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World watching Michael Jackson trial: How much will it see?

By Douglas Lee
Lawyer, Ehrmann Gehlbach Badger & Lee

For better or worse — and we’re about to find out which — Judge Rodney S. Melville knows the world is watching.

With Melville presiding, jury selection begins today in the Michael Jackson child-molestation case. Since being assigned the case early last year, the Santa Barbara County Superior Court judge has tightly controlled media access to pre-trial proceedings. As the trial begins, the parties, public and press wait to see whether Melville will loosen those controls.

Perhaps the most intriguing indication of Melville’s intent was his admonition to the lawyers in the case at the conclusion of the final pre-trial hearing. Noting that tempers were growing short and that personal attacks were becoming more tempting, Melville urged restraint.

“The world will be watching,” he said. “Not just Santa Maria, not just California, not just the U.S., but the world.”

Media advocates hope this warning signals Melville’s determination to show the world that a celebrity criminal trial can be conducted both fairly and consistently with the openness required by the First Amendment. Others, however, fear Melville will be more determined to show the world that he can prevent an O.J. Simpson-like spectacle and that he therefore will grip the secrecy reins of this case even more tightly.

Several of Melville’s rulings so far have suggested he will be more concerned with control than with openness. Almost immediately after being assigned the case, for example, Melville banned television cameras, cell phones, hand-held computers, laptops and other electronic devices from the courtroom.

He also imposed a gag order prohibiting lawyers, witnesses and others involved in the proceedings from speaking with reporters. The only communications that could occur with the media, Melville ruled, were through statements approved by him in advance. This gag order has remained in place despite evidence that Santa Barbara District Attorney Tom Sneddon notified many people that they might be called as witnesses solely to prevent them from being able to speak publicly about the case.

Melville also has sealed an unprecedented amount of information about the proceedings, including significant portions of the indictment setting forth the charges against Jackson. In separate rulings, Melville has sealed the entire grand jury transcript, about 40 search warrants, a defense motion to dismiss the charges, a defense motion to suppress evidence and 14,000 pages of evidence filed by the prosecution.

Even when he has released documents, Melville frequently has deleted material from them. The most extreme example of Melville’s censorship occurred when he blacked out the words “obscenity,” “pornographic” and “sexual conduct” from U.S. Supreme Court holdings cited by Jackson’s lawyers in a motion to prevent prosecutors from using those words to describe materials seized from Jackson’s Neverland ranch. Melville’s deletions, Loyola University law professor Laurie Levenson told the Associated Press, were “absurd” and “absolutely unprecedented.”

At about the same time he was taking his magic marker to landmark U.S. Supreme Court decisions, however, Melville was offering glimmers of hope that he might loosen his restrictions on press access after the jury is selected.

In one significant ruling, Melville said Jackson’s accuser must testify in open court, rather than in — as prosecutors had urged — a closed courtroom accessible to the media only through an audio hookup.

Melville also announced last week that he would release the full indictment and grand jury transcripts after the jury is sworn. Because all of Melville’s secrecy rulings to date have been based on the possible prejudice to the jury pool, logic suggests Melville may tip the scales back toward openness once the jury is seated.

Even if Jackson’s trial is conducted more openly than its pre-trial proceedings, however, the damage done to the First Amendment remains.

Though the need to protect the integrity of the jury pool often is cited as a reason to restrict reporting in high-profile cases, little evidence exists that such restrictions are necessary or effective. Especially in Jackson’s case, in which allegations regarding the singer’s inappropriate conduct with children already have been widely and intensely reported, the gag order and sealing of court documents seem more about control than they do about justice.

Moreover, the fact that the California appellate courts so far have delayed reviewing any of Melville’s rulings undoubtedly emboldens trial judges across California — if not the nation — who are considering restricting media access to their courtrooms.

As always, the ultimate loser when access is denied to the judicial system is the public. When the public is deprived of the best sources of timely and truthful information, it loses its ability to understand and scrutinize how well the court system is delivering on its promise of impartial justice.

Moreover, continued acceptance of the notion that parts of criminal proceedings should be closed turns on its head the First Amendment’s presumption that courts are places in which the public’s business is conducted openly.

The members of the media who in April asked the California Supreme Court to overturn Melville’s gag order cited another reason for preserving that openness. “When the eyes of the world are watching the courthouse,” wrote their attorney, Theodore Boutrous Jr., “that is the time for more speech about the criminal justice system, not less.”

Everyone, it appears, agrees the world is watching. The question now is what kind of criminal-justice system it will see.


Michael Jackson judge censors landmark Court decisions

Words 'obscenity,' 'pornographic,' 'sexual conduct' blacked out of U.S. Supreme Court cases cited in motion filed by pop star's lawyers. 01.24.05

Jackson trial opens amid access, records issues
Judge won't clear courtroom of press, observers for testimony of two accusers; he'll release indictment, grand jury transcripts when jury is seated. 01.31.05

Jay Leno seeks leeway to continue Michael Jackson jokes
'Tonight Show' host, who's been subpoenaed in singer's child-molestation trial, asks judge to lift or clarify gag order, saying applying it to him would be prior restraint. 03.03.05

Appeals court OKs most sealed records in Jackson case
California panel orders release of indictment against pop star, but says on whole, judge successfully balanced Jackson's right to fair trial with public's right to know. 04.28.05

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Last system update: Thursday, November 13, 2008 | 20:59:02
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