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Gag order cannot issue to protect judge from bias

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  1. Court Access

    NMU         THIRD CIRCUIT         Secret Courts         Aug 29, 2001    

Gag order cannot issue to protect judge from bias

  • A federal appeals court threw out a gag order against an attorney, finding that the trial court judge could not issue the order merely because he did not want to read about the case before he heard it in his courtroom.

A judge cannot impose a gag order on an attorney to bar public discussion in the news media because he believes it might influence his own decision, the U.S. Court of Appeals in Philadelphia (3rd Cir.) ruled August 27. Gag orders might be appropriate to keep a jury pool from being influenced, the court said, but judges, unlike juries, are expert at setting aside personal biases and prejudices, at closing eyes and ears to irrelevancies and at focusing only on the relevant in court proceedings.

The unanimous three-judge panel vacated a gag order imposed by a federal District Court judge in December after The Philadelphia Inquirer wrote that a federal gambling case against the son of jailed mob boss Nicodemo “Little Nicky” Scarfo could be the “first legal test of cutting edge cyber-surveillance technology.”

Judge Nicholas Politan had slapped the gag order on attorney Donald Manno, after Manno spoke to the Inquirer criticizing the FBI’s attaching a “keystroke logging device” on a computer on which gambling records allegedly were stored. Manno called the FBI’s surveillance, which allowed the agency to decipher passwords and encryption codes, a “Big Brother” invasion of his former client’s privacy, capturing not only the specific records sought but every other message on the computer as well.

Politan chastised Manno in a hearing the day after the news article ran, saying he read about the case in the newspaper before he even saw pleadings in the case against the younger Scarfo. Ordering Manno not to discuss the case with the press, the judge said, ” I don’t want people to tell me I got a cutting-edge cyberspace, whatever, when I haven’t seen a piece of paper that reflects anything about this case.”

That hearing was held to assure that the younger Scarfo had new counsel. Manno had been disqualified because he had previously represented one of the witnesses slated to testify against Scarfo.

At another hearing a month later, Politan said he had not modified his oral gag order “one iota,” although he did not seal any records.

“When you come up in my land, we do things orderly, we do things nicely, and civilly, and we don’t try cases in the press,” he said.

In March, Politan entered a written order prohibiting any attorney who had been involved in the case from discussing with the press any matter concerning electronic or computer surveillance technology that might prejudice the determination of the trial until the matter was adjudicated. The appeals panel reversed both that order and the oral order issued from the bench.

In the underlying case against Scarfo, the government in August had invoked the Classified Information Procedures Act to protect against disclosure of the technology it used in its surveillance of Scarfo’s computer.

(U.S. v. Scarfo: Appellant’s Attorney; Donald Manno, Cherry Hill, N.J.) RD

© 2001 The Reporters Committee for Freedom of the Press

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