Younger v. Smith

Decision Date23 January 1973
Citation30 Cal.App.3d 138,106 Cal.Rptr. 225
CourtCalifornia Court of Appeals Court of Appeals
PartiesEvelle J. YOUNGER, as Attorney General, etc. (formerly as District Attorney), Plaintiff and Appellant, v. Peter S. SMITH, as Judge, etc., et al., Defendants and Respondents. TIMES MIRROR COMPANY, Petitioner, v. SUPERIOR COURT of LOS ANGELES COUNTY, Respondent; The PEOPLE et al., Real Parties in Interest. Joseph P. BUSCH, as District Attorney, etc., Petitioner, v. SUPERIOR COURT of LOS ANGELES COUNTY, Respondent; The PEOPLE et al., Real Parties in Interest. Civ. 38590, 40879 and 40912.

Joseph P. Busch, Dist. Atty., Harry Wood, Harry B. Sondheim and Arnold T. Guminski, Deputy Dist. Attys., for Evelle J. Younger and Joseph P. Busch.

Robert C. Lobdell, Gibson, Dunn & Crutcher, Robert S. Warren and Gary D. Stabile, Los Angeles, for Times Mirror Co. and as amici curiae on behalf of Evelle J. Younger.

McCutchen, Black, Verleger & Shea, Howard J. Privett, Roger A. Ferree, Los Angeles, Earl Klein, Feinerman, Furman & Klein, Beverly Hills, J. Laurent Scharff and Pierson, Ball & Dowd, Washington, D.C., as amici curiae on behalf of Times Mirror Co. and Joseph P. Busch.

John D. Maharg, County Counsel, Robert C. Lynch, Chief Deputy County Counsel, and Harold S. Vites, Deputy County Counsel, for Peter S. Smith and others and for Superior Court of Los Angeles County.

A. L. Wirin, Fred Okrand and Laurence R. Sperber, Los Angeles, as amici curiae on behalf of Peter S. Smith and others, Times Mirror Co., and Superior Court of Los Angeles County.

Francis Patrick O'Keefe and Joseph Nick Bravaro, Glendale, as amici curiae on behalf of Superior Court of Los Angeles County.

I. A. Kanarek and Sheldon Berlin, Van Nuys, for real party in interest Antelo.

No appearance for other real parties in interest.

KAUS, Presiding Justice.

These three matters, one appeal and two writ proceedings, arise collaterally from two separate criminal prosecutions. They involve issues concerning the validity, interpretation and enforceability of orders designed to curb potentially prejudicial pretrial phblicity in criminal cases.

In Younger v. Smith we reverse a contempt conviction because the alleged contemnor's harmless news release was protected by the First Amendment.

In Times Mirror v. Superior Court we hold that a purported direct restraint on the press amounted to judicial overkill and order it vacated.

In Busch, we find the same protective order, 1 insofar as it is directed against the prosecution, to have been justified by the circumstances existing at the time it was made. 2

FACTS

Younger v. Smith, et al.

This is an appeal by the present Attorney General of California--who at all relevant times was the District Attorney of Los Angeles County--from a judgment of the superior court of that county affirming, in review proceedings (Code Civ.Proc., § 1067 et seq.), a contempt conviction by the respondent Smith, then a judge of the respondent Municipal Court of the Alhambra Judicial District. 3 The punishment imposed was a fine of $50.00.

The case is before us on an agreed statement of facts.

On July 14, 1970, the Los Angeles County District Attorney's office filed a criminal complaint in the Alhambra Judicial District, charging one Siegfried Senff with two counts of murder, two counts of assault with intent to commit murder and one count of arson. Senff was arraigned on July 15, when one of the assault counts was amended to charge an additional murder, presumably because the victim had just died. During the proceedings Judge Smith issued a protective order, restricting the dissemination of information by certain persons connected with the prosecution and defense of the case. 4 A copy was handed to the deputy district attorney present. 5

The relevant portion of the order prohibited all attorneys connected with the case from making 'any statement outside of court as to the nature, substance, or effect of any testimony that has been given.'

The preliminary examination took place on August 13. On motion of the defendant the public was excluded. (Pen.Code § 868.) At the end of the examination Senff was held to answer on all counts. The protective order was ordered to remain in force.

Judge Smith then learned that Younger was contemplating a violation of the order and asked to be advised what news Younger intended to release. 6 On August 17, Younger told Judge Smith, by telephone, just how he intended to violate the order. Judge Smith told him that he would have modified his order to permit the news release which Younger was contemplating, but that he no longer had jurisdiction to do so, having held Senff to answer in the superior court. 7 He was therefore unable to approve the proposed release. Younger said that he did not want to petition the superior court for a modification, because it was his intention to test the validity of the order. He then made his statement to the news media which we quote in full. The subject was the preliminary examination:

'Fireman Ben Mathews of the San Gabriel Fire Department testified that he and other firemen were summoned to the home occupied by the defendant in the early morning hours of July 8, 1970. Mathews testified concerning his observations and actions at that time.

'Dr. Eugene Carpenter from the Coroner's Office testified relative to cause of death of Gloria Senff, Edna Chapman and Kim Senff.

'Jenny Senff testified relative to her observations on the night in question.

'Dr. Benjamin Crue testified concerning his examination of Jenny.

'Sergeant Spiller of the Los Angeles Sheriff's Arson Detail testified as an expert relative to the cause of the fire.

'Sergeant Rucker of the San Gabriel Police Department testified to certain statements made by the defendant before his arrest.

'Other evidence was introduced from additional witnesses which satisfied the magistrate that the defendant should be held for trial for three counts of murder, one count of attempted murder and one count of arson.'

After certain proceedings which we need not detail, Younger was found in contempt on September 24, 1970. During the course of the hearing on September 24, it became abundantly clear that Judge Smith specifically found that the news release had in no way prejudiced what his order had been designed to protect: Senff's right to a fair trial.

All the same, Younger's bland summary of the witnesses' testimony--their names had been released by the court with the consent of counsel for both sides--had violated the literal terms of the order. Although Judge Smith himself called the release a 'sterile statement . . . a technical, nonprejudicial, de minimis 8 violation,' he found Younger in contempt because: 1. he had sought a confrontation with the court; 2. district attorneys are not supposed to engage in 'civil disobedience . . .'; and 3. Younger had engaged in 'flamboyant' conduct when he was served with the court's order to show cause in re contempt, held a press conference and appeared on a television news program, 'at which time he misstated the facts and the law.' 9

The contempt conviction was affirmed by the superior court. 10 As noted the case is before us on an appeal from its judgment.

Times Mirror v. Superior Court Busch v. Superior Court

These two matters arise out of a currently pending criminal prosecution in which Donald Paul Antelo and Oscar Bejarno Hernandez are being charged with the murder of four year old Joyce Huff, allegedly committed on July 2, 1972, in the Hawaiian Gardens housing project in Los Angeles County. Apparently the victim had been playing with other children in front of a neighbor's home when she was shot. No particular purpose would be served by further detailing what evidence or rumors we know of. The bare facts just related are more than adequate to shock anyone and to arouse the hope that the person or persons responsible will be brought to justice. Indeed it is likely that most persons who become aware of the sudden death of a four year old child under such circumstances would refuse to believe in the possibility that nobody may be criminally responsible for it.

Naturally the homicide caused widespread and intensive publicity. In describing it the news media used such terms as 'joy killing,' 'senseless slaying' and 'blatant case of murder.' Testimony at the preliminary hearing was reported in some detail. Identification of Antelo and Hernandez as possibly responsible for the homicide came from a teen-age girl who purported to have been in an automobile from which the fatal shot may have been fired. There was media speculation, based at least in part on the evidence at the preliminary hearing, that Joyce had been the unintended victim of a killing in revenge for another homicide committed a few days earlier. 11 In dwelling on that theme, some of the press suggested in one way or another that both homicides were incidents in a continuing battle between gangs in Norwalk and Hawaiian Gardens--'barrio versus barrio.'

The preliminary examination of the case against Antelo and Hernandez had not been closed to the public. Indeed, as noted, much of the publicity given to the crime--certainly most of the publicity identifying Antelo and Hernandez as the persons possibly responsible for it--seems to have been engendered by that hearing. The information was filed in the superior court on August 2, on which day Antelo and Hernandez were arraigned and pleaded not guilty. 12 A little later counsel for Antelo asked the district attorney to stipulate to a change of venue because of the 'unbelievable' and 'fantastic' amount of publicity in this case. 13 The prosecutor declined. The court itself inquired whether there was 'any feeling on the part of either defense or the prosecution that what has become known as a 'gag order' should be applied in this case.' Counsel for Antelo...

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