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Ordering lawyers to follow conduct rules eliminated need for gag order in Ala. public corruption case

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  1. Prior Restraint
Ordering lawyers to comply with rules of professional conduct was a less restrictive alternative to issuing a gag order during…

Ordering lawyers to comply with rules of professional conduct was a less restrictive alternative to issuing a gag order during a high-profile politically charged Alabama gambling-corruption retrial, the presiding judge said in an opinion explaining the rationale for his decision yesterday.

U.S. District Judge Myron H. Thompson in Montgomery, Ala., denied the government’s request for a court order limiting what lawyers for six defendants charged in a bribery conspiracy could say to members of the news media during the proceeding. Unlike the jury in the original trial, which could not reach a verdict on several counts, the panel in the retrial acquitted the defendants last week. On Wednesday, Thompson then issued an opinion thoroughly explaining the reasons for his denial of the government’s pre-trial motion.

The judge concluded that the measure he ordered the lawyers to take in lieu of imposing a gag order on them effectively prevented arguably prejudicial statements like those made during the first trial.

“Because of their legal training, attorneys are knowledgeable regarding which extrajudicial communications are likely to be prejudicial. The court, therefore, was confident that the attorneys in this litigation were capable of following [professional conduct rules],” Thompson said in the 33-page order. “Indeed, defense counsel still spoke to the press during the retrial, but did not repeat the incendiary comments about the government’s witnesses that were made at the first trial. Attorney compliance with state bar rules provides a legitimate alternative to more restrictive gag orders.”

The prosecution alleged that the defendants — a casino owner, a lobbyist, a former casino spokesman and three then-state senators — participated in a bribery conspiracy to enact a Senate bill that would have authorized a constitutional referendum on whether to legalize electronic bingo.

The trial last summer garnered significant local media coverage, which included a live blog and Twitter account that provided “minute-by-minute” updates, according to Thompson’s opinion.

National news organizations began covering the story after testimony revealed several Alabama Republican politicians’ racist statements about black voters — comments obtained from a wire worn by a state senator who kept the recording device running during conversations with his colleagues after meetings with the defendants.

In the six months between the first trial and retrial, the case remained a prominent part of the public debate, and the government was concerned about defense counsel’s comments to the news media about whether the wired politician and other government witnesses would testify at the retrial, Thompson said in his opinion.

During the first trial, defense lawyers talked to the press on a nearly daily basis as they left the courthouse, commenting on the credibility of witnesses, discussing trial strategy and speculating as to the cooperating witnesses’ motives for testifying, according to the opinion.

In an attempt to prevent such statements during the retrial, the government requested a gag order prohibiting attorneys from talking to the media about the case outside the courtroom, save for relatively benign comments about scheduled hearings or documents filed in the case.

In denying the request, Thompson noted that there is a heavy presumption against the constitutionality of prior restraints, and courts may impose them against trial participants, including attorneys, only after finding that such a restraint is narrowly tailored and that alternatives would not be effective, while the restriction would be effective in achieving the government’s goal of preventing prejudice in a criminal trial.

The government’s proposed gag order, Thompson ruled, was sufficiently narrowly tailored because it applied only to attorneys, not members of the news media or the defendants themselves. Also, it did not prohibit all comments by attorneys, who were still allowed to convey “bare facts” to the news media about scheduling issues and public court filings, the judge held.

But the government failed to show why other less restrictive alternatives to a gag order, including continuing or transferring the trial, voir dire and jury instructions, were inadequate to address the problem of prejudicial publicity, according to the opinion. In addition, attorney adherence to a state rule of professional conduct that prohibits lawyers from making out-of-court statements that are substantially likely to prejudice a court proceeding was a less restrictive means to serve the government's interest in preventing trial publicity that would prejudice the jury, Thompson found.

Finally, the government’s proposed gag order was unlikely to be effective, he ruled.

“Even in the absence of a news conference on the courtroom steps, the media still camped outside the courthouse, reported daily on the proceedings, and continued the live blog of the witness testimony,” the judge said. “This litigation concerned issues too salient to be ignored by the media.”

Related Reporters Committee resources:

· Dig.J.Leg.Gd.: Media coverage and the jury pool

· Secret Justice: Gag Orders

· The First Amendment Handbook: Introduction — Fair trials — National security — Law enforcement investigations

· The First Amendment Handbook: 6. Gag Orders