MARTINEZ -- Much of the criminal proceedings against a Lafayette middle schoolteacher charged with molesting a female student have been closed to the public due to high-level community interest and concerns that the girl's anonymity may have been compromised by an online news report.
The closure, approved by Judge Clare Maier last month and to be further litigated in March, is largely unprecedented in Contra Costa County's criminal courts, officials from the district attorney and public defender's offices said.
Stanley Middle School teacher Michael Merrick, 47, was arrested and charged in November with 17 felonies that allege he molested a 14-year-old girl during private tutoring sessions last summer. Cell phone records show that Merrick sent the girl as many as 140 text messages a day, police said, many of them sexual in nature. Results from the DNA analysis of semen retrieved from his classroom couch are pending. Merrick has pleaded not guilty to the charges.
Prosecutor Johanna Schonfield said she requested that testimony about or by the victim at any future proceeding, including a preliminary hearing and trial, be closed to the public in response to a story published by AOL's news website Patch.com, as well as public attempts to have Merrick's accuser named. That would close off the bulk of proceedings.
Merrick's attorney Elizabeth Grosssman, who did not return a call for comment, did not object,
"The Legislature has recognized that victims of sex assault of any age have a right to confidentiality and privacy and we in the (DA's office) sexual assault unit take that very seriously," Schonfield said. "I fully believe in the concept of a public courtroom -- I think it protects the rights of both parties, and leads to transparency and openness in the court -- but my first priority is protecting the victim from harm.
"I don't think this is going to set a precedent in our office," she said. "This is a unique situation."
The Patch story was based on police reports that Schonfield said were not properly redacted to conceal all types of information that would identify the victim. The story did not name the girl, but it detailed her history with Merrick enough to reveal her identity to some in the community, Schonfield said. The incident has spurred a discussion among judges, prosecutors and law enforcement in the county about policies regarding the redaction of confidential information in police reports to prevent this from happening in the future, she said.
"There have been adverse consequences to her as result of the story," Schonfield said. "It was the negative repercussions to her that led us to seek the courtroom being closed. Had there been more responsible journalism, in my opinion, this would not have happened."
Patch declined to comment for this story.
Around the same time of the website's article, a local private attorney contacted Schonfield and said that he had received several calls from Lamorinda residents asking him to use his DA's office contacts and name the girl. The attorney alerted the prosecutor to the intense interest from that small community.
"It was pretty shocking," Schonfield said. "I have never had anyone attempt to expose a victim's identity, never."
The victim's family hired its own attorney, Richard Madsen, who pointed out to Schonfield that criminal proceedings involving minors under age 16 can be closed to the public under Penal Code Section 859.1, if it can be demonstrated that disclosure of the minor's identity would cause him or her harm. In making its determination, courts have to also consider other factors including the extent to which the size of the community would preclude the victim's anonymity, and the nature and seriousness of the offense.
"To me, it doesn't matter who she is or that she's from an affluent community and her family can afford an attorney," Schonfield said. "If this happened in one of my cases involving a poor and non-English-speaking victim who was being harassed as result of public interest in the case, I would consider doing the same thing."
David Levine, a professor at UC Hastings College of the Law, said it is not unusual for judges to close off proceedings to protect a juvenile's identity.
"I think it makes it easier to defend what the court is doing because if the court is limiting the closed session to situations where the privacy of the juvenile victim is at issue, then the judge is maintaining the principle of openness in the courts as much as possible," Levine said. "It would be very unlikely that an appellate court would intervene at this stage and tell the judge to open up the hearing even more."
The two sides were in court Jan. 18 to set a preliminary hearing date when Schonfield and Madsen made their case to Judge Maier in her chambers, and then on the record in court in front of up to 10 Merrick supporters.
"This is the first time I have ever done this in 21 years as an attorney, and that's because of what I believed was reckless and insensitive reporting by the Lamorinda Patch," said Madsen, a former prosecutor. "I felt an ethical and moral obligation under Marcy's Law to seek closure."
Marcy's Law, passed by voters in 2008, amended the California Constitution to provide additional rights to crime victims and their families.
Attorneys are expected to further litigate the extent of the closure so to minimize public exclusion March 22, Schonfield said. Merrick remains in County Jail in lieu of $3.05 million bail.
Contact Malaika Fraley at 925-234-1684. Follow her at Twitter.com/malaikafraley.