Abstract
From the first chapter of Justice in Plain Sight, it is clear Dan Bernstein knows his way around a story. Books focused on Supreme Court decisions run the risk of being dry legal tomes, but Bernstein takes two cases, both won by his former newspaper, The Press-Enterprise in Riverside, California, and writes about them in a way that is both engaging and informative.
The cases came about, partially, because of a California Supreme Court decision, known as the Hovey ruling, that could be interpreted in such a way as to allow judges broad discretion in closing their courtrooms to the press. That ruling led to a Press- Enterprise reporter being removed from a courtroom, leading Executive Editor Norman Cherniss to call his friend, business lawyer Jim Ward, and ask, “They can’t do that, can they?” Neither of these two men, along with Tim Hays, the paper’s editor and publisher, could have known that what began in a California courtroom would land them before the U.S. Supreme Court, not just once, but twice.
Bernstein meticulously describes the two cases, one the result of the rape and murder of a teenage girl, and the other a notorious case involving a nurse who was poisoning his patients. The first case, which came to be known as Press Enterprise I, revolved around Judge William Mortland’s decision to close the voir dire process to the press in the trial of Albert Greenwood Brown for the murder of Susan Jordan. In challenging that decision, The Press-Enterprise would ultimately have to convince the U.S. Supreme Court that a jury’s voir dire was not a preliminary procedure, but an actual part of the trial. Much of that argument would focus on whether jurors had a constitutional expectation of privacy during questioning.
The second case, Press Enterprise II, went even further and insisted that preliminary hearings should also be open to the press. Bernstein notes that it was not unusual for preliminary hearings to be closed, but in the case of Robert Diaz, the nurse accused of killing patients with lidocaine, the hearing lasted 41 days. The Press-Enterprise requested that the preliminary hearing transcripts be released, but Judge Howard Dabney sealed its 4,000 pages on the grounds that it was necessary for a fair trial.
Bernstein’s research is extremely thorough, with one chapter reviewing the history of cases that laid the groundwork for The Press-Enterprise, including Sheppard v. Maxwell (1966), which admonished the press to balance its interests against that of a fair trial; Nebraska Press Association v. Stuart (1976), which ruled that although freedom of the press may not be an absolute right, “immediately resorting to prior restraint is wrong”; Gannett v. DePasquale (1979) and its “bombshell” that the public had no constitutional right to attend criminal trials; and one year later, the seminal Richmond Newspapers v. Virginia (1980) decision that, in essence, reversed Gannett and asserted a First Amendment right for the public and the press to attend criminal trials. These case descriptions, the rationales behind the Court’s decisions, and the press response to them, along with Bernstein’s footnotes and bibliography, make this book a valuable resource for any student of First Amendment law.
Just as pertinent, though, is Bernstein’s inclusion of the more personal aspects of the cases, including interviews with many of those who were involved. He fleshes out the justices serving on the Burger Court, including who nominated them and personal anecdotes about them that could impact their opinions. In writing about Justice Thurgood Marshall, Bernstein said, Civil rights lawyers like Thurgood Marshall personally witnessed the routine exclusion of black jurors. Now Marshall was about to listen to oral arguments in a case where an all-white jury had been picked in secret and convicted a black man of raping and murdering a white girl. The judge who sentenced the man to death had permanently sealed the voir dire transcripts.
For historians, there is a recounting of lawyer Brian Harvey’s foray into the Madison Building of the Library of Congress to find primary documents that might offer historical insight, something that would appeal to Chief Justice Warren Burger. Harvey was working to help put together the national brief for the Press Enterprise I case, and in poring over transcripts from the 1600s and 1700s, he found an Old Bailey case from 1660 that proved jury selection had been open at that time. In writing his majority opinion, Burger cited the case, proof that history was on the side of The Press-Enterprise.
Throughout the book, Bernstein’s admiration for the small city newspapermen and their lawyer who successfully argued that the First Amendment included the “right to receive information” remains evident. It is Bernstein’s telling of their unlikely story that makes this book all the more compelling.