People's Points and Authorities in support of Limited Protective Order
JAMES C. BRAZELTON
District Attorney
Stanislaus County Courthouse
Modesto, California
Telephone: 525-5550
Attorney for Plaintiff
FILED JUNE 4, 2003 3:39 PM
CLERK OF THE SUPERIOR COURT
COUNTY OF STANISLAUS
BY [signature]
DEPUTY
STANISLAUS COUNTY SUPERIOR
COURT
STATE OF CALIFORNIA
D.A. No.1056770
THE PEOPLE OF THE STATE OF CALIFORNIA
Plaintiff,
vs.
SCOTT LEE PETERSON,
Defendant.
No.1056770
POINTS AND AUTHORITIES IN SUPPORT OF LIMITED PROTECTIVE ORDER
Hrg: 6-6-03
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 LIMITED PROTECTIVE ORDER:
FACTS
On May 2, 2003, the court
advised the parties to ensure that they comply with California Rule of
Professional Responsibility 5-120 in view of the media coverage
surrounding this case. Both the People and the defense argued to keep
records sealed and the court found that those records should be sealed or
risk harm to both the People and the defense. In spite of the court's
sealing order, information has repeatedly been leaked to the media.
Media reports have occasionally identified which "side" was
pg. 1
the source of their
information, but have refused to disclose the source of leaks. Almost all
leaks to the media have been false, misleading or biased in some way.
On 5-27-03, the court asked the parties to submit their written views on
the issue of a Protective Order.
ARGUMENT
The "media" has asserted its right to be heard in this case and the People take no position on this point. The People disagree with the "media" that this court cannot impose a "gag" order.
A California case, cited by the media, dealing with a "gag order" has said:
"Orders which restrict or preclude a citizen from speaking in advance are 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. The trial court must make express findings showing it applied this standard and considered and weighed the competing interests." [Footnotes omitted.]
Hurvitz v. Hoefflin, (2000)
84 Cal.App.4th 1232, 1241 -1242.
It is clear that this court would have to navigate a narrow and twisting
path to craft an enforceable protective order applicable to anyone with
information in this case. However, attorneys and their agents are a
different subject.
Another case cited by the media states:
"We think that the quoted statements from our opinions in In re Sawyer, 360 U.S. 622, 79 S.Ct. 1376, 3 L.Ed.2d 1473 (1959), and Sheppard v. Maxwell, supra, rather plainly indicate that the speech of lawyers representing clients in pending cases may be regulated under a less demanding
pg. 2
standard than that established for regulation of the press in Nebraska Press Assn. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), and the cases which preceded it. Lawyers representing clients in pending cases are key participants in the criminal justice system, and the State may demand some adherence to the precepts of that system in regulating their speech as well as their conduct. As noted by Justice Brennan in his concurring opinion in Nebraska Press, which was joined by Justices Stewart and MARSHALL, "[a]s officers of the court, court personnel and attorneys have a fiduciary responsibility not to engage in public debate that will redound to the detriment of the accused or that will obstruct the fair administration of justice." Id., at 601, n. 27, 96 S.Ct., at 2823, n. 27. Because lawyers have special access to information through discovery and client communications, their extrajudicial statements pose a threat to the fairness of a pending proceeding since lawyers' statements are likely to be received as especially authoritative. See, e.g., In re Hinds, 90 N.J. 604, 627, 449 A.2d 483, 496 (1982) (statements by attorneys of record relating to the case "are likely to be considered knowledgeable, reliable and true" because of attorneys' unique access to information); In re Rachmiel, 90 N.J. 646, 656, 449 A.2d 505, 511 (N.J.1982) (attorneys' role as advocates gives them "extraordinary power to undermine or destroy the efficacy of the criminal justice system"). We agree with the majority of the States that the "substantial likelihood of material prejudice" standard constitutes a constitutionally permissible balance between the First Amendment rights of attorneys in pending cases and the State's interest in fair trials."
Gentile v. State Bar of Nevada, (1991) 501 U.S. 1030, 10741075.
In California, attorneys are governed by Rule of Professional Responsibility (RPC) 5-120, which states:
"(A) A member who is
participating or has participated in the investigation or litigation of a
matter shall not make an extrajudicial statement that a reasonable person
would expect to be disseminated by means of public communication if the
member knows or reasonably should know that it will have a substantial
likelihood of materially prejudicing an adjudicative proceeding in the
matter.
(B) Notwithstanding paragraph (A), a member may state: (1) the claim,
offense or defense involved and, except when prohibited by law, the
identity of the persons involved; (2) the information contained in a
public record; (3) that an investigation of the matter is in progress; (4)
the scheduling or result of any step in litigation; (5) a
pg. 3
request for assistance in
obtaining evidence and information necessary thereto; (6) a warning of
danger concerning the behavior of a person involved, when there is reason
to believe that there exists the likelihood of substantial harm to an
individual or the public interest; and (7) in a criminal case, in addition
to subparagraphs (1) through (6): (a) the identity, residence, occupation,
and family status of the accused; (b) if the accused has not been
apprehended, information necessary to aid in apprehension of that person;
(c) the fact, time, and place of arrest; and (d) the identity of
investigating and arresting officers or agencies and the length of the
investigation.
(C) Notwithstanding paragraph (A), a member may make a statement that a
reasonable member would believe is required to protect a client from the
substantial undue prejudicial effect of recent publicity not initiated by
the member or the member's client. A statement made pursuant to this
paragraph shall be limited to such information as is necessary to mitigate
the recent adverse publicity."
This court clearly can make an order that parallels this section and can make the order binding not only on the attorneys, but investigators, assistants and others working on the case for them. The People would oppose an order any broader than that because it would only work to the detriment of the People. This court has "sealed" information to prevent release to the public. Some of that information has been leaked to the media which has forced the People to respond. The People's response was necessary to mitigate the recent adverse publicity; a broader order would deprive the People of the right to protect its case. The person or persons who have leaked sealed information will not be deterred by a court imposed protective order. However, a protective order will prevent an enjoined party from announcing from the courthouse steps information in violation of the RPC and the court's order.
It is the People's belief that once an order is put in
pg. 4
information violates the court's order and is being spewed forth with an intent to circumvent justice. And if justice cannot protect the defendant then who will protect the media in the future?
Conclusion
The People do not object to the court imposing a limited protective order as set forth above.
Dated: June 4, 2003
Respectfully submitted,
JAMES C. BRAZELTON
District Attorney
By: [signature]
David P. Harris
Deputy District Attorney
pg. 5
PROOF OF SERVICE BY FAX
Re: People v. Scott Lee Peterson
No. 1056770
I, the undersigned, am over the age of eighteen years and not a party to
the within above-entitled action. On May 29, 2003, I served the within
NOTICE OF MOTION; MOTION TO RELEASE AUTOPSY REPORTS; POINTS AND
AUTHORITIES IN SUPPORT, ORDER SHORTENING TIME by faxing a true copy
thereof to the fax numbers:
Kirk McAllister
1012 11th Street
Modesto, CA 95354
(209) 575-0240
Mark Geragos
350 S. Grand Avenue,
#3900
Los Angeles, CA 90071
(213) 625-1600
Charity Kenyon
2500 Venture Oakes Way,
Suite 220
Sacramento, CA 95833
(916) 779-7120
I declare under penalty of perjury that the foregoing is true and correct.
Dated:
[signature]
pg. 6
Confirmation Report—Memory Send
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Date & Time: Jun-04-03 15:12
Line 1 : 209 525 5545 Line 2
Machine ID : Stanislaus Co DA
Job number : 777
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To : 2195750240
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Pages sent 005
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SEND SUCCESSFUL
OFFICE OF DISTRICT ATTORNEY
JAMES C. BRAZELTON
Court House
P.O. Box 442
Modesto, California 95353
FACSIMILE COVER SHEET
FAX NO. (209) 525-5545
Date: June 4, 2003
SEND TO: Law Office
ATTN: Kirk McAllister
FAX TELEPHONE NO. (209) 575-0240
NO. OF PAGES 6
COMMENTS: People v. Scott Lee Peterson, No. 1056770
If you have any problems with this transmission, please call (209) 525-5550 immediately.
SENDER'S NAME: DONNA HILL
OFFICE PHONE NO: (209) 525-5550
DEPARTMENT NAME: DA
SENT BY: DMH
DATE: 6/4/03
TIME: 3:00 pm
pg. 7
Confirmation Report —Memory
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Date & Time: Jun-04-03 15:15
Line 1 : 209 525 5545 Line 2
Machine ID : Stanislaus Co DA
Job number : 780
Date : Jun-04 15:14
To : 2919167717120
Number of pages : 006
Start time : Jun-04 15:14
End time : Jun-04 15:15
Pages sent 006
Status : OK
Job number : 780
SEND SUCCESSFUL
OFFICE OF DISTRICT ATTORNEY
JAMES C. BRAZELTON
Court House
P.O. Box 442
Modesto, California 95353
FACSIMILE COVER SHEET
FAX NO. (209) 525-5545
Date: June 4, 2003
SEND TO: Law Office
ATTN: Charity Kenyon
FAX TELEPHONE NO. (916) 779-7120
NO. OF PAGES 6
If you have any problems with this transmission, please call (209) 525-5550 immediately.
SENDER'S NAME: DONNA HILL
OFFICE PHONE NO: (209) 525-5550
DEPARTMENT NAME: DA
COMMENTS: People v. Scott Lee Peterson, No. 1056770
SENT BY: DMH
DATE: 6/4/03
TIME: 3:00 pm
pg. 8
Confirmation Report —Memory
Page : 001
Date & Time: Jun-04-03 15:21
Line 1 : 209 525 5545 Line 2
Machine ID : Stanislaus Co DA
Job number : 782
Date : Jun-04 15:17
To : 912136251600
Number of pages : 006
Start time : Jun-04 15:17
End time : Jun-04 15:21
Pages sent 006
Status : OK
Job number : 782
SEND SUCCESSFUL
OFFICE OF DISTRICT ATTORNEY
JAMES C. BRAZELTON
Court House
P.O. Box 442
Modesto, California 95353
FACSIMILE COVER SHEET
FAX NO. (209) 525-5545
Date: June 4, 2003
SEND TO: Law Office
ATTN: Mark Geragos
FAX TELEPHONE NO. (213) 625-1600
NO. OF PAGES 6
If you have any problems with this transmission, please call (209) 525-5550 immediately.
SENDER'S NAME: DONNA HILL
OFFICE PHONE NO: (209) 525-5550
DEPARTMENT NAME: DA
COMMENTS: People v. Scott Lee Peterson, No. 1056770
SENT BY: DMH
DATE: 6/4/03
TIME: 3:00 pm
Transcribed by: HM