Local Gag Order

Update at Bottom

There's a cop killer trial happening locally. Well, it's mired in jury selection at the moment, but an interesting angle came up as the judge issued a media gag order, according to the Athens Banner-Herald. In the latest story:

In an order filed Monday in Clarke County Superior Court, Judge H. Patrick Haggard forbids all media and all court officials connected with the case from publishing or disclosing “in any manner information that is related in any manner to the selection of jurors for (Hood’s) trial.”

The paper had put online a version of the story that included details from jurors, especially quotes that they believed the defendant did it and how he should be punished (yes, I read it before it was taken down). After posting the story:

A Clarke County sheriff’s deputy on Tuesday served the order to the publisher and a reporter with the Banner-Herald. The order was served hours after a story containing details of the jury selection process was posted by OnlineAthens.com.

OK, right off as a public service, here's a cached version of the story, though I'm not sure it's the complete version but it seems to be. Here's a chunk that probably pissed off the judge:

The DA’s motion further states, “The court is aware of the massive amount of media exposure and the fixed opinions of potential jurors who have directly heard statements by (Hood) admitting to acts that infer (his) guilt, read newspaper articles that state (Hood) made admissions of killing a police officer or heard the same information by word of mouth in the community.

In the selection process that began June 1, 47 people were qualified out of a field of 126 as potentially suited to serve on the jury.

“Of the 47 jurors that were kept 77% stated that they were familiar with the facts of the case and of (Hood) and 15% gave the opinion that (Hood) was guilty when asked by (Hood),” Mauldin states in his motion. “However the actual percentage may be higher than the figure given as (Hood) did not ask all 47 jurors who were qualified if they thought he was guilty.”

Let's get down to the real question here -- can a judge do this? Yeah. At least at first. Without going into too many journalistic dweeby details, a judge is required to find any possible alternative before issuing a gag order. You can find a detailed discussion here, and it's quite good. Judges should "rarely, if ever," prevent the press from reporting a public proceeding. Given the document in question about the potential jurors is not even sealed, that anyone can go and see it, suggests this judge would lose this if appealed. The only likely defense, and I'd need to ask someone much smarter about this stuff than I am, is the fair trial vs. free press question. In most cases, a fair trial wins -- but, the judge or court is obligated to find lots of ways to work around even this situation to avoid conflicting with the First Amendment.

I need to ask my old friend and that brilliant media lawyer, Chuck Tobin, just this very question. Will email him today and update any on-the-record opinion he offers.

UPDATE ( quote from media law guru Chuck Tobin):

The Constitution flatly forbids courts from directly restraining journalists, absent the highest national security type of interest and only with a mountain of evidence to support it. This order is a colossal First Amendment mistake. If the judge doesn't pull it back, I'm sure it will be quickly overturned on appeal.

That pretty much says it all.

More updates as the situation changes or a deputy knocks on my door with a nasty note from the judge because I put the obviously open public record available to the public. Last I looked, no changes at OnlineAthens.com and its story, but will keep an eye out for updates.