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Gag order on murder trial participants upheld by high court

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    NMU         SOUTH DAKOTA         Secret Courts         May 16, 2000    

Gag order on murder trial participants upheld by high court

  • A trial judge’s gag order was not only appropriate, but probably required to ensure a fair trial, the state Supreme Court unanimously held.

Saying that the media “has no constitutional right to information about a trial beyond what is seen and heard in the courtroom,” the South Dakota Supreme Court issued an unsigned unanimous opinion on May 10 upholding a trial judge’s gag order on all trial participants in a prominent case involving allegations of manslaughter and child abuse in a state reform school.

“If publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered,” the court stated. “But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. . . Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures.”

The court held that the trial court did not err in entering the gag order, that it made all the findings required of it and that it neither violated the media’s First Amendment rights nor exceeded the trial court’s authority. It concluded, “Given the circumstances surrounding this case and the constitutional rights at issue, the trial court may have been remiss had it not entered the order.”

The media had argued that the gag order issued by Circuit Judge Ronald Miller violated the Constitution by banning courtroom interviews or broadcasts and public statements by parties, attorneys, public officials, jurors and witnesses. Because of separation of powers concerns, the gag order allowed the legislative and executive branches to “conduct interviews or investigations relating to this matter in the normal course of their duties.”

The appeal was filed by the Sioux Falls Argus Leader, the Associated Press, the Mitchell Daily Republic, KDLT, KELO, KEVN, KMIT, KSFY, Sorenson Broadcasting, the South Dakota Newspaper Association and KOTA.

The case concerns the July 21, 1999, death of 14-year-old Gina Score at a state training school in Plankinton. Prosecutors filed criminal charges against Raelene Layne and Tamara Wagaman, former employees of the school, alleging manslaughter and felony child abuse.

Soon after the arrests, Gov. William Janklow and defense attorney and former U.S. Congressman James Abourezk held press conferences concerning the liability of the defendants and the state for Score’s death. According to the court, Abourezk claimed that Janklow was attempting to “demonize” his client; Janklow responded by stating that he would “start telling all the potential jurors in South Dakota exactly what the facts are” unless Abourezk stopped making inflammatory statements.

Following this flurry of public statements, the state filed a motion, which was supported by the defense, seeking a gag order prohibiting the attorneys, parties and witnesses involved from discussing the case with members of the press. Miller granted the media’s request to appear and to challenge the motion at the scheduled hearing where the gag order was entered.

(Sioux Falls Argus Leader v. Miller; Media Counsel: Jon Arneson, Sioux Falls)

© 2000 The Reporters Committee for Freedom of the Press

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