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About the Author
Dan Bernstein is a retired reporter, editorial writer, and general interest columnist for the Press-Enterprise newspaper in Riverside, California. He has won various state and national awards for column writing and is the author of two children’s books.
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"They Can't Do That, Can They?"
They had it all planned out: Detonate a diversionary bomb at a nearby office building. When every cop, deputy sheriff, firefighter, and anyone else worthy of the title first responder rushed to the scene, the robbers, armed to their eyeballs, would waltz into Security Pacific Bank, take the money, and run. But there is the plan and there is the execution. In this case never the twain did meet.
They picked a bank in Norco, a small Southern California city known for the equestrian trails and public hitching posts that would later inspire its official nickname: "Horsetown USA." They rolled into town on Friday afternoon, May 9, 1980, and made their first mistake. The bomb, placed beneath the building's gas meters, turned out to be such a colossal dud that office workers, noticing a column of black smoke, snuffed the blaze before firefighters arrived. The five robbers, outfitted in fatigue jackets, ponchos, and the obligatory ski masks, stormed the bank, terrorized employees and customers alike, and, of course, demanded money. They couldn't have known that their diversionary explosion had diverted no one. Or that a teller in a bank across the street had spotted the suspicious quintet entering Security Pacific and called the Riverside County Sheriff's Department. They certainly hadn't bargained on encountering Glyn Bolasky, the twenty-four-year-old deputy sheriff who responded to that call in less than sixty seconds, greeting the robbers in the bank parking lot. The unraveling had begun.
One gunman, the driver, died right there in the lot as the robbers and Bolasky traded fire. Bolasky, hit four times, lived. The four surviving suspects, two of them wounded, ditched their disabled van and hijacked a yellow pickup, leaving their dead comrade and the $20,000 behind. With deputies in pursuit — the twenty-five-mile chase reached speeds of ninety miles per hour — the robbers cracked open their arsenal, spraying bullets and hurling homemade bombs that struck patrol cars and injured officers. The worst was yet to come.
Their plan in shambles, the robbers headed north on Interstate 15, the artery that shuttles Southern Californians to Las Vegas and beyond. But the fugitives soon exited the freeway and headed toward the Lytle Creek area, an unforgiving, storm-savaged camping ground in the foothills of the San Gabriel Mountains. They might have figured they'd have clear sailing all the way up to Mt. Baldy Village. But a dirt road had washed out. Soon they had nowhere to go but out the truck and up the mountain, where they had no trouble spotting the lead patrol car rounding a blind curve.
When Riverside County Sheriff's deputy James Evans abruptly came upon the abandoned pickup, he hit the brakes and, taking fire, got out of his car. He fired back until his gun was empty, managing to reload before he was shot in his right eye. A husband and father, James B. Evans was only thirty-nine.
By nightfall, more than two hundred officers, including some who poured in from Los Angeles, some fifty miles to the west, had joined the hunt. By 1:40 p.m. Saturday, three suspects — brothers Christopher and Russell Harven and George Smith — were in custody. The fourth was shot dead by the posse. Smith and the Harven brothers were charged with, among other things, first-degree murder. The Riverside County District Attorney's office announced it would seek the death penalty. The Press-Enterprise, a morning and afternoon daily whose circulation hovered around one hundred thousand and served much of Riverside County, including the tiny horse town sixteen miles west of Riverside, would cover the trial. All of it. Including jury selection. That was the plan.
But on August 28, a little more than three months after the Norco bank robbery, the California Supreme Court handed down what a Press-Enterprise editorial later called a "rambling" ruling that many California trial court judges would interpret as a green light to close their courtrooms during jury selection in death penalty cases. It became known as the Hovey ruling, authored by Chief Justice Rose Bird, who had been appointed to the bench by Governor Jerry Brown. A fierce opponent of capital punishment, Bird voted to overturn every death penalty case that came before her. The Hovey ruling came down just two years after Californians reinstated the death penalty and stemmed from an appeal by Richard Adams Hovey, who was sentenced to die for the kidnap and murder of an eight-year-old girl in Northern California. Hovey challenged the fairness of the jury selection in his trial, contending that the "death qualifying" process, during which prospective jurors were probed about their views on capital punishment, resulted in an "unbalanced jury" that favored the prosecution. After discussing an experiment by a University of California psychology professor that strongly suggested that prospective jurors could be prejudiced by fellow jurors' answers to death-qualifying questions, Chief Justice Bird wrote: "In order to minimize the potentially prejudicial effects identified by the Haney study, this court declares ... that in future capital cases that portion of the voir dire of each prospective juror which deals with issues which involve death-qualifying the jury should be done individually and in sequestration." The very next sentence said, "This rule will not in any way affect the open nature of a trial." But that wasn't the line everyone remembered.
What did "in sequestration" mean? It appeared to mean whatever a trial judge wanted it to mean. Following Hovey, some judges continued to keep their courtrooms open. Others, from San Diego to Shasta and other sprawling counties in between, opted for secrecy. At least twenty-five judges banned the public and press from some or all of jury selection, or voir dire, in death penalty cases.
More than three decades of deaths, faded memories, and discarded files have made it impossible to pinpoint the exact case that prompted Norman Cherniss, the executive editor of the Press-Enterprise, to pick up the phone and call a business lawyer named Jim Ward. When he got Ward on the line, Cherniss told him, "They just kicked my reporter out of a courtroom. They can't do that, can they?" Some who knew Cherniss surmise that he was actually telling Ward, not asking him. Decades earlier, Cherniss won a prestigious journalism fellowship and immersed himself in constitutional law at Harvard. He was, as he might have put it, not entirely sympathetic to government secrecy, and the paper had a distinguished history of afflicting Riverside County's corrupt legal establishment. It was easy to picture Cherniss puffing away on his ubiquitous pipe and growling to Ward, "They can't do that, can they?"
Ward didn't have a clue. He was bright; there was no doubt about that. And conversant in a kaleidoscope of subjects. He was also an ambitious networker well before the word ever networked its way into the lexicon. He made it a point to meet Howard H "Tim" Hays, the Press-Enterprise's editor and publisher, and the acquaintance resulted in occasional lunches, tennis invitations, and "penny ante" business work for Ward and his law firm. His link to Hays eventually led him to bachelor Cherniss, who asked Ward to write his will and be the executor of his estate. Both were well within Ward's expertise. But closed courtrooms? Constitutional law? "Everybody thinks that attorneys have all this mystical knowledge from law school," said Ward. "But what we really know is how to look things up." So when Cherniss called that day, Ward said he'd look it up.
While he and his young associate, John Boyd, dug into the law books, the phone kept ringing. When a Press-Enterprise reporter got kicked out of a courtroom, Cherniss would call, and off Ward would go, to one courtroom or another to protest the closure. The lawyer who jousted in civil court became such a familiar presence in the county's criminal courts that bailiffs began to recognize him. Saw him coming. And no matter how often he showed up, the result was always the same. The judges refused to budge. Between June 1981 and January 1982 alone, five Riverside County judges banned the public and the press from all or part of voir dire in death penalty trials, denying the pleas of Press-Enterprise lawyers to keep their courtrooms open.
The Norco bank robbery was a big story for Press-Enterprise readers, and the trial was already going to be difficult to cover. The sheer mayhem and bloodiness of it all — thirty-three patrol cars damaged or destroyed, one sheriff's helicopter shot down, eight wounded deputies, two dead robbers, and one dead deputy — helped convince the judge to move the trial out of Riverside because of the pretrial publicity. Not just out of the city, where the courthouse was a leisurely four-block walk from the newspaper. But out of Riverside County, which was roughly the size and shape of Massachusetts and stretched across the vast desert to the Arizona border. Only neighboring San Bernardino surpassed Riverside as the largest county in the United States. But neither county, it seemed, was large enough to host the Norco bank robbery trial, which was headed south to the city of Vista in adjacent San Diego County.
Riverside County Superior Court judge J. David Hennigan would preside over the trial, and the judge and the Press-Enterprise had a history. In 1977 four armed men invaded Hennigan's Riverside home and sexually assaulted his wife and daughter. After heated internal debate, the newspaper named Hennigan's wife and adult daughter in the story. Hennigan was an attorney at the time. Now he was on the bench in a death penalty trial in a distant city, and there were concerns that this history might influence the judge's decisions. One of the first decisions Hennigan would have to make was whether jury selection would be open to the public.
The newspaper didn't just take this case seriously; it took it personally. Mel Opotowsky, a senior editor who argued that Hennigan's wife and daughter should be named in the paper's assault story, was also a friend of Jim Evans, the sheriff's deputy killed during the Norco bank robbery chase. When Mary Evans drove her kids to school, the Opotowsky kids rode along. When Evans was killed, Opotowsky did something he had never done before: wrote a lengthy, un-bylined tribute that the executive editor regarded as inappropriate. "Norman objected to it," saying Opotowsky should keep his "opinions out of the news. Now, Evans's alleged killers were about to stand trial in another county.
The newspaper rarely covered jury selection. Veteran court reporter James Richardson could not recall ever sitting through an entire voir dire, let alone writing daily stories about it. But now there was a principle at stake. California voters had reinstated the death penalty. Capital cases were piling up, and the California Supreme Court said jurors should be picked "individually and in sequestration." To some judges, that only meant prospective jurors had to be separated from each other so their views on capital punishment would not be influenced by others' answers. But that's not how Judge Hennigan interpreted it. In June 1981, weeks before voir dire was to begin and despite pleas from Press-Enterprise lawyer Jim Ward, Hennigan announced that his courtroom would be closed during jury selection to protect the defendants' right to a fair trial. Jury selection would last an astonishing six months.
To Tim Hays, the newspaper's editor and publisher, this was unacceptable. He believed readers had a right to know what their government was doing, especially in cases like this. Norman Cherniss was especially distrustful of this bent toward secrecy. If judges closed jury selection, what would they close next? Mel Opotowsky was on board with both concerns, but there was something he wanted even more: the names of the jurors. Who were these people and how could they be contacted once the trial ended so a reporter could talk to them about the verdict? If a judge closed his courtroom to voir dire, Opotowsky feared it would be more difficult to get those names. And if that happened, Press-Enterprise readers wouldn't get the full story.
So the Press-Enterprise and Copley Press, publisher of the San Diego Union-Tribune, which was covering the trial that had been moved to its county, appealed Hennigan's closure to the state Court of Appeal. This wasn't the first time the two news organizations had teamed up. When a U-T reporter got kicked out of a courtroom, San Diego lawyer Ed McIntyre would appeal, and Jim Ward would support him with a brief. When a Press-Enterprise reporter got booted and Ward appealed, McIntyre would return the favor. This time, both papers appealed, and the result was the same: the Court of Appeal backed Hennigan but ordered the voir dire transcript be made public before the first witness was sworn. That wasn't good enough. The newspapers appealed to the California Supreme Court, which refused to hear the case.
That left just one more court that could tell Judge Hennigan and all the other judges that they had been wrong to close their courtrooms for jury selection. In December 1981, with the secret Norco jury selection in its sixth month, the newspapers appealed Hennigan's ruling to the United States Supreme Court. The newspapers' petition for a writ of certiorari — a brief urging the court to hear the case — arrived at a fortuitous, or at least a fluid, time. Just weeks after the Norco bank robbery the U.S. Supreme Court ruled in Richmond Newspapers, Inc. v. Virginia that the public finally had a First Amendment right to attend criminal trials. Closure might be permissible, said the court, but only if the judge made specific findings that there was "overriding interest" in keeping the public out. And only if the judge determined that there were no other alternatives to protect a defendant's Sixth Amendment right to a fair trial. Hennigan had not done this. He simply closed the doors for a jury selection that would last half a year. With the Richmond case, it looked like the momentum was swinging the other way. But was jury selection actually part of the trial? If jury selection was conducted in secret, but the transcript was made public before the first witness took the stand, wasn't that enough openness? If the Supreme Court agreed to hear the newspapers' case, these questions might be resolved. But at least four justices would have to vote to hear it, and it would be months before the justices took that vote.
As the Norco closed-jury case wended its way through the courts, Jim Ward found himself in yet another Riverside County courtroom, asking yet another judge to allow the public and the press to witness jury selection. The death penalty defendant was an African American male who had been charged with raping and killing Susan Louise Jordan, a white Riverside high school sophomore. The district attorney and the defendant's lawyer were determined to conduct the voir dire behind closed doors.CHAPTER 2
"You'll Never See Your Daughter Again"
Susan Jordan didn't like walking to school, even though it was just a four-block trek, barely a mile, along Victoria Avenue, Riverside's historic two-lane thoroughfare framed by feathery palm trees and stout eucalyptus. Aside from the traffic, it seemed like a perfectly safe excursion. Susan and her family had lived on Victoria for nine years and never once felt uneasy or threatened. Joggers loped along the scenic avenue's bike path. Cyclists cruised past acres of orange trees. Equestrians occasionally clip-clopped along the landscaped median.
Once the city's economic engine, Victoria Avenue's dense, leafy citrus groves now framed a tranquil corridor a few miles and a century away from the serpentine slab known as California Highway 91. The high school's assistant principal noted that only "a small number of students" walked the avenue to Arlington High simply because not many families lived in the area. But Stanley Connerley added, "You don't see many kids walking Victoria because orange groves are kind of spooky."
It was three days before Halloween, October 28, 1980. A week later, Ronald Reagan would be elected president of the United States. Susan, a sophomore, wouldn't have minded the weather on that Tuesday morning, a day when Riverside's high reached a balmy 78 degrees. With a summer of smog behind it, this was the time of year when Riverside could be breathtakingly beautiful. It was not unheard of for an early storm to rinse the city with a cleansing rain even as it dusted the nearby San Bernardino and San Gabriel mountains with a blanket of snow. Against this glistening backdrop, Riverside's blue skies and swaying palm trees put the city on postcard-perfect display.(Continues…)
Excerpted from "Justice in Plain Sight"
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Table of Contents
List of Illustrations,
1. "They Can't Do That, Can They?",
2. "You'll Never See Your Daughter Again",
3. Slamming the Door,
4. The "Thrill-Killer" Nurse,
5. The Hays-Cherniss Newspaper,
6. "They Won't Laugh at You Now",
7. "Mr. Everything",
8. The Battleground,
9. Building the Case,
10. The Diaz Case Advances,
11. Mr. Ward Goes to Washington,
12. The Audience of Nine,
13. "I Will Be Back",
14. "The Presumption of Openness",
15. A Halt to the "Ominous Progression"?,
16. Smacked Down Again,
17. "Expanding the Right of Access",
18. Needle in a Haystack,
19. "The Soil of Openness",
20. "Hands over His Face",
21. "Safeguard against the Corrupt and Eccentric",
Most Helpful Customer Reviews
Justice in Plain Sight is an excellent book for a specific audience. As a lawyer, I was intrigued to read about the two Press Enterprise cases – something I hadn’t studied in law school. The ultimate issue was whether the press and the public had a right of access to court proceedings, and if so, how to balance those rights with the privacy interests of the litigants and (would-be) jurors. Given the current importance of the role of the press in today’s judicial system, a review of the cases that brought us here is clearly warranted. The book itself begins with a bit of backstory, delineating the criminal cases that ultimately served as the backdrop for the Supreme Court decisions. The book quickly escalates from there, giving insight into both the people behind the cases – those who worked at the newspaper and their legal team – as well as the intricacies of the law. The legal discussion was fascinating, offering assessments of the various positions taken by the parties, as well as the notes and comments of specific Supreme Court Justices. Justice in Plain Sight was well-researched and well-written. Given the fact that the cases were heard in the Eighties and the underlying events took place in the Seventies, it is impressive that Dan Bernstein was able to cull so much information from a wide variety of sources, including newspaper personnel, Supreme Court law clerks and other participants from both sides of the legal argument. I would highly recommend Justice in Plain Sight to anyone who is interested in the law and in the public’s role in the court system. Note: I received an ARC of Justice in Plain Sight from NetGalley and the University of Nebraska Press. The above is my honest review.