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Appellate court eases standard for issuing gag orders

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  1. Court Access

    NMU         FIFTH CIRCUIT         Secret Courts         Jul 12, 2000    

Appellate court eases standard for issuing gag orders

  • A three-judge panel ruled that federal trial judges in the circuit may place gag orders on lawyers, parties and witnesses if there is a “substantial likelihood” of damage to a fair trial.

The U.S. Court of Appeals in New Orleans (5th Cir.) established a new standard for gag orders on lawyers, parties and witnesses that makes First Amendment challenges to such orders less likely to succeed in that circuit.

A three-judge panel of the court held in a July opinion that if the trial court concludes only that a “‘substantial likelihood’ (or perhaps even merely a ‘reasonable likelihood,’ matter we do not reach) that extrajudicial commentary by trial participants will undermine a fair trial, then it may impose a gag order on the participants, as long as the order is also narrowly tailored and the least restrictive means available.”

The “substantial likelihood” standard means that trial judges in the Fifth Circuit — which covers Texas, Louisiana and Mississippi — will be able to impose gag orders on attorneys, parties and witnesses more easily than in circuits — such as the Sixth, Seventh and Ninth — that require trial courts to find the existence of a “clear and present danger” or “serious and imminent threat” of prejudice to a fair trial before they can issue a gag order on trial participants.

The decision does not affect the extremely limited ability of trial courts to restrain the media from publishing information.

The new standard was announced in an opinion analyzing the gag order imposed in the pending criminal case against Louisiana Insurance Commissioner James Harvey Brown, former Louisiana Gov. Edwin W. Edwards and four co-defendants. The appellate court found that the gag order met the “substantial likelihood” standard and therefore did not violate the First Amendment.

In September 1999, Brown, Edwards and four other co-defendants were indicted in federal court in Baton Rouge on numerous counts of conspiracy, mail and wire fraud, insurance fraud, making false statements and witness tampering. Brown’s case was one of three trials involving improper use of political power in Louisiana. One of the three trials already concluded with a guilty verdict against Edwards, among others. Brown’s trial is slated to begin on Aug. 21.

In a news conference after the indictment was issued, Brown declared his innocence as well as his belief that he was the victim of a “political drive-by shooting” at the hands of “an out-of-control prosecutor.”

That same day, the district court entered a gag order prohibiting parties, lawyers and potential witnesses from giving “any extrajudicial statement or interview” to “any public communications media” about the trial that “could interfere with a fair trial or prejudice any defendant, the government, or the administration of justice.” The order provides that “[s]tatements or information intended to influence public opinion regarding the merits of this case are specifically designated as information which could prejudice a party.”

The order allows the discussion, “without elaboration or any kind of characterization,” of the general nature of any allegations or defenses, information contained in the public record, scheduling information, any decision or order by the court that is a matter of public record and “the contents or substance” of any motion filed in the case, to the extent the motion is a matter of public record.

(United States v. Brown) GK


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