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Wheels of justice turn secretly

Jackson trial judge has gone to great lengths to keep a lid on disclosures, much to the media's chagrin

BY TINA SUSMAN | STAFF CORRESPONDENT

June 13, 2005

SANTA MARIA, Calif. - When word came down that jurors deliberating Michael Jackson's fate had a question, anticipation buzzed through the media throng packed into pens in the courthouse's wind-blown parking lot. Could the question offer a clue into jurors' thinking as they wrestled with the 10 charges Jackson faced? Did they want a re-reading of testimony? Were they nearing a decision and seeking additional guidance?

Only the judge, jurors and attorneys know for sure, because Judge Rodney S. Melville, maintaining the extraordinarily tight-lipped style that has marked this trial, refused to make the jurors' message public. When a media attorney demanded immediate access to it, Melville scheduled a hearing on the request far into the future, virtually guaranteeing it would be a moot point.

Call it the O.J. effect. In a clear effort to prevent this trial from going the circus-like way of Simpson's 1995 murder trial, in which Judge Lance Ito reveled in his new-found celebrity and witnesses became stars on the stand, Melville has gone to the opposite extreme.

"It has been an epic battle just to get basic information about the case," said Ted Boutros, the media lawyer, who estimated he had filed at least 40 motions for access to information and had opposed a couple of hundred that would have sealed information since Jackson's arraignment in January 2004. With few exceptions, he said, the judge had come down on the side of secrecy.

"This is a direct result of O.J.," said former Santa Barbara prosecutor Craig Smith. ". . . It was all the judges' worst fears about cameras in courtrooms coming to fruition."

Melville didn't just ban TV and still cameras from his courtroom. He imposed a gag order on everyone involved in the case; barred cellular telephones, laptop computers and personal digital assistants; limited media movement around the courthouse; and sealed documents such as testimony to the Jackson grand jury.

One result has been a trial remarkably dignified and quick, given the defendant's celebrity, but Melville's actions have raised questions about how far secrecy should be carried in the name of a smooth trial. With TV cameras banned and the gag order in effect, it has fallen to lawyers not trying the case to explain what has happened behind closed doors.

Those who favor more open courts say mixed messages are a result of what one lawyer called the "unbelievable stealth" surrounding the case. They say it can help the public to watch the trial itself rather than relying on others' interpretations.

"Ten people could sit through the same testimony and hear 10 different things," said former Connecticut prosecutor Susan Filan, who is serving as a legal analyst for MSNBC. She called it "unheard of" to keep jurors' questions private, saying they are part of the trial's public record.

Boutros agreed. "A trial is a public event, and what transpires in the courtroom is public property. We understand what the judge is confronting," he said, referring to the media attention and the O.J. factor, "but there's a way to handle things without cutting the public off."

In recent years, several high-profile trials such as Scott Peterson's have banned cameras. In most cases, though, cameras have been allowed for opening and closing statements or reading of verdicts, and reporters are not barred from bringing equipment into court.

Sheriff's deputies said the cellular phone ban in the Jackson case was to keep camera phones out of court. The ban helps ensure that information from the courtroom is in the correct context, not rushed out even as a witness is speaking.

Given this trial's cost, it's not surprising Melville would go to extraordinary lengths to maintain decorum, said retired county Sheriff Jim Thomas. But like many, Thomas, who has acted as a trial analyst, has mixed feelings about the secrecy.

The objective is to protect the jury, something he said can be done without such stringent controls. Thomas said the trial's cost put pressure on Melville to avoid a mistrial. "He doesn't want to create a situation that would force us to do it again."