
USCA1 Opinion

	




          December 23, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          Nos. 92-1239               92-1397                                 MIGUEL RIVERA-PUIG,                                 Plaintiff, Appellee,                                          v.                             HON. GABRIEL GARCIA-ROSARIO,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                      [Hon. Jos  A. Fust , U.S. District Judge]                                           ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                _____________________               Anabelle   Rodr guez,   Solicitor  General,   Department  of               ____________________          Justice, for appellant.               Juan R. Marchand-Quintero for appellee.               _________________________                                 ____________________                                 ____________________                    TORRUELLA,  Circuit  Judge.     This  appeal   presents                                ______________          important constitutional issues requiring  us to strike a balance          between  state-created  due  process  and privacy  concerns,  and          freedom of the press  rights protected by the First  Amendment of          the United  States  Constitution.   Because  we find  the  latter          paramount  in  this case,  and in  light  of the  Supreme Court's          decision in Press-Enterprise Co. v. Superior Court of California,                      ____________________    ____________________________          478 U.S. 1 (1986) ("Press Enterprise II"), we affirm the district                              ___________________          court's   decision1   declaring   unconstitutional  the   closure          provision  of Rule  23(c) of  the Puerto  Rico Rules  of Criminal          Procedure, P.R. Laws Ann. tit. 34, App. II R. 23(c) (1991).2                                        ____________________          1   Reported at Rivera-Puig  v. Garc a-Rosario, 785  F. Supp. 278                          ___________     ______________          (D. P.R. 1992).          2  Rule  23(c) of  the Puerto  Rico  Rules of  Criminal Procedure          provides:                           (c)  Proceeding during  the hearing.                                Proceeding during  the hearing.                      If  the person appears at the preliminary                      hearing  and  does   not  waive  it,  the                      magistrate shall hear the evidence.   The                                                            ___                      hearing  shall  be held  privately unless                      _________________________________________                      the    defendant    requests    at    the                      _________________________________________                      commencement thereof that  it be  public.                      ________________________________________                      The defendant may cross-examine witnesses                      against him and may introduce evidence in                      his own behalf.  The prosecuting attorney                      may be present at  the hearing and he may                      also   examine   and  cross-examine   all                      witnesses  and  introduce  new  evidence.                      Upon   being  requested  to  do  so,  the                      prosecuting  attorney  shall  put at  the                      disposal   of   the   person  the   sworn                      statements  of  the  witnesses   whom  he                      called to testify at the  hearing that he                      has in his possession.  If in the opinion                      of the magistrate the evidence shows that                      there is  probable cause to  believe that                      an  offense has  been committed  and that                      the  defendant  has  committed   it,  the                      magistrate  shall  forthwith hold  him to                      answer for the commission of  the offense                    To  place this case in its legal context, we will first          discuss the Supreme Court's ruling in Press-Enterprise II.                                                ___________________                               I.  PRESS-ENTERPRISE II                               I.  PRESS-ENTERPRISE II                                   ___________________                    Section  868  of  the  California  Penal Code  required          preliminary hearings to be open  to the public unless  "exclusion          of  the public is necessary  in order to  protect the defendant's          right  to a  fair and impartial  trial."   Cal. Penal  Code   868          (West 1985).   A defendant charged  with 12 counts of  murder and          subject to the death penalty requested closure of his preliminary          hearing.    Defendant's unopposed  motion  was granted.    At the          conclusion  of   the   hearing,  the   magistrate  denied   Press          Enterprise's request  for the release  of the  transcript of  the          proceedings,  and  sealed the  record.    The  state  and  Press-          Enterprise lost their appeal to the superior court on the grounds          that release of the  transcript might prejudice defendant's right          to a fair and impartial trial.                      After the defendant  waived his right to a  jury trial,          the  superior court  released  the transcript.    Appeals to  the          higher courts in California nevertheless continued.  These courts          ruled that there was  no general First Amendment right  of access          to preliminary hearings, and that the defendant's right to a fair          and  impartial  trial by  a  jury uninfluenced  by  news accounts                                        ____________________                      in the  appropriate Part and  Division of                      the  Court  of First  Instance; otherwise                      the  magistrate  shall exonerate  him and                      order that he be set free. . . .          (emphasis added).                                         -3-          shifted the burden in favor of closure if defendant established a          reasonable likelihood of substantial prejudice.                    Ultimately,  the  case  arrived  at the  United  States          Supreme Court.  The Court noted that maintaining a criminal trial          process  open  to  neutral  observers is  an  important  means of          assuring  a fair trial as  well as maintaining  the appearance of          fairness.  Press-Enterprise II, 478 U.S. at 7.  It then discussed                     ___________________          what  it called  the  "tests  of experience  and  logic."   If  a          proceeding passes these tests,  a qualified First Amendment right          to public access attaches.  Id. at 9.  These  tests are comprised                                      ___          of two considerations:  (1)  whether a tradition of accessibility          to  the  type of  hearing in  question  exists; and  (2) "whether          public  access   plays  a   significant  positive  role   in  the          functioning of the particular process in question."  Id. at 8.                                                                 ___                    Applying  these  tests   to  California's   preliminary          hearing, the Court first found that state and federal courts have          almost uniformly conducted  preliminary hearings  in open  court.          Id. at 10-11.            ___                    Under the second consideration  of the tests, the Court          found that  public access to the  California preliminary hearings          would play a significant positive role in the  actual functioning          of the process.   Id. at 11-12.   The Court reasoned  that it had                            ___          already determined  in  prior cases  that public  access plays  a          significant role in criminal trials.  Id.  It then concluded that                                                ___          the "California preliminary hearings are sufficiently like trials          to justify  the same conclusion."   Id. at 12.   In both criminal                                              ___                                         -4-          trials and the California preliminary hearing, the accused has an          absolute right to:  (1) an elaborate preliminary hearing before a          neutral  magistrate; (2)  personally appear  at the  hearing; (3)          representation by counsel;  (4) cross-examine hostile  witnesses;          (5)  present  exculpatory  evidence;  and  (6)  exclude illegally          obtained evidence.  Id. at 12-13.  In addition, in the California                              ___          preliminary hearing,  if the magistrate finds  probable cause, he          binds the  accused over for trial, which in most cases leads to a          guilty plea.  Consequently, "the preliminary hearing is often the          final and most  important step in  the criminal proceeding,"  and          "in many cases provides 'the sole occasion for public observation          of the criminal justice system.'"  Id. (quoting San Jose Mercury-                                             ___          _________________          News v. Municipal Court,  638 P.2d 655, 663  (1982)).  The  Court          ____    _______________          commented  that the very absence  of a jury  in these proceedings          makes  access even  more important  as "an  inestimable safeguard          against corrupt or overzealous prosecutor[s] and . . . compliant,          biased, or eccentric judge[s]."  Id.                                           ___                    Accordingly,  the  Court  ruled that  proceedings  must          remain open unless  specific, on-the-record findings  demonstrate          that  "'closure is  essential to  preserve higher  values and  is          narrowly  tailored  to  serve  that  interest.'"    Id. at  13-14                                                              ___          (quoting   Press-Enterprise  Co.   v.  Superior   Court  ("Press-                     _____________________       ________________    ______          Enterprise  I"), 464 U.S. 501,  510 (1984)).   Against this legal          _____________          backdrop we consider the present case.                               II.  FACTUAL BACKGROUND                               II.  FACTUAL BACKGROUND                                    __________________                    On April 4, 1991, Miguel Rivera-Puig ("Rivera-Puig"), a                                         -5-          newspaper  reporter for the San Juan, Puerto Rico daily El Vocero                                                                  _________          de  Puerto Rico  ("El Vocero"),  sought access  to a  preliminary          _______________    _________          hearing before the Hon.  Gabriel Garc a-Rosario, a district court          judge  of the Commonwealth of  Puerto Rico.   Rivera-Puig filed a          written request, as a newspaper reporter, seeking physical access          to  the proceedings,  or  a recording  of  the hearing.3    Judge          Garc a-Rosario denied this request.  Rivera-Puig requested access          to another preliminary  hearing before the same judge  on January          16, 1992.  The judge also denied this request.                      Appellant  candidly  admits that  the exclusion  of the          press and  public from preliminary  hearings is the  rule, rather          than  the exception, pursuant to the  requirements of Rule 23(c).          In  the face of this barrier Rivera-Puig  went in search of legal          redress for his federal constitutional claim.                         III.  THE DISTRICT COURT PROCEEDINGS                         III.  THE DISTRICT COURT PROCEEDINGS                               ______________________________                    On January 17, 1992, Rivera-Puig filed an action in the          United  States   District  Court   for  Puerto  Rico   seeking  a          declaratory  judgment  that the  Rule  23  closure provision  was          unconstitutional  and an  injunction  against enforcement  of the          rule.    Although the  suit  named  Judge Garc a-Rosario  as  the                                        ____________________          3  Rivera-Puig,  who has worked  for El  Vocero since 1979,  made                                               __________          several  prior similar  requests.   The local  courts steadfastly          denied  him admission  to preliminary  hearings pursuant  to Rule          23(c).             Puerto Rican  preliminary hearings generally are not recorded.          There is thus  no opportunity  for post-hearing  access to  these          proceedings.   It should be noted that in fiscal years 1987-1988,          28,796 preliminary  hearings were  held in the  courts of  Puerto          Rico.  Rivera-Puig, 785 F. Supp. at 282.                 ___________                                         -6-          defendant,  the  plaintiff  also  served  the  complaint  on  the          Secretary  of Justice of the Commonwealth and the Director of the          Courts Administration of Puerto Rico.  In a motion filed with the          complaint,  Rivera-Puig claimed  that  two  preliminary  hearings          would soon take place  involving charges against prominent public          officials,4  but that  the identity  of the presiding  judges was          unknown until the day of the hearings.  Thus, it was difficult to          challenge  the closure of hearings beforehand.  Because he wanted          access to these hearings, Rivera-Puig sought an expedited hearing          to decide the validity of the closure provisions of Rule 23.                    The  hearing was held on January 23, 1992.  In addition          to  the facts  previously  stated, the  district court  heard the          testimony  of Manny Su rez, a  reporter for the  San Juan English          language  daily, The  San Juan  Star.   Su rez testified  that on                           ___________________          January  22,  1992  he  was  denied  access  to  a  review  of  a          preliminary hearing determination  held in the  San Juan part  of          the  Superior Court of Puerto Rico  pursuant to Rule 24(c) of the          Puerto Rico Rules of Criminal Procedure.5                                          ____________________          4  A preliminary hearing had been scheduled  for February 3, 1992          regarding criminal  charges against the  Speaker of the  House of          Representatives   of  Puerto   Rico's   Legislature.      Similar          proceedings were  scheduled for January  30, 1992, and  March 17,          1992   involving   criminal   charges   against    an   Assistant          Superintendent of Police.   Both cases  were highly charged  with          public interest throughout Puerto Rico.          5    Rule 24  governs  a proceeding  which  may be  held  after a          preliminary  hearing.   Subdivision  (c)  allows  the prosecuting          attorney  to  resubmit the  case,  using  the same  or  different          evidence, to  a judge in the  superior court if the  judge in the          Rule  23 preliminary  hearing  found no  probable cause  or found          probable  cause for a lesser  offense than the  one charged.  See                                                                        ___          Pueblo   v.  Cruz-Justiniano,   116   P.R.   Dec.  28   (Official          ______       _______________                                         -7-                    The district  court also  learned of three  local court          actions involving the validity  of Rule 23(c).   In the first  of          these suits, El Vocero de Puerto Rico v. Estado Libre Asociado de                       ________________________    ________________________          Puerto Rico,  Civil Appeal  AC-90-191, (the "El  Vocero appeal"),          ___________                                  __________          the   superior   court   decided   in   favor   of   the   rule's          constitutionality on January  29, 1990.   An appeal  went to  the          Supreme  Court of  Puerto Rico  where it  was pending  resolution          since  February 1, 1991.   Appellants twice moved  that court for          expedited  resolution  and  sought  mandamus  against  the  seven          justices of the Supreme Court of Puerto Rico, moving for decision          of the submitted appeal.   The court rejected these efforts  in a          cryptic ruling dated January 22, 1992.6                      The  second suit  involving  Rule 23(c)  was Pueblo  de                                                                 __________          Puerto Rico v. Lara-Imbert, CE-91-235  (June 28, 1991), in  which          ___________    ___________          the Supreme Court of Puerto Rico reversed a superior court ruling          which,  relying on  Press-Enterprise II,  refused closure  of the                              ___________________          preliminary  hearing.   That decision,  however,  was based  on a          perceived lack of a "case and controversy," not on the merits.                      A third case, El  Vocero de Puerto Rico v.  Hon. Carlos                                  _________________________     ___________          Cab n-Garc a,  92 J.T.S. 1 at  9121 (1992), was  dismissed by the          ____________                                        ____________________          Translations  at 35)  (1984); Alvarez  v. Tribunal  Superior, 102                                        _______     __________________          P.R. Dec. 236 (Off. Trans. at 296) (1974).  Procedures under Rule          24  are not considered appeals from the judge's ruling but rather          are independent hearings.  Cruz-Justiniano,  116 P.R. Dec. at  30                                     _______________          (Off.  Trans. at 38).  See also  Rivera-Puig, 785 F. Supp. at 281                                 ________  ___________          n.5.          6   The court  concluded that it  lacked jurisdiction  to issue a          writ of mandamus against itself and that the appeal was receiving          the priority merited  by the important nature of  the controversy          in question.                                         -8-          Supreme Court of Puerto Rico for lack of jurisdiction.                    In  a  comprehensive  and  well-founded   opinion,  the          federal district  court decided the  present case on  January 31,          1992.   The  district  court ruled  that:   (1)  the  doctrine of          "judicial  immunity  did  not  bar the  issuance  of  prospective          injunctive  relief against  a  judicial officer  acting in  [his]          judicial capacity," (quoting Pulliam v. Allen, 466 U.S. 522, 541-                                       _______    _____          42 (1984));  (2) an  Article III "case  and controversy"  existed          between  Rivera-Puig, who  was denied  access to  the preliminary          hearings,  and  Judge  Garc a-Rosario  who enforced  the  closure          provisions of  Rule 23; (3)  abstention under Younger  v. Harris,                                                        _______     ______          401  U.S. 37 (1971), was inappropriate  because plaintiff did not          seek an  injunction of  any criminal  proceeding, but rather  was          requesting access  to future preliminary hearings; (4) abstention          pursuant to Colorado River  Water Conservation District v. United                      ___________________________________________    ______          States ("Colorado River"), 424 U.S. 800 (1976), was inappropriate          ______   ______________          because the  "exceptional circumstances" alluded to  in that case          were not present  in this one; and on the  merits (5) the closure          provision of  Rule 23(c) fell squarely within  the prohibition of          Press Enterprise  II.  Notwithstanding this  ruling, the district          ____________________          court  refused to issue an  injunction because it  was "sure that          the Puerto  Rico judiciary  [would] comply with  this declaration          without [the need for] further compulsion."   Rivera-Puig, 785 F.                                                        ___________          Supp. at 290.                    On February  12,  1992, Rivera-Puig  was again  refused          entry to  several preliminary hearings despite  the local judges'                                         -9-          knowledge  of  the district  court's ruling.    Thus, he  filed a          motion  with   the  district  court  renewing   his  request  for          injunctive  relief.7   The district  court judge  again concluded          that "Rule  23(c)'s  closure provision  flagrantly  and  patently          violate[d] express constitutional precedent by the Supreme  Court          of  the  United  States," and  that  this  violation  was causing          "[g]reat and immediate irreparable  first amendment injury."  Id.                                                                        ___          at  292.    Yet,  he  again  refused  to  issue  the  injunction,          expressing  pious  hope  that   the  "Puerto  Rico  judiciary,  a          traditionally  responsible  institution," would  comply  with the          decision without the need for  "the strong remedy of injunction."          Id. at 292-93.          ___                    Defendant and the intervenor, the Department of Justice          of  the  Commonwealth,8  appealed,  raising three  issues:    (1)          whether  the district  court lacked  Article III  jurisdiction in          that  defendant-appellant  has no  interest  adverse  to that  of          Rivera-Puig; (2) whether the district court should have abstained          from  hearing the case pursuant to Younger, 401 U.S. 37, Colorado                                             _______               ________          River, 424 U.S. 800,  or Railroad Commission of Texas  v. Pullman          _____                    ____________________________     _______                                        ____________________          7  The  motion was accompanied by  a sworn statement  setting out          the facts  previously described  as well as  a newspaper  account          which appeared in the February 12, 1992 San Juan Star quoting the                                                  _____________          Chief Justice of the Supreme Court of Puerto Rico as stating that          "[e]ach  individual judge is  free to follow  the [federal court]          decision,  which  is persuasive,  but  is not  binding."   Robert          Friedman, Andreu:   Hearings Ruling  Not Binding, San  Juan Star,                    ______________________________________  ______________          February 12, 1992, at 6.          8 We  found nothing in the record  that granted the Department of          Justice  intervenor   status.    However,  they   have  acted  as          intervenors throughout the case, and we will treat them as such.                                         -10-          Co.  ("Pullman"), 312 U.S. 496 (1941); and (3) whether Rule 23(c)          ___    _______          runs contrary to Press Enterprise II.                           ___________________                    Before discussing these issues we will recount the most          recent development in this convoluted case.                                         -11-                              IV.  THE EL VOCERO APPEAL                              IV.  THE EL VOCERO APPEAL                                   ____________________                    On  July 8,  1992,  the Supreme  Court  of Puerto  Rico          decided the El  Vocero appeal.  El Vocero de  Puerto Rico, et al.                      __________          _________________________________          v. Estado Libre Asociado  de Puerto Rico, 92 J.T.S.  108 (July 8,             _____________________________________          1992).9     The   court  found   that  the   preliminary  hearing          promulgated  by Rule 23 differed from the California one found to          be invalid by Press  Enterprise II, and ruled  it constitutional.                        ____________________          It is crystal clear  that we lack appellate or  non-habeas corpus          jurisdiction over decisions of the courts of any state, including          the  Commonwealth of Puerto Rico.  See District of Columbia Court                                             ___ __________________________          of  Appeals v. Feldman, 460  U.S. 462 (1983);  Rooker v. Fidelity          ___________    _______                         ______    ________          Trust Co., 263 U.S. 413 (1923).  However, the El Vocero appeal is          _________                                     _________          at  the heart of many of appellants'  arguments.  We thus discuss          this ruling, not in  an appellate or supervisory posture,  but to          garner  the Puerto  Rico Supreme  Court's definitive  position on          Rule 23(c) procedure and  to determine how that  position affects          the federal proceedings.                    The case  concerns the same  issue as the  present one:          the constitutionality  of Rule 23(c); however, the  El Vocero and                                                              _________          another reporter brought the case.                    The  Puerto Rico  Supreme  Court, by  a  4 to  3  vote,          concluded that criminal defendants'  right to privacy ("derecho a          la intimidad") and  to a  fair and impartial  trial override  any          right of  access  by  the  public  or press  in  the  Rule  23(c)                                        ____________________          9   This is the Spanish language citation as the decisions are no          longer routinely translated to English.                                         -12-          preliminary hearing.                      A large  part of the  majority opinion is  a historical          and  philosophical  discourse regarding  the  Puerto  Rican legal          system  during  the  Spanish  regime  as  it  relates  to  Press-                                                                     ______          Enterprise II and California's preliminary hearing.  According to          _____________          the court,  California's preliminary hearing had been open to the          public since its  inception in  1872.  However,  the court  found          this not to be the case in Puerto Rico.  See El Vocero, 92 J.T.S.                                                   ___ _________          at 9832-42.  According to the court, shortly after the  change in          sovereignty in 1898,  Puerto Rico  adopted California's  Criminal          Procedure   Code  except  for   those  provisions   dealing  with          preliminary  hearings.  Id. at  9842 (citation omitted).   It was                                  ___          not  until 1964  that  "'fundamentally inspired'  by the  federal                                   ______________________          rule," Rule 23 was adopted.  Id. at 9842.  The court then engaged                                       ___          in  a comparative  analysis of  the Puerto Rican  and Californian          preliminary hearings, concluding that  the local one, contrary to          the one  in California,  "is a limited  procedure, investigative-          judicial in nature, which does  not resemble a trial sufficiently          to have Press-Enterprise II apply."  Id. at 9846.                  ___________________          ___                    Interestingly  enough, however, the  court opinion then          applied the  Press-Enterprise II experience and  logic tests, id.                       ___________________                              ___          at  9847, an analysis which  would seem appropriate before rather          than after reaching a conclusion under that case.  Balancing  the          right  to privacy  in  the Puerto  Rico  Constitution,10 and  the          right  to a fair trial, against the  right of access by the press                                        ____________________          10  See P.R. Const., art. II,   8.              ___                                         -13-          and  public to  the preliminary hearing,  the Puerto  Rican court          reiterated the validity  of the closure provision  of Rule 23(c).          Id. at 9847-52.          ___                       V.  LEGAL ANALYSIS OF THE PRESENT APPEAL                       V.  LEGAL ANALYSIS OF THE PRESENT APPEAL                           ____________________________________               A.  ARTICLE III JURISDICTION               A.  ARTICLE III JURISDICTION                    On  appeal, appellants  argue that "the  district court          lacked  jurisdiction  to  entertain the  complaint  filed against          defendant-appellant in his official  capacity because the parties          have no adverse  legal interest  for Article III  purposes or  no          actual controversy within the meaning of the Declaratory Judgment          Act is present."   Appellants' Brief at p. 11.   Appellants never          raised  this issue  before  the district  court.   Their original          Article  III "case  or controversy"  argument asserted  only that          Rivera-Puig had not personally  suffered any actual or threatened          injury.11   Because  jurisdictional issues  can be raised  at any          stage of a federal case, Morrison  v. Olson, 487 U.S. 654, 669-70                                   ________     _____          (1988), we address this  new argument even though we  consider it          disingenuous.                    In  every recent  major  Supreme Court  case  involving          challenges  to  court rules,  the  enforcing  court was  a  party          defendant.  See Press-Enterprise II, 478 U.S. 1  (1986) (Superior                      ___ ___________________          Court  of California);  Press-Enterprise I,  464 U.S.  501 (1984)                                  __________________          (Superior  Court of California);  Pulliam v. Allen,  466 U.S. 522                                            _______    _____                                        ____________________          11  We note  that appellants'  original claim  lacks merit.   The          district court  correctly found that Rivera-Puig  suffered actual          or threatened injury in that he was prevented from exercising his          qualified First Amendment right of access.                                         -14-          (1984) (Magistrate  for the County of  Culpeper, Virginia); Globe                                                                      _____          Newspaper Co. v. Superior  Court for County of Norfolk,  457 U.S.          _____________    _____________________________________          596 (1982) (Superior Court of Norfolk County, Massachusetts).  In          fact, in appellants' Motion to Dismiss before the district court,          among   the  grounds  urged  as  a  basis  for  that  relief  was          plaintiff's alleged failure to join as indispensable parties "the          superior  courts which  are entertaining  the  criminal actions."          See Motion to Dismiss, at 1-2.          ___                    Moreover, Judge Garc a-Rosario, as  the enforcer of the                                                            ________          Rule 23(c)  closure provisions, has an interest  adverse to those          seeking access to preliminary hearings conducted before him.  See                                                                        ___          Pulliam  v. Allen,  466 U.S.  522 (1984)  (  1983  action against          _______     _____          county magistrate  to  prevent  prospective  enforcement  of  her                                                       ___________          practice    of   incarcerating   persons    waiting   trial   for          nonincarcerable offenses  was proper); Supreme Court  of Virginia                                                 __________________________          v.  Consumers Union  of United  States, Inc.,  446 U.S.  719, 736              ________________________________________          (1980)  (Virginia Supreme  Court and  its  chief justice,  in his          individual and official  capacity, were proper defendants  in a            1983  action  for  declaratory  and  injunctive  relief   against          enforcement of court-promoted rules).          ___________                    Appellants characterize  Judge Garc a-Rosario's actions          with respect to the closure provisions of  Rule 23(c) as those of          "a neutral adjudicator."  By  this allegation appellants seek  to          invoke In re Justices of the Supreme Court of Puerto Rico ("In re                 __________________________________________________   _____          Justices"),  695 F.2d 17,  21 (1st Cir.  1982), in  which we held          ________          that "ordinarily, no 'case or controversy' exists between a judge                                         -15-          who adjudicates claims under a statute and a litigant who attacks          the constitutionality of  that statute."  In  that case, however,          both adjudicative  and enforcement  functions of the  Puerto Rico          justices  were at issue.  In re Justices prohibits a suit against                                    ______________          Judge Garc a-Rosario for any  actions related to his adjudicatory          functions.  However,  it  also  ruled  that,  if  judges  possess          administrative  responsibilities, they  are  proper  parties  for          "case or controversy"  purposes on those issues.  Id.  at 27; see                                                            ___         ___          also Consumers Union, 446 U.S. at 734-37 (judges can be  sued for          ____ _______________          declaratory  and  injunctive  relief  in  connection  with  their          enforcement of court rules).                      Judge Garc a-Rosario is an adjudicator with respect  to          criminal defendants  that come  before him  in Rule 23  hearings.          With respect to  members of  the public seeking  access to  those          hearings, however, he is  an enforcer or "administrator."   Thus,          Judge Garc a-Rosario is  a proper party in this case  under In re                                                                      _____          Justices.            ________                    Moreover,  there  are  two  appellant  parties  in  the                                           ___          present case,  Judge Garc a-Rosario and  the commonwealth's chief                                              ___          enforcement officer,  the Secretary  of Justice, who  has assumed          intervenor status.   See "Notice  of Appeal," "Amended  Notice of                               ___          Appeal," and "Motion  in Opposition to  Urgent Motion under  FRCP          Rule  52(b) Requesting  Injunctive Relief  and Hearing  Thereof."          Thus,  the district  court had  Article III jurisdiction  even if          Judge Garc a-Rivera was an improper party under In re Justices.                                                          ______________                    We thus  come to neuralgic  issues involving principles                                         -16-          of federalism and comity that wander through the El Vocero appeal                                                           _________          like meteors lost in space, and which we must solve before we are          free to consider more mundane questions.               B.  ABSTENTION AND RELATED MATTERS12               B.  ABSTENTION AND RELATED MATTERS                    Appellants argue  that the district  court should  have          abstained  from hearing the case  because the El  Vocero case was                                                        __________          pending  in  the  Puerto Rico  courts.    Appellants offer  three          principle cases in support  of that argument:  Younger,  401 U.S.                                                         _______          37, Colorado River, 424 U.S. 800, and Pullman, 312 U.S. 496.              ______________                    _______                    1. Younger Abstention.                    1. Younger Abstention.                       _______                    Younger,  401 U.S. at  43-54, counsels  against federal                    _______          court injunctions  of state criminal  proceedings pending against          the federal plaintiff, absent  special circumstances.  Huffman v.                                                                 _______          Pursue, Ltd., 420 U.S. 592,  604 (1975), extended this  principle          ____________                                        ____________________          12  Res judicata, estoppel, and similar matters are not at issue.          At  oral  argument,   appellants  specifically  disclaimed  these          defenses.  That is just as well, as they are affirmative defenses          that are waived unless raised in the answer.  See Fed. R. Civ. P.                                                        ___          8(c); Badway v. United States,  367 F.2d 22, 25 (1st  Cir. 1966).                ______    _____________          Appellants failed to raise these defenses in their answer.              Moreover,  even  if  appellants  had  properly  raised  these          defenses, it is doubtful  that they would have been  available in          this  case.  Federal  courts must look  to state law  to see what          effect will be given to state court judgments.  Allen v. McCurry,                                                          _____    _______          449  U.S.  90, 96  (1980); Schneider  v.  Colegio de  Abogados de                                     _________      _______________________          Puerto Rico, 546 F. Supp. 1251, 1269 (D.P.R., 1982).  Puerto Rico          ___________          requires  the  parties in  each case  to  be identical  for these          defenses  to apply.    P.R. Laws  Ann.  tit. 21,    3343  (1991).          Neither plaintiff nor defendant in  the present case are  parties          in the El Vocero  case.  That action  is not a class  action, and                 _________          the  interests of  a newspaper  are not  necessarily the  same of          those of a  reporter.   Thus, the required  "perfect identity  of          parties" does  not exist in this  case.  See In  re Justices, 695                                                   ___ _______________          F.2d  at  26  (where some  plaintiffs  in  federal  suit did  not          participate  in previous state  suit, claims in  federal suit not          barred by res judicata or collateral estoppel).                                         -17-          to  state civil  enforcement  cases pending  against the  federal          plaintiff.   The Supreme Court  further extended the  doctrine to          civil proceedings pending  against the  federal plaintiff  which:          (1) are  judicial  in  nature; (2)  concern  an  important  state          interest; and (3) afford the federal plaintiff  an opportunity to          raise  federal  defenses.13  Middlesex  Ethics  Comm.  v.  Garden                                       ________________________      ______          State Bar Ass'n., 457 U.S. 423, 432 (1981).  Finally, the Supreme          ________________          Court  held  that  the  doctrine includes  state  criminal  cases          pending  against   individuals  who   have  interests   that  are          intertwined  with the  federal plaintiff's  interests.   Hicks v.                                                                   _____          Miranda, 422  U.S. 332,  348 (1974).   Collectively,  these cases          _______          establish the Younger abstention doctrine.                        _______                    The  Younger  abstention   doctrine  does  not   permit                         _______          abstention  in  the present  case  because  the district  court's          ruling did  not enjoin  or interfere  with  any state  proceeding          pending  against  Rivera-Puig  or   anyone  whose  interests  are          intertwined with his.  The criminal cases that Rivera-Puig wishes          to  attend  are  future  preliminary  hearings   of  third-person          criminal defendants.   Cf. Bettencourt v.  Board. of Registration                                 ___ ___________     ______________________          in Medicine, 904 F.2d 772 (1st Cir. 1990).  These defendants have          ___________          no relation whatsoever to Rivera-Puig.                    Similarly, the  El Vocero case was  not pending against                                    _________               _______________                                        ____________________          13   Because the El Vocero proceeding  is not a criminal or civil                           _________          enforcement case, and it  is not "uniquely in the  furtherance of          the state  courts' ability to perform  their judicial functions,"          New  Orleans Pub. Serv.,  Inc. v. New Orleans,  491 U.S. 350, 368          ______________________________    ___________          (1988), we doubt  that the  present case implicates  the type  of          important state interest contemplated in Middlesex Ethics  Comm..                                                   _______________________          However, we need not reach that issue today.                                         -18-          Rivera-Puig or someone whose interests were intertwined with his.          ___________          Appellants point out that Rivera-Puig's employer, who brought the          El Vocero case, had similar interests as Rivera-Puig.  See Hicks,          _________                                              ___ _____          422  U.S. at 348-50 (theater  employees being prosecuted in state          court had intertwining interests with theater which filed suit in          federal court  to enjoin proceedings against them).  However, the          proceedings  in  El Vocero  were not  pending against  El Vocero.                           _________            __________________________          Kercad -Mel ndez  v. Aponte-Roque,  829 F.2d  255, 259  (1st Cir.          ________________     ____________          1989).  "In the paradigm situation calling for Younger restraint,                                                         _______          the  state  defendant brings  a  federal  action challenging  the          statute [which  is  simultaneously being  applied against  him]."          Fern ndez  v. Tr as Monge, 586  F.2d 848, 851  (1978); see, e.g.,          _________     ___________                              ___  ____          Penzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) (federal plaintiff          ___________    ____________          seeking to enjoin state plaintiff from enforcing judgment against          him); Moore  v. Sims,  442 U.S.  415  (1979) (federal  plaintiffs                _____     ____          seeking  to  enjoin  state  proceedings against  them  for  child          abuse);  United Books, Inc. v. Conte, 739 F.2d 30 (1984) (federal                   __________________    _____          plaintiff seeking to enjoin future  prosecutions against it).  In          the  present case, El Vocero  brought the state  court lawsuit to                                        _______          determine the constitutionality of  Rule 23.  The state  court in          El  Vocero was not applying  Rule 23 against  Rivera-Puig.  Thus,          __________          even if  its interests  were intertwined with  Rivera-Puig's, the          present  situation is not  the type  contemplated by  the Younger                                                                    _______          abstention doctrine.                     The  best that can be said in appellants' favor is that          a parallel state suit,  involving parties with similar interests,                                         -19-          has been decided in  a manner adverse to Rivera-Puig's  claims in          the  federal action.   To  find that  the district  court  in the          present  case should have abstained because of the El Vocero case                                                             _________          would make abstention the  rule rather than the exception.   Iowa                                                                       ____          Mut.  Ins. v.  LaPlante,  480 U.S.  9,  22 (1987)  (Stevens,  J.,          __________     ________          concurring in part and dissenting in part) ("The mere fact that a          case involving the  same issue  is pending in  another court  has          never been considered sufficient reason to excuse a federal court          from performing  its duty  'to adjudicate a  controversy properly          before it.'")  (citation omitted);  County of Allegheny  v. Frank                                              ___________________     _____          Mashuda  Co., 360 U.S. 185, 188 (1959); McClellan v. Carland, 217          ____________                            _________    _______          U.S. 268, 282  (1910) ("pendency of an action  in the state court          is  no bar  to  proceedings concerning  the  same matter  in  the          Federal  court having jurisdiction").    The  "mere potential for          conflict in the results  of adjudication does not, without  more,          warrant  staying exercise  of  federal  jurisdiction."   Colorado                                                                   ________          River, 424 U.S.  at 816-17 (citing England v.  Medical Examiners,          _____                              _______     _________________          375 U.S. 411, 415 (1964)).                    Last, but  not least, there  are extraordinary  reasons          present  in  this case  which  militate  against our  restraining          federal court action.   First, we believe that Rivera-Puig  had a          clear First Amendment right which is being flagrantly violated by          the commonwealth authorities.  See Playboy Enter. v. Public Serv.                                         ___ ______________    ____________          Comm'n, 906 F.2d 25,  31 (1st Cir. 1990) (there is a "willingness          ______          of  federal courts,  including  the Supreme  Court, to  entertain          declaratory   and   injunctive   actions    against   prospective                                         -20-          enforcement   of  state   laws  which   threaten  to   discourage          expression").  Second, the nature of the matters being decided in          the  preliminary hearings  in  the commonwealth  courts to  which          Rivera-Puig  sought  access were  not  only  highly charged  with          public interest, but were also  unique and non-recurring.   Thus,          time  was   of   the   essence   in   determining   Rivera-Puig's          constitutional  rights.   Third,  the  matters  had been  pending          before  the commonwealth courts for an inordinate length of time,          for  no  reason   apparent  from  the  record.     These  factors          additionally counsel against Younger abstention in this case.                                       _______                    2. Colorado RIVER Abstention.                    2. Colorado RIVER Abstention.                       ______________                    Under Colorado River, 424 U.S. at 813 (citing County of                          ______________                          _________          Allegheny v. Frank Mashuda  Co., 360 U.S. 185, 188-89  (1959)), a          _________    __________________          federal   court   may   ordinarily   abstain   under  exceptional          circumstances.    Because a  "federal  court's  duty to  exercise          jurisdiction  is relaxed  in the  declaratory judgment  context,"          Fuller Co. v. Ram n I.  Gil, Inc., 782 F.2d 306, 308-09  n.3 (1st          __________    ___________________          Cir. 1986),  a court may  abstain in declaratory  judgments under          less than exceptional circumstances.  Id.                                                  ___                    Recently, in  Burns v. Watler,  931 F.2d 140,  146 (1st                                  _____    ______          Cir. 1991), we identified  a number of factors that  have emerged          as the core of the Colorado River abstention doctrine:                             ______________                      (1)  whether  either  court  has  assumed                      jurisdiction   over   a   res;  (2)   the                      inconvenience of the  federal forum;  (3)                      the  desirability  of avoiding  piecemeal                      litigation;  (4) the  order in  which the                      forums obtained jurisdiction; (5) whether                      federal  law or  state law  controls; and                      (6)   whether   the   state  forum   will                                         -21-                      adequately protect the  interests of  the                      parties. . . .          (citations omitted).  We  also found that we should  consider the          principles  underlying  removal  jurisdiction  and   whether  the          federal litigation is contrived or vexatious.14  Id.                                                             ___                    This  list  is  not   exhaustive,  id.,  and  a  strict                                                       ___          numerical  scorecard  of  these  points   is  not  determinative.          However,  it  is  helpful  in  assessing  whether  abstention  is          appropriate.   In balancing these  factors, we conclude that they          do  not favor  abstention.   First,  there  is no  res  involved.          Second,  we  can  perceive   no  additional  inconvenience   from          litigating in the federal  forum as opposed to  the commonwealth.          Third,  there is  no piecemeal  litigation  because each  case is          self-contained and involves different parties and facts.  Fourth,          federal law controls the outcome of the underlying issue.  Fifth,          there is no allegation or evidence that the federal litigation is          vexatious  or contrived, and this  case was not  removed from the          state courts.                    Moreover,  the sequence  in which  the forums  obtained          jurisdiction  is irrelevant  because this  litigation and  the El                                                                         __          Vocero case are  not identical.   There are different  plaintiffs          ______          and different defendants,  and the El Vocero case is  not a class                                             _________          action.  Furthermore, although the legal principles are the same,          the factual basis giving rise  to the present case, and  those in                                        ____________________          14  These  factors "run  substantially parallel  to the  criteria          that  historically  have  been  deemed  relevant  in  determining          whether  to accept  or decline  jurisdiction over  a [declaratory          judgment action]."  Fuller Co., 782 F.2d at 308-09 n.3.                              __________                                         -22-          the  El Vocero case, differ.  Finally, the right of accessibility               _________          espoused  by Press-Enterprise II is not limited to the press, but                       ___________________          also  includes the  "general public."   Press-Enterprise  II, 478                                                  ____________________          U.S.  at 8.    Thus, Rivera-Puig,  either  in his  capacity  as a          professional reporter, or as part of the "general public," should          not be restricted in  bringing a federal suit to  protect against          the violation of his constitutional rights, irrespective of other                           ___          suits filed by other members of the press or general public.                           _____                    With respect to whether the state forum will adequately          protect the interests of the parties, although some of the events          reported  in this case are disturbing indeed, we refuse, at least          as  the  record  now stands,  to  "rule  on  the assumption  that          [commonwealth]   judges   will   not   be   faithful   to   their          constitutional responsibilities."  Huffman  v. Pursue, Ltd.,  420                                             _______     ____________          U.S. at 611; see  also In re Justices, 695 F.2d at  23, ("[I]t is                       _________ ______________          ordinarily presumed that judges will comply with a declaration of          a      statute's     unconstitutionality      without     further          compulsion.").15                                          ____________________          15   We do not question  the power of the  commonwealth courts to          reach  their  own   conclusions  in  the   separate  commonwealth          proceedings.   Although  we do  not believe  that the  Rule 23(c)          closure provisions  are  in  any  way ambiguous,  the  El  Vocero                                                                 __________          opinion is helpful because it definitively expresses the views of          the  highest Commonwealth court regarding its view of the Rule 23                                                    ___          proceedings and of the validity of the closure provisions of Rule          23(c), thus  leaving no doubt as to how it will be interpreted in          that jurisdiction.  Cf. Huffman, 420 U.S. at 616 n.2 ("Abstention          ____                ___ _______          [may  be]  appropriate where  authoritative  resolution  by state          courts of ambiguities  in a state statute  is sufficiently likely          to avoid or significantly modify federal  questions raised by the          statute. .  . .  Abstention is  justified in such cases primarily          by   the  policy   of   avoidance  of   premature  constitutional          adjudication.").                                         -23-                    In  conclusion,  the  Colorado  River  factors  do  not                                          _______________          warrant abstention in the present case.                    3. Pullman Abstention.                    3. Pullman Abstention.                       _______                    Appellants contend that the district court  should have          abstained under  the doctrine enunciated in  Pullman.  Appellants                                                       _______          have  waived  this argument  by failing  to  raise it  before the          district court.  E.g.,  Boston Celtics Ltd. Partnership  v. Shaw,                           ____   _______________________________     ____          908  F.2d  1041,  1045  (1st  Cir.  1990).    However,  even  had          appellants  properly argued  for  Pullman  abstention below,  the                                            _______          argument would fail.                    Under Pullman,  312 U.S. at 501,  federal courts should                          _______          abstain when state law  is uncertain, and a clarification  of the          law in a pending  state court case might make the federal court's          constitutional ruling unnecessary.  The Pullman doctrine rests on                                                  _______          the  desirability  of  having federal  courts  avoid  unnecessary          rulings  on  constitutional issues.    Wright,  Miller &  Cooper,          Federal Practice and Procedure,   4241 at 33 (2d ed. 1988).          ______________________________                    To  warrant  Pullman abstention:    (1)  there must  be                                 _______          substantial uncertainty  over the  meaning  of the  state law  at          issue;  and (2) there must  be a reasonable  possibility that the          state  court's clarification of the law will obviate the need for          a  federal constitutional  ruling.   Hawaii Housing  Authority v.                                               _________________________          Midkiff, 467 U.S. 229, 236-37 (1983).          _______                    When   the   federal  claim   is  not   entangled  with          complicated  unresolved  state   law  questions,  abstention   is                                        ____________________                                                   -24-          inappropriate.   Wisconsin  v. Constantineau,  400 U.S.  433, 438                           _________     _____________          (1971).   Indeed, abstention in  cases where state  law questions          are  unambiguous  is  impermissible  because  it  "would  convert          abstention from an exception into a general rule."  Examining Bd.                                                              _____________          of Engineers, Architects & Surveyors v. Flores de Otero, 426 U.S.          ____________________________________    _______________          572,  598 (1976); see also Harris County Comm'rs. Court v. Moore,                            ________ ____________________________    _____          420 U.S.  77, 84-85 (1975).   A federal court  should not abstain          simply to give a  state court the first opportunity  to vindicate          federal rights.  McNeese v. Board of Education, 373 U.S. 668, 672                           _______    __________________          (1963).                    No  uncertainty surrounds the  meaning of  Rule 23(c)'s          closure  provision.    The  rule explicitly  states  that  "[t]he          [preliminary]  hearing  shall   be  held  privately   unless  the                                  ___________________________          defendant  requests  at  the  commencement  thereof  that  it  be          public." (emphasis added).   This issue has long been  pending in          the commonwealth courts, and Rivera-Puig and the public have been          suffering irreparable constitutional harm by  appellants' refusal          to comply with the law of the land.                    Moreover, "[a] district court stay pursuant to  Pullman                                                                    _______          abstention  is  entered with  the  expectation  that the  federal          litigation will resume in  the event that the plaintiff  does not          obtain relief in  state court  on state-law grounds."   Moses  H.                                                                  _________          Cone Memorial Hosp. v. Mercury Construction Corp., 460 U.S. 1, 10          ___________________    __________________________          n.9  (1983); see also England  v. Louisiana State  Bd. of Medical                       ________ _______     _______________________________          Examiners,  375  U.S. 411  (1964).   Even  after a  Pullman stay,          _________                                           _______          Rivera-Puig  would be back in  federal court after  the El Vocero                                                                  _________                                         -25-          decision.                    Abstention, under  any of  its multiple  doctrines, was          inappropriate  in this  case.16   We thus  arrive at  the central          issue of  the case,  the constitutional  validity of the  closure          provisions of Rule 23(c).               C.  RULE 23(c)               C.  RULE 23(c)                    Having  determined  that this  controversy  is properly          before  us,  we  are   duty-bound  to  independently  assess  the          constitutionality  of Rule  23(c).17    Press-Enterprise II,  478                                                  ___________________          U.S. at 7.                      Rights protected by the Free Speech Clause of the First          Amendment  apply  in  Puerto  Rico.    Posadas  de   Puerto  Rico                                                 __________________________                                        ____________________          16  Appellants also  suggest that the factors elaborated  by this          court in El D a v. Hern ndez Col n, 963 F.2d 488  (1st Cir 1992),                   ______    _______________          to guide the discretion of district courts in determining whether          to grant  declaratory relief require  us to reverse  the district          court's grant of declaratory relief here.  These factors include:          (1) the general policy that unsettled questions of constitutional          law should be  addressed only when absolutely necessary;  (2) the          extent to which a federal case is ripe for adjudication; (3)  the          desirability  of  abstention;  (4)  comity  between  federal  and          commonwealth  courts;  and  (5)  the equity-like  nature  of  the          action.   Id. at 494-98.   For  the reasons discussed  herein, we                    ___          find El D a distinguishable  from the facts of the  present case.               ______          Rather than compelling  us to reverse the  district court's grant          of declaratory relief, we think that the principles elaborated in          El D a  support the district court's  conclusion that declaratory          ______          relief was warranted.          17  As we have indicated, the Puerto Rican Supreme Court's vision          of  the  Rule  23(c)   preliminary  hearing  aids  our  analysis.          However, Spanish  19th century  criminal procedure cannot  be the          litmus  test against which we  measure the validity  of the rule.          Indeed,  even Spain's  constitutional courts  look to  the United          States Supreme Court for precedent.  See M. Rodr guez Pi ero, Los                                               ___                      ___          Tribunales Constitucionales en Europa, 57 Rev. Jur. U.P.R.  5, 31          _____________________________________          (1988)  (The author is an associate justice on the Constitutional          Court of Spain).                                         -26-          Associates v. Tourism Co.,  478 U.S. 328,  331 (1986).  Thus  the          __________    ___________          principles  espoused in  Press-Enterprise II  have full  vigor in                                   ___________________          this case, and we must apply the experience and logic tests.  See                                                                        ___          Press-Enterprise II, 478 U.S. at 9.          ___________________                    Under these  tests, the first  consideration is whether          there  is   a  tradition  of  accessibility  to  the  Rule  23(c)          preliminary hearing.  In El Vocero, the Puerto Rico Supreme Court                                   _________          concluded  that Puerto  Rico's preliminary  hearings have  always          been  private.   However, Press-Enterprise  II, 478  U.S. at  10,                                    ____________________          refers  to the  experience  in  that  type  or  kind  of  hearing                                                ______________          throughout  the United  States, not  the experience  in only  one          jurisdiction.    Indeed,  the  Puerto  Rico  preliminary hearings          essentially  duplicate the  California  and  federal  preliminary          hearings,  which  the  Supreme   Court  determined  have   almost          uniformly been open.   Id. at 10-11.  Thus,  there is a tradition                                 ___          of openness that applies to the Rule 23(c) preliminary hearing.                    The  second  consideration  is  "whether  public access          plays a significant positive role"  in the Rule 23(c) preliminary          hearing.   Id. at 8.   According  to the Supreme  Court, criminal                     ___          trials  pass  this test.    Id. at  11-12.   Like  the California                                      ___          preliminary  hearing at  issue in  Press-Enterprise II,  the Rule                                             ___________________          23(c) preliminary hearing  is sufficiently like  a trial to  pass          the test as well.                        The hearings  are held before  a detached                      neutral  magistrate; both  prosecutor and                      defense counsel are present; evidence may                      be  presented  by  both sides,  including                      exculpatory  evidence   by  the  accused;                      witnesses  are  heard and  can  be cross-                                         -27-                      examined;  and based on the evidence, the                      magistrate will either  hold the  accused                      over for  trial or exonerate and  set him                      or  her  free.    It is  clear  that  the                      magistrate is  performing an adjudicative                      function in the preliminary  hearing and,                      like  California, this hearing may be the                      only formal judicial proceeding,  both in                      the cases where the accused pleads guilty                      and  in those  cases  where  no  probable                      cause is found.          Rivera-Puig, 785 F. Supp. at 289.  Appellants have not challenged          ___________          these conclusions,  and we  find that they  are uncontrovertible.          Thus,  under  the experience  and  logic  tests, the  Rule  23(c)          preliminary hearings trigger First Amendment protection.                      Moreover,  Press Enterprise II  decides this exact case                               ___________________          because the Rule 23(c)  preliminary hearings are almost identical          to the California preliminary  hearing that was at issue  in that          case.  The following comparison between the California and Puerto          Rico proceedings demonstrates that similarity:                      (1)  Both proceedings  are held  before a                      neutral,    detached   magistrate,    who                      performs  an   adjudicative  function  as                      judge,   not   as   investigator  or   as                      interested  party.   See People  v. Opio-                                           ___ ______     _____                      Opio, 104  P.R. Dec.  65 (Off.  Trans. at                      ____                      65)  (1975); Young  v. Superior  Court of                                   _____     __________________                      San  Joaquin  County, 253  Cal.App.2d 848                      ____________________                      (1967).                      (2) The judge must  rule on issues of law                      as applied  to  the facts  of each  case.                      See People v. Opio-Opio, 104 P.R. Dec. 65                      ___ ______    _________                      (Off.  Trans.  at  65) (1975);  Young  v.                                                      _____                      Superior Court of San Joaquin County, 253                      ____________________________________                      Cal.App.2d 848 (1967).                      (3) Both hearings result  in a ruling  of                      probable cause to hold over for trial, or                      in the  dismissal of charges  against the                      accused.  People v. Rodr guez-Aponte, 116                                ______    ________________                      P.R.   Dec.  653  (Off.  Trans.  at  850)                                         -28-                      (1986); People v. Uhlemann, 511 P.2d 609,                              ______    ________                      610 (Cal. 1973).                      (4)  Ultimate guilt  or innocence  of the                      accused  beyond  reasonable doubt  is not                      decided at this stage; the hearing offers                      the  prosecutor  the opportunity  to show                      that  there  exists  probable   cause  to                      believe   that   an   offense  has   been                      committed and that the  accused committed                      it.  People  v. Figueroa-Castro, 102 P.R.                           ______     _______________                      Dec. 279  (Off.  Trans. at  352)  (1974);                      Cal. Penal Code.   866.                      (5) Due to dismissal  of charges, and the                      plea bargaining generated after a finding                      of probable  cause, often the  hearing is                      the  only opportunity  for the  public or                      the press to  observe the functioning  of                      the criminal process  and the  government                      officials  involved.    People  v.  Cruz-                                              ______      _____                      Justiniano, 116 P.R. Dec. 28 (Off. Trans.                      __________                      at 35)  (1984); San Jose  Mercury-News v.                                      ______________________                      Municipal Court, 638 P.2d 655,  659 (Cal.                      _______________                      1982).                      (6) The  accused  may appear  before  the                      judge  assisted by  counsel, who  has the                      right   to   cross-examine  the   state's                      witnesses,    present    evidence,    and                      otherwise   defend   his  client   within                      formalities similar to  trial.  El Vocero                                                      _________                      de Puerto Rico, 92 J.T.S. 108 (1992).                      ______________                      (7) The accused  may present  exculpatory                      evidence,  as  well as  certain defenses.                      People v. V lez-Pumarejo,  113 P.R.  Dec.                      ______    ______________                      349 (Off. Trans. at 455) (1982); Jennings                                                       ________                      v. Superior Court of Contra Costa County,                         _____________________________________                      428 P.2d 304, 312 (Cal. 1967).                      (8) Both judicial proceedings provide due                      process   to  the  accused  in  order  to                      minimize   the    possibility   that   an                      individual will  be submitted arbitrarily                      to the  rigors of  trial.  See  People v.                                                 ___  ______                      L pez-Camacho,  98  P.R.  Dec.  687,  689                      _____________                      (1970);  Jones v.  Superior Court  of San                               _____     ______________________                      Bernardino, 483 P.2d 1241 (1971).                      __________                      (9)  The  People  must  provide   to  the                      accused the sworn statements of witnesses                                         -29-                      against  him.     In  Puerto  Rico,   the                      documents  are shown  at the  hearing; in                      California,    the   judge    reads   the                      statements to the  accused.  Rule  23(c);                      Cal. Penal Code.   864.                      (10)  The prosecutor  does  not  have  to                      submit all  the evidence  he has  at this                      stage; the People can rest when he  feels                      that   sufficient   evidence   has   been                      presented.  See V lez-Pumarejo,  113 P.R.                                  ___ ______________                      Dec.  349; McDaniel v.  Superior Court of                                 ________     _________________                      San  Diego  County,  55   Cal.App.3d  803                      __________________                      (1976).                      (11)   Evidence    rules   are   followed                      substantially   in  both   jurisdictions.                      Rule  23;  People v.  Esteves-Rosado, 110                                 ______     ______________                      P.R. Dec. 334 (Off. Trans. at 424 (1980);                      People  v.  Schuber,  163 P.2d  498,  499                      ______      _______                      (Cal. 1945); Cal. Penal Code.   872.5.                      (12) In both  jurisdictions, the  hearing                      must  be held within  "speedy trial" time                      limitations.    Opio-Opio, 104  P.R. Dec.                                      _________                      65;  P.R. Laws  Ann. tit.  34 App  II. R.                      64(n)(4) and (5);   825 Cal. Penal Code.                      (13) If  the accused desires  to discover                      evidence not used in the  hearing against                      him,   he   may   use   other   discovery                      mechanisms which are available  after the                      hearing is held.   See  Rodr guez-Aponte,                                         ___  ________________                      116  P.R.  Dec. 653;  People  v. Superior                                            ______     ________                      Court  of  Shasta County,  264 Cal.App.2d                      ________________________                      694 (1968).                      (14)  The prosecutor  can  file a  second                      time if he does  not prevail.  P.R. Laws.                      Ann.  tit.  34 App  II  R.  24; See  also                                                      ___  ____                      People  v.  F lix-Avil s,  91  J.T.S.  50                      ______      ____________                      (1991); People v. Uhlemann, 511  P.2d 609                              ______    ________                      (1973); Cal. Penal Code.   871.                      (15)  Neither proceeding is  similar to a                      grand  jury  investigation.    Rodr guez-                                                     __________                      Aponte,   116   P.R.  Dec.   653;  Press-                      ______                             ______                      Enterprise II, 478 U.S. 1.                      _____________                      (16)  Both  are   statutory  in   nature.                      Rule 23  established  the  proceeding  in                      1964; the original California statute was                                         -30-                      adopted in 1851.                    There is  no substantial difference between  the Puerto          Rico and  California preliminary  hearings with respect  to basic          scope  or  purpose,  importance  of  the  proceeding  within  the          judicial setting,  or legal context within  the criminal process.          Distinguishing these two proceedings is an attempt to distinguish          the "indistinguishable."   Chard n v.  Fern ndez, 454  U.S. 6,  8                                     _______     _________          (1981).                    Finally,  the  hearings  to  which  Rivera-Puig  sought          access  were  highly charged  with  public interest.    Thus, the          "'community therapeutic value' of openness," Press-Enterprise II,                                                       ___________________          478 U.S.  at 13 (quoting  Richmond Newspapers, Inc.  v. Virginia,                                    _________________________     ________          U.S.  555, 570 (1980)), helps  to "'safeguard against the corrupt          or overzealous  prosecutor and  against the compliant,  biased or          eccentric judge,'" id. at 12-13 (quoting Duncan v. Louisiana, 391                             ___                   ______    _________          U.S. 145, 156 (1968)),  thus giving the "'appearance  of fairness          so essential  to public confidence  in the system.'"   Id.  at 13                                                                 ___          (quoting  Press-Enterprise I,  464 U.S.  at 508).   Thus,  public                    __________________          access to preliminary  hearings as they  are conducted in  Puerto          Rico  will play  a particularly  significant role  in the  actual          functioning of the process.                                   VI.  CONCLUSION                                   VI.  CONCLUSION                                        __________                    We conclude that the qualified First Amendment right of          access to criminal proceedings applies to preliminary hearings in          Puerto  Rico as they  are conducted  under Rule  23(c).   We thus          affirm   the   judgment   of   the   district   court   declaring          ______                                         -31-          unconstitutional the provisions of that rule.                    We  remand this case to the district court to take such          actions as are necessary to achieve compliance with this judgment          "with  all deliberate speed."   Cf. Brown v.  Board of Education,                                          ___ _____     __________________          349 U.S. 294, 301 (1955).   If required by the circumstances, the          district court  shall issue injunctive relief.  See Supreme Court                                                          ___ _____________          of Virginia v. Consumers  Union of United States, Inc.,  446 U.S.          ___________    _______________________________________          719, 734-37 (1980).                    The judgment of the district  court is affirmed and the                                                           ________          case  is remanded for action consistent with this opinion.  Costs                   ________          are granted to appellee.                    Affirmed and remanded.                    _____________________                                         -32-
