OXNARD PUBLISHING COMPANY v. CLINGER

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Court of Appeal, Second District, Division 2, California.

OXNARD PUBLISHING COMPANY, a California corporation et al., Petitioners, v. SUPERIOR COURT OF VENTURA COUNTY, Respondent; William Anthony CLINGER, Real Party in Interest.

Civ. 32746.

Decided: April 23, 1968

Michael F. Dillon, Los Angeles, for petitioners. Herbert L. Ashby, County Counsel, Edwin M. Osborne, Chief Asst. County Counsel, for respondent. Richard E. Erwin, Public Defender, Kenneth Cleaver, Asst. Public Defender, Harkjoon Paik, Deputy Public Defender, for real party in interest.

Petition for writ of mandate to the Superior Court in Ventura County to vacate its order excluding the public and the press from certain sessions of a criminal trial. Petitioners are the corporate publisher of a newspaper in Ventura County and one of its editors.

On 25 January 1968, the case of People v. William Anthony Clinger came before the court for trial by jury. The defendant was charged with the murder and robbery of a bartender named Veryl Robert Hays, at the Admiral's Table bar on 10 May 1967.

Before the selection of a jury, the judge in closed session in chambers, on motion of the public defender and over the opposition of the district attorney, entered an order excluding the public from all portions of the trial taking place outside the presence of the jury. The judge ordered that a record of these closed proceedings be made available to the public at the conclusion of the trial.

Also in closed session in chambers, on motion of the public defender, the judge ordered all possible witnesses in the case not to discuss the case or their proposed testimony with any other witnesses. So far as the record discloses this order was apparently made known only to counsel in the case. In the same closed session in chambers, again over the objection of the district attorney, the judge ordered all parties, lawyers, agents, court officers, and attaches not to make any extrajudicial statements during the course of the trial for dissemination by any means of public communication. The judge observed that although he had seen no indication of any violation of professional conduct by counsel, he saw no harm in making this order. He also said he had seen no indication that the case was a problem in terms of news dissemination, and he declared that nothing he had come in contact with suggested any inflammatory coverage by the newspapers. The judge also expressed the view that the right to a public trial accrued to the parties, who could if they wished, exclude the public from attending the trial. Prior to the issue of these orders, no showing had been made by affidavit, deposition, representation of counsel, or otherwise, of any fact which would indicate any specific necessity for their entry.

The case was then called for trial in open court, and four days were spent in the selection of a jury.

On 1 February, after the jury had been sworn and before any other proceedings, the public defender in closed session in chambers moved for an order prohibiting the district attorney in his opening statement from making any reference to the testimony of any prospective witness present at an identification lineup. The public defender also moved to suppress evidence of the lineup and to prohibit the receipt of identification testimony from any prospective witness who had been present at the lineup. These motions were based on the failure of the accused to waive his right to counsel at the lineup. Thereafter for the next twelve court days the court received evidence relating to these motions in closed session with the public excluded. In closed session the court heard testimony of over 30 fact witnesses, visited the scene of the crime, the Admiral's Table bar, and heard expert testimony on perception and memory from psychiatrists for the defense and for the prosecution.

On 19 February the court in closed session issued an order suppressing the identification testimony of four prospective witnesses who had been present at the lineup, and prohibiting them from identifying the defendant in court.

On 8 February, while these proceedings were taking place, the public defender in closed session moved for an order prohibiting the district attorney from mentioning the witness Dorothy Casto in his opening statement. Mrs. Casto had been living with the accused at the time of the murder, and the motion was based on an expectation that if Mrs. Casto were called as a witness, she would claim her privilege against self-incrimination. On 15 February the public defender in closed session moved for an order prohibiting the district attorney in his opening statement from mentioning any statements made by Mrs. Casto to certain individuals, and prohibiting him from making any reference to color photographs of the victim Hays. These latter motions were subsequently denied by the court, except for the motion relating to color photographs, which appears to have been granted.

On 20 February, some 26 days after the beginning of the trial, the district attorney made his opening statement to the jury, and for the first time witnesses testified in open court. During that session the public defender initiated a practice of making his objections to the admission of evidence at the bench outside the hearing of the jury, but on the protest of the district attorney this practice was discontinued. The trial proceeded for six days, mostly, but not entirely, in open court. For example, the witness Gabriel was questioned in closed session in chambers to determine whether in fact he had been convicted of a felony for which he could be impeached.

On 29 February in closed session in chambers the court entertained a motion of the public defender to prohibit the interrogation in open court of Dorothy Casto as a witness. Present were counsel in the case and counsel for Mrs. Casto. The court ordered that questioning of Mrs. Casto as a witness take place in closed session in chambers. For the balance of that day and on the following day the trial proceeded in open court. But on 4 March Mrs. Casto was called as a witness in closed session. She refused to be sworn. After the court ordered her sworn she persisted in her refusal, and the court found her in contempt. Her request for a public hearing on the finding of contempt was denied, and she was committed to imprisonment in the Ventura County jail until she should comply with the order to be sworn as a witness.

On 5 March the trial resumed in open court.

On 7 March in closed session in chambers the public defender stated that a newspaper article had reported the jailing of Mrs. Casto, that this report seriously jeopardized the defendant's posture in the case. The public defender suggested that someone was in contempt of court and requested that the author of the newspaper report be examined under oath in order to determine the identity of his informant; that the informant then be found in contempt; that each juror be polled on whether he or she had read the newspaper report; that if any juror had read the report the court declare a mistrial. In reply to this the district attorney directed the court's attention to section 1070 of the Evidence Code—the privilege of newsmen not to disclose their sources of information. He also stated that the author of the newspaper article had asked him if Mrs. Casto were under arrest and that he had replied he could not discuss the matter. The court declared a recess. Following the recess, proceedings were again resumed in closed session, and the public defender requested the court to take appropriate action against the district attorney for having conversed with a reporter in violation of the court's order of 25 January. The judge stated that during the recess he had talked informally with the author of the newspaper article and been told that the latter had obtained his information about Mrs. Casto's commitment from the county jail. The judge declared he was satisfied the district attorney was not in contempt. Thereafter in open court the jurors were asked whether they had seen the newspaper article or heard anything about it. Those who gave an affirmative answer were then individually interrogated in closed session in chambers on what they had read and the impression it had made upon them. At a later closed session of court the judge denied defendant's motion for a mistrial.

On 8 March in further closed session Mrs. Casto again refused to be sworn as a witness. The court asked her to waive her right to a public trial for contempt, but this she refused to do. She was remanded to the county jail.

On 11 March for part of the day the trial proceeded in open court and for part of the day there was a further closed session in chambers in the presence of counsel, Mrs. Casto, and her lawyer. Mrs. Casto still refused to be sworn as a witness and was again remanded to custody.

On 13 March Mrs. Casto indicated her willingness to be sworn as a witness, and she was so sworn in closed session in chambers. She then refused to answer questions put to her on the ground of self-incrimination. The district attorney then moved for a hearing under the immunity provisions of Penal Code, section 1324. Mrs. Casto demanded that the hearing be public. The public defender asserted she was not entitled to a public hearing, that such was the sole right of his client. The court agreed with the public defender and denied her request for a public hearing. A closed hearing was immediately held, and the court then issued an order requiring Mrs. Casto to answer the questions, in effect tendering her the immunity authorized by the statute.

This brings us to 14 March, the date on which the alternative writ was heard in this court. From the calling of the case for trial on 25 January to the date of the hearing on the writ, 15 days of proceedings were held in closed session with the public excluded, and 15 days were held in open court, or partially open court. Up to this time over half the trial appears to have taken place in camera.1

Petitioners contend that a public trial commences with the impanelment of a jury and continues through the return of the verdict; that the public has a right to attend a public trial and scrutinize the administration of justice; that the trial court abused its discretion in making a blanket order excluding the public from sessions held outside the presence of the jury; and that this court should issue its writ of mandate to correct arbitrary action and compel the trial court to exercise its discretion in a lawful manner.

Respondent court admits the making of the order, but it asserts that the proceedings from which the public and the press were excluded included hearings on motions to suppress evidence, hearings which were closed to prevent prejudicial matters coming to the attention of the jury.

The public defender, on behalf of his client, declares that in a criminal prosecution the right to a public trial lies with the accused, that the latter may waive his right to a public trial, and if he does the court may exclude the public and the press from that part of the trial which takes place outside the presence of the jury. He cites the Reardon Report of the American Bar Association, Standards Relating to Fair Trial and Free Press, and quotes the opinion in Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 1522, 16L.Ed.2d 600: ‘Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused.’ At the hearing on the return of the writ in this court the public defender conceded that his motions to suppress evidence could have been made in advance of the trial but said that he delayed his motions until after the trial had started and his client been placed in jeopardy, so that the prosecution could not thereafter buttress its case by finding new evidence to replace the evidence which he hoped would be suppressed.

Standing of Petitioners

As representatives of the press petitioners have no special standing to apply for a writ of mandate. Their privilege to attend court proceedings is neither greater nor lesser than that of members of the general public, for their status derives from the rights of the general public for whom they merely act as surrogate and as witness to what the general public could itself witness were it able to be present. But petitioners have no need for special standing, because as members of the general public they have a legal right to seek access to a criminal trial. (Kirstowsky v. Superior Court, etc., 143 Cal.App.2d 745, 300 P.2d 163; Wrather-Alvarez etc., Inc. v. Hewicker, 147 Cal.App.2d 509, 305 P.2d 236.) The proceeding involved is clearly a trial and not a preliminary motion, for on the empanelment and swearing of a jury the trial starts. (Jackson v. Superior Court, etc., 10 Cal.2d 350, 74 P.2d 243.)

The key issue in the case is that of public trial, and the issue of free press is only indirectly and collaterally involved. As the court said in Kirstowsky, supra, ‘If the court had the right to exclude the public during the time defendant was upon the witness stand it had the right also to exclude the members of the press. The freedom of the press is in no way involved in this proceeding.’ (143 Cal.App.2d pp. 754–755, 300 P.2d p. 169.)

Public Trial—Whose Right?

No tradition is more fundamental in our law than that of public trial. But from time to time we need to remind ourselves of fundamentals. We start with some historical observations about public trial at common law.

Sir Matthew Hale: ‘* * * the evidence on either part, is given * * * in the open court, and in the presence of the parties, their attornies, counsel, and all bystanders, and before the judge and jury: where each party has liberty of excepting, either to the competency of the evidence, or the competency or credit of the witnesses; which exceptions are publicly stated, and by the judges openly and publicly allowed or disallowed;—wherein if the judge be partial, his partiality and injustice will be evident to all by-standers.’ (Hale, History of the Common Law of England, Sixth Ed. (1820), pp. 342–344.)

Sir William Blackstone: ‘This open examination of witnesses viva voce, in the presence of all mankind, is much more conducive to the clearing up of truth, than the private and secret examination taken down in writing before an officer, or his clerk, in the ecclesiastical courts, and all others that have borrowed their practice from the civil law * * *.’ (III Blackstone's Commentaries, p. 372.)

Henry Hallam: ‘Civil liberty, in this kingdom, has two direct guarantees; the open administration of justice, according to known laws truly interpreted, and fair constructions of evidence; and the right of parliament, without let or interruption, to inquire into, and obtain the redress of, public grievances. Of these, the first is by far the most indispensable; nor can the subjects of any state be reckoned to enjoy a real freedom, where the condition is not found both in its judicial institutions and in their constant exercise.’ (I Hallam, The Constitutional History of England (8th ed. 1867), pp. 230–231.)

In Jenks, The Book of English Law, we find public trial heading the list of general principles of English justice: ‘1. It is one of the most conspicuous features of English justice, that all judicial trials are held in open court, to which the public have free access, and that the parties have a right to be represented, and to have their interests defended, by skilled advisers from among the barristers and solicitors described in the preceding chapter.

‘This feature is so much of a common-place to the modern Englishman, that he hardly realizes its importance. But, if he will think for a moment, of the difference between the English system and those, quite common in other countries, where the proceedings are conducted in secret, and where, in criminal cases, the accused is not necessarily entitled to be represented by skilled advisers, he will hardly fail to grasp the difference. To put it shortly, the English system ensures that the enormous force of public opinion is brought to bear on the proceedings in court, and that judge and jury are compelled to hear both sides of the case. The former appears to have been the rule in England from time immemorial; and much of the effectiveness of English public opinion, whether expressed by word of mouth or in the Press, may be said to be due to it. Only in rare instances, of which the notorious Court of Star Chamber is the most conspicuous, has the rule been violated; and the unpopularity of such exceptions is the best proof of the value attached by the nation to the general rule.’ (6th ed. pp. 73–74.) Jenks then states that exceptions to the rule of open court are rare, consisting principally of cases involving children, trade secrets, state secrets, or certain types of annulment of marriage.

Jeremy Bentham in his Rationale of Judicial Evidence (1827), declares that public trials are the general rule and private trials the exception. (Vol. I, pp. 513–514.) Additionally, the interest of the public in open trials is separate from the interest of the parties themselves. ‘Nor yet, in the class of cases in question, would it be eligible that the mode of privacy in question should take place, although it were even at the joint solicitation of both parties (or say all parties), as well as with the consent of the judge.

‘The reason is, that here (as before) there is a party interested (viz. the public at large) whose interest might, by means of the privacy in question, and a sort of conspiracy, more or less explicit, between the other persons concerned (the judge included) be made a sacrifice.’ (Bentham, Rationale of Judicial Evidence, Vol. I, pp. 576–577.)

In California, public trials are governed by the following:

California Constitution, Article I, section 13: ‘In criminal prosecutions, in any court whatever, the party accused shall have the right to a speedy and public trial * * *.’ (Cf. U.S.Const. Amend. VI.)

Civil Code, section 22.2: ‘The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State.’

Code of Civil Procedure, section 124: ‘The sittings of every Court of justice shall be public * * *.’

Penal Code, section 686: ‘In a criminal action the defendant is entitled: 1. To a speedy and public trial. * * *’

In Kirstowsky v. Superior Court, etc., 143 Cal.App.2d 745, 300 P.2d 163, the court analyzed these provisions in the light of our legal history and concluded (pp. 750–751, p. 167 of 300 P.2d): ‘We are satisfied that both at common law and under our statutory law trials are intended to be public and open to the public with such exceptions as are specifically set forth in statutes, or under certain circumstances to which we will refer hereinafter. The underlying reason for public trials is well expressed by the United States Supreme Court in Re Oliver, 333 U.S. 257, 268, 68 S.Ct. 499, 505, 92 L.Ed. 682, as follows:

“The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy's abuse of the letter de cachet. All of these institutions obviously symbolized a menace to liberty. In the hands of despotic groups each of them had become an instrument for the suppression of political and religious heresies in ruthless disregard of the right of an accused to a fair trial. Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.”

A public trial is one which is public in the ordinary, common-sense meaning of the term. ‘The doors of the court room are expected to be kept open, the public are entitled to be admitted, and the trial is to be public in all respects, as we have before suggested, with due regard to the size of the court room, the conveniences of the court, the right to exclude objectionable characters and youth of tender years, and to do other things which may facilitate the proper conduct of the trial.’ (People v. Hartman, 103 Cal. 242, 245, 37 P. 153, 154.)

It is significant that in Kirstowsky the prosecutor, the defendant, and the trial judge all agreed to a closed trial, but the appellate court concluded the resulting general exclusion of the public had been erroneous. It seems beyond dispute that a public trial in California is not a private right of the parties, or even of the parties and the judge, but one involving additional interests, including those of the public, which must be taken into consideration.

Public Trial—What Interests Are Involved?

The public is not entitled to be present at every proceeding that takes place in a California courtroom. By statute certain exceptions to the general rule of open sessions of court have long been recognized. (See Code Civ.Proc. § 125 (divorce or seduction trial); Pen.Code, § 868 (preliminary examination); Civ.Code, § 226m (adoption); and Welf. & Inst.Code, § 676 (juvenile court hearings).) In a proceeding not governed by specific statute, what are the circumstances which will justify an exception to the general rule of public trial?

To answer this question properly we should give thought to the various interests at stake in a public trial, for with these in mind we can better evaluate the circumstances which may justify an exception to the general rule.

In criminal trials these interests, as we see them, are basically three: (1) the interest of the accused, and his connections, in securing a fair trial; (2) the interest of the victim, and his connections, in obtaining justice for a particular wrong; and (3) the interest of the general public in public tranquility, in honest government, and in effective institutions. While these interests may parallel one another in a given case, more often they face in divergent directions. Each interest is entitled to recognition and consideration in each case, and no one of them can be permitted to swallow up the other two.

Interest of the Accused and His Connections

The protection of the interest of the accused is reflected in the state and federal constitutions (United States Const. 6th Amend., and Art. I, § 13, of the Calif. Const.), guaranteeing the accused in criminal prosecutions the right to a speedy and public trial. If over his objection, the defendant in a criminal case is denied a public trial, he has not received due process of law. (Cf. People v. Jelke (1954), 308 N.Y. 56, 123 N.E. 2d 769.) This interest has been fully recognized in the present case and requires no additional elaboration.

Interest of the Victim and His Connections

But the accused is not the only one vitally concerned with a criminal prosecution. The victim, if still alive, has a substantial interest in obtaining justice. So do his relatives and friends. So do his business associates. So do those who are similarly situated, or who expect to become similarly situated. Collectively, these interests may be of great importance and of far-reaching consequence. For example, if a civil rights worker is murdered in a rural area hostile to the exercise of civil rights by minority groups, the relatives friends and associates of the murdered man and the beneficiaries of his efforts, collectively, have a powerful interest in the vigorous prosecution and just disposition of criminal charges arising out of the murder. If a black automobile driver is killed by white deputy sheriffs in the course of a traffic citation, the relatives, friends, and associates of the driver, collectively, have a substantial interest in any criminal prosecution arising out of the homicide. If a white tradesman making routine deliveries of merchandise in a black neighborhood is murdered by black nationalists, the relatives, friends, and fellow workers of the murdered man, collectively, have a substantial interest in the prosecution of criminal charges arising out of the event. These interests are directly served by the vehicle of a public trial, which makes manifest the operation of the principles of justice to those directly concerned. The therapeutic functions of a public trial in reducing community tension, in superseding private vengeance, in restricting self-help, in eliminating the blood feud, in removing excuses for lynch and vigilante law, provide values which, perhaps, society has been inclined to take for granted in recent years, but which, since Watts, have again become visible elements in the administration of justice. The origin of trial by jury as successor to, among others, trial by battle, should not be forgotten. As put by Stephen, ‘Criminal justice was originally a rude substitute for, or limitation upon, private war. * * *’ (1 Stephen, History of the Criminal Law of England, p. 425.) The interest of the victim in obtaining justice is directly served by a trial in open court operation in full public view and unfolding decisions before the gaze of those directly affronted by the crime for which the defendant stands accused.

We do not believe these powerful benefits of a public trial can be permanently dispensed with by society, except at its peril.

Interest of the General Public

The third interest in a criminal trial is that of the general public in the operation of its legal institutions. A properly-conducted public trial, in addition to serving the interest of the accused and his connections and the interest of the victim and his connections, maintains the confidence of the community in the honesty of its institutions, in the competence of its public officers, in the impartiality of its judges, and in the capacity of its criminal law to do justice. Public trial has been a basic tenet of our legal heritage, at least since the abolition of the Star Chamber three hundred years ago. Secrecy, on the other hand, is the antithesis of the orderly operation of a public institution, breeding either suspicion, distrust, rumor, and out-rage, or apathy, indifference, and neglect. Suppose a charge of bribery against a state senator, tax assessor, or member of Congress; suppose a charge of conflict of interest against a councilman, supervisor, or commissioner; suppose the prosecution of the spouse of a judge or the relative of a prominent politician. In each of these cases public confidence in the administration of justice is directly served by the procedure of an open trial which exposes to the scrutiny of the public the conduct of the case and the actions of public officers, police, prosecutors, and trial judge in the performance of their duties. By following the course of events the public is able to evaluate the competence and fairness with which the case is handled. At the conclusion of such a trial deficiencies or excesses in the conduct of public affairs have been exposed for remedial action, and, normally, the public is satisfied that the matter has received and equitable and proper disposition. We do not think the same result would follow if large portions of such criminal trials were to take place in closed session with the public excluded. A closed procedure would largely undermine the function a public trial performs in maintaining public confidence in public institutions.

Generally speaking, we may say that in a criminal trial the interest of the accused is represented by defense counsel; the interest of the victim is represented by the prosecutor;2 and the interest of the public is represented by the judge. Perhaps we can epitomize these three interests: the interest of the accused lies in a Fair Trial; the interest of the victim in Justice in This Case; and the interest of the public in the Impartial Administration of Justice. No court would wish to sacrifice a Fair Trial to the interest of the victim, or to sacrifice Justice in This Case to the interest of the accused, or to sacrifice the Impartial Administration of Justice to the interest of either the accused or the victim. The problem is one of balance and accommodation among conflicting interests, each of which deserves full recognition. It is apparent that an accommodation among such interests involves considerable judicial skill, for there are eight possible combinations in which these interests may be found, ranging from those in which all representatives are agreed upon an open trial to those in which all favored a closed trial.3

No Justification Was Shown For Closed Proceedings

Since open trials are the general rule and closed trials the exception, our basic question is whether the proceedings either fell within and of the recognized exceptions to the rule of public trial, or were based on circumstances so extraordinary that a court should create a new exception to fit the facts of this particular case. If the case for an exception has not been made out, then to support its order of exclusion respondent must rely on the proposition that in a criminal trial it may conduct all proceedings outside the presence of the jury in closed session at the request of the accused.

Clearly, the case did not fall within any of California's statutory exceptions to the requirement of a public trial now within any of the common law exceptions referred to by Jenks—children, trade secrets, official secrets, or annulments. Nor did it fall within those exceptions to a public trial which have heretofore been recognized under California case law—maintaining decorum in court (People v. Kerrigan, 73 Cal. 222, 14 P. 849), preserving the public peace (People v. Letoile, 31 Cal.App. 166, 169, 159 P. 1057), or permitting a witness to testify who otherwise could not testify (Kirstowsky v. Superior Court, etc., 143 Cal.App. 2d 745, 754, 300 P.2d 163).

Other extraordinary circumstances conceivably can furnish good reason for closing all or part of a public trial, but such circumstances must amount to a positive showing of necessity before they can justify a departure from normal and historic procedure with its attendant sacrifice of other interests served by a public trial. In the present case there was no showing of extraordinary circumstances which might create a necessity for closed proceedings. The record contains no racial, religious, civil rights, or sexual overtones, nor does it suggest intimidation of witnesses, rumored racketeering, or other exceptional factors which in some other case might justify a departure from the usual procedure. Rather, the record suggests that the circumstances surrounding the murder and robbery of a bartender of $136 were ordinary, for as noted in the statement of the judge, undisputed by counsel, no great amount of publicity had accompanied the case and no inflammatory reports had appeared in the press.

The subject of the first closed sessions—the validity of the conduct of the lineup and whether witnesses present at the lineup should be permitted to testify—does not appear to us a subject likely to generate extreme prejudice against the defendant merely because it is referred to in testimony in open court outside the presence of the jury and thereafter might possibly be mentioned in newspaper accounts of the trial, which the jurors have been earnestly and repeatedly instructed not to read and to wholly disregard if accidentally brought to their attention. (Holt v. United States, 218 U.S. 245, 251, 31 S.Ct. 2, 6, 54 L.Ed. 1021.) ‘If the mere opportunity for prejudice of corruption is to raise a presumption that they exist, it will be hard to maintain jury trial under the conditions of the present day.’ (Holmes, J.) Nor do we consider the subject of the second closed sessions—the refusal of Mrs. Casto to testify—one likely to create irreparable prejudice against the defendant had it been discussed in open court in the absence of the jury, been later reported in the public media, and thereafter accidentally come to the attention of some of the jurors. It is less than startling to learn that the girl friend of a defendant may be unwilling to testify as a witness against him. We do not think the possible prejudicial effect of the circulation of either of these items of information, even if it be assumed that rumors about them would come to the attention of the jurors, is of sufficient magnitude to justify the sacrifice of a public trial.4

Since in the present case no showing was made of extraordinary circumstances to justify the need for closed proceedings, in support of the present order we are left with the naked proposition that all proceedings in a criminal trial outside the presence of the jury may be conducted in closed session at the request of the accused. We find no substantial legal support for this proposition.

To sustain its order the trial court apparently relied exclusively on a recommendation of the Reardon Report of the American Bar Association, Standards Relating to Fair Trial and Free Press (1966).5 That report, while entitled to the utmost consideration and respect, advances proposals for court rules and recommendations for legislation which, until adopted in a particular jurisdiction, do not have the force of law. By itself the report cannot operate to supersede the constitutional and statutory framework which presently governs the conduct of criminal trials in California. But significantly for us, the Reardon Report limits its proposals for closed trial sessions to cases in which there is a substantial likelihood of interference with the defendant's right to a fair trial by an impartial jury, and it suggests that closed hearings during trial be ordered only on ‘limited occasions.’ (p. 143.) But even in such a restricted sense, the conclusions of the Reardon Report are only proposals. Other distinguished groups of lawyers and jurists have studied the same problems and we think their conclusions are equally entitled to consideration and respect from us, even when they differ from those contained in the Reardon Report. These other reports include the Medina Report of the Special Committee of the Association of the Bar of the City of New York on Freedom of the Press and Fair Trial (1967), and the Kaufman Report to the Judicial Conference of the United States on the Operation of the Jury System (1968), neither of which recommends closed sessions of public trials as a solution to the problem of prejudicial publicity.

The only other authority suggested as justification for the procedures adopted by the trial court is the case of Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600. That case, however, contains no suggestion that criminal trials, or parts of trials, should be conducted in closed session. None of the remedies it advances for the control of prejudicial publicity—sequestration of the jury, continuance of the trial, change of venue, directions to the jury not to read or listen to news reports, insulation of witnesses, control of the release by participants of information to the press—implies any abandonment of the tradition of public trial. Indeed the opinion seems to emphasize the contrary, when in discussing the control of trial publicity it declares that it should have been the aim of the trial court to induce the reporting of the case ‘as it unfolded in the courtroom—and not as pieced together from extra-judicial statements.’ (p. 362, p. 1522 of 86 S.Ct.)

Secret sessions would tend, if anything, to aggravate extrajudicial reporting of trials. The course of events in the case at bench illustrates the futility of attempts to conduct closed sessions of a public trial. (1) The proceedings had been initiated by indictment. Presumably the proceedings before the grand jury, including any identification of the defendant in a lineup, were part of the grand jury transcript, which after the defendant is in custody normally becomes available to the public. (Pen.Code, § 938.1.) (2) The attempt to keep the commitment of Dorothy Casto a secret did not succeed. (3) With two applications for extraordinary writs to this court, we think it a fair inference that the attempted secrecy brought far more publicity to the case than would have resulted from a trial in open court.

But, argues the public defender, although exact precedent for the action of the trial court may be lacking, nothing has been lost by the innovation of closed sessions because at the conclusion of the trial a record of the proceedings will become available to the public. He thus raises the question whether delayed public access to a written record of the proceedings may serve as a substitute for a public trial. Does such delayed publication adequately recognize the vital interest of the victim seeking justice in the case and of the general public scrutinizing the administration of justice?

As a general proposition we think it does not. First, the judicial process does not unfold legally and normally when over half a trial takes place behind closed doors. The therapeutic value of a public trial is apt to be wholly lost and to be replaced by public suspicion and distrust of the proceedings. In particular instances the unfolding of the legal process may be superseded by what amounts to a legal fiat arrived at behind closed doors. For example, the legal reasoning behind a court's ruling turning a killer loose for technical reasons, if it has not been previously developed in open session, may be comprehended after the event only with difficulty and misgiving.

Second, only part of the trial proceedings is reflected in the written transcript. Important, sometimes vital, parts of the trial, including the appearance, demeanor, expression, gestures, intonations, hesitancies, inflections, and tone of voice of witnesses, of counsel, and of the judge are not there. In the absence of public attendance a substantial part of the real record of the proceedings will have been permanently lost to public scrutiny. As every trial lawyer knows the written record of oral testimony reflects only part of what occurs in a courtroom. Identical words, spoken in different intonations and with different gestures, may carry opposite meanings. For example, the meaning of the words, ‘A friend in need is a friend indeed’, wholly depends on context and inflection. The words of a bullying judge may appear quite reasonable on the written record. And worthless testimony may acquire plausibility when considered at second-hand. In certain instances the public will lose its opportunity to properly evaluate the quality of the proceedings.

Third, disclosure of abuses in the legal process is postponed and prompt correction of those abuses is likewise necessarily postponed—with consequent loss to the administration of justice. Not only is correction postponed, but supervision and public scrutiny are substantially lessened for, every restriction on the reporting of crime ‘effects some reduction of press scrutiny and public knowledge of the law enforcement process.’ (Friendly and Goldfarb, Crime and Publicity (1967), p. 196.)

Finally, the written transcript of the proceedings at the conclusion of the trial is not as accessible to those with an interest in the proceedings as are public sessions of a trial. The availability of single, or even multiple, copies of the written record is no guaranty that interested persons will be able to puzzle out the intricacies of the proceedings. If appellate courts have difficulty in following the course of events in a trial from a written record, as we have had in the present case, it can be anticipated that those untrained in the law will have greater difficulties.

We conclude it is no sufficient answer to say there is a written record of the proceedings which will later become available for public inspection. To quote Bentham again: ‘Without publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account. Recordation, appeal, whatever other institutions might present themselves in the character of checks, would be found to operate rather as cloaks than checks; as cloaks in reality, as checks only in appearance.’ (Bentham, Rationale of Judicial Evidence, Vol. I, p. 524.)

We return again to the proposition that the interest of the defendant cannot be allowed to swallow up other important interests in a public trial unless as a great exception on a showing of dire necessity. Were we to condone the procedure followed by the trial court in this case, it would follow that great segments of practically every criminal trial could be conducted in secrecy behind closed doors.

Danger of the Best Becoming the Enemy of the Good

It is apparent from the transcript that the judge with the most laudable of motives undertook to protect the rights of the defendant by isolation the jury from all influences except those which the judge, by advance analysis, concluded were proper. But it is impossible for a trial to occur in a vacuum, or for a jury, unless locked up, to avoid all contact with the outside world. In following a will-o'-the-wisp the judge, at the instigation of the public defender, found himself forced further and further away from the conduct and practices of a public trial as they exist at common law, and in the direction of civil, equity, and canon law procedure under which evidence is privately taken in advance by deposition, analyzed and made a subject for argument, and only then presented to the trier of fact in open court. (See Scott v. Scott, [1913] A.C. 417, 432–433, 470–472.) This tendency appeared throughout the proceedings but was present in its most aggravated form when a considerable portion of the trial took place before the prosecutor was allowed to make an opening statement. As a matter of abstract logic the procedure was impeccable. But as a matter of the practical disposition of the business of the court, with due recognition to the interests involved, it provided a startling departure from the trial procedure prescribed by the common law and by statute. (Pen.Code, § 1093.)

The danger that ex parte proceedings will lower the quality of the administration of justice is a factor of which legal commentators have always been acutely conscious. (See VI Wigmore on Evidence (3rd ed.), § 1834; Bentham, Rationale of Judicial Evidence (1827) pp. 523–524.) We think their fears are solidly based, and that as a solution to the problem of prejudicial publicity, a closed trial creates more problems than it solves. To quote from Friendly and Goldfarb's conclusions in Crime and Publicity (1967), on the conflict of free press and fair trial: ‘In the search for that improvement, however, the danger of the best becoming the enemy of the good must be avoided. A perfect solution—neat, automatic, invariably effective—is beyond attainment in a real and imperfect world. The drive toward perfection tempts the seeker into the perilous course of changing basic institutions, unaware that what he is doing is in fact undercutting principles and practices that lie at the heart of America's democratic system. It proposes growing the perfect rose by destroying the garden. The Reardon Committee found that the problem of prejudicial publicity ‘is of limited proportions.’ The techniques of solution must be limited as well. * * * In theory, prohibiting all potentially prejudicial news might be an airtight solution, just as in theory procedures advocated by Senator Joseph R. McCarthy might have guaranteed that the Federal service would be purged of any employee about whom there was the faintest taint of disloyalty. But in practice what looks like an airtight solution is less certain.

‘And its price is too high. Most of its cost, furthermore, would be levied against the administration of justice itself. As it now operates, with all its faults, the press serves the cause of justice far more than it subverts it. For it is the agent of public scrutiny.’ (pp. 238–239.)

In reversing a secret judgment for contempt by a Michigan court, Mr. Justice Black, In Re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682, had this to say: ‘First. Counsel have not cited and we have been unable to find a single instance of a criminal trial conducted in camera in any federal, state, or municipal court during the history of this country. Nor have we found any record of even one such secret criminal trial in England since abolition of the Court of Star Chamber in 1641, and whether that court ever convicted people secretly is in dispute. Summary trials for alleged misconduct called contempt of court have not been regarded as an exception to this universal rule against secret trials, unless some other Michigan one-man grand jury case may represent such an exception.’ (p. 266, p. 504 of 68 S.Ct.).

In the present case it is startling to see the evils of secret proceedings so proliferating in seven short weeks that the court could reach the astonishing result of committing a citizen to jail in secret proceedings, could contemplate inquisitorial proceedings against a newspaper reporter for reporting this commitment, and could adopt the position that the district attorney, the chief law enforcement officer in the county, was prohibited on pain of contempt from advising the public that someone had been sent secretly to jail. In effect, the court, in seeking the ideal solution to the problem of trial publicity jettisoned important safe-guards of California law by conduction what amounted to a Star Chamber proceeding against Dorothy Casto and committing her to jail by an order suspiciously resembling a lettre de cachet. As so often happens, participants in secret proceedings quickly tend to lose their perspective, and the quality of the proceedings suffers as a consequence.

We conclude that no showing was made to justify the holding of closed sessions in a criminal trial, that the general rule summarized in Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546, is applicable: ‘A trial is a public event. What transpires in the court room is public property.’

The peremptory writ shall issue.

FOOTNOTES

1.  The reporter's transcript reflects the following chronology:25 January—Motions and orders in chambers Jury selectionClosed Open26 January—Jury selectionOpen29 January—Jury selectionOpen30 January—Jury selectionOpen some closed 1 February—Motions and evidence on conduct of lineupClosed 2 February—DoClosed 5 February—DoClosed 6 February—DoClosed 7 February—DoClosed 8 February—DoClosed 9 February—DoClosed13 February—DoClosedVisit to scene of crime; Psychiatric testimony for defendant on perception and memory retention14 February—Psychiatric testimony for plaintiff, same subjectsClosed15 February—Motions re opening statementClosed16 February—DoClosed19 February—DoClosed20 February—Opening statement of plaintiff TrialOpen21 February—TrialOpen23 February—TrialOpen26 February—DoOpen27 February—DoOpen28 February—DoOpen29 February—Proposed testimony of Casto Trial continuedClosed Open 1 March—TrialOpen 4 March—Hearing on prospective witness Casto found in contemptClosed 5 March—TrialOpen 7 March—Discussion contempt jurors singly quizzedClosedTrial continuedOpen 8 March—Hearing on prospective witness CastoClosed11 March—TrialOpenFurther hearing on CastoClosed13 March—Witness Casto sworn—claim of self-incrimination;Immunity hearingClosed

2.  During substantial periods of English law the conduct of criminal prosecutions was largely left in the hands of private persons who considered themselves to have been wronged. (1 Stephen, History of the Criminal Law of England, pp. 419, 493.)

3.  The eight possible combinations of demands by those interested may be illustrated by a table in which O stands for a demand for an open trial, and Cl for a closed trial.C2DefendantC3ProsecutorC4Judge1.OOO2.OOCl3.OClO4.OClCl5.ClOCl6.ClOO7.ClClO8.ClClClEven if all parties are agreed upon closed proceedings (#8 above) an order excluding the public may be erroneous. (Kirstowsky v. Superior Court, etc., 143 Cal.App.2d 745, 300 P.2d 163.) An agreement by the prosecutor and the judge that scandalous proceedings should be closed (#4 above) is ineffective over the objection of the defendant. (People v. Jelke, 308 N.Y. 56, 123 N.E.2d 769.)The combination involved in this case is #5, in which the defendant and the judge agreed upon closed proceedings over the objection of the prosecutor.

4.  This is not to indicate we cannot imagine subjects which on rare occasions might be sufficiently prejudicial to a defendant's interest to require closed proceedings for limited periods of time. For example, if the specific text of a confession to a particularly brutal murder had to be discussed in testimony prior to its admission in evidence, the publication of the text might be sufficiently prejudicial to the interest of the defendant to require some sacrifice of the other interests in a public trial by receiving evidence discussing its text in closed proceedings. On the other hand, if in a given case the issue were the voluntariness of a statement given the police and that issue could be determined without disclosing the text of the statement, we would see no reason to sacrifice the other interests involved in a public trial by conducting closed sessions of court.

5.  Section 3.5 of the Report reads in part:‘3.5 Conduct of the trial.‘It is recommended that the following standards be adopted in each jurisdiction to govern the conduct of a criminal trial when problems relating to the dissemination of potentially prejudicial material are raised.

FOOTNOTE.  ‘(d) Exclusion of the public from bearings or arguments outside the presence of the jury.‘If the jury is not sequestered, the defendant shall be permitted to move that the public, including representatives of the news media, be excluded from any portion of the trial that takes place outside the presence of the jury on the ground that dissemination of evidence or argument adduced at the hearing is likely to interfere with the defendant's right to a fair trial by an impartial jury. The motion shall be granted unless it is determined that there is no substantial likelihood of such interference. With the consent of the defendant, the court may take such action on its own motion or at the suggestion of the prosecution. Whenever such action is taken, a complete record of the proceedings from which the public has been excluded shall be kept and shall be made available to the public following the completion of the trial. Nothing in this recommendation is intended to interfere with the power of the court, in connection with any hearing held outside the presence of the jury, to caution those present that dissemination of specified information by any means of public communication, prior to the rendering of the verdict, may jeopardize the right to a fair trial by an impartial jury.’

FLEMING, Associate Justice.