When Public Right to Know Takes a Back Seat in Court : Law: There are many reasons judges keep documents or other items, like Simpson mystery envelope, secret.

Just before the Fourth of July weekend began, a Los Angeles judge revealed that O.J. Simpson’s defense lawyers had turned over a bulky manila envelope, setting off speculation that the envelope contains evidence critical to the outcome of the former football star’s double murder case.

The contents of the envelope have remained a mystery to prosecutors, who asked to see them. Superior Court Judge Lance A. Ito is scheduled to rule on that request Thursday, but it is possible that the envelope’s contents never will be revealed publicly.

Although people accused of crimes are guaranteed a speedy and public trial by the Constitution, elements of these proceedings sometimes take place behind closed doors. Indeed, some documents filed in both criminal and civil cases remain secret forever.

Some things are routinely kept from the public--at least temporarily--in an attempt to avoid potentially prejudicial publicity, said USC constitutional law professor Erwin Chemerinsky.

For example, on Friday, Judge Ito refused to allow the news media to view photos of the bloody bodies of murder victims Nicole Brown Simpson and Ronald Lyle Goldman, at least until he has ruled on whether those photos will be admitted into evidence during Simpson’s trial.

Thus far, eight motions and five court orders have been filed under seal in the Simpson case, according to a court log. Sealed motions are not unusual, but like everything else in this case, these have aroused considerable curiosity--and speculation.

“The opportunity for both the state and the defendant to present their evidence and make their arguments to legal decision-makers (judges and juries), and the right of the public to have access to these proceedings to ensure their legitimacy, are two fundamental attributes of due process,” said UCLA criminal law professor Peter Arenella.

“But the secret ex parte hearings (when the judge meets with only one side) to consider sealed motions in the Simpson case illustrate that sometimes both the public’s right of access and the opposing party’s opportunity to be heard can be either denied or at least delayed to protect countervailing interests,” Arenella said.

“These might include the confidentiality of attorney-client communications, the privacy rights of third parties, the security of witnesses and the need to prevent disclosure of potential trial strategy to the opposing party prior to trial,” he added.

In some instances, both the public and one side--the prosecution or the defense--are kept in the dark about something, such as the contents of the manila envelope. In other instances, only the news media, and by extension the public, are kept in the dark.

Sometimes the parties in a case find themselves litigating ferociously over access to information.

Occasionally, as with the photos in the Simpson case, the prosecution and the defense join to keep something secret from the public, at least temporarily. Both Deputy Dist. Atty. Marcia Clark and defense lawyer Robert L. Shapiro say that allowing the media to see and describe the photos could endanger Simpson’s right to a fair trial.

Sometimes, courts have overruled objections to showing potentially prejudicial material. In 1983 a federal appeals court in Los Angeles ruled, before auto mogul John Z. DeLorean’s trial, that CBS could show surveillance tapes of him engaged in a drug sting. (DeLorean was acquitted.)

Appellate Judge William Norris said the court had to “resolve the tension” between DeLorean’s right to an impartial jury and the right of the news media to be free from governmental restraints that violate the 1st Amendment. The appeals court panel ruled that both defense and prosecution, who objected to airing the tapes, had failed to demonstrate that it was impossible to get an impartial jury except by halting broadcast of the tapes.

Although there is a long line of cases stating that trials and preliminary hearings are open to the public, other decisions make it clear that the public--and sometimes either the defense or the prosecution--cannot get immediate access to all the material in a case.

“The public has no general 1st Amendment right of access to participate in discovery proceedings between the prosecution and the defense prior to trial,” Arenella said.

Loyola Law School professor Laurie Levenson said material is typically sealed “when one side does not want the other side to see something and has a legitimate concern that would justify keeping something confidential.”

But a lawyer cannot simply get something sealed on a whim, stressed Los Angeles defense lawyer Gerald L. Chaleff. “When you file a motion under seal, it has to relate to something that is privileged or the lawyer has to give some other reason why the material should not become public,” he said.

San Diego criminal defense attorney Elisabeth Semel said some material almost always can be sealed. One classic example, she said, is a lawyer representing an indigent defendant asking a judge for money to hire an expert witness.

The reason such a request is kept secret from the other side is that it reveals the lawyer’s strategy and thus could endanger the client’s right to a fair trial if disclosed, Semel said.

Beyond that, she said, a lawyer’s affidavit supporting the request generally reflects attorney-client conversations whose disclosure would violate the sanctity of privileged communications.

In one case, Semel was allowed to keep sealed her explanation to a judge about why she wanted California Corrections Department records about an inmate who might testify against her client in a murder trial. But a California appeals court ruled that the prosecutors were entitled both to know about her request and to get copies of the records.

Closed-door hearings between a judge and a prosecutor are frequently held after a defense lawyer has requested internal police department records of a potential police witness. In such hearings, the judge generally examines the records and assesses their relevance. The records the judge deems relevant are turned over to the defense lawyer and the others are not. The defense lawyer is not entitled to be present at this hearing.

Another classic example is a prosecutor requesting a protective order so that the defense cannot learn a potential prosecution witness’s address, lest that disclosure endanger the potential witness. Such requests are granted often, much to the vexation of defense lawyers.

“It makes it very hard to impeach a witness if you don’t know where he lives,” because it makes it more difficult to do research on the witness, said Los Angeles defense lawyer Leslie Abramson.

Some requests are unusual.

After Los Angeles defense lawyer Andrew Stein doubted an alibi offered by a man he was defending on murder charges, he filed a sealed motion asking the court to pay for a documents examiner.

His client had claimed to be interviewing for a job when the murder occurred. The examiner, Stein explained, could study employment office records for authenticity. The judge agreed, an examiner was hired, and because the examination cast doubt on the reliability of the documents, Stein did not offer the alibi at trial. His client was convicted and the document remains under seal.

The outer boundaries of what can be sealed are murky, leading to vigorous battles during the early phases of cases.

In the Menendez brothers murder case, for example, prosecutors learned that the defendants had made some potentially incriminating statements to a psychologist. Contending that the therapist-patient privilege had been breached by discussion of the possible commission of a crime, prosecutors argued for access to tapes of those conversations.

The defense vigorously opposed this move, and filed sealed motions arguing against prosecutors’ access and explaining its reasons in a closed hearing before the judge.

Ultimately, the judge ruled that some parts of the tapes should be given to prosecutors, and others should not. The prosecution used the tapes at trial, but the other conversations remain under seal.

Among the other items that may be kept out of public view at least temporarily are search warrants and the police affidavits explaining why the warrants are needed. Both the warrants and the supporting affidavits usually become public within days after the warrants have been served.

Yet an affidavit from a federal prosecutor outlining why the government was entitled to bug FBI agent Richard Miller, later convicted of passing secret information to the Soviets, has never been unsealed, according to Stanley Greenberg, one of Miller’s lawyers.

Greenberg said he suspected that is because it would reveal the name of a confidential informant, perhaps endangering the person.

“We had to question the legality of the electronic surveillance without knowing the ‘probable cause’ that justified it,” Greenberg said.

As such cases illustrate, Levenson noted, the entire process of sealed motions is based on the assumption that the judge will consider the interest of the side that is not at the closed hearing. But despite that, the absent party often feels frustrated and powerless. “It’s like shooting blindfolded,” she said.

In one high-profile 1990 trial in Los Angeles, sealed motions led to open warfare.

Defense lawyers for a Mexican businessman accused of playing a lead role in a conspiracy to murder U.S. drug enforcement agent Enrique Camarena asked Los Angeles federal Judge Edward Rafeedie to remove himself from the case unless he agreed to turn over numerous documents prosecutors filed in secret.

For six months, between August, 1989, and February, 1990, prosecutors filed eight sealed motions. The defense countered that the documents might contain material that could help them fight the government’s case, and said their effort was being damaged by the prosecutors’ “one-way dialogue” with the judge.

Prosecutors frequently use such sealed motions in drug cases to protect confidential informants or to withhold the identity of potential witnesses for as long as possible.

Rafeedie declined to leave the case and told defense lawyers they were not entitled to the material, citing several appellate court decisions permitting the government to make secret filings.

As these cases demonstrate, the trial judge generally has broad latitude over what material can be kept confidential and for how long.

Indeed, Judge Ito, responding to a request from The Times and several other news media organizations, last week released a transcript of a closed-door proceeding in which attorneys discussed phone records of a call to Nicole Simpson.

Ito kept other transcripts sealed for now: one involving witness security, and two others of his meetings with defense attorneys.

Two other transcripts involve the contents of the mystery envelope, he said.

While it is possible that Simpson prosecutors will learn what’s in the envelope this week, it seems doubtful that the public will, Arenella said.

The UCLA professor offered a scenario based on the suggestion that the envelope contains a knife that witnesses said Simpson purchased at a Downtown shop.

“Let’s assume it’s the knife Simpson purchased at Ross Cutlery but the knife is not, in fact, the murder weapon,” Arenella said. “In these circumstances, it is highly likely that the evidence could be presented by the defense at Mr. Simpson’s trial, if the prosecution decides to call to the witness stand the people from the shop who sold him the knife. In such a scenario, the defense would introduce the knife to rebut the prosecution’s suggestion that this could be the murder weapon.”

A key reason the defense would not have kept back the knife to flourish at the trial is that 30 days before the trial begins--which would be later this week--the prosecution is entitled to see any evidence the defense plans to use.

The prosecution, however, would not decide until after it had forensic tests performed whether to use at trial either the knife or the people who sold it to Simpson.

So, Arenella said, “I don’t see why the public would have any right of access to this material at this juncture because it’s not evidence yet. The public’s right of access is dependent on whether it will become trial evidence.”

Another possibility, Arenella said, is that the knife is the murder weapon--incriminating evidence that could point to Simpson or someone else. “If it points to Simpson, the prosecution will be given access to the knife. The public will see it at the trial, but there would be no statement about the source of the knife,” Arenella said.

That is because other cases have held that it would be excessively prejudicial for a jury to be told that a defendant’s lawyer had handed over the murder weapon.

Yet another possibility is that the prosecutors will decide not to use the cutlery salesmen as witnesses and therefore the knife will become irrelevant.

And of course, Arenella stressed, it is entirely possible that the envelope contains something else, raising a host of other scenarios.

Given the intense curiosity about the Simpson case, Arenella said he thinks it likely that the contents of the envelope ultimately will be revealed--perhaps by a leak from one side or the other.