Oxnard Publishing Co. v. Superior Court of Ventura County

• Decision Date: 23 April 1968
• Court: California Court of Appeals Court of Appeals
• Parties: 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.

Page 83

68 Cal.Rptr. 83

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.

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

April 23, 1968.

Rehearing Denied May 22, 1968.

Hearing Granted and Proceeding Dismissed June 19, 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.

FLEMING, Associate Justice.

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...