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Gag order stands in former governor’s criminal trial

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  1. Court Access

    NMU         FIFTH CIRCUIT         Secret Courts         Feb 23, 2000    

Gag order stands in former governor’s criminal trial

  • A federal appellate court will consider First Amendment challenges to the gag order on an expedited basis, but refused to remove the gag order pending its review and ruling.

In a criminal insurance fraud trial involving former Gov. Edwin Edwards, the U.S. Court of Appeals in New Orleans (5th Cir.) has refused a request to compel a trial judge to immediately lift a broad gag order entered against all trial participants.

In a 2-1 decision released Feb. 21, a three-judge panel denied the request that had been filed by Louisiana Insurance Commissioner Jim Brown, Edwards’ co-defendant. The panel stated that “the requisite clear and indisputable abuse of discretion is not present” and that it therefore could not currently suspend the gag order entered by Baton Rouge federal District Judge Frank Polozola.

The federal appellate court, however, did agree to consider Brown’s appeal anew on an expedited basis during the week of April 3. The court also granted the request of several media entities to file a friend-of-the-court brief challenging the gag order. The media groups include the Times Picayune Publishing Corp., the Associated Press, Capital City Press Inc., Gannett River States Publishing Corp., WDSU-TV, WGNO-TV, WWL-TV, WVUE-TV and the Louisiana Press Association.

Judges Jerry Smith and Rhesa Barksdale constituted the majority of the appellate panel. Judge Robert Parker dissented, noting that he would have granted the relief requested by Brown because “the district court’s ‘gag order’ is essentially a ‘no discussion’ order” that harms Brown, an elected official. “The prosecution has the luxury of well-publicized allegations against Brown, aided in large part by the government’s release of sensitive wire tap material to the press and various public announcements regarding the ‘factual basis’ for the indictment,” Parker wrote. “By forbidding Brown to respond to these public statements, the order violates the Constitution’s prohibitions on prior restraints of speech.”

Brown and Edwards were indicted in September 1999 on charges of conspiracy, mail fraud, insurance fraud and witness tampering in connection with a 1996 insurance liquidation settlement.

Polozola wrote in his Feb. 3 order rejecting Brown’s request that he lift the gag order that he “must consider the effect that unrestricted public comments may have on jury [selection] in this case as well as the fair trial rights of all parties.” His order cited a U.S. Supreme Court discussion of the lower standard for regulating the free speech rights of lawyers involved in a trial versus the more stringent standard for any attempt to regulate the media’s free speech rights.

Polozola cited the threat of excessive pretrial publicity, the existence of two other trials involving Edwards and the parties’ previously demonstrated desire to “manipulate media coverage to gain favorable attention.” Polozola concluded that the gag order is constitutional because it allows Brown to continue to exercise his ongoing duties as an elected official.

The Associated Press has reported that prosecutors want Polozola to find Edwards in contempt of court for violating the gag order. According to AP, prosecutors object to Edwards’ comments to newspapers and television stations that prosecutors refused to negotiate with him because “they do not like the truth.”

(In re James Harvey Brown; Media Counsel: Lloyd Lunceford, Baton Rouge)

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