Court upholds gag order on participants in murder case

MINNESOTA–In mid-March, the state Court of Appeals in St. Paul unanimously upheld a gag order preventing the attorneys, police and defense investigators from talking to the media during the trial of Keith Henderson, who is accused of killing a police informant.

The court held that because the order restricts participants but does not limit access to any public record or any part of the trial, a petition for review is not the appropriate remedy. According to the court, the newspaper which had intervened in the case failed to show that the gag order was “so broad as to constitute an unconstitutional restriction on speech.”

However, the mid-level appellate court did clarify the trial court’s blanket prohibition against attorneys talking to the media. The court stated that attorneys are barred by an ethical rule from making extrajudicial statements that have a “substantial likelihood of materially prejudicing a pending criminal jury trial.” The court noted that the ethical rule is sufficiently narrow to constitute a permissible restraint on participants’ speech, and that the district court’s order “should not be construed as restricting the speech of participants beyond the limitation” provided in the rule.

Henderson is accused of killing Juwan Gatlin in August 1998 after Gatlin testified against a member of his own gang in a murder case. In late February, District Judge Thor Anderson in Minneapolis issued the gag order after Henderson’s attorney, Richard Trachy, indicated that he was going to be a guest on a talk-radio show. Anderson issued an order directing the attorneys, police and defense investigators involved in the case not to talk to the media about any aspect of the case.

The Star Tribune subsequently moved to intervene in the case and its motion was granted. In early March, the newspaper argued that the gag order was unconstitutional because it was too broad and restricted all comments in the case. However, Anderson upheld his gag order in early March. In his ruling, Anderson said publicity was spreading in the case and he did not want to create a situation where the case was going to be tried in the media. Anderson said that he had difficulty viewing the order as prior restraint on the media.

Additionally, Anderson ruled that an anonymous jury would be used in this case. Anderson told lawyers that the jury pool of 80 people were told not to tell others in the pool their names.

In late February 1999, The Star Tribune filed a petition for a writ of prohibition with the Minnesota Court of Appeals in St. Paul to restrain the district court from enforcing its gag order on the attorneys, police and defense investigators in the case. (Minnesota v. Henderson; Media Counsel: John Borger, Minneapolis)