Defendant's Memorandum in Response to Court's Inquiry Re "Gag" or Protective Order

GERAGOS & GERAGOS
LAWYERS
39'"' FLOOR
350 S. GRAND AVENUE
LOS ANGELES, CA 90071 -3480
TELEPHONE (213)625-3900
FACSIMILE (213) 625-1600
MARK J. GERAGOS SBN 108325
Attorney for Defendant SCOTT LEE PETERSON

McALLISTER & McALLISTER, Inc.
1012 11th Street, Suite 100
Modesto, CA 95354
KIRK W. McALLISTER SBN 47324
Attorney for Defendant SCOTT LEE PETERSON

FAX FILING

FILED JUNE 4, 2003 4:44 PM

CLERK OF THE SUPERIOR COURT

COUNTY OF STANISLAUS

BY: [SIGNATURE] DEPUTY

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF STANISLAUS

THE PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff,

vs.

SCOTT LEE PETERSON,  et al.,

Defendant.

Case No. 1056770

DEFENDANT'S MEMORANDUM IN RESPONSE TO COURT'S INQUIRY RE "GAG" OR PROTECTIVE ORDER

DATE: June 6, 2003
TIME: 8:30 a.m.
PLACE: Dept 2 /8
Courtroom of Judge A]. Girolami

TO: STANISLAUS COUNTY DISTRICT ATTORNEY; and
TO: CLERK OF THE ABOVE-ENTITLED COURT:

Defendant Scott Lee Peterson ("Mr. Peterson") respectfully submits the following Memorandum in response to the Court's inquiry regarding the issuance of a gag order.

pg. 1

MEMORANDUM OF POINTS AND AUTHORITIES PROLOGUE

Orders which restrict or preclude a citizen from. speaking in advance axe known as "prior restraints," and are disfavored and presumptively invalid. Gag orders on trial participants are unconstitutional unless (1) the speech sought to be
restrained poses a clear and present danger or serious and imminent threat to a protected competing interest; (2) the order is narrowly tailored to protect that interest; and (3) no less restrictive alternatives are available.

(footnotes omitted) (Hurvitz v. Hoefflin et al. (2nd Dist. 2000) 84 Cal.App.4th 1232, 1241, review denied March 21, 2001.)

It is clear that even a short-lived. "gag" order in a case of widespread concern to the community constitutes a substantial prior restraint and causes irreparable injury to First
Amendment interests as long as it remains in effect.
(Capital Cities Media, Inc. et al. v. Toole (1983) 463 U.S. 1303, 1304, 103 S.Ct. 3524, 3526.)
* * *
The judicial system, and in particular our criminal justice courts, play a vital part in a democratic state, and the public has a legitimate interest in their operations.
(Gentile v. State Bar of Nevada (1991) 501 U.S. 1030, 1035, 111 S.Ct. 2720, 2724.)

Public awareness and criticism have even greater importance where, as here, they concern allegations of police corruption

pg. 2

(Gentile at 1035.)

The press. . .guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.
(Gentile at 1035.)

Public awareness and criticism have even greater importance where, as here, they concern allegations of police corruption, or where. . .the criticism questions the judgment of an elected
public prosecutor. (internal quotation marks and citations omitted) (Gentile at  1035.)

I.

INTRODUCTION

During the May 27, 2003 hearing, the Court asked counsel for their arguments as to the issue of a protective order. Mr. Peterson objects to such an order on practical grounds. As will be discussed. below, this Court's authority to fashion a protective order is inherently limited to the participants and people in their immediate sphere of control. As this Court is undoubtably aware, this matter has received unprecedented media attention. As such, even if the participants are gagged it will do little to stop the tsunami of coverage of this matter. In fact, it is the position of the defense that a so-called "gag" order would result in the law of unintended consequences. Namely, all that a "gag" order
would do is increase the breath and depth. of misinformation and scurrilous accusations that swirl around. this case, with no ability to mitigate the damage. Unless the media is permitted to properly and accurately report on developments as they occur, Mr. Peterson will have no opportunity to remedy the prior avalanche of disinformation disseminated in

pg. 3

the four months prior to his arrest. Moreover, the more appropriate remedy to protect Mr.
Peterson's right to fair trial is found in both the Superior Court and Fifth District's orders sealing certain records in this matter.

II.
THERE IS NO BASIS ON WHICH TO ISSUE A GAG ORDER

Gag orders on trial participants are unconstitutional unless (1) the speech sought to
be restrained poses a clear and present danger or serious and imminent threat to a
protected competing interest; (2) the order is narrowly tailored to protect that interest; and
(3) no less restrictive alternatives are available)¹ (Hurvitz v. Hoehn et al., supra, 84
Cal.App.4th at 1241.) Additionally, upon making such an order, the trial court must make
express findings showing it applied this standard and considered and weighed the
competing interests, (Id.) In the instant matter, as a practical and legal matter, none of
the three prongs set forth in Hurvitz are met.

A. There is no clear and present danger or serious and imminent threat to a protected competing interest.

The paramount considerations of the Court must be (1) Peterson's right to a fair trial, and (2) the First Amendment right upon which a gag order would infringe. No right ranks higher than the right of the accused to a fair trial.

(In re Willon (6th Dist. 1996) 47 Cal.App.4th 1080, 1092, rehearing denied, review denied, citing Press-Enterprise Co. v. Superior Court (1984) 464 U.S. 501, 508, and referring to Gentile v. State Bar of Nevada (1991) 501 U.S. 1.030, 1075. Here, Mr. Peterson stands wrongly and falsely accused of the capital murder of his

____________________

¹The Court also requested the parties' opinion, as to the appropriate standard for issuance of
a gag order. Peterson submits the three-prong Hurvitz approach sets forth the applicable California law.

pg. 4

wife, Laci and their son. As such, Mr. Peterson has no trepidation about the fair and accurate reporting of his case as it unfolds. However, as this Court is indeed aware, Mr. Peterson has been relentlessly excoriated, and vilified in the media. Just today, the Modesto Bee published. a study that chronicles just how pervasive and insidious this campaign has been. Fully, 59.3 percent of the persons polled in Stanislaus County believe Mr. Peterson "probably guilty" or "guilty beyond a reasonable doubt".'

Furthermore, because of the avalanche of disinformation that has already occurred in this case, any danger of prejudice to Mr. Peterson is not just "clear and present", but past and manifest. If the Court were to impose a prior restraint on the participants it would do no more than result in the unfair and inaccurate reporting of this case.²

B. There is no way to narrowly tailor a gag order on this case.

During the May 27, 2003 hearing the Court alluded. to the fact that this case is in the newspapers and televised media on a daily basis. The media reports range from accurate reporting of factual or procedural matters to the patently absurd and often completely unfounded speculation. Although some, if not much, of what has been reported about this case has been pure sensationalism designed to appeal to the public's perceived more vile interests, a significant amount of the reporting has been fair and accurate. In short, the sheer volume of attention this case has garnered prevents any type
of narrowly tailored gag order - - it would have to be a total gag to have any effect not unlike the sub judice laws which are not found in American jurisprudence. Consequently, there simply is no way to narrowly tailor a gag order that would render it constitutionally permissible while at the same time protecting a defendant's right to fair trial.

____________________

'Study says Peterson can't get fair trial here", Modestobee.com, June 4, 2003. (Attached as Exhibit A).

²Certainly, false reports can and should be dealt with appropriately. However, the imposition of a prior restraint in the form of a gag order is unlikely to deter those who traffic in the titillating and uniformly wrong disinformation that has plagued this case.

pg. 5

C. Less restrictive alternatives exist in the event certain information should not be disclosed.

The parties to this case have the option of filing documents under seal or requesting in camera hearings if necessary. Moreover, the Court has the inherent authority (within certain Constitutional strictures) to seal matters, order documents or filings to be sealed, or hold proceedings in camera. All of these procedures are much more likely to protect the various competing interests and clearly represent a less restrictive alternative to a gag order. The Court also has to power to (again, within certain Constitutional guidelines) close certain proceedings or exclude cameras from hearings or trial.¹ The Court's exercise of these powers is also a much less restrictive alternative to a gag order.

III. POTENTIAL PREJUDICE TO POTENTIAL JURORS DOES NOT JUSTIFY A GAG ORDER

California law requires an actual showing of prejudice in order to justify a gag order. As noted by the Court of Appeal in Hurvitz,

Where a party contends his or her right to a fair trial has been or will be compromised by pretrial publicity, the law has long imposed on that party the burden of producing evidence to -establish the prejudice. It is not enough for a court to decide that the fair trial right may be affected by the exercise of free speech. (internal quotation marks and footnotes omitted) (Hurvitz at 1242.)

In the instant matter, no party has alleged as to the gag order, that potential jurors

____________________

'Further briefing on closure matters, cameras in the courtroom and related sealing orders will be addressed separately in accordance with the Court's briefing/hearing schedule.

pg. 6

have been prejudiced or will be prejudiced if the gag order does not issue.¹

IV. STATE BAR RULE 5-120 GOVERNS THE ATTORNEYS' CONDUCT

As the Court noted, Rule 5-120 governs the conduct of attorneys as to trial publicity. Consequently, there is no need for the Court to impose further restrictions than those to which all attorneys involved in this matter have acquiesced by being sworn in as members of the State Bar of California. In the event attorney misconduct does occur, such misconduct can be directly addressed by the Court or by an appropriate motion by the aggrieved party. A wholesale gag order on this matter provides no greater guard against attorney misconduct than that which is already binding and in place. .

VI. CONCLUSION

WHEREFORE, in light of the foregoing, Peterson respectfully requests that the Court refrain from. issuing a gag order at this time without prejudice. If there is a change in circumstances that warrants a reconsideration. of this issue we would respectfully ask the Court to address the issue at that time.

Dated: June 4, 2003

Respectful submitted,
GERAGOS & GERAGOS

BY: [SIGNATURE]

MARK J. GERAGOS

Attorney for Defendant

SCOTT LEE PETERSON

____________________

As this Court knows, counsel for Mr. Peterson has already indicated on the record that a request for a change of venue is forthcoming at the appropriate time. Nothing argued in this Memorandum is to be construed as a waiver of the arguments that will be raised in Mr. Peterson's motion for a change of venue. In any event, the standards and interests that must be balanced are different as to a change of venue vis a vis a gag order.

pg. 7

EXHIBIT "A"

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Modbee.com The Modesto Bee                                                                                           Page 1 of 4

Study says Peterson can't get fair trial here

By JOHN COTE
and GARTH STAPLEY

Published: June 4, 2003, 08:00:58 AM PDT

Scott Peterson cannot get a "fair and impartial trial" from Stanislaus County jurors, according to a survey
conducted by a criminal justice professor at California State University, Stanislaus.

Seventy-five percent of the people surveyed in the county said they had decided whether double-murder suspect Peterson was guilty, what his sentence should be or both.

The survey of 150 people conducted in late May showed that 59.3 percent of the respondents thought Peterson was either "probably guilty" or "guilty beyond a reasonable doubt." Only 2.7 percent believed Peterson was innocent.

It also showed that 51 percent of the respondents favored the death penalty if Peterson were found guilty.
"There is clear evidence that a fair and impartial trial cannot be had in Stanislaus County," Stephen Schoenthaler, the professor who oversaw the survey, wrote in a summary of the results.

Schoenthaler, who did the poll. on his own, has conducted similar surveys in 24 felony cases. He was the court-appointed expert in the request to move the 1995 trial of Richard Allen Davis, who was convicted of murdering 12-year-old Polly Klaas from Petaluma, in Sonoma County. That trial was held in Santa Clara County.
The survey of 150 Stanislaus County residents, picked at random from telephone n directories and contacted by Stanislaus State graduate students, has a margin of s error of plus or minus 8 percentage points.

'Clear and convincing'

A 1961 U.S. Supreme Court ruling said there was "clear and convincing" evidence that a trial needed to be moved when 62 percent of the jury pool admitted to having prejudgments about a defendant.

"Unless between. now and the time of the trial there is substantial releases of

http://modestobee.com/local/story/6899692p-7835909c.html 6/4/2003

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Modbee.com The Modesto Bee                                                                                             Page 2 of 4

information to the media that says Scott Peterson is not guilty, these levels of prejudgment aren't going to go down," Schoenthaler said. "The trial would have to be moved."

Peterson defense attorney Mark Geragos has said in court that he would ask for the trial to be moved. "Obviously this survey is something I'm extremely interested in looking at," he said Tuesday.

Chief Deputy District Attorney John Goold said it was premature to talk about moving the trial until the defense requested it.

"I haven't seen the study. We haven't commissioned our own export, and no motion has been brought," he said.

Goold said prosecutors would oppose a motion to move the trial, but he indicated that could change if a prosecution expert produced the same results as Schoenthaler.

"Nobody is interested in having a trial, anywhere it shouldn't be held," Goold said. "But we won't know until we're closer to an actual setting of a trial date whether those numbers mean anything or whether they are going to change."

Scott Peterson, 30, has been charged with murdering his wife, Laci, and their unborn son, Conner. The district attorney has announced that he will seek the death penalty.

Laci Peterson, 27 and eight months pregnant, was reported missing from her Modesto home Dec. 24. Scott Peterson said he went fishing in San Francisco Bay on Christmas Eve.

The bodies of mother and child were found in April along the eastern shoreline of the bay.

Geragos, whose clients have included actress Winona Ryder and Clinton Whitewater figure Susan McDougal, has called the media attention surrounding the case "unprecedented."

If the defense asks for a trial in another county, under what is called a change of venue, California law mandates approval when it appears that there is a "reasonable likelihood" that a fair and impartial trial cannot be obtained in the county of origin. Or jurors from another area can be brought in.

For comparison, Schoenthaler conducted the same survey among Los Angeles residents. In that survey, 54 percent said they had made a judgment about either Peterson's guilt or what sentence he deserved.
But Schoenthaler said the "depth of conviction is quite a bit different."

Only 10 percent of Los Angeles County respondents said they thought Peterson was guilty "beyond a reasonable doubt" -- the legal standard required for a conviction.

In Stanislaus County, that number was 24 percent.

http://modestobee.com/local/story/6899692p-7835909c.html 6/4/2003

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Modbee.com The Modesto Bee                                                                                             Page 3 of 4

Three legal experts had not reviewed the survey report but said the results suggest a saturation of news about the murders in Stanislaus County.

William Cahill, a retired San Francisco Superior Court judge, called the numbers "remarkable" and said he "absolutely would take them into account" if he were presiding and the defense asked to move the trial.

"You need people who haven't prejudged the case," he said. "I've never seen those kinds of numbers before. If people have already got their minds made up, well, that's not really the kind of trial we have in this country. It's important that the government prove its case -- it's vital."

Mariano Florentino-Cuellar, who teaches law at Stanford University, said the survey suggests that it "would be very difficult to argue that a cross-section of the community would be open-minded enough to give (Peterson.) a fair trial."

Professor David W. Miller of the McGeorge School of Law in Sacramento said: "Seventy-five percent is a pretty high number. It's sort of paradoxical. The more newspapers publish (articles) about the case, the more they create the very possibility of prejudgment"

http://modestobee.com/local/story/6899692p-7835909c.html 6/4/2003

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PROOF OF SERVICE BY FAX
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I am employed in the County of Los Angeles, State of California. am over the age of 1 8 and not a party to the within action; my business address is 350 N. Grand Avenue, 39th Floor, Los Angeles, California 90071.

On execution date set forth below, I served the following
DOCUMENTS OR DOCUMENTS DESCRIBED AS:

DEFENDANT'S MEMORANDUM IN RESPONSE TO COURT'S INQUIRY RE "GAG" OR PROTECTIVE ORDER

____placing a true copy thereof enclosed in sealed envelopes with postage thereon fully prepaid, to the attorneys and their perspective addresses listed below, in the United States Mail at Los Angeles, California.
_X_ transmitting by facsimile transmission the above document to the attorneys listed bElloWrit their receiving facsimile telephone numbers. The sending facsimile machine I used, with telephone number (213) 625-1600, complied with C.R.C. Rule 2003(3). The transmission was reported as complete and without error.
____personally delivering the document(s) listed above to the party or parties listed below, or to their respective agents or employees.

PARTIES SERVED BY FAX:

Hon. Al Girolami

Fax. No.: 209-525-6385

Rick Distaso, DDA

David P. Harris, DDA

Fax No.: 209-525-5545

Executed on June 4. 2003 , at Los Angeles, California,
I declare under penalty of perjury that the above is true and correct.

[signature]

RAFFI NALJIAN

06/04/2003 15:53 2136251600 GERAGOS&GERAGOS PAGE 14/15

TRANSMISSION VERIFICATION REPORT

TIME 06/04/2003 15:48

GERAGOS GERAGOS
LAWYERS
39Th FLOOR
350 S. GRAND AVENUE
Los ANGELES, CA 9007 1 -3480
TEL: (213) 525-3900
FAX: (213) 625-1600

FAX COVER SHEET
From: Raffi Naljian for Mark J. Geragos
Client/Matter: People vs. Peterson
Date: June 4, 2003
Pages: 12 (INCLUDING COVER)

RECIPIENT

Deputy District Attorneys Rick Distaso or David P. Harris

FACSIMILE NUMBER

(209) 525-5545

06/04/2003 15:53 2136251600 GERAGOS&GERAGO5 PAGE 15/15

TRANSMISSION VERIFICATION REPORT

TIME : 06/04/2003 15:51

NAME : GERAGOS&GERAGOS
FAX : 2136252600
TEL : 2136253900

SERA : BROL2J054125

DATE, TIME 06/04 15:49
FAX NO./NAME 12095256385
DURATION 00:02:09
PAGE(S) 13
RESULT OK
MODE STANDARD
ECM

GERAGOS & GERAGOS
LAWYERS
39TH FLOOR
350 5. GRAND AVENUE
Los ANGELES, CA 90071-3480
TEL: (213) 625-3900
FAX: (213) 625- 1600

FAX COVER SHEET

From: Raffi Naljian for Mark J. Geragos
Client/Matter: People v. Peterson
Date: June 4, 2003
Pages: 12 (-INCLUDING COVER)

RECIPIENT
Hon. Al Girolami 209-525-6385

Transcribed By: HM