Good judges, denying gags

By Ashley Gauthier

Gag orders may sometimes seem like an inevitable part of a reporter's life. In hundreds of cases -- high profile or not -- judges routinely issue gag orders in the name of "preserving a fair trial" or "ensuring an untainted jury pool." In fact, a computer search turned up hundreds of cases in which gag orders were issued, but in about 25 instances judges denied a request to gag the participants.

Usually, judges issue gag orders because a criminal defendant has a Sixth Amendment right to a fair trial and the judge fears that pre-trial publicity will jeopardize that right. However, gag orders should be imposed only when there is a compelling reason -- such as when the right to a fair trial is imminently threatened -- and when no less restrictive means could prevent harm. A judge has many less restrictive alternatives to choose from, including extensive voir dire, changes of venue and admonishments to the jury to stay away from news reports. Nevertheless, many judges choose to impose gag orders.

Judges in at least eight states have diverged from the common practice of issuing gag orders. The small number of them make the decisions of these members of the bench noteworthy.

The largest number of gag order denials found in our search was from Florida.

The most recent example involved Kathie Lee Gifford's lawsuit against the National Examiner. The Examiner claimed that Gifford's 10-year old son was a "monster," and Gifford sued for libel.

Gifford sought a gag order barring the parties from speaking publicly about the case, fearing it would lead to "frenzied media interest." Circuit Judge Timothy McCarthy denied the request and quipped, "you should have been here during the election."

Martin Reeder, an attorney for the Palm Beach Post, attended the hearing in West Palm Beach and told the Reporters Committee that the judge did not believe it was necessary to issue a gag order when the parties could, on their own initiative, simply refuse to answer questions from the press. The judge did not feel obligated to formally endorse the parties' decision to avoid publicity, Reeder said.

Another recent case in Orlando, Fla., involved the divorce of a descendant of John D. Rockefeller. A great-great-grandson, George O'Neill, sought a gag order after his wife Amy O'Neill granted an interview to Vanity Fair magazine. Orange County Circuit Judge Jay Cohen denied the gag order, although he cautioned the parties that media attacks on each other could backfire when the court determines who gets custody of their children.

In 1997, Circuit Judge Sherra Winesett denied a gag order in a sexual abuse case brought in Punta Gorda, Fla., against a Catholic priest and the local diocese. The church's attorneys asked for a gag order, but the judge ruled that there was no evidence of a "reasonable likelihood of prejudice." Winesett reminded the lawyers to follow the ethical rules pertaining to pretrial publicity.

Similarly, in 1996, Circuit Judge Donald Pellecchia denied a gag order sought in the murder case against Jason Simons because he found no factual basis to support it. The Sarasota Herald-Tribune had intervened in that case and argued that a gag order would violate its First Amendment right to gather news.

In 1995, Circuit Judge Robert Young, in Bartow, Fla, denied a gag order in the case of a man accused of sodomizing and smothering to death an 8-year-old boy. The judge held that "the record before the court does not yet show the kind of pervasive and vilifying publicity which would justify the Draconian measures sought" by the defendant. The judge cautioned the lawyers to comply with the ethical rules regarding pretrial publicity, but rejected the request to place a gag order on the sheriff's officials who stated that "the public has a right to know what's going on."

Circuit Judge Richard Tombrink Jr. denied a gag order in a contentious 1994 lawsuit between the Hernando County School Board and a contractor. The school board accused the contractor of shoddily constructing two schools, and the contractor accused the school board of using news coverage to influence the outcome of the case. The judge denied the gag order, apparently agreeing with arguments that the news coverage came from regular school board meetings. Gagging the parties would have not only limited access to the public trial but also to school board decisions.

Gainesville Circuit Judge Stan Morris denied a gag order in the notorious 1992 case of Danny Rolling, who was charged with killing five students. In asking for a gag order, Rolling's attorney said there had already been massive media coverage of the case and the defendant's right to a fair trial was compromised. However, the judge ruled that the request was "too broad and premature."

Arizona judges also seem to give consideration to First Amendment concerns. Gag orders were denied in two high-profile cases last year.

Special Master Eino Jacobson refused to issue a gag order in a fight between large utility companies. Southwest Gas and Southern Union Co. were parties in a Phoenix lawsuit over the control of Southwest Gas. Attorneys for Southwest Gas sought a gag order because someone was anonymously posting information about the case on the Internet and because Southern Union had issued press releases about the case. Southwest Gas was particularly concerned about the release of discovery information to the public.

Jacobson noted that discovery information is generally not protected by the First Amendment, but he nevertheless ruled that one must still show "good cause" before imposing a prior restraint on the media or preventing the parties from discussing the case. Jacobson ruled that no "good cause" was shown and therefore refused to issue the gag order.

Another recent case in Phoenix involved the death of Arizona State University student John Jardine IV. Jardine's family sued various defendants, claiming that Jardine died because he was handcuffed and suffocated during an epileptic seizure. Newspapers had written extensively about the case and the ABC program "20/20" taped a segment discussing the incident. The defendants sought a gag order to prevent the Jardine family from speaking to the media, but Judge Barry Schneider denied the request.

The family's attorney claimed in motion papers that the defendants were seeking a gag order as an excuse to not talk to the media about the case. "Defendants can either respond to (media) inquiries or not as they see fit. They cannot, however, ask the court to take over their public relations work by entering a prior restraint order gagging all parties and their counsel," he wrote.

In 1993, Maricopa County Judge John Sticht twice denied a gag order in a lawsuit between two state employees. Donna Beletz alleged that she was fired from her job with the Department of Education because she would not do campaign work on state time for Superintendent of Public Instruction C. Diane Bishop. Bishop's lawyers contended that Beletz gave discovery information to the media and requested a gag order. Sticht refused to issue an order and also refused to seal the depositions.

Gag orders were denied in other high-profile cases in other states:

In California, the Cannabis Buyer's Club case, which was argued before the U.S. Supreme Court this term, was initially filed in Alameda County Superior Court in Oakland. The attorney general sought a gag order claiming that pretrial publicity could prejudice potential jurors. However, Judge Larry Goodman denied the gag order because there was no evidence of any prejudice to the jury pool. The judge also noted that the attorney general had publicized the case, which perhaps weakened the attorney general's plea.

A Bentonville, Arkansas, judge denied a gag order in the case against Davis Carpenter for murder and rape. Carpenter and his lover, Joshua Brown, were arrested for raping and killing a 13-year-old boy. Brown admitted to the crimes, but claimed Carpenter forced him to do it. Circuit Judge David Clinger denied a gag order that would have prevented all parties from speaking to the media about the case.

Similarly, a West Virginia judge in Fairmont denied a gag order in the August 2000 murder trial of two 17-year-olds charged with killing a gay black man. Circuit Judge Rodney Merrifield said, "I have not and will not issue a gag order." Merrifield also met with reporters to explain trial procedure and rules for attending the trial.

In Atlanta, Georgia, last October, the murder trial of Wesley Harris was kept open. Superior Court Judge Melodie Snell Conner allowed the media to attend the trial and refused to enter a gag order, despite requests from defense counsel.

In Beaumont, Texas, a lawsuit was filed in federal court against Compaq Computer that alleged the company knowingly made computers with a flaw that might corrupt data stored on disks. Compaq sought a gag order restricting all public statements about the case, but U.S. District Judge Thad Heartfield denied the request.

Finally, in 1997, a judge in New York denied a gag order sought by defense counsel in a burglary case. The defense lawyer argued that the prosecutor was speaking to the media to drum up public support for a severe sentence. The lawyer asked the judge to impose a gag order on the prosecutor. Nassau County Judge Paul Kowtna reasoned that a judge may not issue a prior restraint unless there is a "showing of necessity for such restraint." The judge found that there was no reason for a gag order because there had been no "public clamor" against the defendant. Furthermore, the judge correctly noted that the sentencing would be determined by a judge, and the Rules of Judicial Conduct require a judge to make decisions without regard to partisan interest, public clamor, or fear of criticism. The judge therefore believed that the prosecutor's efforts would not make a difference. The case, People v. Hepworth, was reported in the New York Law Journal.