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Robert Rubane DIAZ

 
 
 
 
 

 

 

 

 
 
 
Classification: Serial killer
Characteristics: Poisoner - Coronary care nurse
Number of victims: 12
Date of murders: March-April 1981
Date of arrest: November 24, 1981
Date of birth: 1938
Victims profile: Men and women ranging in age from 52 to 89 (hospital patients)
Method of murder: Poisoning (overdoses of the drug Lidocaine)
Location: Riverside County, California, USA
Status: Sentenced to death on April 11, 1984. Died in prison on August 9, 2010
 
 

 
 

Robert Diaz had always proclaimed to want to be a doctor. He eventually settled for nursing. This apparently wasn't a powerful enough position for Diaz. In April of 1981 an anonymous call was placed to the San Bernadino County coroner claiming that Diaz had possibly killed as many as 19 persons at a hospital in Perris, California. An investigation was immediately begun and it wasn't long before it was obvious that Diaz was responsible for the deaths.

Diaz had been the nurse on duty when all the patients died, which was only a 12 day period. He repeatedly predicted the time that some patients would die, almost precisely. He was even witnessed giving some of the same patients injections prior to their death. Medical records of some of the intensive care patients were missing, and Diaz had access to these records. He worked just one night at San Gregorio Pass Hospital but a patient had died there that night under the same circumstances as the victims in the Perris Community Hospital.

Diaz was arrested in November of 1981 and charged with the deaths of twelve patients. His trial did not take place until March 1984. Samples taken from exhumed bodies showed overdoses of the drug Lidocaine, which was also found in Diaz' home along with syringes and quantities of morphine. He was easily convicted on March 29, 1984 and sentenced to die.


Robert Rubane Diaz (born 1938), also known as David Robert Diaz, is an American nurse who was sentenced to death in 1984 for the murders of 12 hospital patients. He is currently still on death row.

Early years

Robert Rubane Diaz was born in 1938 and raised in the Midwest. One of 13 children, he was ill often as a child, which kept him out of school. Unable to finish school, he dropped out after completing 10 grades and joined the United States Marine Corps at age 18. After going AWOL for six weeks, he was discharged due to his inability to acclimate to military life.

Adulthood

Pursuing his childhood dream of working in the medical field, Diaz joined a vocational nursing program and insisted that his relatives call him "Dr. Diaz". He also believed that he was an Egyptian mystic who had been a member of royalty in a former life.

He was married in 1961 and divorced in 1972.

Crimes

In early 1981, Community Hospital of the Valleys in Perris, California experienced an abnormally large number of deaths among its most elderly patients. To gather evidence, the coroner exhumed or intercepted all the patients who had recently died and he collected tissue samples from them. The coroner found that 11 patients had a supposedly lethal level of the heart drug lidocaine in their system. Investigators focused on Diaz, a male nurse, who worked at the hospital during many of the deaths. They also investigated his previous employment and came up with a 12th patient from another hospital whose exhumed body showed a supposedly lethal level of lidocaine.

High levels of lidocaine were not necessarily indicative of poisoning, as hospital staff often used the drug on its patients. There was no direct evidence against Diaz. No one had seen him inject a patient with a fatal dose of anything. He had no apparent motive to kill anyone. A syringe filled with an especially high solution of lidocaine was found hidden in the Valleys hospital seven months after it closed.

Following his arrest, numerous pre-filled lidocaine syringes were found in Diaz’ home. At least two of these syringes contained 20 percent solutions of lidocaine while marked as two percent (i.e. 10 times the concentration marked). Also found in his home were vials of 20 percent lidocaine and empty syringes, implying that syringes were being refilled with higher concentration than their labels indicated. Diaz explained only that these articles were mistakenly taken from the hospital when absent mindedly left in his shirt pocket. No explanation was given for the apparent tampering.

Diaz claimed the ability to predict patient seizures and encouraged coworkers to take meals/breaks early in anticipation of seizures that shift. In at least one case the predicted seizures did occur. According to his wife, Diaz also spent time staring at the family cat trying to control it with his mind.

Investigators from the public defender’s office found that the hospital’s care was lax. Employees were often unable to read heart monitors and other basic equipment. Doctors often failed to respond to emergencies. During the deaths Diaz reportedly blamed the doctors who showed up late.

It was not unusual for Code Blue alerts to occur nightly and these were not limited to Diaz’ employment tenure. However it was noted during the trial that the death rate at Community Hospital of the Valleys was less than one per month during the 12 months prior to hiring Diaz. During the 3 ˝ weeks following Diaz’ employment there were 17 deaths; 14 of these patients were under Diaz’s direct care at the time of seizure and death. This is a monthly death rate of 19.43 per month.

Following standard procedures, Diaz’ defense would be extraordinarily costly to the cash strapped public defender’s office. A new administrator fired all the investigators and implemented a budget defense for Diaz. At trial, Diaz’ defense motioned for a bench trial.

The judge convicted Diaz of 12 counts of first-degree murder. At sentencing the defense failed to present a single character witness; his five children and his wife did not make an appeal. Diaz’s wife believes her husband was responsible based on the evidence presented as well as her personal experiences with him. Initially, however, she supported her husband. The defense’s short plea for mercy was that Diaz had saved the state a considerable amount of money. The judge was not impressed and sentenced Diaz to die by either the gas chamber or lethal injection.

Diaz has since exhausted his state appeals, but in 1998 a federal judge granted him an evidentiary hearing. As of 2007, Diaz remains on death row at San Quentin State Prison.

Supreme Court Decision

The trial became a constitutional test case heard by the United States Supreme Court when The Press Enterprise newspaper, of Riverside, California, was denied their request for the transcripts of pretrial hearings. The case, Press-Enterprise Co. v. Superior Court of Riverside County, California, was won by the newspaper in 1986.

At the beginning of the trial Diaz had requested that the public be excluded from preliminary hearings. The Magistrate granted the unopposed request because of the national attention that the case had garnered. At the end of the hearings the Press-Enterprise requested that the transcripts be released, but the request was denied and the records were sealed. The United States Supreme Court decided that the public has the right to witness pretrial hearings in criminal cases, including preliminary hearings.

Wikipedia.org


'Angel of Death' dies in prison

By Richard K. De Atley - The Press-Enterprise

August 11, 2010

Robert R. Diaz, the "Angel of Death" nurse convicted of killing a dozen of his patients in Riverside County, died of natural causes Wednesday, 26 years after he was sent to San Quentin's Death Row.

He was 72.

Mr. Diaz died at a community hospital near the prison, California Department of Corrections and Rehabilitation spokeswoman Terry Thornton said. He had a lengthy illness. No other details were released.

In an era of bizarre serial killing cases in California, Mr. Diaz's was one of the most unusual. His victims, ages 52 to 95, all had to be exhumed; he shunned a jury trial on his attorney's advice; and a challenge to his closed-to-the-public preliminary hearing resulted in a major First Amendment decision by the Supreme Court.

Patrick Magers, a retired Riverside County Superior Court judge who was the prosecutor in Diaz's case, said the case began when officials at what was then Community Hospital of the Valley in Perris had a cluster of patient deaths in 1981.

"They realized something was very, very, very wrong," Magers said. The officials contacted the coroner's office, which in turn talked to the district attorney's office. The investigation grew to other care facilities. Eventually 38 bodies were exhumed.

Tissue from the bodies was sent to a lab in Utah, which worked on analyzing the samples for three months, Magers recalled.

The conclusion was 12 of the patients died from a huge overdose of the drug lidocaine, a heart muscle relaxant. And further investigation showed that the nurse on duty when each of the patients died was Robert Rubane Diaz, Magers said.

"We are not talking about a therapeutic misadventure," Magers recalled in a phone call interview from Florida. "We are talking about a huge amount of lidocaine -- 1,000 to 2,000 milligrams. The average dose is 100 milligrams. So the victims received one injection that was 10 to 20 times higher than any injection should have been."

The Trial

Diaz was charged with killing 12 patients, 11 from Community Hospital and one from San Gorgonio Pass Memorial Hospital in Banning. Magers said a 13th victim who died in a San Bernardino hospital when Mr. Diaz was in attendance was used in the trial to establish a pattern in the slayings, but was not charged as a murder.

Mr. Diaz testified at the trial.

"I cross-examined him for two days at trial and he denied any wrongdoing," Magers recalled. "He testified he gave the proper medication to his patients and had no explanation of how or why they had massive doses of lidocaine injected into their systems."

Mr. Diaz was convicted by Judge John Hawkins Barnard, who sentenced him to death. After Barnard died in 2006, his wife said the jurist spent a week taking walks along the beach and pondering the sentence before handing it down.

"I can't tell you how many thousands of hours we put into that case," said Magers, who led the investigation leading up to the prosecution. Because of the case's unusual origin, all the inquiry was done by district attorney and coroner's investigators, he recalled.

Mr. Diaz's conviction and sentence was upheld by the California Supreme Court. He claimed the case against him was largely circumstantial and that he was given bad advice by his public defender attorney to have a non-jury hearing.

Since California reinstated the death penalty in 1978, 51 death-row inmates have died from natural causes, 17 committed suicide, 13 were executed in California and one was executed in Missouri. Five have died from other causes and one cause of death is pending. Of the 706 inmates on death row, 68 are from Riverside County.

Landmark case

Mr. Diaz's preliminary hearing was closed to the public. Magers said he was concerned about publicity leading to a successful change of venue motion.

The Press-Enterprise newspaper filed a lawsuit challenging the shutdown of the 41-day hearing. The sealed transcript of the hearing was eventually released, but the Supreme Court said the issue still had merit for review.

In what became a landmark ruling, U.S. Supreme Court Chief Justice Warren Burger ruled in a 7-2 decision in 1986 that those who seek to close courtrooms or deny the public and press access to the criminal justice system must meet a high standard to overcome the presumption of openness.

"It was a very important case," said retired Press-Enterprise managing editor Mel Opotowsky on Wednesday. "It said for any criminal proceedings, even if it wasn't a trial, the public had a constitutional right to be there, and to override that a judge had to have substantial evidence that it could cause harm to the defendant. It's been cited hundreds of times over the years."

The case is known as Press-Enterprise II, the numeric reference to Press-Enterprise I, another key U.S. Supreme Court case won by the paper in 1984 that allowed public access to examination of potential jurors.

Information released Wednesday gave no survivors or other background about Mr. Diaz.

A 2007 New York Times Magazine article identified a son, Matthew Diaz, and said Matthew also had an older sister and two younger brothers who were Robert Diaz's children.

The article said Matthew Diaz, while a lieutenant commander in the United States Navy, was convicted and imprisoned for insubordination when in 2005 he surreptitiously handed over to the Center for Constitutional Rights the names and prison serial numbers for 551 men who were then being held by the United States at Guantanamo Bay.


Diaz, Robert R.

One of thirteen children, born and raised in the Midwest, Robert Diaz was frequently ill during childhood, completing only ten years of formal education.

He joined the Marine Corps at age eighteen, then went AWOL for six weeks and was discharged soon after his return to duty.

Married in Jacksonville, Florida, during 1961, he was divorced in 1972. By that time, Diaz had decided to act on his long-standing desire for a medical career, and after the divorce he enrolled in a school for vocational nurses. At family gatherings thereafter, he insisted that the children introduce him to their friends as ''Dr. Diaz."

By early 1981, Diaz was working his way through a series of temporary nursing jobs in several Southern California hospitals.

Coincidentally administrators noted that their older patients had begun to die in record numbers; by the end of April, there were 30 suspicious deaths on file in Los Angeles County, with an equal number spread over Riverside and San Bernadino Counties.

Autopsies revealed high levels of lidocaine -- a drug used to control irregular heartbeats -- in most of the corpses. While normal readings should have indicated 50 to 100 milligrams of lidocaine, the recent dead showed levels of 1,000 milligrams and more -- enough to bring on cardiac arrests instead of saving lives.

A search for common links between the victims demonstrated that a single nurse -- Diaz -- had worked at each and every institution where abnormal death rates, were recorded.

Attention focused on Diaz after the death of Estel Jones, age 62, at Chino Community Hospital. First ascribed to "natural causes," her death was later ruled a homicide, and officers began examining the high mortality rate on Diaz's graveyard shift.

A search of the suspect's home turned up bottles of lidocaine, but charges of illegal drug possession were later dismissed. Diaz fired back with multimillion-dollar lawsuits charging defamation of character and civil rights violations, but skeptical judges dismissed each in turn.

The investigation rolled on, detectives examining fifty deaths, finally narrowing their sights to a dozen where evidence seemed incontrovertible.

On November 24, 1981, Robert Diaz was arrested on twelve counts of first-degree murder: eleven victims, ranging in age from 52 to 89, were killed at Community Hospital of the Valleys, in Perris, California, between March 30 and April 22, 1981; the twelfth, a 79-year-old man, died of a lidocaine overdose at San Gorgonio Pass Memorial Hospital, in Banning, on April 25.

Diaz entered his formal plea, innocent on all counts, at the end of September 1982.

His trial was scheduled to open in March 1983, but various postponements delayed the event until Halloween. Waiving his right to a jury trial, Diaz placed his fate in the hands of a judge, who convicted him on all counts on March 29, 1984.

Two weeks later, on April 11, Diaz was sentenced to die in the gas chamber at San Quentin.

Michael Newton - An Encyclopedia of Modern Serial Killers - Hunting Humans


Robert Diaz

Coronary-care nurse Robert Diaz was accused of killing 12 elderly patients with lethal doses of a heart drug in March and April of 1981. In 1984, he was convicted of murdering 11 patients at the Community Hospital of the Valleys in Perris, Calif., and one patient at San Gorgonio Pass Memorial Hospital in Banning, Calif. He received the death penalty and is on death row at San Quentin. He maintains he is innocent.


Nurse sentenced to die in slayings

The New York Times

April 12, 1984

A nurse convicted of killing 12 elderly patients with overdoses of a heart-regulating drug was sentenced today to die in the gas chamber.

The coronary care nurse, Robert Rubane Diaz, 46 years old, received the sentence from Judge John H. Barnard of Superior Court with little show of emotion.

On March 29, Judge Barnard found Mr. Diaz guilty of the killings at two Riverside County hospitals in 1981. The verdict ended a five-month nonjury trial in which prosecutors asserted that Mr. Diaz had murdered elderly patients in his care by injecting them with lidocaine, a powerful drug used to control irregular heartbeats.

Judge Barnard based the sentence on a finding of special circumstances under a state multiple-murder rule.

Mr. Diaz was arrested Nov. 23, 1981, after an investigation into the mysterious deaths of several elderly patients at the Community Hospital of the Valleys in Perris and the San Gorgonio Pass Memorial Hospital in Banning. Eleven of the 12 deaths occurred at the Perris facility in March and April 1981.

Autopsies Determined Cause

Investigators determined through autopsies that the patients were homicide victims and that the bodies contained more than 1,000 milligrams of lidocaine at the time of death. A normal dose ranges from 50 to 100 milligrams.

Prosecuting attorneys had argued that Mr. Diaz, who worked as a temporary nurse on the night shifts at both hospitals, was the only link between the two facilities' intensive care units at the time.

''We feel justice was served,'' said Patrick Magers, a Deputy District Attorney who prosecuted the case, in which the state never established a motive. ''How many lives can you take without facing the penalty of losing your own? He was placed in a position of trust, and violated it in the most appalling way.''

The sentence will automatically be appealed to the State Supreme Court, and Mr. Diaz's attorneys plan to file a motion for a new trial. ''I wasn't surprised by the verdict, and I don't think Mr. Diaz was either,'' said Michael Lewis, a public defender. ''We had hoped for better. I think he had already reconciled himself to the outcome.''

Diaz Had Predicted Trouble

At the trial, defense attorneys sought to support Mr. Diaz's assertions that he was not guilty by arguing that the buildup of lidocaine in the patients' systems could have been brought about by therapeutic doses administered over a period of time. John L. Lee, the chief defense attorney, and Mr. Lewis asserted there was no evidence the drug had been administered all at once.

But testimony given by nurses who were on duty at the time of the deaths indicated that Mr. Diaz had predicted some of the victims would have problems shortly before they began exhibiting lidocaine-overdose symptoms, which included dizziness, violent seizures and blueness in the face and extremities.

Lynn Race, a critical-care nurse at the Perris hospital, testified Mr. Diaz had foreseen patients' sudden medical problems and had carried medical syringes and vials in his pockets, a violation of hospital procedure.

The original investigation in the case had been based on the unusual pattern of deaths among elderly patients in Los Angeles, Orange and Riverside Counties. Investigators said as many as 50 patients might have been involved, but said evidence allowed them to formally charge Mr. Diaz in the deaths of 12.


SEX: M  RACE: H TYPE: T MOTIVE: PC

MO: Male nurse; killed patients age 52-89 by injection.

DISPOSITION: Condemned on 12 counts, 1984.


New York Court of Appeals

82 N.Y.2d 211, 624 N.E.2d 156, 604 N.Y.S.2d 28 (1993).

IN THE MATTER OF ROBERT RUBANE DIAZ, APPELLANT,
v
.
LESLIE LUKASH, &C., RESPONDENT.

November 16, 1993

KAYE, CHIEF JUDGE:

On this appeal, we must decide whether petitioner, an inmate on California's death row, has a "substantial interest" in certain records of the Nassau County Medical Examiner, so that he may inspect them. We conclude that the Appellate Division applied an erroneous legal standard and that in the circumstances presented, petitioner does have a substantial interest, as a matter of law, in at least some of the requested records. Accordingly, we reverse dismissal of the petition and remit for further proceedings.

I.

In March 1981, Robert Rubane Diaz, a registered nurse, began work on the night shift in the intensive care unit (ICU) of a community hospital in California. In the next three and one-half weeks, at least 13 patients on the night shift suffered violent seizures, which were generally followed by cardiac and respiratory arrest. Nine of these patients died. Following closure of the ICU at that hospital, Diaz began work at a different hospital and within three days, while he was on duty, another patient, displaying the same symptoms, died. Diaz was thereafter arrested and charged with killing a total of 12 patients by injecting them with massive doses of lidocaine, a drug commonly used to control rhythm disturbances in the heart (People v Diaz, 834 P2d 1171, 1176 [Cal 1992], cert denied ___ US ___, 113 S Ct 1356 [1993]). Diaz waived a jury trial, and after a bench trial was convicted and sentenced to death.

At trial, experts testifying for the prosecution relied largely on three types of evidence to conclude that each of the 12 patients--at least 11 of whom received therapeutic doses of lidocaine- -died of a massive overdose: first, the concentration of lidocaine in their body tissue upon autopsy; second, the evidence of seizures; and third, electrocardiograph (EKG) readings (834 P2d at 1185-1187). On appeal to the California Supreme Court, Diaz attacked the sufficiency of this evidence. Although concluding that there was sufficient evidence to support the trial court's finding that someone had administered large overdoses of lidocaine to the patients (834 P2d at 1188), the court's opinion suggests that the evidence was not beyond dispute.

As the court noted, for example: "Although recorded cases involving massive overdoses of lidocaine are rare, prosecution experts, after reading the scanty literature on the subject, concluded that these [seizure] symptoms * * * would be the most likely response to a massive overdose of lidocaine." And responding to Diaz's argument that the EKG readings were inconclusive: "although the possibility of other causes may reduce the weight to be attached to the evidence that the patients had broad QRS complexes [on their EKGs], this evidence was one link in the circumstantial chain of evidence that the patients died from overdoses of lidocaine, and was properly relied upon by the prosecution experts." (834 P2d at 1187.)

The lidocaine concentration in the patients' body tissues was thus important evidence of causation, but the significance of that evidence, too, "was hotly contested at trial" (834 P2d at 1187).

Following Diaz's conviction, his appellate counsel learned of an unpublished doctoral dissertation titled "Lidocaine Toxicity," authored in 1981 by W. Christopher Long, a graduate student at St. John's University. Long was at the time a toxicologist with the Nassau County Medical Examiner's office, and based his dissertation on measurements of lidocaine found in brain tissue of more than 140 decedents autopsied between 1976 and 1981. Twenty-four had brain tissue concentrations of 20 mcg./gram or greater--an amount (according to the petition) the prosecution had claimed at trial was indicative of a lethal dose. Thus, Diaz argues, either these 24 were also victims of lethal doses of lidocaine or the prosecution expert testimony was seriously flawed.

Because the Long dissertation identified patients not by name but only by Nassau County Medical Examiner case number, in the present petition Diaz seeks access to the Medical Examiner's records to help establish his factual innocence. After reviewing the records to determine the identity and hospital of each decedent, Diaz's representatives will then attempt to obtain the decedents' hospital records to learn the exact dose of lidocaine administered and other variables such as the patient's clinical condition and weight. After his experts (including Long) synthesize the information in the dissertation, autopsy reports and hospital records, Diaz intends to seek post-conviction relief on the ground that "newly-discovered evidence" establishes no murders occurred.

The petition before us, brought under County Law § 677(3)(b) and CPLR article 4, involves only the Medical Examiner's records. (We express no view on the availability of hospital records.) In this litigation Diaz has disavowed any interest in the decedents' names, expressing willingness to accept redacted records and suggesting that disclosure can be coordinated with the hospitals in such a way that he will never learn the patients' identities. Moreover, apparently recognizing the substantial administrative burden his request entails, Diaz has also offered to pay for the costs associated with searching for, redacting and copying the records.

Supreme Court dismissed the petition, concluding that Diaz had "not demonstrated that his interest in the records is sufficiently substantial to overcome the general need to maintain the confidentiality of the records of the Medical Examiner." The Appellate Division affirmed, noting that Diaz had "no direct and personal interest with respect to the individuals whose records he seeks" and that disclosure would undermine "the legislative concern for confidentiality, as reflected in the statute." (__ AD2d ___). We granted Diaz's motion for leave to appeal, and now reverse.

II.

With reference to autopsy reports, County Law § 677 (3)(b) provides:

Such records shall be open to inspection by the district attorney of the county. Upon application of the personal representative, spouse or next of kin of the deceased to the coroner or medical examiner, a copy of the autopsy report, as described in subdivision two of this section shall be furnished to such applicant. Upon proper application of any person who is or may be affected in a civil or criminal action by the contents of the record of any investigation, or upon application of any person having a substantial interest therein, an order may be made by a court of record, or by a justice of the supreme court, that the record of that investigation be made available for his inspection, or that a transcript thereof be furnished to him, or both (emphasis added).

The statute thus identifies four categories of persons who may obtain access to autopsy reports. The district attorney and close relatives of the decedent may obtain records as of right, while persons who "may be affected in a civil or criminal action" or anyone else with a "substantial interest" in the records, must make judicial application. Diaz seeks release of the records as someone with a "substantial interest" in them.

The legal question before us is whether an applicant under that provision must have a "direct and personal interest" in the autopsy reports, as suggested by the Appellate Division, and if not, whether the circumstances presented establish a substantial interest as a matter of law.

By creating a residual category of persons who may receive autopsy reports--anyone who can demonstrate a "substantial interest" in the records--it is plain that the Legislature did not intend to limit access only to the three enumerated classes of persons, or to persons who have a direct and personal interest in the records. Instead, the Legislature left open the possibility that a broader range of persons might obtain records, so long a judicial officer is satisfied that the applicant's interest in the records is "substantial"--itself a flexible term. Thus, we agree with Diaz that the Appellate Division applied an erroneous legal standard.

In determining whether a substantial interest has been shown, a court should consider, among other things, the reason the records are sought, the importance of that reason, and the availability of the information from other sources. Assuming the applicant's interest in the records is substantial, the court may then consider other factors--for example, confidentiality concerns--as part of its discretionary power under the statute.

This two-step analytical framework is reflected in Central General Hosp. v Lukash (140 AD2d 114, affd for reasons stated 74 NY2d 619), the only case in which this Court considered the "substantial interest" requirement. There, a hospital sought autopsy reports for 17 deceased patients who were transferred to the Medical Examiner for autopsy. Because the attending physician in each case could not determine the cause of death, the hospital sought the autopsy reports to further the education of its staff. The Appellate Division, and this Court on appeal, agreed that this was a "substantial interest" within the statute:

The educational value of autopsy findings is well recognized in the field of medicine. The results of an autopsy can confirm or disprove the diagnosis of the attending physician and place that physician in a better position to treat patients with the same or similar illnesses in the future. Indeed, it would not be overly dramatic to surmise that the information obtained could save the life of another patient. It is, therefore, logical and reasonable to hold that the hospital's concern for furthering the education of its staff is a "substantial interest" within the meaning of County Law § 677 (3)(b) (140 AD2d at 116).

After determining that a substantial interest was established, the court then considered whether there were "any countervailing concerns militating against granting the petitioner's application" (178 AD2d at 117), and determined that privacy was not implicated because the hospital was required to keep all information confidential except in certain circumstances.

In the present case, Diaz argues that the records will help him establish that no murders in fact occurred. There is a serious question whether Long's dissertation and the follow-up information sought constitutes the type of "newly discovered evidence" that will be considered on Diaz's applications for post-conviction relief. Manifestly, if the "evidence" is unusable in vacating the death sentence, Diaz would have no interest in the records within the meaning of the statute.

While we might be justified in denying the petition on that ground, or remitting for briefing and consideration of the question, in this unusual case we decline to do so. It is unwise to embroil the Nassau County Medical Examiner and the courts of this State in collateral litigation of an issue that may be central in the California State and Federal courts. Moreover, the willingness of the California courts to consider the evidence may turn on what is in fact uncovered.

Consequently, in the unique circumstances of this case it is our view that Diaz has established the requisite substantial interest in the Medical Examiner's records. These records may enable Diaz to show that he was convicted and sentenced to death for murders that did not occur. This asserted interest is at least on a par with the "staff education" identified in Central General (supra). Moreover, the Long study appears to be the only instance where lidocaine concentrations in human tissue were studied on such a large scale, and thus the potentially valuable information is unavailable elsewhere.

It is unclear, however, whether Diaz has a substantial interest in all of the cases considered by Long. Indeed, many of the decedents in Long's report had minimal levels of lidocaine. On remittal, Supreme Court may consider this question. The court may also, in the exercise of discretion, fashion an appropriate order to balance any privacy concerns and Diaz's interest in the records, and may wish to consider Diaz's offer to defray redaction and production expenses.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to Supreme Court, Nassau County, for further proceedings in accordance with this Opinion.

*****

Order reversed, with costs, and matter remitted to Supreme Court, Nassau County, for further proceedings in accordance with the opinion herein. Opinion by Chief Judge Kaye. Judges Simons, Titone, Hancock, Bellacosa, Smith and Levine concur.


U.S. Supreme Court

Press-Enterprise Co. v. Superior Court

No. 84-1560

Argued February 26, 1986
Decided June 30, 1986

478 U.S. 1

CERTIORARI TO THE SUPREME COURT OF CALIFORNIA

Syllabus

California filed a complaint against a nurse charging him with murdering 12 patients by administering massive doses of the heart drug lidocaine. The Magistrate granted the defendant's motion to exclude the public from the preliminary hearing on the complaint under a California statute that requires such proceedings to be open unless "exclusion of the public is necessary in order to protect the defendant's right to a fair and impartial trial." At the conclusion of the 41-day preliminary hearing, the Magistrate refused petitioner's request that the transcript of the proceedings be released. Thereafter, the State, supported by petitioner and opposed by the defendant, moved unsuccessfully in the California Superior Court to have the transcript released. Petitioner then filed a peremptory writ of mandate with the California Court of Appeal. Meanwhile, the defendant waived his right to a jury trial, and the Superior Court released the transcript. After holding that the controversy was not moot, the Court of Appeal denied the writ. The California Supreme Court also denied the writ, holding that there is no general First Amendment right of access to preliminary hearings, and that. under the California statute, if the defendant establishes a "reasonable likelihood of substantial prejudice," the burden shifts to the prosecution or the media to show by a preponderance of the evidence that there is no such reasonable probability of prejudice.

Page 478 U. S. 2

Held:

1. Even though the Superior Court ultimately released the transcript in question, the case is not moot, because the controversy is "capable of repetition, yet evading review." Globe Newspaper Co. v. Superior Court, 457 U. S. 596; Gannett Co. v. DePasquale, 443 U. S. 368. Thus, this Court has jurisdiction. P. 478 U. S. 6.

2. The qualified First Amendment right of access to criminal proceedings applies to preliminary hearings as conducted in California. First, there has been a tradition of public accessibility to preliminary hearings of the type conducted in California. As opposed to grand jury proceedings, preliminary hearings conducted before neutral and detached magistrates have been open to the public. Second, public access to such preliminary hearings is essential to the proper functioning of the criminal justice system. This proper functioning is not made any less essential by the fact that a preliminary hearing cannot result in a conviction and the adjudication is before a magistrate without a jury. The absence of a jury makes the importance of public access even more significant. Pp. 478 U. S. 6-13.

3. Since a qualified First Amendment right of access attaches to preliminary hearings as conducted in California, the proceedings cannot be closed unless specific, on-the-record findings are made demonstrating that "closure is essential to preserve higher values and is narrowly tailored to serve that interest." Press-Enterprise Co. v. Superior Court, 464 U. S. 501, 464 U. S. 510. If the interest asserted is the defendant's right to a fair trial, the preliminary hearing shall not be closed unless there is a "substantial probability" that that right will be prejudiced by publicity that closure would prevent, and that reasonable alternatives to closure cannot adequately protect the right. Here, the "reasonable likelihood" test applied by the California Supreme Court placed a lesser burden on the defendant than the "substantial probability" test required by the First Amendment. Moreover, the court failed to consider whether alternatives short of closure would have protected the defendant's interests. Pp. 478 U. S. 13-15.

37 Cal.3d 773, 691 P.2d 1026, reversed.

BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and O'CONNOR, JJ., joined. STEVENS, J., filed a dissenting opinion, in Part II of which REHNQUIST, J., joined, post, p. 478 U. S. 15.

Page 478 U. S. 3

CHIEF JUSTICE BURGER delivered the opinion of the Court.

We granted certiorari to decide whether petitioner has a First Amendment right of access to the transcript of a preliminary hearing growing out of a criminal prosecution.

I

On December 23, 1981, the State of California filed a complaint in the Riverside County Municipal Court, charging Robert Diaz with 12 counts of murder and seeking the death penalty. The complaint alleged that Diaz, a nurse, murdered 12 patients by administering massive doses of the heart drug lidocaine. The preliminary hearing on the complaint commenced on July 6, 1982. Diaz moved to exclude the public from the proceedings under Cal.Penal Code Ann. § 868 (West 1985), which requires such proceedings to be

Page 478 U. S. 4

open unless "exclusion of the public is necessary in order to protect the defendant's right to a fair and impartial trial." [Footnote 1] The Magistrate granted the unopposed motion, finding that closure was necessary because the case had attracted national publicity and "only one side may get reported in the media." App. 22a.

The preliminary hearing continued for 41 days. Most of the testimony and the evidence presented by the State was medical and scientific; the remainder consisted of testimony by personnel who worked with Diaz on the shifts when the 12 patients died. Diaz did not introduce any evidence, but his counsel subjected most of the witnesses to vigorous cross-examination. Diaz was held to answer on all charges. At the conclusion of the hearing, petitioner Press-Enterprise

Page 478 U. S. 5

Company asked that the transcript of the proceedings be released. The Magistrate refused, and sealed the record.

On January 21, 1983, the State moved in Superior Court to have the transcript of the preliminary hearing released to the public; petitioner later joined in support of the motion. Diaz opposed the motion, contending that release of the transcript would result in prejudicial pretrial publicity. The Superior Court found that the information in the transcript was "as factual as it could be," and that the facts were neither "inflammatory" nor "exciting," but that there was, nonetheless, "a reasonable likelihood that release of all or any part of the transcripts might prejudice defendant's right to a fair and impartial trial." Id. at 60a, 61a.

Petitioner then filed a peremptory writ of mandate with the Court of Appeal. That court originally denied the writ but, after being so ordered by the California Supreme Court, set the matter for a hearing. Meanwhile, Diaz waived his right to a jury trial and the Superior Court released the transcript. After holding that the controversy was not moot, the Court of Appeal denied the writ of mandate.

The California Supreme Court thereafter denied petitioner's peremptory writ of mandate, holding that there is no general First Amendment right of access to preliminary hearings. 37 Cal.3d 772, 691 P.2d 1026 (1984). The court reasoned that the right of access to criminal proceedings recognized in Press-Enterprise Co. v. Superior Court, 464 U. S. 501 (1984) (Press-Enterprise I), and Globe Newspaper Co. v. Superior Court, 457 U. S. 596 (1982), extended only to actual criminal trials. 37 Cal.3d at 776, 691 P.2d at 1028. Furthermore, the reasons that had been asserted for closing the proceedings in Press-Enterprise I and Globe -- the interests of witnesses and other third parties -- were not the same as the right asserted in this case -- the defendant's right to a fair and impartial trial by a jury uninfluenced by news accounts.

Having found no general First Amendment right of access, the court then considered the circumstances in which the closure

Page 478 U. S. 6

would be proper under the California access statute, Cal.Penal Code Ann. § 868 (West 1985). Under the statute, the court reasoned, if the defendant establishes a "reasonable likelihood of substantial prejudice," the burden shifts to the prosecution or the media to show by a preponderance of the evidence that there is no such reasonable probability of prejudice. 37 Cal.3d at 782, 691 P.2d at 1032.

We granted certiorari. 474 U.S. 899 (1985). We reverse.

II

We must first consider whether we have jurisdiction under Article III, § 2, of the Constitution. In this Court, petitioner challenges the Superior Court's original refusal to release the transcript of the preliminary hearing. As noted above, the specific relief petitioner seeks has already been granted -- the transcript of the preliminary hearing was released after Diaz waived his right to a jury trial. However, as in Globe Newspaper, supra, at 457 U. S. 603, and Gannett Co. v. DePasquale, 443 U. S. 368, 443 U. S. 377-378 (1979), this controversy is "capable of repetition, yet evading review.'" It can reasonably be assumed that petitioner will be subjected to a similar closure order and, because criminal proceedings are typically of short duration, such an order will likely evade review. Globe and Gannett, therefore, require the conclusion that this case is not moot. Accordingly, we turn to the merits.

III

It is important to identify precisely what the California Supreme Court decided:

"[W]e conclude that the magistrate shall close the preliminary hearing upon finding a reasonable likelihood of substantial prejudice which would impinge upon the right to a fair trial. Penal code section 868 makes clear that the primary right is the right to a fair trial, and that the public's right of access must give way when there is conflict."

37 Cal.3d at 781, 691 P.2d at 1032.

Page 478 U. S. 7

It is difficult to disagree in the abstract with that court's analysis balancing the defendant's right to a fair trial against the public right of access. It is also important to remember that these interests are not necessarily inconsistent. Plainly, the defendant has a right to a fair trial but, as we have repeatedly recognized, one of the important means of assuring a fair trial is that the process be open to neutral observers.

The right to an open public trial is a shared right of the accused and the public, the common concern being the assurance of fairness. Only recently, in Waller v. Georgia, 467 U. S. 39 (1984), for example, we considered whether the defendant's Sixth Amendment right to an open trial prevented the closure of a suppression hearing over the defendant's objection. We noted that the First Amendment right of access would in most instances attach to such proceedings, and that

"the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public."

Id. at 467 U. S. 46. When the defendant objects to the closure of a suppression hearing, therefore, the hearing must be open unless the party seeking to close the hearing advances an overriding interest that is likely to be prejudiced. Id. at 467 U. S. 47.

Here, unlike Waller, the right asserted is not the defendant's Sixth Amendment right to a public trial, since the defendant requested a closed preliminary hearing. Instead, the right asserted here is that of the public under the First Amendment. See Gannett, supra, at 443 U. S. 397 (POWELL, J., concurring). The California Supreme Court concluded that the First Amendment was not implicated, because the proceeding was not a criminal trial, but a preliminary hearing. However, the First Amendment question cannot be resolved solely on the label we give the event, i.e., "trial" or otherwise, particularly where the preliminary hearing functions much like a full-scale trial.

Page 478 U. S. 8

In cases dealing with the claim of a First Amendment right of access to criminal proceedings, our decisions have emphasized two complementary considerations. First, because a "tradition of accessibility implies the favorable judgment of experience,'" Globe Newspaper, 457 U.S. at 457 U. S. 605 (quoting Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555, 448 U. S. 589 (1980) (BRENNAN, J., concurring in judgment)), we have considered whether the place and process have historically been open to the press and general public.

In Press-Enterprise I, for example, we observed that,

"since the development of trial by jury, the process of selection of jurors has presumptively been a public process with exceptions only for good cause shown."

464 U.S. at 464 U. S. 505. In Richmond Newspapers, we reviewed some of the early history of England's open trials from the day when a trial was much like a "town meeting." In the days before the Norman Conquest, criminal cases were brought before "moots," a collection of the freemen in the community. The public trial, "one of the essential qualities of a court of justice" in England, was recognized early on in the Colonies. There were risks, of course, inherent in such a "town meeting" trial -- the risk that it might become a gathering moved by emotions or passions growing from the nature of a crime; a "lynch mob" ambience is hardly conducive to calm, reasoned decisionmaking based on evidence. Plainly, the modern trial with jurors open to interrogation for possible bias is a far cry from the "town meeting trial" of ancient English practice. Yet even our modern procedural protections have their origin in the ancient common law principle which provided, not for closed proceedings, but rather for rules of conduct for those who attend trials. Richmond Newspapers, supra, at 448 U. S. 567.

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. Globe Newspaper, supra, at 457 U. S. 606. Although many governmental processes operate best under public scrutiny, it takes little

Page 478 U. S. 9

imagination to recognize that there are some kinds of government operations that would be totally frustrated if conducted openly. A classic example is that "the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings." Douglas Oil Co. v. Petrol Stops Northwest, 441 U. S. 211, 441 U. S. 218 (1979). Other proceedings plainly require public access. In Press-Enterprise I, we summarized the holdings of prior cases, noting that openness in criminal trials, including the selection of jurors, "enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system." 464 U.S. at 464 U. S. 501.

These considerations of experience and logic are, of course, related, for history and experience shape the functioning of governmental processes. If the particular proceeding in question passes these tests of experience and logic, a qualified First Amendment right of public access attaches. But even when a right of access attaches, it is not absolute. Globe Newspaper Co. v. Superior Court, supra, at 457 U. S. 606. While open criminal proceedings give assurances of fairness to both the public and the accused, there are some limited circumstances in which the right of the accused to a fair trial might be undermined by publicity. [Footnote 2] In such cases, the trial court must determine whether the situation is such that the rights of the accused override the qualified First Amendment right of access. In Press-Enterprise I, we stated:

"[T]he presumption may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values, and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can

Page 478 U. S. 10

determine whether the closure order was properly entered."

464 U.S. at 464 U. S. 510.

IV

A

The considerations that led the Court to apply the First Amendment right of access to criminal trials in Richmond Newspapers and Globe, and the selection of jurors in Press-Enterprise I, lead us to conclude that the right of access applies to preliminary hearings as conducted in California.

First, there has been a tradition of accessibility to preliminary hearings of the type conducted in California. Although grand jury proceedings have traditionally been closed to the public and the accused, preliminary hearings conducted before neutral and detached magistrates have been open to the public. Long ago, in the celebrated trial of Aaron Burr for treason, for example, with Chief Justice Marshall sitting as trial judge, the probable cause hearing was held in the Hall of the House of Delegates in Virginia, the courtroom being too small to accommodate the crush of interested citizens. United States v. Burr, 25 F.Cas. 1 (No. 14,692) (CC Va. 1807). From Burr until the present day, the near-uniform practice of state and federal courts has been to conduct preliminary hearings in open court. [Footnote 3] As we noted in Gannett,

Page 478 U. S. 11

several States following the original New York Field Code of Criminal Procedure published in 1850 have allowed preliminary hearings to be closed on the motion of the accused. 443 U.S. at 443 U. S. 390-391. But even in these States, the proceedings are presumptively open to the public, and are closed only for cause shown. [Footnote 4] Open preliminary hearings, therefore, have been accorded "the favorable judgment of experience.'" Globe, 457 U.S. at 457 U. S. 605.

The second question is whether public access to preliminary hearings, as they are conducted in California, plays a particularly significant positive role in the actual functioning of the process. We have already determined in Richmond

Page 478 U. S. 12

Newspapers, Globe, and Press-Enterprise I that public access to criminal trials and the selection of jurors is essential to the proper functioning of the criminal justice system. California preliminary hearings are sufficiently like a trial to justify the same conclusion.

In California, to bring a felon to trial, the prosecutor has a choice of securing a grand jury indictment or a finding of probable cause following a preliminary hearing. Even when the accused has been indicted by a grand jury, however, he has an absolute right to an elaborate preliminary hearing before a neutral magistrate. Hawkins v. Superior Court, 22 Cal.3d 584, 586 P.2d 918 (1978). The accused has the right to personally appear at the hearing, to be represented by counsel, to cross-examine hostile witnesses, to present exculpatory evidence, and to exclude illegally obtained evidence. Cal.Penal Code Ann. §§ 859-866 (West 1985), § 1538.5 (West Supp.1986). If the magistrate determines that probable cause exists, the accused is bound over for trial; such a finding leads to a guilty plea in the majority of cases.

It is true that, unlike a criminal trial, the California preliminary hearing cannot result in the conviction of the accused, and the adjudication is before a magistrate or other judicial officer, without a jury. But these features, standing alone, do not make public access any less essential to the proper functioning of the proceedings in the overall criminal justice process. Because of its extensive scope, the preliminary hearing is often the final and most important step in the criminal proceeding. See Waller v. Georgia, 467 U.S. at 467 U. S. 46-47. As the California Supreme Court stated in San Jose Mercury-News v. Municipal Court, 30 Cal.3d 498, 511, 638 P.2d 655, 663 (1982), the preliminary hearing in many cases provides "the sole occasion for public observation of the criminal justice system." See also Richmond Newspapers, 448 U.S. at 448 U. S. 572.

Similarly, the absence of a jury, long recognized as "an inestimable safeguard against the corrupt or overzealous prosecutor

Page 478 U. S. 13

and against the compliant, biased, or eccentric judge," Duncan v. Louisiana, 391 U. S. 145, 391 U. S. 156 (1968), makes the importance of public access to a preliminary hearing even more significant.

"People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing."

Richmond Newspapers, 448 U.S. at 448 U. S. 572.

Denying the transcript of a 41-day preliminary hearing would frustrate what we have characterized as the "community therapeutic value" of openness. Id. at 448 U. S. 570. Criminal acts, especially certain violent crimes, provoke public concern, outrage, and hostility.

"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."

Press-Enterprise I, 464 U.S. at 464 U. S. 509. See also H. Weihofen, The Urge to Punish 130-131 (1956); T. Reik, The Compulsion to Confess (1959). In sum:

"The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system."

Press-Enterprise I, supra, at 464 U. S. 508 (emphasis in original).

We therefore conclude that the qualified First Amendment right of access to criminal proceedings applies to preliminary hearings as they are conducted in California.

B

Since a qualified First Amendment right of access attaches to preliminary hearings in California under Cal.Penal Code Ann. § 858 et seq. (West 1985), the proceedings cannot be closed unless specific, on-the-record findings are made demonstrating that "closure is essential to preserve higher values,

Page 478 U. S. 14

and is narrowly tailored to serve that interest." Press-Enterprise I, supra, at 464 U. S. 510. See also Globe Newspaper, 457 U.S. at 457 U. S. 606-607. If the interest asserted is the right of the accused to a fair trial, the preliminary hearing shall be closed only if specific findings are made demonstrating that, first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights. See Press-Enterprise I, supra; Richmond Newspapers, supra, at 448 U. S. 581.

The California Supreme Court, interpreting its access statute, concluded that "the magistrate shall close the preliminary hearing upon finding a reasonable likelihood of substantial prejudice." 37 Cal.3d at 781, 691 P.2d at 1032. As the court itself acknowledged, the "reasonable likelihood" test places a lesser burden on the defendant than the "substantial probability" test which we hold is called for by the First Amendment. See ibid.; see also id. at 783, 691 P.2d at 1033 (Lucas, J., concurring and dissenting). Moreover, that court failed to consider whether alternatives short of complete closure would have protected the interests of the accused.

In Gannett, we observed:

"Publicity concerning pretrial suppression hearings such as the one involved in the present case poses special risks of unfairness. The whole purpose of such hearings is to screen out unreliable or illegally obtained evidence and insure that this evidence does not become known to the jury. Cf. Jackson v. Denno, 378 U. S. 368. Publicity concerning the proceedings at a pretrial hearing, however, could influence public opinion against a defendant and inform potential jurors of inculpatory information wholly inadmissible at the actual trial."

443 U.S. at 443 U. S. 378.

Page 478 U. S. 15

But this risk of prejudice does not automatically justify refusing public access to hearings on every motion to suppress. Through voir dire, cumbersome as it is in some circumstances, a court can identify those jurors whose prior knowledge of the case would disable them from rendering an impartial verdict. And even if closure were justified for the hearings on a motion to suppress, closure of an entire 41-day proceeding would rarely be warranted. The First Amendment right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of that right. And any limitation must be "narrowly tailored to serve that interest." Press-Enterprise I, supra, at 464 U. S. 510.

The standard applied by the California Supreme Court failed to consider the First Amendment right of access to criminal proceedings. Accordingly, the judgment of the California Supreme Court is reversed.

It is so ordered.

*****

[Footnote 1]

Section 868, as amended in 1982, provides in full:

"The examination shall be open and public. However, upon the request of the defendant and a finding by the magistrate that exclusion of the public is necessary in order to protect the defendant's right to a fair and impartial trial, the magistrate shall exclude from the examination every person except the clerk, court reporter and bailiff, the prosecutor and his or her counsel, the Attorney General, the district attorney of the county, the investigating officer, the officer having custody of a prisoner witness while the witness is testifying, the defendant and his or her counsel, the officer having the defendant in custody and a person chosen by the prosecuting witness who is not himself or herself a witness but who is present to provide the prosecuting witness moral support, provided that the person so chosen shall not discuss prior to or during the preliminary examination the testimony of the prosecuting witness with any person, other than the prosecuting witness, who is a witness in the examination. Nothing in this section shall affect the right to exclude witnesses as provided in Section 687 of the Penal Code."

Before 1982, the statute gave the defendant the unqualified right to close the proceedings. After the California Supreme Court rejected a First Amendment attack on the old statute in San Jose Mercury-News v. Superior Court, 30 Cal.3d 498, 638 P.2d 655 (1982), the California Legislature amended the statute to include the present requirement that the hearing be closed only upon a finding by the magistrate that closure is "necessary in order to protect the defendant's right to a fair and impartial trial."

[Footnote 2]

Similarly, the interests of those other than the accused may be implicated. The protection of victims of sex crimes from the trauma and embarrassment of public scrutiny may justify closing certain aspects of a criminal proceeding. See Globe Newspaper Co. v. Superior Court, 457 U.S. at 457 U. S. 607-610.

[Footnote 3]

The vast majority of States considering the issue have concluded that the same tradition of accessibility that applies to criminal trials applies to preliminary proceedings. See, e.g., Arkansas Television Co. v. Tedder, 281 Ark. 152, 662 S.W.2d 174 (1983); Miami Herald Publishing Co. v. Lewis, 426 So.2d 1 (Fla.1982); R. W. Page Corp. v. Lumpkin, 249 Ga. 576, 578-579, 292 S.E.2d 815, 819 (1982); Gannett Pacific Corp. v. Richardson, 59 Haw. 224, 580 P.2d 49, 56 (1978); State ex rel. Post-Tribune Publishing Co. v. Porter Superior Court, 274 Ind. 408, 412 N.E.2d 748 (1980); Ashland Publishing Co. v. Asbury, 612 S.W.2d 749, 752 (Ky.App.1980); Great Falls Tribune v. District Court, 186 Mont. 433, 608 P.2d 116 (1980); Keene Publishing Corp. v. Cheshire County Superior Court, 119 N. H. 710, 406 A.2d 137 (1979); State v. Williams, 93 N.J. 39, 459 A.2d 641 (1983); Westchester Rockland Newspapers v. Leggett, 48 N.Y.2d 430, 439, 399 N.E.2d 518, 523 (1979); Minot Daily News v. Holum, 380 N.W.2d 347 (N.D.1986); State ex rel. Dayton Newspapers, Inc. v. Phillips, 46 Ohio St.2d 457, 351 N.E.2d 127 (1976); Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484, 503, 387 A.2d 425, 434 (1978); Kearns-Tribune Corp. v. Lewes, 685 P.2d 515 (Utah 1984); Herald Assn., Inc. v. Ellison, 138 Vt. 529, 534, 419 A.2d 323, 326 (1980); Federated Publications, Inc. v. Kurtz, 94 Wash.2d 51, 615 P.2d 440 (1980); State ex rel. Herald Mail Co. v. Hamilton, 165 W.Va. 103, 267 S.E.2d 544 (1980); Williams v. Stafford, 589 P.2d 322 (Wyo.1979). Cf. In re Midland Publishing, 420 Mich. 148, 173, 362 N.W.2d 580, 593 (1984) (proceedings leading to a person's indictment have not been open to the public).

Other courts have noted that some pretrial proceedings have no historical counterpart, but, given the importance of the pretrial proceeding to the criminal trial, the traditional right of access should still apply. See, e.g., Iowa Freedom of Information Council v. Wifvat, 328 N.W.2d 920 (Iowa 1983); Minneapolis Star and Tribune Co. v. Kammeyer, 341 N.W.2d 550 (Minn.1983); Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 281 S.E.2d 915 (1981).

[Footnote 4]

See State v. McKenna, 78 Idaho 647, 309 P.2d 206 (1957); Davis v. Sheriff, 93 Nev. 511, 569 P.2d 402 (1977). Although Arizona, Iowa, Montana, North Dakota, Pennsylvania, and Utah have closure statutes based on the Field Code, see Gannett, 443 U.S. at 391, in each of these States, the Supreme Court has found either a common law or state constitutional right of the public to attend pretrial proceedings. See Phoenix Newspapers, Inc. v. Superior Court, 101 Ariz. 257, 418 P.2d 594 (1966); Iowa Freedom of Information Council v. Wifvat, supra; Great Falls Tribune v. District Court, supra; Minot Daily News v. Holum, supra; Commonwealth v. Hayes, 489 Pa. 419, 414 A.2d 318 (1980); Kearns-Tribune Corp. v. Lewis, supra.

*****

JUSTICE STEVENS, with whom JUSTICE REHNQUIST joins as to Part II, dissenting.

The constitutional question presented by this case is whether members of the public have a First Amendment right to insist upon access to the transcript of a preliminary hearing during the period before the public trial, even though the accused, the prosecutor, and the trial judge have all agreed to the sealing of the transcript in order to assure a fair trial.

The preliminary hearing transcript to which petitioner sought access consists of 4,239 pages of testimony by prosecution witnesses heard over eight weeks. The testimony, contained in 47 volumes, accuses Mr. Robert Diaz, a nurse, of murdering 12 patients in the hospital in which he worked by injecting them with lethal doses of a heart drug. The transcript reveals that the defense put on no witnesses of its own.

Immediately after the Magistrate ordered the defendant bound over for trial, defense counsel moved that the transcript of the preliminary hearing be sealed to protect his client's

Page 478 U. S. 16

right to a fair trial. The transcript, in the words of the Magistrate, revealed "only one side of the story." App. 28a. The transcript also contained the Magistrate's characterization of Mr. Diaz as "the most dangerous type of individual there is." Id. at 27a. The prosecutor did not oppose this motion, and the Magistrate, after hearing petitioner's objection, ordered the transcript sealed.

The Superior Court trial judge denied a motion to unseal the transcript. He found -- and the finding is amply supported by the record -- that

"there is a reasonable likelihood that making all or any part of the transcripts public might prejudice the defendant's right to a fair and impartial trial."

Id. at 61a. Accord, id. at 62a. The Magistrate had earlier rejected less restrictive alternatives to sealing the transcript, concluding that "the only way to protect" the defendant's "[fair trial] right would be to seal the transcript." Id. at 37a. [Footnote 2/1]

The Court of Appeal agreed with the trial judge, and denied the peremptory writ of mandate sought by petitioner. It rejected petitioner's assertion that "the superior court failed to state any reasons or make a specific finding to support the sealing order." App. to Pet. for Cert. E-11. Instead, it confirmed the trial judge's determinations that "the transcript is indicative of only the prosecutorial side of the case," id. at E-14; that the public's right of access was overborne by the "reasonable likelihood of substantial prejudice" to "the defendant's right to a fair trial," id. at E-9; and that "[a]lternatives to sealing the transcript would not suffice in this

Page 478 U. S. 17

case," id. at E-14. [Footnote 2/2] The California Supreme Court similarly denied petitioner's request for a peremptory writ of mandate, affirming that a preliminary hearing transcript can be sealed upon a showing of a "reasonable likelihood of substantial prejudice which would impinge upon the right to a fair trial." 37 Cal.3d 772, 781, 691 P.2d 1026, 1032 (1984).

In view of the above, the trial judge had an obvious and legitimate reason for refusing to make the transcript public any sooner than he did. His decision plainly did not violate the defendant's right to a public trial under the Sixth Amendment, for it was the defendant who objected to release of the transcript. See Gannett Co. v. DePasquale, 443 U. S. 368, 443 U. S. 383-384 (1979). In my opinion, the judge's decision did not violate the First Amendment, either.

I

Although perhaps obvious, it bears emphasis that the First Amendment right asserted

Page 478 U. S. 18

by petitioner is not a right to publish or otherwise communicate information lawfully or unlawfully acquired. That right, which lies at the core of the First Amendment, and which erased the legacy of restraints on publication against which the drafters of that Amendment rebelled, see Grosjean v. American Press Co., 297 U. S. 233, 297 U. S. 245-250 (1936), may be overcome only by a governmental objective of the highest order attainable in a no less intrusive way. See, e.g., Smith v. Daily Mail Publishing Co., 443 U. S. 97, 443 U. S. 101-106 (1979); Landmark Communications, Inc. v. Virginia, 435 U. S. 829, 435 U. S. 837-845 (1978); Oklahoma Publishing Co. v. District Court, 430 U. S. 308, 430 U. S. 310-312 (1977) (per curiam); Nebraska Press Assn. v. Stuart, 427 U. S. 539, 427 U. S. 556-570 (1976); Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 420 U. S. 487-497 (1975). The First Amendment right asserted by petitioner in this case, in contrast, is not the right to publicize information in its possession, but the right to acquire access thereto.

I have long believed that a proper construction of the First Amendment embraces a right of access to information about the conduct of public affairs.

"As Madison wrote:"

"A popular Government, without popular information or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: and a people who mean to be their own Governors must arm themselves with the power which knowledge gives."

"9 Writings of James Madison 103 (G. Hunt ed.1910). It is not sufficient, therefore, that the channels of communication be free of governmental restraints. Without some protection for the acquisition of information about the operation of public institutions such as prisons by the public at large, the process of self-governance contemplated by the Framers would be stripped of its substance."

"For that reason, information-gathering is entitled to some measure of constitutional protection."

Houchins v. KQED, Inc., 438 U. S. 1, 438 U. S. 31-32 (1978) (STEVENS, J., dissenting). [Footnote 2/3]

Page 478 U. S. 19

Neither our elected nor our appointed representatives may abridge the free flow of information simply to protect their own activities from public scrutiny. An official policy of secrecy must be supported by some legitimate justification that serves the interest of the public office. Thus, in Pell v. Procunier, 417 U. S. 817 (1974), and Saxbe v. Washington Post Co., 417 U. S. 843 (1974), we confirmed that the warden's regulation of prearranged inmate press interviews had a legitimate disciplinary and penological basis, and was

"not part of an attempt by the State to conceal the conditions in its prisons or to frustrate the press' investigation and reporting of those conditions."

Pell v. Procunier, 417 U.S. at 417 U. S. 830. Accord, Saxbe v. Washington Post Co., 417 U.S. at 417 U. S. 848. Likewise, in Gannett Co. v. DePasquale, 443 U. S. 368 (1979), we held that any First Amendment access right "was given all appropriate deference by the state nisi prius court," id. at 443 U. S. 392, which had entered a "finding on the record that an open suppression hearing would pose a reasonable probability of prejudice to these defendants,'" id. at 443 U. S. 376. Conversely, in Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555 (1980), a violation of the First Amendment was established by the "total absence of any record justification for the closure order," id. at 448 U. S. 584 (STEVENS, J., concurring). Accord, id. at 448 U. S. 580-581 (opinion of BURGER, C.J.). The same constitutional infirmity afflicted the order excluding the public from attending the testimony of minor victims in a sex offense trial in Globe Newspaper Co. v. Superior Court, 457 U. S. 596, 457 U. S. 608-609 (1982) ("the record indicates that the victims may have been willing to testify despite the presence of the press" (footnote omitted)), and the order closing the voir dire proceedings and sealing the transcript in Press-Enterprise Co. v. Superior Court, 464 U. S. 501, 464 U. S. 510-511 (1984) ("prolonged closure was unsupported by findings"); id. at 464 U. S. 513 ("trial judge provided no explanation" for his

Page 478 U. S. 20

"broad order"); id. at 464 U. S. 515 (BLACKMUN, J., concurring). Cf. Waller v. Georgia, 467 U. S. 39, 467 U. S. 48, n. 7, 467 U. S. 49, n. 8 (1984). [Footnote 2/4]

But it has always been apparent that the freedom to obtain information that the government has a legitimate interest in not disclosing, see Globe Newspaper Co. v. Superior Court, 457 U.S. at 457 U. S. 621 (STEVENS, J., dissenting), is far narrower than the freedom to disseminate information, which is "virtually absolute" in most contexts, Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 448 U. S. 582 (STEVENS, J., concurring). In this case, the risk of prejudice to the defendant's right to a fair trial is perfectly obvious. For me, that risk is far more significant than the countervailing interest in publishing the transcript of the preliminary hearing sooner, rather than later. Cf. Gannett Co. v. DePasquale, 443 U.S. at 443 U. S. 393 (upholding closure of suppression hearing in part because "any denial of access in this case was not absolute, but only temporary"). The interest in prompt publication -- in my view -- is no greater than the interest in prompt publication of grand jury transcripts. As explained more fully below, we have always recognized the legitimacy of the governmental interest in the secrecy of grand jury proceedings, and I am unpersuaded that the difference between such proceedings and the rather elaborate procedure for determining probable cause that California has adopted strengthens the First Amendment claim to access asserted in this case.

Page 478 U. S. 21

II

The Court nevertheless reaches the opposite conclusion by applying the "two complementary considerations," ante at 478 U. S. 8, of "experience and logic," ante at 478 U. S. 9. In my view, neither the Court's reasoning nor the result it reaches is supported by our precedents.

The historical evidence proffered in this case is far less probative than the evidence adduced in prior cases granting public access to criminal proceedings. In those cases, a common law tradition of openness at the time the First Amendment was ratified suggested an intention and expectation on the part of the Framers and ratifiers that those proceedings would remain presumptively open. Thus, in Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 448 U. S. 564, THE CHIEF JUSTICE explained that "[w]hat is significant for present purposes is that, throughout its evolution, the trial has been open to all who cared to observe."

"[T]he historical evidence demonstrates conclusively that, at the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open."

Id. at 448 U. S. 569 (emphasis added). History was relevant because it demonstrated that

"[t]he Bill of Rights was enacted against the backdrop of the long history of trials' being presumptively open. Public access to trials was then regarded as an important aspect of the process itself."

Id. at 448 U. S. 575. The opinion for the Court in Globe Newspaper Co. v. Superior Court, 457 U.S. at 457 U. S. 605, which also concerned the presumptive openness of a criminal trial, relied expressly on the opinion of THE CHIEF JUSTICE in Richmond Newspapers for the point that criminal trials were open "at the time when our organic laws were adopted." 448 U.S. at 448 U. S. 569. Later, in Press-Enterprise Co. v. Superior Court, the Court quoted the identical passage from Richmond Newspapers, see 464 U.S. at 464 U. S. 505, and concluded that "[p]ublic jury selection thus was the common practice in America when the Constitution was

Page 478 U. S. 22

adopted," id. at 464 U. S. 508. To dispel any doubt regarding the significance of this evidence, we explained that

"the question we address -- whether the voir dire process must be open -- focuses on First . . . Amendment values and the historical backdrop against which the First Amendment was enacted."

Id. at 464 U. S. 509, n. 8 (emphasis added). Thus, in our prior cases, history mattered primarily for what it revealed about the intentions of the Framers and ratifiers of the First Amendment.

In this case, however, it is uncontroverted that a common law right of access did not inhere in preliminary proceedings at the time the First Amendment was adopted, and that the Framers and ratifiers of that provision could not have intended such proceedings to remain open. As Justice Stewart wrote for the Court in Gannett Co. v. DePasquale:

"[T]here exists no persuasive evidence that, at common law, members of the public had any right to attend pretrial proceedings; indeed, there is substantial evidence to the contrary. By the time of the adoption of the Constitution, . . . pretrial proceedings, precisely because of the . . . concern for a fair trial, were never characterized by the same degree of openness as were actual trials."

"Under English common law, the public had no right to attend pretrial proceedings. E.g., E. Jenks, The Book of English Law 75 (6th ed.1967) ("It must, of course, be remembered that the principle of publicity only applies to the actual trial of a case, not necessarily to the preliminary or prefatory stages of the proceedings. . . ."); F. Maitland, Justice and Police 129 (1885) (The "preliminary examination of accused persons had gradually assumed a very judicial form. . . . The place in which it is held is indeed no open court,' the public can be excluded if the magistrate thinks that the ends of justice will thus be best answered. . . ."). See also Indictable Offences Act, 11 & 12 Vict., ch. 42, § 19 (1848) (providing

Page 478 U. S. 23

that pretrial proceedings should not be deemed an open court, and that the public could therefore be excluded); Magistrates' Courts Act, 15 & 16 Geo. 6 & 1 Eliz. 2, ch. 55, § 4(2) (1952) (same)."

443 U.S. at 443 U. S. 387-389 (footnotes omitted). [Footnote 2/5] Justice Stewart included in his discussion the following quotation from Lord Ellenborough; the Law Lord explains, in reasons as relevant today as they were when the Bill of Rights was adopted, the historical basis for the closure of preliminary proceedings:

"If anything is more important than another in the administration of justice, it is that jurymen should come to the trial of those persons on whose guilt or innocence they are to decide with minds pure and unprejudiced. . . . Trials at law fairly reported, although they may occasionally prove injurious to individuals, have been held to be privileged. Let them continue so privileged. . . . But these preliminary examinations have no such privilege. Their only tendency is to prejudge those whom the law still presumes to be innocent, and to poison the sources of justice."

King v. Fisher, 2 Camp. 563, 570-571, 170 Eng.Rep. 1253, 1255 (N.P. 1811).

In the final analysis, the Court's lengthy historical disquisition demonstrates only that, in many States, preliminary proceedings are generally open to the public. See ante at 478 U. S. 10-11, n. 3. In other States, numbering California and Michigan among them, see In re Midland Publishing Co.,

Page 478 U. S. 24

420 Mich. 148, 162, 172-174, 362 N.W.2d 580, 588, 593-594 (1984), such proceedings have been closed. [Footnote 2/6] To paraphrase the Court's analysis in McMillan v. Pennsylvania, 477 U. S. 79, 477 U. S. 90 (1986) (footnote omitted), "the fact that the States" have adopted different rules regarding the openness of preliminary proceedings

"is merely a reflection of our federal system, which demands '[t]olerance for a spectrum of state procedures dealing with a common problem of law enforcement,' Spencer v. Texas, 385 U. S. 554, 385 U. S. 566 (1967). That [California's] particular approach has been adopted in few other States does not render [its] choice unconstitutional.

Page 478 U. S. 25

As Justice Stewart admonished: we must not 'confus[e] the existence of a constitutional right with the common law tradition of open . . . proceedings.' Gannett Co. v. DePasquale, 443 U.S. at 443 U. S. 389, n.19. The recent common law developments reported by the Court are relevant, if at all, only insofar as they suggest that preliminary proceedings merit the 'beneficial effects of public scrutiny.' Cox Broadcasting Corp. v. Cohn, 420 U.S. at 420 U. S. 492. The Court's historical crutch cannot carry the weight of opening a preliminary proceeding that the State has ordered closed; that determination must stand or fall on whether it satisfies the second component of the Court's test."

If the Court's historical evidence proves too little, the "value of openness,'" ante at 478 U. S. 13 (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. at 464 U. S. 508), on which it relies proves too much, for this measure would open to public scrutiny far more than preliminary hearings "as they are conducted in California" (a comforting phrase invoked by the Court in one form or another more than eight times in its opinion). [Footnote 2/7] In brief, the Court's rationale for opening the "California preliminary hearing" is that it "is often the final and most important step in the criminal proceeding"; that it provides "`the sole occasion for public observation of the criminal justice system;'" that it lacks the protective presence

Page 478 U. S. 26

of a jury; and that closure denies an outlet for community catharsis. Ante at 478 U. S. 12, 478 U. S. 13 (quotation omitted). The obvious defect in the Court's approach is that its reasoning applies to the traditionally secret grand jury with as much force as it applies to California preliminary hearings. A grand jury indictment is just as likely to be the "final step" in a criminal proceeding and the "sole occasion" for public scrutiny as is a preliminary hearing. Moreover, many critics of the grand jury maintain that the grand jury protects the accused less well than does a legally knowledgeable judge who personally presides over a preliminary hearing. See Hawkins v. Superior Court, 22 Cal.2d 584, 590, 586 P.2d 916, 919-920 (1978) (holding deprivation of preliminary hearing to constitute a denial of equal protection under State Constitution in part because "`the grand jury is the total captive of the prosecutor who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury'" (quoting Campbell, Eliminate the Grand Jury, 64 J.Crim.L. & C. 174 (1973))). Finally, closure of grand juries denies an outlet for community rage. When the Court's explanatory veneer is stripped away, what emerges is the reality that the California preliminary hearing is functionally identical to the traditional grand jury. As THE CHIEF JUSTICE emphasized by his quotation of Cox v. Coleridge, 1 B. & C. 37, 49-50, 107 Eng.Rep. 15, 19-20 (1822), in his concurring opinion in Gannett Co. v. DePasquale, 443 U.S. at 443 U. S. 395, n. (emphasis added):

"'It [the proceeding] is only a preliminary inquiry, whether there be sufficient ground to commit the prisoner for trial. The proceeding before the grand jury is precisely of the same nature, and it would be difficult, if the right exists in the present case, to deny it in that. This being only a preliminary inquiry, and not a trial, makes, in my mind, all the difference.'"

The Court's reasoning -- if carried to its logical outcome -- thus contravenes the "long-established policy that maintains

Page 478 U. S. 27

the secrecy of the grand jury proceedings in the federal courts" and in the courts of 19 States. United States v. Procter & Gamble Co., 356 U. S. 677, 356 U. S. 681 (1958). "Despite the fact that newsgathering may be hampered, the press is regularly excluded from grand jury proceedings." Branzburg v. Hayes, 408 U. S. 665, 408 U. S. 684-685 (1972). This Court has previously described grand jury secrecy as "indispensable," United States v. Johnson, 319 U. S. 503, 319 U. S. 513 (1943), and has remarked that "the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings,'" United States v. Sells Engineering, Inc., 463 U. S. 418, 463 U. S. 424 (1983) (quoting Douglas Oil Co. v. Petrol Stops Northwest, 441 U. S. 211, 441 U. S. 218 (1979)). [Footnote 2/8]

In fact, the logic of the Court's access right extends even beyond the confines of the criminal justice system to encompass proceedings held on the civil side of the docket as well. As Justice Stewart explained:

"If the existence of a common law rule were the test for whether there is a Sixth Amendment public right to a public trial, therefore, there would be such a right in civil, as well as criminal, cases. . . . In short, there is no principled basis upon which a public right of access to judicial

Page 478 U. S. 28

proceedings can be limited to criminal cases if the scope of the right is defined by the common law, rather than the text and structure of the Constitution."

"Indeed, many of the advantages of public criminal trials are equally applicable in the civil trial context. Thus, in some civil cases, the public interest in access, and the salutary effect of publicity, may be as strong as, or stronger than, in most criminal cases."

Gannett Co. v. DePasquale, 443 U.S. at 443 U. S. 386-387, n. 15. Cf. Seattle Times Co. v. Rhinehart, 467 U. S. 20, 467 U. S. 29-37 (1984) (newspaper not allowed to publish information to which it was privy as a litigant in a civil action). Despite the Court's valiant attempt to limit the logic of its holding, the ratio decidendi of today's decision knows no bounds.

By abjuring strict reliance on history and emphasizing the broad value of openness, the Court tacitly recognizes the importance of public access to government proceedings generally. Regrettably, the Court has taken seriously the stated requirement that the sealing of a transcript be justified by a "compelling" or "overriding" governmental interest, and that the closure order be "narrowly tailored to serve that interest.'" Ante at 487 U. S. 9 (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. at 464 U. S. 501); Press-Enterprise Co. v. Superior Court, 464 U.S. at 464 U. S. 510 (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. at 457 U. S. 607). See ante at 487 U. S. 13-14. This standard -- as well as the two-part test of history and logic that formed the basis for the decision today -- originated as two "helpful principles" in JUSTICE BRENNAN's eloquent concurrence in Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 448 U. S. 589. That concurrence recognized that "`[t]here are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow,'" id. at 448 U. S. 588 (quoting Zemel v. Rusk, 381 U. S. 1, 381 U. S. 16-17 (1965)), and -- in contrast with the decision today -- stressed that

"[a]n assertion of the prerogative to gather information must accordingly be assayed by considering the information sought

Page 478 U. S. 29

and the opposing interests invaded,"

448 U.S. at 448 U. S. 588 (footnote omitted) -- a determination "as much a matter of sensitivity to practical necessities as . . . of abstract reasoning," ibid. The cases denying access have done so on a far lesser showing than that required by a compelling governmental interest/least restrictive means analysis, see supra, at 478 U. S. 19-20, and cases granting access have recognized as legitimate grounds for closure interests that fall far short of those traditionally thought to be "compelling," see Press-Enterprise Co. v. Superior Court, 464 U.S. at 464 U. S. 511-512 (privacy interest of venirepersons sufficient reason to close presumptively open voir dire proceeding); see also Richmond Newspapers, Inc. v. Virginia, 448 U.S. at 448 U. S. 600 (Stewart, J., concurring in judgment).

The presence of a legitimate reason for closure in this case requires an affirmance. The constitutionally grounded fair trial interests of the accused if he is bound over for trial, and the reputational interests of the accused if he is not, provide a substantial reason for delaying access to the transcript for at least the short time before trial. By taking its own verbal formulation seriously, the Court reverses -- without comment or explanation or any attempt at reconciliation -- the holding in Gannett that a "reasonable probability of prejudice" is enough to overcome the First Amendment right of access to a preliminary proceeding. It is unfortunate that the Court neglects this opportunity to fit the result in this case into the body of precedent dealing with access rights generally. I fear that today's decision will simply further unsettle the law in this area.

I respectfully dissent.

*****

[Footnote 2/1]

In so ruling, the Magistrate recognized that he had "an affirmative constitutional duty to insure that a defendant has a fair trial," App. 37a, under Gannett Co. v. DePasquale, 443 U. S. 368, 443 U. S. 378 (1979) ("To safeguard the due process rights of the accused, a trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity. And because of the Constitution's pervasive concern for these due process rights, a trial judge may surely take protective measures even when they are not strictly and inescapably necessary" (citation omitted)).

[Footnote 2/2]

Indeed, the Court of Appeal determined that "[t]he release of the transcript and employment of these alternatives would tend to exacerbate the existing prejudice." App. to Pet. for Cert. E-15 (emphasis added and citation omitted).

[Footnote 2/3]

See Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555, 448 U. S. 586-589 (1980) (BRENNAN, J., concurring in judgment); Saxbe v. Washington Post Co., 417 U. S. 843, 417 U. S. 862-864 (1974) (POWELL, J., dissenting). In a footnote to my separate writing in Houchins, I appended a quotation from Justice Stewart's dissenting opinion in Branzburg v. Hayes, 408 U. S. 665, 408 U. S. 728 (1972) (emphasis added), where he stated that "a right to gather news, of some dimensions, must exist." The majority agreed with this observation, acknowledging that "news gathering is not without its First Amendment protections," id. at 408 U. S. 707, for "without some protection for seeking out the news, freedom of press could be eviscerated," id. at 408 U. S. 681. See also Zemel v. Rusk, 381 U. S. 1, 381 U. S. 16-17 (1965) ("The right to speak and publish does not carry with it the unrestrained right to gather information" (emphasis added)).

[Footnote 2/4]

In Houchins, I explained why I believed that the plaintiffs were entitled to put an end to the warden's policy of concealing prison conditions from the public.

"Those conditions are wholly without claim to confidentiality. While prison officials have an interest in the time and manner of public acquisition of information about the institutions they administer, there is no legitimate penological justification for concealing from citizens the conditions in which their fellow citizens are being confined."

438 U.S. at 438 U. S. 35-36. It seemed clear that an

"official prison policy of concealing such knowledge from the public by arbitrarily cutting off the flow of information at its source abridges the freedom of speech and of the press protected by the First and Fourteenth Amendments to the Constitution."

Id. at 438 U. S. 38 (footnote omitted).

[Footnote 2/5]

Accord, Geis, Preliminary Hearings and the Press, 8 UCLA L.Rev. 397, 406 (1961) ("Preliminary hearings in the American colonies closely followed the prescriptions of the sixteenth century English statutes" (footnote omitted)). THE CHIEF JUSTICE pointed out in his concurring opinion in Gannett that, "[a]t common law, there was a very different presumption [i.e., in favor of closure] for proceedings which preceded the trial." 443 U.S. at 443 U. S. 394.

"[N]o one ever suggested that there was any 'right' of the public to be present at such pretrial proceedings as were available in that time [that the Bill of Rights was adopted]."

Id. at 443 U. S. 396.

[Footnote 2/6]

Ironically, California and Michigan are both States in which preliminary proceedings are generally open to the public, and are thus -- surprisingly -- part of the recent common law trend in favor of openness relied on by the Court. It is only on the facts of record in this case that the California courts ordered the transcript sealed. Since many -- if not most -- of the state court decisions collected by the Court hold that the right to a public preliminary hearing is personal to the accused, see, e.g., State v. Porter Superior Court, 274 Ind. 408, 409-410, 412 N.E.2d 748, 750 (1980); Azbill v. Fisher, 84 Nev. 414, 419, 442 P.2d 916, 918-919 (1968), or, more commonly, that it is overcome by a showing of potentially prejudicial publicity equivalent to or less than that required in California, see, e.g., State v. Burak, 37 Conn.Supp. 627, 630, 431 A.2d 1246, 1248 (1981) ("likelihood of prejudice"); United States v. Edwards, 430 A.2d 1321, 1345 (D.C.1981) ("likelihood"), cert. denied, 455 U.S. 1022 (1982); Gannett Pacific Corp. v. Richardson, 59 Haw. 224, 233, 580 P.2d 49, 56 (1978) ("substantial likelihood"); Westchester Rockland Newspapers v. Leggett, 48 N.Y.2d 430, 442, 399 N.E.2d 518, 525 (1979) ("strong likelihood"); Kearns-Tribune Corp. v. Lewis, 685 P.2d 515, 523 (Utah 1984) ("realistic likelihood of prejudice'"); Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574, 589, 281 S.E.2d 915, 923 (1981) ("likelihood"); Federated Publications, Inc. v. Kurtz, 94 Wash.2d 51, 62, 615 P.2d 440, 446 (1980) ("likelihood of jeopardy"), courts in these States would presumably have also denied access if presented with the facts of this case. On this observation, and in view of the fact that the reasoning of the state courts is heavily dependent on this Court's cases granting access to criminal proceedings (even if they are ultimately grounded in state law), it is remarkable that the Court finds any historical basis for a public right of access to preliminary proceedings on a showing in excess of that required in California and met by the defendant in this case.

[Footnote 2/7]

Given the Court's focus on the history of preliminary proceedings in general, and its reliance on the broad values served by openness, see ante at 13, I do not see the relevance of the fact that preliminary proceedings in California bear an outward resemblance to criminal trials. To the extent that it matters that, in California,

"[t]he accused has the right to personally appear at the hearing, to be represented by counsel, to cross-examine hostile witnesses, to present exculpatory evidence, and to exclude illegally obtained evidence,"

ante at 12 (citing Cal.Penal Code Ann. §§ 859-866 (West 1985), § 1538.5 (West 1982)), it bears mention that many other States have reformed their grand juries to include one or more of these procedural reforms, see W. LaFave & J. Israel, Criminal Procedure § 15.2(b) (1984). After today's decision, one can only wonder whether the public enjoys a right of access to any or all of these proceedings as well.

[Footnote 2/8]

Five reasons are commonly given for the policy of grand jury secrecy:

"'(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect the innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.'"

Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. at 441 U. S. 219, n. 10 (quoting United States v. Rose, 215 F.2d 617, 628-629 (CA3 1954)); United States v. Procter & Gamble Co., 356 U. S. 677, 356 U. S. 681, n. 6 (1958) (same). See Illinois v. Abbott & Associates, Inc., 460 U. S. 557, 460 U. S. 566-567, n. 11 (1983).



Robert Diaz

 

 

 
 
 
 
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