Cromer

As was said in a recent opinion of the nation’s high court, Gannett Co. v. DePasquale (1979) 443 U.S. 368, 410 [ 61 L.Ed.2d 608, 641 , 99 S.Ct. 2898 ] (dis. opn. of Blackmun, J.): “This Court confronts in this case another aspect of the recurring conflict that arises whenever a defendant in a criminal case asserts that his right to a fair trial clashes with the right of the public in general, and of the press in particular, to an open proceeding.”

Darlin June Cromer, 33 years old, was charged with the kidnaping and murder of a 5-year-old boy. At the preliminary examination, from which the public and news media were excluded (see Pen. Code, § 868), her purported confession to the crimes was placed in evidence. She was thereafter committed by the magistrate for trial in the superior court on a charge of murder with special circumstances rendering mandatory, upon conviction, the penalty of death or life imprisonment without pos *731 sibility of parole. (See Pen. Code, § 190.2) Upon her arraignment in the superior court she moved, through a public defender, that the preliminary examination’s transcribed evidence of her purported confession be not disclosed to the public and…

I reluctantly concur in the result mandating interim sealing of a portion of the preliminary hearing transcript in view of the reasonable likelihood that pretrial disclosure could seriously affect petitioner’s right to a fair and impartial jury trial within the vicinage. My reluctance is founded upon a conviction that even the temporary sealing of an otherwise public court record (see Pen. Code, §§ 869-870; Code Civ. Proc., § 1904; cf. Pen. Code, § 938.1, subd. (b)) evokes sensitive policy considerations relative to the desirability and need for unfettered access by both the public and media representatives. (Cf. Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469, 495-496 [ 43 L.Ed.2d 328, 349-350 , 95 S.Ct. 1029 ]; see Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555 [ 65 L.Ed.2d 973 , 100 S.Ct. 2814 ]; see also Brian W. v. Superior Court (1978) 20 Cal.3d 618, 625-626 [ 143 Cal.Rptr. 717 , 574 P.2d 788 ].)

Since the justification underlying the requested relief is avoidance of probable pretrial publicity taint, I would explicitly condition the grant of relief to permit the trial court to reconsider the necessity for pretrial nondisclosure in light of any subsequent…

I am in substantial agreement with all the views so ably expressed in Justice Elkington’s opinion. However, I wish to stress that, in exercising my obligation to independently assess the potential prejudice flowing from publication of the materials whose temporary suppression is sought, I have been influenced by the following consideration.

*737 The objective contents of the materials sought to be disclosed, besides being only debatably admissible, are so repulsive and inflammatory in nature, as to compel the conclusion that their release would in all probability impair defendant’s right to a fair trial in whatever vicinity they might be released.

I am, I may add, entirely at a loss to understand why the district attorney favors the granting of an order which, if denied, can have no adverse effect upon the prosecution, but, if granted, might very well inject irremediable prejudice into these proceedings.

George Deukmejian, Attorney General, Edward P. O'Brien, Assistant Attorney General, and Herbert F. Wilkinson, Deputy Attorney General, for Real Party in Interest.

Pillsbury, Madison & Sutro, Jerome C. Dougherty, Michael H. Salinsky, Joseph R. Tiffany II, Mayre Rasmussen, Crosby, Heafey, Roach & May, Edwin A. Heafey, Jr., and Judith R. Epstein as Amici Curiae on behalf of Real Party in Interest.

OPINION

ELKINGTON, J.

As was said in a recent opinion of the nation's high court, Gannett Co. v. DePasquale (1979) 443 U.S. 368, 410 [ 61 L.Ed. 2d 608, 641 , 99 S.Ct. 2898 ] (dis. opn. of Blackmun, J.): "This Court confronts in this case another aspect of the recurring conflict that arises whenever a defendant in a criminal case asserts that his right to a fair trial clashes with the right of the public in general, and of the press in particular, to an open proceeding."

Darlin June Cromer, 33 years old, was charged with the kidnaping and murder of a 5-year-old boy. At the preliminary examination, from which the public and news media were excluded (see Pen. Code, § 868), her purported confession to the crimes was placed in evidence. She was thereafter committed by the magistrate for…