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Paul MannMad River Union

EUREKA A defense motion to block the press and public from the next phase of the Jon David Goldberg murder case has forced another postponement in the prosecution of the man accused of the point blank gunshot killing of a Fortuna fire captain last September.

The defense motion clashes with the First Amendment prohibition against abridging the freedom of the press.

Superior Court Judge Dale A. Reinholtsen will rule April 11 on Public Defender Casey Russos motion that the evidence offered in the preliminary hearing by the prosecution be presented in a closed courtroom.

Presumably Russo will argue next month that only a closed hearing can avert prejudicing the prospective jurors who will hear the case against Goldberg. He is charged with killing Timothy Thomas Smith, Sr. September 26.

Jon David Goldberg

Smith allegedly cuckolded Goldberg, who is accused of taking revenge by shooting Smith five times in his front yard in Fortuna as his wife and son looked on during the noon hour.

Goldberg, 36, in custody on $1 million bail, faces additional charges of using a firearm against his estranged wife, Rachel Christina, including battering her and brandishing a gun in public. He has pleaded not guilty on all counts, including the murder charge.

In continuing the case until April 11 at 2:30, Judge Reinholtsen pointed out that the public must be given due notice before closing a preliminary hearing; several reporters were present in the gallery.

Reinholtsen noted that preliminary hearings, which determine if the prosecution has gathered enough evidence to warrant a trial, must be open to the press and the public, either in total or in part, except in rare instances. He cited a California case involving a television station in which the First Amendment protection prevailed.

In making his motion, Russo drew a distinction between closing the foundational evidence portion of the preliminary hearing and the hearing as a whole. He said he did not anticipate calling any witnesses in connection with the judges decision on whether to close the courtroom.

In 1986, the U.S. Supreme Court reversed the lower court judge in a case brought by the state of California against a nurse charged with murdering 12 patients with massive overdoses of the heart drug lidocaine.

The Supreme Court ruled that the state judge overstepped his authority when he granted a defense motion to close the preliminary hearing.

The judge had cited California statutory language that such a hearing could be closed if exclusion of the public is necessary in order to protect the defendants right to a fair and impartial trial.

The Supreme Court threw out that reasoning. The majority opinion, written by then-Chief Justice of the U.S., Warren Burger, stated that as opposed to grand jury proceedings, preliminary hearings in California traditionally have been open to the public and public access is essential to the proper functioning of the criminal justice system.

The absence of a jury from a preliminary hearing makes the importance of public access even more significant, the majority ruled.

As for the press, the Supreme Court held that since a qualified First Amendment right of access attaches to preliminary hearings as conducted in California, the proceedings cannot be closed unless specific, on-the-record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.

That interest does not include the defendants right to a fair trial unless there is a substantial probability that that right will be prejudiced by publicity that closure would prevent, and that reasonable alternatives to closure cannot adequately protect the right.

The lower court failed to consider whether alternatives short of closure would have protected the defendants interests, Chief Justice Burger wrote.

Humboldt County Deputy District Attorney Luke Bernthal is expected to introduce evidence concerning the alleged battering of Rachel Christina Goldberg with a revolver, among several weapons charges.

Notably, the battery allegation spans the period Sept. 1, 2014 to Sept. 30, 2016, more than two years before Smith was shot.

Bernthal has arranged to call a civilian witness, Frieda Smith, not otherwise identified, to testify at the preliminary hearing. Appearing in court on three occasions, Smith has been sidelined by the repeated scheduling delays in the Goldberg case.

Goldberg is charged with felony assault of his wife with a revolver; of displaying a concealed firearm in public in the presence of another person, unnamed in Bernthals complaint; displaying and drawing his gun in a rude, angry and threatening manner; and using a firearm in a fight and quarrel.

The battery charge states that Goldberg willfully and unlawfully used force and violence against Rachel Goldberg.

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First Amendment issue delays murder case again - Mad River Union