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Perspectives
C.A. Justices Irresponsibly Shield Identities of Sex-Offense Defendants
By Roger M. Grace
Few would dispute the appropriateness of an appellate court, in its recitation of the facts in an opinion, concealing the identity of a victim of a series of sexual assaults—particularly where that victim was a minor. On the other hand, I would think that few would argue that anonymity should be accorded the assailant in such a case.
Yet, Div. Three of the First District Court of Appeal, in an unpublished opinion filed Friday, identifies child molester William Donald Henri as “W.H.” Justice Ioana Petrou authored that opinion which affirms his conviction.
That same division, just nine days earlier, referred to defendant/appellant Rafael Borgesdosreis, who was convicted of committing a lewd act upon a child under the age of 14 and sending or exhibiting harmful matter to a minor, as “Rafael B.D.R..” Presiding Justice Alison M. Tucher wrote the published opinion in that case which reverses the judgment and remands the case for a fresh hearing on a motion for a new trial.
In both cases, the panel acted, in my view, irresponsibly, in contravention of the precept, firmly established by case law, that openness of court proceedings must be maintained absent a clearly overriding interest.
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In 1893, the California Supreme Court declared in In re Shortridge: “In this country it is a first principle that the people have the right to know what is done in their courts.”
The Sixth District Court of Appeal in 2022 spelled out in Department of Fair Employment and Housing v. Superior Court of Santa Clara County that “the right to access court proceedings necessarily includes the right to know the identity of the parties.”
That right can be overcome but not easily, not merely through fiat.
As the Supreme Court of Washington observed in its 2018 opinion in Doe G v. Department of Corrections, “the names of people convicted of criminal offenses, including sex offenders, have historically been open to the public.”
That’s true not only in the State of Washington; it applies to California, and I suspect every state in the U.S.
Rare exceptions have been made, such as that approved by the Ninth U.S. Circuit Court of Appeals in its 1980 decision in U.S. v. Doe. The appellant, a drug-dealer, had been a government witness which, the majority explained, would be made known to fellow inmates if his true name were used in the opinion, exposing him to “a risk of serious bodily harm.”
Even under that circumstance, Judge Joseph Tyree Sneed III (now deceased) said in a dissent:
“Generally court proceedings should be conducted in public and when so conducted there is normally no justification for not reflecting in any appellate opinion the parties as they were known in the proceeding below. To do otherwise must be regarded as a departure from the strong tradition of publicity in the courts and should be limited to the ‘unusual case.’…In my view this is not such a case. Here the appellant made his arrangement with the government and now seeks to avoid one of the predictable consequences of his cooperation. Whatever its structure that arrangement did not include assurances of anonymity, nor would it bind this court if it had. We should decline to add to the government’s storehouse of tools with which to procure the cooperation of witnesses and informants when to do so compromises the openness of the courts. Our hesitancy should be all the greater in a case such as this one in which anonymity at this late date is of dubious effectiveness.
“Beyond the arguments based on reason, no statute or federal rule authorizes the practice approved by the majority. No reported case of which I am aware approves of such a practice on facts similar to these or in the procedural posture in which the appellant’s motion came to us.”
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As to Henri, the salient point that the members of the First District’s Div. Three either missed or consciously ignored is that Henri’s identity is already a matter of public record.
Henri was arrested, publicly charged, and publicly tried, in his true name.
The U.S. Supreme Court said in its 1975 decision in Cox Broadcasting Corp. v. Cohn that “even the prevailing law of invasion of privacy generally recognizes that the interests in privacy fade when the information involved already appears on the public record.”
As the Second U.S. Circuit Court of Appeals observed in its 1994 opinion in Doe v. City of New York:
“Certainly, there is no question that an individual cannot expect to have a constitutionally protected privacy interest in matters of public record.”
In proceedings in the Napa Superior Court, the defendant was denominated William Donald Henri, not “W.H.” “What transpires in the court room is public property,” the U.S. Supreme Court proclaimed in 1947 in Craig v. Harney. Henri’s identity is therefore public property and members of the First District’s Div. Three are acting to impede access by members of the public to what belongs to them.
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Public knowledge of Henri’s criminality exists not only from directly viewing public records but, obviously to a far greater extent, from reports of the content of those records.
“When the incidents…are so public as to be spread upon a public record, they come within the knowledge and into the possession of the public and cease to be private,” the Court of Appeal for this district pointed out in 1956 in Smith v. National Broadcasting Co.
There, public knowledge of a false police report was gained not from the report, but from radio broadcasts telling of it. The court held that there is no privacy interest in “incidents have already become public property.”
The Office of Napa County District Attorney publicized Henri’s conviction and sentencing—and appropriately, under the U.S. Supreme Court precedent. It said in a March 16, 2022 press release:
On November 1, 2021, William Donald Henri, aged 68, was found guilty of two counts of Lewd and Lascivious Conduct with a Child Under 14 years of Age, and two special allegations of Substantial Sexual Conduct by a Napa County jury. The Honorable Mark Boessenecker presided over the jury trial in the Napa Superior Court.
The felony convictions were the result of sexual contact the defendant had with one minor family member between 2010 and 2014 in Napa County. The survivor was between the ages of 4 and 5 years old at the time of the molestations. The investigation into this case began after the survivor and her family courageously came forward and reported the abuse to law enforcement, which resulted in charges being filed in September of 2019. During the trial, the survivor testified against the defendant.
On March 7, 2022, the defendant was sentenced to 5 years in State Prison by the Honorable Mark Boessenecker. He is also required register as a Sex Offender. Additionally, Judge Boessenecker awarded a total of $35,000 in damages to the survivor and her mother. The survivor’s mother was present at the sentencing hearing where she gave an impact statement addressing the defendant and the Court.
Judge Boessenecker stayed the execution of the defendant’s prison sentence pending his appeal. This means that the convicted child molester will not have to serve his prison sentence unless and until the Appellate Court affirms the Napa County conviction. This could take months to years. Judge Boessenecker also granted the defendant bail pending his appeal in the amount of $500,000. The defendant was remanded into custody at the Napa County Detention Center on March 11, 2022. He posted bail that same day. The defendant, a resident of Oregon, is subject to bail conditions including that he checks in with probation, surrenders his passport, and has no contact with minors under the age of 18.
“Allowing a convicted child molester to delay indefinitely his prison sentence and resume his life out of state was extremely difficult to explain to the survivor and her family,” said District Attorney Allison Haley. “They understandably feel deeply betrayed by the system and are left wondering why, after a jury unanimously determined guilt, they were denied justice.”
There was consequent newspaper and television coverage of the sentencing. While the victim was not identified, Henri was.
That William Donald Henri sexually abused his niece in her young childhood is a matter of public record, of which all have constructive knowledge. It’s also a matter of actual knowledge on the part of the many who were informed by news reports of his criminal conduct.
The appellate court’s action withholds information from the public as to the public offenses committed by Henri—and to that extent is obnoxious—but does not block access to information that is otherwise readily available on the Internet and elsewhere, indicating a lack of complete effectiveness of its censorship of his name, rendering it a bit silly.
It’s all the sillier in light of what appears at the bottom of the last page of the slip opinion:
“A164756/People v. Henri.”
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Petrou does have an explanation for the pseudonymity. A footnote advises:
“We use W.H.’s initials to protect the minor’s identity.”
Come, now. If someone saw the opinion and Henri were identified by name, how would that reveal who the victim is? It’s not as if the victim and Henri reside in the same community in Napa and everyone knows that Henri is her “Uncle Bill.” He lives in Roseburg, Oregon; her home is in another state.
Petrou engaged in far-fetched speculation.
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Tucher also provided an explanation in a footnote in Borgesdosreis’s case as to nondisclosure of identities. She said:
“Intending no disrespect, we use given names to refer to many individuals involved, both for clarity and to protect their privacy.”
Oh? What privacy interest does a person have when he commits a public offense and is tried in a public proceeding in a public courthouse?
A faultless victim does have a privacy interest. She’s referred to in the opinion as “Jane Doe.” Using the actual name of Borgesdosreis does not constitute a denial of privacy to Doe.
The conviction of Borgesdosreis, also known as “Borgesdosre,” like that of Henri, was publicly announced. The office of Alameda County District Attorney Pamela Y. Price on Dec 27, 2022, reported in a press release that “[o]n December 8, 2022, a jury found defendant Rafael Borgesdosre guilty of lewd and lascivious conduct with a minor under 14 years old and exhibiting harmful sexual material to a minor with sexual intent.”
Information concerning the arrest of Borgesdosreis on July 24, 2019, by Alameda County sheriff’s deputies is posted on the Local Crime News website. His name appears on California’s list of registered sex offenders.
Petrou’s opinion in People v. W.H. is signed by Tucher and Justice Carin T. Fujisaki. Joining in Tucher’s opinion in People v. Raphael B.D.R. are Fujisaki and Justice Victor Rodríguez.
This isn’t the first time a court of appeal has withheld the name of a criminal defendant. But despite it becoming commonplace in California for anonymity to be accorded blindly to civil litigants who want to use the public courts anonymously, whether articulable cause for secrecy exists or not, it does remain unusual in criminal cases.
Tucher, Petou, Fujisaki and Rodríguez act arrogantly, and delinquently, in proceeding under the notion that the identity of those convicted of crimes in the public’s courts, whose appeals are before them, are none of the public’s business should they, in the wisdom they suppose themselves to possess, see fit to ordain confidentiality. They fail to recognize that, as public officials, they are also public servants, and that in blithely shunning the public’s interest in openness in court proceedings, they are defying, impudently, the rights of their master.
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