Have you ever watched jury selection or a pretrial hearing? You can thank Jim Ward.
In October 1983, Ward, then an attorney, stood in the U.S. Supreme Court to argue for the public’s right to observe voir dire, the process by which jurors are chosen for a trial.
The court’s nine justices agreed. And 40 years ago this month, they sided with Ward’s client, The Press-Enterprise, in a ruling affirming public access to jury selection.
The ruling, known in legal circles as Press-Enterprise I, sets a high bar for closing the courtroom when potential jurors are being questioned. While not banning all closures, the decision requires judges to limit them as much as possible and explain why they’re necessary in case lawyers want to appeal.
Two years after Press-Enterprise I, the paper prevailed in Press-Enterprise II, a case that gave the public a First Amendment right to attend pretrial hearings.
Press-Enterprise I “was the first crack in the door of extending the First Amendment right of access beyond just the criminal trial itself,” said Lee Levine, an attorney who wrote a brief supporting The Press-Enterprise. “It is truly a landmark case.”
The importance of Press-Enterprise I today “really cannot be overstated,” said Jen Nelson, senior staff attorney with the Reporters Committee for Freedom of the Press. “Any time I’m writing a brief seeking access to court documents or court proceedings, I am very likely quoting Press-Enterprise I.”
Press-Enterprise I is rooted in a horrific crime: the 1980 abduction and murder of 15-year-old Susan Louise Jordan in a Riverside orange grove as she walked to school.
Albert Greenwood Brown Jr. was convicted in 1982 of kidnapping, raping and murdering Jordan and today sits on California’s death row. The judge in the Brown trial closed the courtroom during jury selection and sealed the transcript of jurors being questioned.
In his book “Justice in Plain Sight: How a Small-Town Newspaper and Its Unlikely Lawyer Opened America’s Courtrooms,” retired Press-Enterprise columnist Dan Bernstein explains why Brown’s lawyer, Joseph Peter Myers, wanted the courtroom closed for voir dire.
Myers argued that the way to preserve Brown’s right to a fair trial “was by protecting prospective jurors who would be forced ‘to have an extra shell about themselves … knowing a reporter is present in the room,’ ” Bernstein wrote in his book, a history of Press-Enterprise I and II.
Myers also asserted that technically, jury selection isn’t part of a trial, and if the judge let the press watch prospective jurors being questioned, “answers to questions designed to reveal jurors’ ‘most personal and private feelings’ would not be totally candid. That would ‘prevent us from having a fair trial,’ ” Bernstein wrote.
“Potential jurors might think but would never be able to say ‘I don’t want to admit to a newspaper reporter that I have feelings of racial prejudice that I can’t put out of my mind,’ ” Bernstein wrote in summarizing Myers’ argument.
Myers, Bernstein added, argued that such feelings “are private, they only become relevant” when someone, by mere chance, becomes a possible juror.
Myers could not be reached for comment.
Complicating matters was Hovey vs. Superior Court, a 1980 California Supreme Court ruling regarding jury selection during death penalty trials, Bernstein said.
In Hovey, the court ruled the jurors “should be questioned individually and in sequestration,” Bernstein said. The problem, Bernstein said, was in how judges interpreted the word “sequestration.”
For some, that meant bringing prospective jurors into the courtroom one at a time to be questioned. But “a number of judges in Riverside County and actually up and down the state were saying sequestration means that you close the courtrooms to pick the jurors,” Bernstein said.
In the 1980s, the newspaper, now part of the Southern California News Group, was family owned. Howard H “Tim” Hays Jr. co-published the paper and Norman Cherniss was its executive editor.
The Press-Enterprise wasn’t on the scale of The Washington Post and The New York Times, national dailies that won Supreme Court decisions for press freedom — for example, the 1971 Pentagon Papers ruling allowing the media to publish stories about leaked documents detailing how the U.S. government lied to the public during the Vietnam War.
The Riverside-based paper’s decision to go to court was about the principle of open government, Bernstein said, noting that Cherniss “took a particular interest in law and constitutional law.”
“I think (Cherniss and Hays) just felt that their role was to cover the news and inform their readers what was going on,” Bernstein said. “Judges saw no reason to keep their courtrooms open when both the prosecution and defense agreed that they should be closed.”
Press-Enterprise II centered on Robert Rubane Diaz, a nurse convicted in 1984 and sentenced to die for killing 12 of his patients in Riverside County with drug overdoses. The judge in that case closed the courtroom during the preliminary hearing for Diaz, who died in prison in 2010 while awaiting execution.
The Press-Enterprise also objected to the courtroom being closed for jury selection in the Norco bank robbery trial. The three defendants, found guilty in the 1980 robbery in which a sheriff’s deputy was killed, were sentenced to life in prison without parole.
The Brown and Norco cases were “of high interest, and Tim Hays and Norman Cherniss believed that keeping the public out of the courtroom would only fuel speculation about what was going on during jury selection,” Bernstein said.
Preliminary hearings, like the one in the Diaz case, are important because many criminal cases never go to trial and the hearings, which are similar to trials, “are often the only way the public can determine whether the justice system is functioning properly,” Bernstein added.
Jim Ward was the paper’s attorney in Press-Enterprise I and II. In Bernstein’s book, Bruce Sanford, the lead writer of a brief supporting The Press-Enterprise, is quoted as saying the paper and Ward “were the right messengers at the right time.”
“(The Supreme Court justices) liked that it wasn’t the same old players bringing the case,” Sanford said. “Here you had a medium-sized paper saying it’s very important in our community to cover criminal trials. It was so much more appealing than the big newspapers swaggering in.”
A business lawyer at the time, Ward said he handled small legal matters for The Press-Enterprise and got to know Cherniss by drawing up his will. Cherniss died in October 1984.
While not being “bosom buddies,” Hays, who died in 2011, and Ward socialized, had dinner and played tennis together, Bernstein wrote in “Justice in Plain Sight.”
Ward remembers Cherniss calling him when Press-Enterprise reporters were kicked out of jury selection.
“‘They can’t do that. Can they?’” Ward said Cherniss asked him. “I said ‘I’ll find out.’ ”
At the time, Ward said his constitutional law experience was limited to what he learned in law school. Responding to Cherniss, he learned that while the 1980 Supreme Court ruling in Richmond Newspapers, Inc. v. Virginia affirmed public access to criminal trials, it wasn’t clear whether that extended to jury selection.
The state courts rebuffed The Press-Enterprise’s appeals in the Brown and Norco cases. An effort to get the U.S. Supreme Court to hear the paper’s appeal in the Norco case got votes from three justices, one short of the number needed for a hearing.
The paper tried again with the Brown case. This time, four justices agreed to hear the matter.
Bernstein said prominent lawyers who routinely argued cases before the high court tried to get Hays to dump Ward, fearing an inexperienced lawyer would botch the case and “not just mess up the Press-Enterprise case, but … the whole issue of the First Amendment right of the public and the press to witness jury selection.”
Hays was “not a follower,” Charlie Field, Hays’ friend and a judge at the time, was quoted as saying in Bernstein’s book. “Don’t try to lead him. Dump Jim Ward? It wouldn’t occur to him. Jim sold himself. Jim seriously believed his firm could handle the case very well.”
Ward said “the brightest minds in the country” grilled him in mock sessions to prepare him for the nine justices.
“I felt like I’d been cut down to 2 feet tall” afterward, he said.
Ward said that “of course” he was nervous about appearing before the highest court in the land, with lawyers for Riverside County government arguing against him on the Superior Court’s behalf.
“But on the other hand, I had been so well-prepared and coached that it was almost easier than” the mock sessions, he said.
When the decision was announced, “it wasn’t like a Pulitzer moment where a newsroom goes popping champagne,” Bernstein said.
In his book, Bernstein quotes Cherniss as telling the Los Angeles Times: “I don’t want you to think we get much fun out of this. None of it’s cheap. I guess it’s a victory. I hope so. … We do try to pick what is important. We’re not the ones to be screaming all the time.”
Bernstein also describes how Press-Enterprise I and II have been cited in court cases over the years, including the trials of the gunman in the 2012 Aurora, Colorado, movie theater shooting and the surviving terrorist in the 2012 Boston Marathon bombing.
Despite Press-Enterprise I and II, Nelson, of the Reporters Committee for Freedom of the Press, said there are still issues with courts limiting public access without solid reasoning.
“There are times where you may have … both the prosecution and the defense agreeing that some document or proceeding should be sealed,” she said. “And you have a judge, maybe with a busy docket, sort of rubber stamping that request without making the proper analysis.”
In repressive countries, court proceedings are “in secret and then the public never knows (what) goes on,” Ward said.
“But if we have a Press-Enterprise mentality that the courts have to be open and available to the public to see, then you have some degree of comfort that justice is being done. That’s the legacy.”