DA Seeks To Exclude Public From Gang Injunction Court Room
Written by David Greenwald   
Tuesday, 29 June 2010 04:32
ganginjunction_catThe Gang Injunction trial is rapidly approaching and gamesmanship is clearly afoot.  The DA is making a motion to exclude all witnesses from the courtroom prior to testimony.  While that sounds harmless, the effect will be that a large portion of the effected communities of Broderick and Bryte would be excluded from the courtroom for the majority of the trial as the prosecution would get to lay out their case and witnesses first.

The DA is filing two separate motions for the exclusion of not-testifying witnesses.  "Plaintiff requests that those witnesses not testifying be excluded from the Courtroom pursuant to Evidence Code section 777(a)."  And in a separate motion, "Plaintiff would ask that Court to receive a representation from defense counsel that any person remaining in the courtroom during testimony will not be used for any part of defendants' case (in chief, rebuttal or otherwise) before allowing that person to stay in the Courtroom."

Attorney for the defendant argued that under the rules of Evidence Code section 777, "this Court is not required to exclude all potential witnesses from the courtroom prior to providing testimony and, it should not do so here."

The defendants argue instead that the purpose of that portion of the evidence code "is to prevent tailored testimony and aid in the detection of less than candid testimony."  However in this case, "This Court may avoid "tailored" or "less than candid" testimony by excluding witnesses who have personal knowledge of a particular incident from hearing the testimony of another witness regarding the same event."

The defendants go on to argue that the request by the DA would "unnecessarily infringe upon the First Amendment rights of the public because such an order would be overly broad and, therefore, constitutionally, impermissible."

They argue, "Here, the community members of Broderick and Bryte, where the Safety Zone lies, have a great interest in and concern about the trial. Many of these community members are also listed as witnesses by the defendants and will testify about the impact of the alleged Broderick Boys, BRK, BSK, Norteno, El Norte, and XIV criminal street gangs on their health, senses, and quiet enjoyment of public and private property in the Safety Zone. Defendants anticipate (based on the Plaintiff s witness list) that many of the Plaintiff s witnesses will testifY about specific incidents or conduct but the Defendants' witnesses are not expected to have personal knowledge of these same events and will, therefore, not be testifying about the same incidents. Prior to each witness being called the Court can ask the attorney calling the witness the dates of the incidents and if anyone in the galley has personal knowledge about such incidents. If so, those individuals can be excluded from the courtroom during that testimony. There is no need for the Court to issue a sweeping order that would clear the courtroom of the public at-large from Broderick and Bryte simply because they will later be called as witnesses regarding separate events and/ or knowledge."

Instead they argue that "courts are presumptively open to the public," that "the public has a right to access to civil proceedings," and therefore, "Excluding all potential witnesses who have personal knowledge about the impact of the alleged criminal street gang would be a de facto order excluding the public at-large from the trial and would sweep too broadly across its First Amendment right. Any order excluding the public must be narrowly tailored to serve the purpose of Evidence Code § 777 while effectively maintaining the public's right of access to the trial."

Instead they argue, "The fundamental importance of granting the public access to court proceedings is well recognized. "[O]pen trials serve to demonstrate that justice is meted out fairly, thereby promoting public confidence in such governmental proceedings.""

Commentary

As we see it, the public has the right to attend a trial that impacts their community as the Gang Injunction Trial will impact portions of West Sacramento in the Broderick and Bryte areas.  The defense will rely on the testimony of the interested public to argue that there is not a gang threat and a nuisance in the enjoined safety zone.  A motion to exclude them from the courtroom means they would not be able to attend weeks if not months of testimony from prosecution witnesses.  Large portions of the public would be summarily excluded from the courtroom.

That might be reasonable if there were sensitive information that might taint their testimony.  For instance, there is good reason to exclude witnesses who saw a crime from hearing the testimony of other witnesses who saw a crime.  There are details that would impact another witness's testimony and therefore contaminate evidence.

In a case like this, the witnesses are not being expected to recall intimate details of a specific event.  Rather they are being expected to paint an overall picture of what their community looks like.

As the attorneys for the defendants argue, exclusion from the courtroom should be on a case-by-case, witness-by-witness basis rather than simply a matter of course.  If there is specific testimony that could potentially contaminate the testimony of another witness, by all means exclude that witness.  But if members of the public are simply giving general testimony to rebut the contention of a nuisance, then it makes little sense to exclude everyone from the courtroom.

The burden should be on the prosecution to show just cause to exclude a specific witness under specific conditions.  Moreover, the public has a general right to attend to the proceedings.

The defendants have expressed grave concerns about the impact of such a ruling on the public's ability to testify.

It seems far more reasonable that the court have the authority to permit and prohibit attendance based on the testimony.

As the defendant's conclude: "Thus, this Court must ensure the public's right of access to this trial and balance the purpose of Evidence Code § 777, which can be accomplished by excluding only those witnesses who have personal knowledge of a particular incident from hearing testimony regarding that incident. Otherwise, these proceedings should remain fully open to the public."

We fully agree with that view, we think the public has the right to hear and attend the entire trial with the stipulations attached that specific witnesses may be excluded from hearing specific testimony.  The DA will argue that to be a cumbersome and burdensome process, but so to is democracy.

---David M. Greenwald reporting
Comments (15)Add Comment
Fight Against Injustice

06/29/10 - 05:51 AM
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This is very suspect that the DA does not want the public to hear or see what he is doing in court with the gang injunction. This DA knows people are watching, and he is intentionally trying to keep things secret. I can understand the point of a potential witness not hearing what another witness would say about the same crime, but it is not right to keep the public out. The community needs to let the judge know that they are interested in the gang injunction case. What happened to transparency? Why is the DA afraid of transparency?

Phil Coleman

06/29/10 - 06:50 AM
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"The burden should be on the prosecution to show just cause to exclude a specific witness under specific conditions. Moreover, the public has a general right to attend to the proceedings."

The above remark strongly implies that the "burden of proof" placed with the prosecution is not being met in this particular case. The specific word, "should," makes this contention quite clear.

That analysis is not accurate, nor is it fair. To allege that the District Attorney is trying to exclude interested but uninvolved citizens is also unfair.

When the prosecutor files a motion before the court, it is a plea for the opportunity for him/her to PROVE to the court that such exclusion is in the interests of justice. You can't rightfully say the proof burden has been abandoned by the simple act of a plea filing.

The above quote and word construction is further tainted by the transition of the singular phrase, "witness" to the larger encompassing, "general public." The quote and the story title strongly implies that the prosecution is attempting to exclude the "general public" from viewing the proceedings by this motion. That is also categorically false.

Follow these proceedings and see if the ruling magistrate excludes the "public," general or otherwise. I predict that the judge will require the People to name every person for exclusion and then defend the request vigorously. If this does not happen, then this story has merit, but not before.

Ryan Kelly

06/29/10 - 08:03 AM
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David, This isn't "public comment." It is a trial. It was my understanding that it was inappropriate for witnesses to attend trials. It seems that the trial will be open to the public, just not the witnesses who are to be part of it.

E Roberts Musser

06/29/10 - 09:59 AM
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Phil Colema makes excellent points. Also, is there any consideration here of reprisals by gang members against anyone who testifies in favor of the gang injunction?

Cableguy87

06/29/10 - 10:20 AM
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Plaintiff requests that those witnesses not testifying be excluded from the Courtroom pursuant to Evidence Code section 777(a)."

By definition an individual who does not take the stand and provide testimony under sworn oath cannot be construed as a witness.

Therefore, any motion placed before the court to exclude those individuals (non-witnesses) from attending the legal proceedings is an exercise in censorship.

Cableguy87

06/29/10 - 10:56 AM
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Two exceptions:

1. If a given individual does attend the trial--then that person should automatically be precluded from giving open testimony in court under oath.

2. If a given individuals name appears on the defense's list of scheduled/potential witnesses.

David M. Greenwald

06/29/10 - 12:45 PM
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"David, This isn't "public comment." It is a trial."

The question is not whether they can "comment" it is whether they have a right to attend.

"It was my understanding that it was inappropriate for witnesses to attend trials."

Based on what it is your understanding? The evidence code section 777(a) uses the term, "may" as in "the court may exclude
from the courtroom any witness not at the time under examination so
that such witness cannot hear the testimony of other witnesses" it is noteworthy that the code does not use "shall" or "must." That leaves the discretion up to the judge as to whether hearing such evidence would contaminate the witness. The lawyers for the defendants are arguing that it would not. The plaintiff's have made no argument that it would.

"It seems that the trial will be open to the public, just not the witnesses who are to be part of it."

And the concern is the large number of interested resident who will be witnesses and would want to watch the proceedings. The question still comes down to whether it would contaminate the witness, I have not heard an article from you or the DA as to how in this case it would.

memary10

06/29/10 - 02:18 PM
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If all of the public that could be "potential witnesses" and "interested parties" were allowed to be excluded from this trial, it would set a dangerous precedent. It could be argued that most of the public constitutes interested parties in most trials. In my opinion, the criminal courts of the Central Valley have made up their own laws for their own nefarious purposes. One can only hope that the public will rise up and hold these corrupt vipers accountable.

mistyd

06/30/10 - 08:01 AM
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Wow....are people really serious? First the DA tries to make up a witness list to impress the judge, then he wants to keep everybody out of the courtroom who care about our community and what's going on? This is man is trying to destroy a community, break it down, and do it all in private. The only thing that I have to say to that is "What a coward!"

If the DA how solid grounds for an injunction, he would have no problem allowing the community to come and listen to what he has to say.

Themis

06/30/10 - 07:49 PM
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The DA has a habit of using a long list of potential witnesses. These potential witnesses seem to be friends or family of the defense. He has no intention of calling on them to testify, he just wants to keep them out of the court room.

Mr Obvious

06/30/10 - 09:50 PM
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Themis- will you please substantiate your claim? A list of a few cases will suffice.

E Roberts Musser

07/01/10 - 11:33 AM
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It is normal and appropriate practice to not allow witnesses to attend trial until they actually enter the courtroom to give their own testimony. This is to ensure that their testimony is strictly their own, and they don't try and "piggyback"/"tailor" their testimony onto/to that of another witness. It goes to determining the crediblity of each witness as an individual.

Assuming all potential witnesses are excluded from the courtroom (which is normal practice), let's suppose witness A testifies to a gang crime he insists he saw, a witness for the prosection. Then let's suppose witness B testifies to the same gang crime he insists he saw, a witness for the prosecution. However, their testimony differs in significant respects. This would go to the heart of how much credibility either witness had - not much. However, let's suppose both witnesses were not excluded from the courtroom. The second witness could bolster the testimony of the first witness, because of hearing witness A's testimony. If the DA didn't exclude all witnesses from the courtroom, the defense might have grounds for an appeal.

Now to jump from "all witnesses should be excluded from the courtroom" to the "public is to be excluded from the courtroom" is a huge leap, and I don't think it is what is going on here.

Fight Against Injustice

07/02/10 - 04:46 AM
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David: You mentioned that witnesses to the case should be excluded if it listening to the case will affect their testimony.

How come in Ajay Dev's trial, Detective Hermann, who was a witness in the trial, got to sit in th court room everyday. Other people's testimony might have affected his testimony. Is this normal?

David M. Greenwald

07/02/10 - 04:52 AM
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I'm sure that the judge ruled that his testimony was simply based on his experience with the recording. As to whether or not it was proper, I was not there so it would be difficult to determine that. Maybe after we see the transcripts of the trial I could offer a more informed opinion.

Mr Obvious

07/02/10 - 09:59 PM
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Officers are also regularly excluded from hearing other testimony. On large cases one officer is assigned as the investigating officer and is usually first to testify. Other officers are excluded as to prevent tailored testimony as they are witnesses. The same applies to non law enforcement "witnesses". Is it possible that the DA isn't doing anything wrong here?

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