Judge Softens Gag Order, Still Doesn't Get It

Turns out the judge in the Athens-Clarke cop-killer has eased the gag order he issued earlier that caused all kinds of excitement, attention -- and valid criticism.

After all, the order was clearly unconstitutional, something you'd expect a judge to kinda get because, ya know, law school. At the bottom you'll see the graphs from the original OnlineAthens story that was ordered taken down by the judge. Yes, I'll run 'em, because that's what I do.

The judge, H. Patrick Haggard (pic above), still doesn't get it. According to the latest Athens Banner-Herald/OnlineAthens story:

The amended order he issued Wednesday restricts only the publication of information that could identify potential jurors, responses made by potential jurors during the selection process, and issues raised by the prosecution and defense which “may relate to juror responses.”

Sorry, that's still prior restraint. If potential jurors are saying it in a public courtroom, it's in the public domain and definitely in the public interest. Period.

The judge may have avoided the embarrassment of being told by another court to straighten up and fly constitutionally right. Maybe. It depends on whether the ABH is willing to spent the bucks challenging the existing, eased gag order. In fairness to the judge, his interest is less on the First Amendment and more on the Sixth Amendment and ensuring a fair trial for an admitted cop killer. That said, the law is fairly straightforward here, and he's on the wrong side. I get his concern, he's just overreached. And to be honest, Elbert County was a crappy choice for jurors in the first place. A year ago I wrote this and even recommended Hall County as a better choice, given the demographics, plus years ago an infamous local trial was moved there in a change of venue, that of the Five Points Rapist. Sigh, no one listens to me.

By the way, where are the other local or Atlanta media in this fight? Eh? Get in the ballgame, folks.

Section That Pissed Off 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.”

Earlier posts by me on this here and here. Worth your time, if you haven't already read them. OK, maybe not. Humor me.

Paper Will Challenge Gag Order

Judge H. Patrick Haggard

The Athens Banner-Herald will challenge a local judge's gag order involving jury selection of a cop-killer trial. The order is clearly unconstitutional, not that local judges know all that much about First Amendment law. In fairness, he's just trying to wrangle a fair trial for an admitted cop killer, but this is exactly how not to do it. He ordered the paper to remove from online a story that gave details on the very public process, based on a very public record.

And if you want to know the part of the original online story that pissed off the judge, yes I'll give that to you. I posted it yesterday on my blog, but in case you missed it, here's a cached version of the story (because this is what I do) and below are the grafs I suspect got the judge's attention. Read them yourself.

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.”

And I was happy to see my old friend Chuck Tobin quoted in the most recent story. He's called a "noted First Amendment attorney" which, while true, will only make him more difficult to be around. As Chuck said:

“The judge has done two things, said Tobin, a partner in the Washington, D.C. office of Holland & Knight and chairman of the firm’s National Media Practice Team. “First, he’s sealed off all public information about how jurors are selected, and second, it is a direct prior restraint on the press. It is strictly unconstitutional for a judge to tell reporters what they can and cannot print.”

Go, man, go.

I'll post updates if anything develops today. Also, of course, follow me on Twitter.





Update (1:50 p.m.)

Oh, and and about a year ago I wrote this about the choice of Elbert County as an alternative to Athens-Clarke. The ABH also questioned Elbert County as an alternative at the time.

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.

Newsroom Cuts, and Bagels Too

My local daily newspaper announced cuts, including five jobs out of a newsroom that could use 15 more people to adequately cover the University of Georgia, Athens, and its surrounding counties. Just another sign of the financial times, and yet I wonder about all the stories that will be missed out there -- the misdeeds of politicians and cronies, the businesses getting away with murder, and I suppose murder itself.

What we'll know about our community has been significantly harmed, all to service debt and feed the profit margin beast.

The paper will get slimmer, the price will probably go up, and the brainiacs and bean counters will wonder why circulation continues to drop. It's like McDonald's serving burgers cold and wondering why people stopped buying them.

Even my favorite local bagel place is closing at the end of the week. I plan on having lunch there today to see it off.

Why are the two related?

Simple. Zim's was a kind of community meeting place. If you visited in the mornings you'd see groups of people who often gather there to drink coffee, nibble a bagel, and share their lives with one another. Sorority girls, retirees, journalism professors who blog too much, you'd see them and a host of others at the cool custom-designed tables, chatting and eating and creating one of those "third places" where people visit and connect.

A good newspaper is kinda like that, or used to be. In some ways the Internet has blown up geographic communities and replaced them with communities of shared interests regardless of where one lives. That's good, and that's bad. We need both kinds of communities, but interest in news is hurting, at least the traditional way we provide news, and I'm not all that convinced that a sense of geographic community isn't also disappearing.

Today, I'm reading the Athens Banner-Herald in paper form. And I'm eating a bagel at Zim's.

Presidential Politics and Coke

In shameless self promotion, here's a link to my column on politics and how people refer to soft drinks -- and the relationship between the two. Kinda Dave Barry meets freakonomics, though nowhere near as good as either.

Still, fun to write.

Going Negative Column

I summed up some of my earlier thoughts about negative ads and changing media habits in this newspaper column, published earlier this week by the Athens Banner-Herald.