR COURT

COUNTY OF STANISLAUS

BY [SIGNATURE]

DEPUTY

CHARITY KENYON - 078823

JOHN E. FISCHER - SBN 65792

RIEGELS CAMPOS & KENYON LLP

2500 Venture Oaks Way, Suite 220

Sacramento, CA 95833

Telephone: (916) 779-7100

Facsimile: (916) 779-7120

Attorneys for McClatchy Newspapers, Inc. dba The Modesto Bee, and for Los Angeles Times, Hearst Communications, Inc. dba San Francisco Chronicle, Contra Costa Newspapers, Inc., and San Jose Mercury News, Inc.

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF STANISLAUS

The People of the State of California,

Plaintiff,

Scott Lee Peterson

Defendant.

Case No. 1056770

Newspapers' Opposition to People's Motion to Seal Search Warrant, Addenda and Arrest Warrant

Date: May 27, 2003

Time: 8:30 a.m.

Dept: 2 (sitting in Dept. 8)

Hon. Al Girolami

________________________________________/

The Modesto Bee, San Francisco Chronicle, Los Angeles Times, San Jose Mercury News, and Contra Costa Times submit this memorandum of points and authorities in opposition to the People's motion filed May 6, 2003. While the motion states that "the People and the Defense are hereby moving" for an order sealing the search warrant issued April 24, 2003 and the Ramsey warrant, the news media anticipate that the defense will file additional papers to which the news media may reply under the terms of the court's May 9, 2003 minute order.

///

FACTS

Beginning in late January, The Modesto Bee and others sought disclosure of certain search warrants addressed to the person and property of Scott Peterson in connection with an ongoing investigation of the disappearance of his wife, Laci Peterson. The Bee filed a petition for access to those documents, relying on Penal Code section 1534 and California Rules of Court, rules 243.1 and 243.2. The District Attorney opposed the petition on the basis that Penal Code section 1534 did not apply to pre-arrest warrants and, if it did, the statute violated the constitutional separation of powers doctrine. The matter was heard April 4, 2003 by the Hon. Roger Beauschane.

Judge Beauschane agreed with the news media that Penal Code section 1534 and rules 243.1 and 234.2 apply to pre-arrest search warrants. After an in camera hearing Judge Beauschane nevertheless concluded that the documents should remain sealed in their entirety based on the showing made by the People. He ordered that the documents should be automatically disclosed on the occurrence of either: filing of a complaint or passage of 90 days, The People, not the news media, filed a petition for writ of mandate in the Court of Appeal for the Fifth Appellate District. The People did not challenge the aspect of the court's order requiring disclosure of the documents after the filing of a complaint. Instead, they challenged application of Penal Code section 1534 and the rules of court to pre-arrest warrants.

The court of appeal upheld 99% of Judge Beauschane's order and modified its temporary stay order to make it clear it was not prejudging any subsequent application for presumptively and statutorily open judicial records. The court of appeal rejected the People's entire argument. It determined only that the superior court erred in determining that disclosure should be automatic upon filing of a complaint or lapse of 90 days. The question whether, with respect to these 8 sealed warrants, disclosure should now be ordered, is pending before Judge Beauschane and is set to be heard on June 3, 2003.

The court of appeal modified its stay order by deleting the second paragraph and inserting the word "prior" in the first sentence so that it is clear that its order applied only to prior orders of the superior court and not to any new proceeding that might be brought. The

last sentence of the opinion confirmed that the court's decision was not addressed to subsequent applications for the same or similar documents:

Nothing in this order forecloses any interested person or entity from re-applying to the superior court for a release order at an appropriate time in the future and upon a showing of a change in circumstances.

Opinion filed May 5, 2003 in FO42848, p. 6.

The People move to seal the documents in question under very different circumstances from their prior applications. The bodies have been found, an arrest has been made, and a complaint has been filed. Pretrial proceedings are under way. Not only Penal Code section 1534, but also the United States Supreme Court Press-Enterprise decisions require public access to court documents and proceedings. The exceptions are narrowly limited and the People have failed to make any showing that would support the extraordinary findings necessary to continue sealing the documents at issue in this motion. See Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984) (access to voir dire and to related court documents); Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1 (1986) (access to preliminary hearings).

ARGUMENT

The People must, in order to support the requested sealing, make a showing that supports the findings required by rule 243.2, including, for example, the applicability and weight of exceptions described in the case law, primarily People v. Hobbs, 7 Cal. 4th 948 (1994). The People have not attempted to make the type of showing that might be sufficient to support sealing all or a portion of the conditionally sealed documents as set forth in the court of appeal's recent decision.¹ The People do not claim that a potential suspect might be alerted, that evidence would likely be destroyed or that witnesses would conceivably disappear, much less that a confidential informant requires protection. See Opinion filed May 5, 2003 in FO42848, p.5. Since the People have agreed to provide all of the sealed information to the

___________________________

¹The People refer to these exceptions at page 9 and footnote 36 without invoking them.

defendant, it would seem that the People agree that the concerns identified by the court of appeal do not apply to these documents.

Instead, the People rely on generalizations about publicity insufficient as matter of law to permit sealing of statutorily open judicial records. The People argue first that the defense should have an opportunity to make a showing in support of sealing. We agree. The news media anticipate responding to any such showing. Second, the People argue "there is a probability that disclosure will result in prejudicial pre-trial publicity." (People's memorandum of points and authorities at pp. 4-10). The cited authorities are insufficient to support sealing on such a generalized basis. The governing authorities require the court to reject such generalizations and to refuse to continue sealing of the conditionally sealed documents.

1. A GENERAL INVOCATION OF PREJUDICE IS INSUFFICIENT TO SUPPORT SEALING PRESUMPTIVELY OPEN JUDICIAL RECORDS; THE MOVING PARTIES MUST SUPPORT THEIR MOTIONS WITH EVIDENCE

The rules of court do not permit continued sealing based on generalizations. The court may order the record sealed if (but only if) it expressly finds--based on a noticed motion to seal:

(1) There exists an overriding interest that overcomes the right of public access to the records;

(2)The overriding interest supports sealing the record;

(3) A substantial probability exists 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 exist to achieve the overriding interest.

Rules of Court, rule 243.1(d).

What is not permissible and will not withstand review is a conclusory finding without reference to evidence, that "disclosure will result in prejudicial pre-trial publicity." If such general invocations of potential prejudice were sufficient, all search warrant documents could

be sealed indefinitely and the public's right under Penal Code section 1534 would be rendered meaningless. See generally, United States v. Brooklier, 685 F.2d 1162, 1169 (9th Cir. 1982) (observing that if such findings were insufficient, all testimony in pretrial proceedings could be taken in secret); see also Globe Newspapers Co. v. Superior Court, 457 U.S. 596, 611 n.27 (1982) (holding unconstitutional rule requiring closure of court proceedings without "particularized determinations in individual cases").

The nature and kind of evidence that the moving parties must produce to support closure of presumptively open judicial records and proceedings is discussed in Tribune Newspapers West, Inc. v. Superior Court, 172 Cal.App.3d 443 (1985) (finding abuse of discretion in closing proceedings involving juveniles charged with armed robbery). The opinion also addresses the right of the public to respond to any evidentiary showing.

II. EXTENSIVE PUBLICITY IS INSUFFICIENT TO SUPPORT CLOSURE

Extensive publicity is not alone sufficient to support closure of a presumptively open hearings or records. Tribune Newspapers West, Inc. v. Superior Court, 172 Cal.App.3d 443 (1985), observed:

Media dissemination of the alleged facts of horrifying and threatening criminal activity, particularly multiple murders, unfortunately is a fact of life in our society. The news reports may, and do, contain inadmissible hearsay, rank and unfounded opinions, incriminating statements, in accurate sketches and more. But our criminal justice system is deemed to be heart enough to withstand prejudicial publicity and still guarantee a given defendant the most basic right to receive a fair trial. In this regard, the cost to the criminal justice system to provide a fair trial is the price we pay for an open society, and a free press with access to criminal proceedings.

172 Cal.App3d at 458-59.

Where, as here, there exists a plethora of publicity already in the public domain, it may be difficult to show that closure would be effective to prevent the perceived harm to the defendant. See Press-Enterprise II, 478 U.S. at 14 (defendant must demonstrate that closure would prevent the publicity). The ample existing information about the crimes in this case may simply be repeated, fueled by speculation as to why the court's records must be sealed and what the warrant, addends and affidavits might show. Indeed, the news media have little to report

except speculation, which does not enhance prospects for a fair trial. Since secrecy would not be effective to prevent the perceived harm, the rules require the court to deny the requested sealing.

The cases controlling this court's decision analyze evidence and reject reliance on conclusory or speculative findings. They place a value on openness as a primary safeguard and attribute of the American criminal justice system. Comparing the facts and factors analyzed in these cases to the circumstances of this case, neither the People nor the defendant can meet their burden of proof to support sealing--partial or total.

In a case involving a community of 850 people, the United States Supreme Court observed: "We have noted earlier that pretrial publicity, even if pervasive and concentrated, cannot be regarded as leading automatically and in every kind of criminal case to an unfair trial." Nebraska Press Assn. v Stuart, 427 U.S. 539, 565 (1976); see also, CBS v. United States District Court for C.D. of Calif. (DeLorean), 729 F.2d 1174 (9th Cir. 1984)(even when exposed to heavy widespread publicity, many if not most potential jurors are untainted by press coverage). DeLorean pointed out that almost all cases in which the Supreme Court has found that press coverage deprived the defendant of a fair trial have been tried in small rural communities. See Rideau v. Louisiana, 373 U.S. 723 (1963); Irvin v. Dowd, 366 U.S. 717 (1961)(county of approximately 30,000).

Needless to say, the Watergate and O.J. Simpson trials also showed that unbiased jurors can be selected, even in the face of pervasive pretrial publicity. In a community more similar in size to Stanislaus County, the Sonoma County Court denied the defendant's request to close the preliminary hearing in the Polly Klaas trial without impairing the defendant's eventual fair trial right's. Other examples abound. This has been California's experience; it may be a relatively rare one for Stanislaus County but many counties have kept open their courts and records while fully protecting the fair trial rights of defendants in cases with worldwide notoriety. Directing a trial court to set aside its order sealing the grand jury transcripts in Press Enterprise v. Superior Court, 22Cal.App.4th 498, 503 (1994), the court of appeal observed all it takes is "12 jurors capable of acting impartially."

Not only is there no evidence in the record of the size of the jury pool in Stanislaus County, but the defense has already stated that it anticipates moving for a change of venue.

The Defendant cannot produce evidence to support the finding that there is a "substantial probability" that, even if it exercises its right to move for change of venue, twelve unbiased jurors could not be found in this county or anywhere in the state. Certainly the media and public have not been permitted to review any such evidence to test its adequacy.

III. THAT INFORMATION INADMISSIBLE AT TRIAL MAY BE DISCLOSED DOES PERMIT RECORDS TO BE SEALED.

The fact that information may be disclosed which ultimately may not be offered or admitted in trial is insufficient to support closure or pretrial hearings or documents. In Press Enterprise II, the Court recognized that "publicity concerning the proceedings at a pretrial hearing ... could influence public opinion against the defendant and inform potential jurors of inculpatory information wholly inadmissible at the actual trial." 478 U.S. at 14. This risk did not automatically justify refusing public access. Id. at 15. "Through voir dire, cumbersome as it is in some circumstances, a court can identify whose jurors whose prior knowledge of the case would disable them from rendering an impartial verdict." Id.

In this respect, the public right of post-complaint access to search and arrest warrant is indistinguishable from its right of access to the preliminary hearing and to voir dire hearings and transcripts. Here, a statute, Penal Code section 1534, grants that right of access; in the latter instances the United States Supreme Court has ruled that the right of access is rooted in the First Amendment. In all three instances the news media may publicize inculparoty information without the defendant's having had an opportunity to bar its admission at trial or to offer exculpatory evidence in response. Nevertheless, the public's right of access and the need to consider alternatives to closure are well-established.

IV. THE DEFENDANT CANNOT DEMONSTRATE THAT ALTERNATIVES TO CLOSURE ARE INADEQUATE TO PROTECT HIS SIXTH AMENDMENT RIGHTS

"Mindful that trial courts are understandably reluctant to change venue when the parties and witnesses are in place," the supreme court in Odle v. Superior Court, 32 Cal 3d

932 (1983), pointed out that trial courts have the authority to change venue in an appropriate case even after jury selection has begun. 32 Cal.3d at 943. At the time of jury selection the jury panel itself provides additional evidence on the impact of pretrial publicity. Id. "What had been a matter of some speculation at the earlier motion --i.e., the actual extent of exposure of those who are potential jurors--becomes, on a later motion, subject to more precise measurement and evaluation." Id. at 943-44.

A mere conclusory statement that "[n]o matter how searching the questions ...certain matters are not detectable, especially those motives relative to bias and prejudice" was rejected in DeLorean as an effective basis for rejecting voir dire as an alternative to closure. DeLorean, 729 F.2d at 1182.

Further, rejection of voir dire on principle is inconsistent with applicable precedent. The United States Supreme Court in Nebraska Press, 427 U.S. at 563-64 and circuit courts of appeals have repeatedly found that voir dire is a viable alternative to restraints on the press, even in cases attracting massive publicity. DeLorean, 792 F.2d at 1182 (and cases cited). Similarly, in this case, alternatives recognized and approved by the Supreme Court may not be rejected summarily. Their rejection must be based on evidence peculiar to this case. See Nebraska Press Assn., 427 U.S. at 565 (record lacked evidence to support finding rejecting alternative measures).

Referring again to the discussion in Tribune Newspapers, the news media asserts that this court, before ordering sealing on the basis of pretrial publicity, must consider:

(1) the nature and extent of the media coverage, including circulation figures and geographical distribution;...;(4) a change of venue; (5) protection afforded by a searching voir dire of potential jurors; and (6)sequestration of the jury panel.

172 Cal.App.3d at 460. "Alternative measures may present difficulties for trial courts but none are beyond the realm of the manageable." Id.

V. THE COST FACTOR IS NOT CONTROLLING OR EVEN CONSTITUTIONALLY RECOGNIZED.

Tribune Newspapers West, 172 Cal.App.3d at 458, discusses at length the "dangerous and totally unacceptable" notion that alternatives to a jury trial within an area where

prejudicial publicity has circulated may not be pursued before the press is excluded, based on cost. The court points out:

Expense to those parties and courts was not a discussed factor, much less a deciding one in San Jose Mercury News [v. Municipal Court, 30 Cal.3d 498 (1982)], nor in Odle.

172 Cal.App.3d at 458. In virtually all cases, the court found, as between preserving the rights of public access and free press and the interest in minimizing the expense of empaneling an impartial jury "it is no contest." Id. at 458

VI. THE PEOPLE'S CITED AUTHORITIES DO NOT SUPPORT SEALING

As noted at the outset, the District Attorney relies solely on generalized concerns about pre-trial publicity; he does not rely on any of the factors or types of evidence discussed in the court of appeal's recent decision. The documents the People seek to seal must be disclosed to the public under Penal Code section 1534 and the First Amendment, unless the moving party makes the Press Enterprise type showing embodied in rules of court 243.1 and 243.2.

The authorities discussed above compel the court to deny the motion, unless a moving party produces evidence to show alternatives to closure (such as the proposed change of venue) would not protect the defendant's right to a fair trial.

The People's cited authorities do not support closure. Estes v. Texas, 381 U.S. 532, 540 (1965) (People's memorandum of points and authorities at p.3), dealt with conduct of the trial itself, not with access to pre-trial proceedings and documents (which were the subject of the more recent Press-Enterprise decisions). In Estes the Court (which issued six separate opinions) held that the defendant was deprived on due process rights by the televising of his trial. Chandler v. Florida, 449 U.S. 560 (1981), the Court held that television coverage does not necessarily deprive a defendant of due process rights and affirmed the convictions. Since these cases dealt with conduct of the trail itself, they are inapposite.

Also, the news media do not assert greater rights of access that the rights of the public generally; nor do they assert that the court has issued a gag order. (People's memorandum of points and authorities at p. 4). These arguments are not on point.

Allegrezza, Rosato and Craemer are pre-Press Enterprise decisions. (People's memorandum of points and authorities at p.3). For this reason alone they are of limited or no value. As will be shown, they are also inapposite. In Allegrezza v. Superior Court, 47 Cal.App.3d 948, 952 (1975), the First Appellate District found no pretrial right of public access to the defendant's confession. There is no suggestion that the sealed documents in this case contain a confession. In Rosato v. Superior Court, 51 Cal.App.3d 190 (1975), the court considered the asserted right of the news media not to disclose the source of information obtained in violation of a court order. The decision preceded (and prompted) elevation of the shield law to the California Constitution. See Cal. Const.Art.I, Sec.2. Again, there is no issue here of publication in violation of a court order.

In Craemer v. Superior Court, 265 Cal.App.2d 216 (1968), the court of appeal reviewed a trial court order sealing the transcript of the indicting grand jury. There is no grand jury transcript it issue here. However, contrary to the People's description of the holding, the Craemer court granted the news media's petition for writ of mandate, directing the trial court to require an evidentiary showing by the defendant. (People's memorandum of points and authorities at p. 5) Moreover, Craemer dealt with a claimed right of access to records governed by an entirely different statute (since also changed). To the extent that Craemer requires an evidentiary showing by the moving party, it supports the news media.

The test laid out in Craemer has since been changed by the Press Enterprise decisions and the rules of court. The People suggest that there is a split of authority with respect to whether a "probability of unfairness" or "reasonable likelihood" test applies to this court's determination of the motion to seal. To the contrary, the California Rules of Court and Press Enterprise require the showing advocated by the news media (and affirmed by the court of appeal in the proceedings before Judge Beauschane):

(1) There exists an overriding interest that overcomes the right of public access to the record;

(2) The overriding interest supports sealing the record;

(3) A substantial probability exists 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 exist to achieve the overriding interest.

As in Craemer, evidence, not generalities must be produced to support the court's findings on any of these points. The People have presented none.

Waller v. Georgia, 467 U.S. 39 (1984) (People's memorandum of points and authorities p. 5), is inapposite because it dealt with the defendant's right to object to closure of pretrial suppression proceedings. The Court reversed where closure of the entire hearing was plainly unjustified and violated the defendant's Sixth Amendment public-trial guarantee..

The other authorities cited for the proposition that the court has broad discretion to seal and control its records (People's memorandum of points and authorities at p.n. 18 and p.7 n. 19) do not affect or relate to the standard this court has already adopted, which, contrary to the People's assertions in their petition for writ of mandate, have been approved by the court of appeal.

VII. THE NEWS MEDIA DO NOT SEEK ACCESS TO THE EVIDENCE SEIZED

Finally, the People persist in relying on Oziel v. Superior Court, 223 Cal.App.3d 1284 (1990) (People's memorandum of points and authorities at p.7-8). Not only did Oziel precede adoption of rules 243.1 and 243.2, but Oziel addressed access to the fruits of the search, not to the warrant and supporting affidavits. The news media do not seek access to the evidence itself. More important, the Fifth Appellate District, by affirming Judge Beauschane's order applying section 1534 to pre0arrest warrants rejected this argument.

VIII. CONCLUSION

The news media have statutory and First Amendment rights of access to the documents sought to be sealed, absent a showing satisfying the Press Enterprise test adopted by the California Rules of Court. So much has already been decided and affirmed by the court of appeal. Now, as in Craemer, any party seeking to seal presumptively open judicial records must make an evidentiary showing satisfying the test laid out in the rules of court.

Openness in court proceedings and documents "enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569-571 (1980). "When the public is aware that the law is being enforced and the criminal justice system is functioning, an outlet is provided for these understandable reactions and emotions. Proceedings held in secret would deny this outlet and frustrate the broad public interest ...." Press-Enterprise I, 464 U.S. at 508-09.

For these reasons and based on this authority, the court should deny the motion to seal. The experience of the California courts is that, even in the most high profile cases, the courts are able to protect the constitutional rights of criminal defendants and of the public. There is no evidence to support findings that, first, there is a substantial probability that the defendant's right to a fair trial would be prejudiced by publicity that sealing would prevent and, second, reasonable alternatives to sealing cannot adequately protect the defendant's fair trial rights. Id. at 510.

The court should find, under the rules of court and Press-Enterprise decisions:

(1)These is an absence of evidence to show that the interest in protecting the defendant's fair trail rights supports continued sealing of the records;

(2)Given the amount of information already available, there is an absence of evidence to show that sealing would be effective to protect against pretrial publicity;

(3) The proposed sealing is overboard;

(4)There is an absence of evidence to show that alternatives, including but not limited to voir dire, sequestration of the jury or change of venue would be ineffective to protect the defendant's fair trial rights;

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(5)The showing in support of the motion is insufficient to outweigh the statutory and constitutional rights of the press and public to access to these documents and proceedings.

DATED: May 15, 2003

RIEGELS CAMPOS & KENYON LLP

By [signature]

CHARITY KENYON

Attorneys for The Modesto Bee, San Francisco Chronicle, Los Angeles Times, Contra Costa Times, and San Jose Mercury News

PROOF 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 Riegels, Campos & Kenyon, LLP, 2500 Venture Oaks Way, Suite 220, Sacramento, CA 95833. On March 31, 2003, I served the following document(s) by method indicated below.

Newspaper's Opposition to People's Motion to Seal Search Warrant, Addenda and Arrest Warrant

X by transmitting via facsimile on this date from fax number (916) 779-7120 the documents(s) listed above to the fax number(s) set forth below. The transmission was completed before 5:00 p.m. and was reported complete and without error. The transmission report, which is attached to this proof of service, was properly issued by the transmitting fax machine. Service by fax was made by agreement of the parties, confirmed in writing. The transmitting fax machine complies with Cal.R.Ct 2003(3).

X by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Sacramento, California addressed as set forth below. I am readily familiar with the firm's practice of collection and processing of 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 the postal cancellation date or postage meter date is more than one day after the date of the deposit for mailing in this Declaration.

David P. Harris

Sr. Deputy District Attorney

D.A. Stanislaus County

11001 I Street #200

Modesto, CA 95354-2325

FAX 209-525-5545

Kirk McAllister

McAllister & McAllister

1012 11th St, #100

Modesto, CA 95354

FAX 209-575-0240

Mark Geragos

Geragos & Geragos

350 S. Grand Avenue, #3900

Los Angeles, CA 90071-3480

FAX (213) 625-1600

I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on May 15, 2003, at Sacramento, California.

[signature]

LAURI KENT