Access a tug-of-war in high-profile cases

Courts long have recognized the public and media have a presumptive right of access to judicial proceedings.

But the struggle for access is hardest fought in high-profile cases when, ironically, the public is most interested in its courts.

The issue has arisen most recently in the death-penalty case of Brian J. Dugan, accused of murdering 10-year-old Jeanine Nicarico of Naperville in a nearly 25-year-old crime. DuPage Circuit Judge George Bakalis imposed an attorney gag order, sealed the entire case file and has repeatedly held lengthy closed-door hearings.

A look at other sensational cases shows judges often impose some access restrictions, though rarely as many as that in Dugan, in an effort to ensure the defendant receives a fair trial with an impartial jury.

Media law experts say such closures are only supposed to be imposed with the narrowest of use because of other more accepted alternatives, such as a change of venue, extensive questioning of potential jurors, admonishments to avoid media accounts and sequestering.

The judge presiding over former Gov. George Ryan's federal corruption trial did not hold many closed-door pretrial meetings. Same for the criminal fraud trial of former media mogul Conrad Black. Different media outlets did object, however, and unsuccessfully appealed rulings to get jurors' names in both Black's proceedings and last year's historic Family Secrets federal mob trial.

Texas attorney Charles "Chip" Babcock successfully defended Oprah Winfrey after Texas cattlemen filed a multimillion dollar defamation lawsuit against the talk show host for a 1996 program on mad cow disease. After the jury's February 1998 verdict, Winfrey delivered the famous line, "Free speech not only lives, it rocks!"

Babcock said the high-profile case did not have any sealed documents or closed-door pretrial hearings, but the judge did issue a gag order on attorneys.

"I think, frankly, it undermines the public's confidence in our justice system," Babcock said. "In a case like Mr. Dugan's, when there's been so many missteps, the public can't have confidence in and have an understanding of what's going on if the press is shut out."

Cook County Judge Vincent M. Gaughan favored strict restrictions in the 2007 trial of Juan Luna, who was convicted of the infamous 1993 mass murder at Brown's Chicken restaurant in Palatine, and last year's child molestation trial of R&B star R. Kelly, who was acquitted.

One of Luna's attorneys, Stephen Richards, who has worked on several capital cases, said he favors an open system, including cameras in the courtroom - which is not allowed in Illinois.

"There are other ways of doing things that don't impinge upon the freedom of the press," he said.

A few print reporters show up each month for Dugan's pretrial hearings. Conversely, the 2005 California trial in the child-molestation case of Michael Jackson brought out more than 2,200 accredited media from across the world, said Thomas A. Mesereau Jr., the pop star's attorney. He said coverage during the five-month trial garnered more than that of O.J. Simpson and Scott Peterson combined.

For Jackson, who won acquittal, Santa Barbara County Superior Court Judge Rodney S. Melville banned in-court cameras, imposed an attorney gag order and sealed some court orders - though copies with some redacted details were released. His restrictions were upheld on media appeal.

Mesereau supports such access restrictions.

"The system wants fairness and the tabloid media wants to see sensationalism and shock value," he said. "What problem judges are faced with is - How do we keep a fair trial?"