Split opinion on gag orders

July 6, 2003 

Opinions on gag orders in high-profile criminal cases, even among those who have lived through such commands for silence, are about as plentiful as theories on what happened to Laci Peterson.

Harland Braun, a prominent Los Angeles defense attorney muzzled by a judge in the Rodney King civil rights trial, said gag orders unfairly benefit prosecutors. He hates them.

Jeff Dusek, gagged while prosecuting the man who killed 7-year-old Danielle van Dam, thrived in the relative peace afforded by the order.

"They're dynamite -- the best thing that happened to us," said Dusek, who initially opposed being gagged in the 2002 San Diego trial because he felt that he had not done anything to warrant the order.

He changed his mind when his telephone stopped ringing as reporters gave up asking for comments, and when he could walk out of the courthouse without stopping for press conferences.

"Gag orders allow attorneys to focus on the case entirely," Dusek said.

They also keep the public in the dark, said Gerald Uelman, who helped O.J. Simpson defend against murder charges.

"Gag orders don't solve the problem -- they just drive it underground," said Uelman, who wrote a legal journal article on gag orders in the wake of the Simpson trial.

Roger Myers, a media attorney, said gag orders often are "an overreaction by judges to publicity that they feel they don't have any other way to control." Myers four months ago persuaded a judge to deny a gag order request by San Francisco District Attorney Terence Hallinan in the case of eight police officers indicted on assault charges.

"Gag orders prevent the press from keeping the public informed," Myers said, "in the very case in which the public has the most interest in knowing what's going on."

But the defendant's right to a fair trial is more important than the public's right to know, ruled Stanislaus County Superior Court Judge Al Girolami in the Peterson matter.

Scott Peterson, 30, faces double-murder charges in the deaths of his 27-year-old wife, Laci, and their unborn son. Prosecutors are seeking the death penalty.

Judge notes 'rumors and gossip'

In his order, Girolami noted the incessant media crush and said "rumors and gossip would be rehashed shortly before trial, thereby making it extremely difficult to select a fair and impartial jury."

The best way to neutralize that impact on potential jurors is to stanch the flow of information -- good and bad -- gag order advocates say.

"You people in the media and the public, you have no patience," Dusek said. "You want to know now -- but what you're going to get now is crap."

Some argue that it is better to correct inaccurate reports.

"From my vantage point," Dusek said, "you wait until you go to court. That's where you get the truth."

In the van Dam case, which resulted in a death sentence for the girl's neighbor, David Westerfield, "we wanted jurors as much as possible to make their decision from what they heard in court -- not the papers, TV and at water coolers," Dusek said.

In his case, it appears to have worked. With the gag order firmly in place, the judge kept the trial in San Diego.

Others argue that keeping the process open in itself does not taint a jury pool. Twelve unbiased people are needed to try any case, and they will rise to the surface as attorneys and the judge question prospective jurors in the pretrial voir dire (French for "to speak the truth") process, Myers said.

"Gag orders get denied in a lot of cases where the court is confident in its ability to use voir dire to screen out jurors who are prejudiced," Myers said. "Those of us in the system tend to think everyone out there is reading everything and hanging on every word, but they're really not. Courts have found again and again that they don't have a significant problem finding jurors."

Perhaps the best-known example was Simpson's 1995 criminal trial. Media scrutiny was unprecedented, yet the case stayed in Los Angeles County -- and he was acquitted.

"There was no gag order," Myers said, "and that didn't prejudice his fair trial rights one iota."

Uelman noted that key DNA results were being reported in the media even before Simpson's defense team received them. Judge Lance Ito ordered subsequent reports sent straight to him, bypassing the Los Angeles Police, and the leaks stopped.

The problem with gag orders, Uelman said, is that judges have trouble enforcing them. Journalists in California can protect sources under the state shield law, preventing judges from discovering who they are if they want to remain unidentified.

"It's better to just have it in the open so people making statements can be held responsible for what they're saying," Uelman said, "rather than hiding behind the shield law."

If a judge becomes convinced that an unbiased jury cannot be found locally, he or she can move the trial to another county, or have jurors from another county brought in. Another option is sequestering a jury to shield members from real-time coverage, as happened in the Simpson trial.

Lawyers for The Bee argued those points unsuccessfully in the Peterson case. Girolami, however, was persuaded in a hearing last week to refine his description of those subject to his order of silence. Otherwise, the order could have included some journalists whose conversations with Peterson were intercepted by wiretap agents.

The Bee and other media are weighing appeals of the ongoing restrictions to a higher court.

Joining media lawyers in the initial argument -- for quite another reason -- were Peterson's lawyers, led by Los Angeles celebrity attorney Mark Geragos. He argued against the gag order because it bars him from sticking up for his client, particularly when inaccurate reports are published or aired.

"A gag order only helps the prosecution," agreed Braun, who is representing actor Robert Blake, charged with murdering his wife.

"You have a sieve with all the police and the district attorney's office," said Braun, "and the National Enquirer who will pay money for information. All you need is one weak link, maybe some clerk or two who wants 15 grand from the tabloids."

A judge muzzled Braun, a longtime friend of Geragos, after he characterized as "politically motivated" the civil rights trial against police officers who brutalized King, a black motorist. Braun represented one of the officers. A couple of weeks later, an appellate court overturned the gag order, which had targeted only Braun.

Gloria Allred, an attorney representing potential witness Amber Frey in the Peterson case, also argued against the gag order, saying it could hamper her from protecting Allred's reputation. Geragos asked Girolami to hold Allred in contempt of court for continuing to speak with reporters after the gag order, but the judge refused.

Geragos also said District Attorney James Brazelton violated the gag order by discussing strategy with The Bee last month. The judge opted to consider the issue at a hearing after the trial.

Robert Shapiro agreed with Uelman and Myers that the Simpson trial -- which was not moved and was not subject to a gag order -- altered California judges' approach to controlling publicity in prominent cases. The American Bar Association's Rules of Professional Conduct, which prevent lawyers from making outlandish statements outside the courtroom, were not adopted in California until after the Simpson trial, Shapiro said.

Shapiro was joined by Johnnie Cochran Jr., F. Lee Bailey and Uelman to form Simpson's famed defense "dream team."

Simpson lawyer agrees with gag

Shapiro said a gag order is best in the Peterson case, "because everyone involved is making statements and it makes the legal system look silly." He noted California Attorney General Bill Lockyer's assessment that a conviction would be a "slam dunk" for the prosecution, as well as defense lawyers proclaiming secret evidence of "real killers."

Neither "extreme position," Shapiro said, can be supported. But news agencies -- and readers and viewers -- gobble up those details, he said, not to mention "crazy rumors" about Satanic rituals, infidelity and date-rape drugging.

"Restraint should start with the media," Shapiro said. "But competition is overwhelming. Producers are saying, 'Get me the story, and get it before anybody else,' and that puts pressure on reporters because if they don't, there are five people in line for their job."

Bee staff writer Garth Stapley can be reached at 578-2390 or gstapley@modbee.com.


GAG ORDERS IN PROMINENT CASES

SAM SHEPPARD -- The U.S. Supreme Court in 1966 recognized gag orders as a legitimate means of controlling pretrial publicity in the murder case of a Cleveland doctor accused of slaying his wife in 1954. The case inspired the 1960s television series "The Fugitive." But the Supreme Court set no guidelines for imposing gag orders, leaving discretion to judges in lower courts.

RICHARD ALLEN DAVIS -- Sentenced to death for the murder of 12-year-old Polly Klaas of Petaluma in 1993. A judge held a reporter in contempt of court for refusing to reveal who leaked Davis' confession, but the punishment was overturned on appeal.

DAVID WESTERFIELD -- Defense attorneys and prosecutors both requested a gag order in the high-profile murder trial of a man accused of killing 7-year-old Danielle van Dam in San Diego. Thousands of pages of documents were released only after Westerfield was sentenced to death in 2002.

O.J. SIMPSON -- A Los Angeles County jury in the mostly open criminal trial found Simpson not guilty in the 1994 deaths of Nicole Brown Simpson and Ronald Goldman. But another judge imposed a full gag order in the subsequent civil case, which resulted in a $33.5 million wrongful-death judgment against the former football star.

TIMOTHY McVEIGH -- Convicted and executed for killing more than 150 people in the 1995 bombing of a federal building in Oklahoma City. At one point in the case against accomplice Terry Nichols, a prosecutor was disqualified for violating a gag order.

SARA JANE OLSON -- A judge in 2000 imposed a gag order in the case against a fugitive accused of planting bombs under Los Angeles police squad cars more than two decades earlier. But the order was withdrawn when newspaper heiress Patty Hearst and a lead prosecutor were accused of violating it.

MENENDEZ BROTHERS -- Lyle and Erik Menendez were sentenced to life in prison in 1996 for killing their parents in Los Angeles. A defense attorney explained later that a gag order during the trial prevented her from defending herself from accusations of misconduct; she was cleared.

MANUEL NORIEGA -- CNN ignored a judge's plea and aired leaked Justice Department tapes of intercepted phone calls between the imprisoned Panamanian dictator and his attorney in 1990. The network later was fined.

MARJORIE KNOLLER AND ROBERT NOEL -- A judge fined attorneys on both sides of the San Francisco dog-mauling case for violating a gag order by talking to reporters in 2002. The owners of dogs that killed a neighbor in San Francisco eventually were convicted.

In the Northern San Joaquin County and foothills, gag orders were issued in these cases:

ELLIE NESLER -- Convicted of voluntary manslaughter after gunning down the man accused of molesting her son. The killing occurred in a Jamestown court in 1993.

CHARLES NG -- Sentenced to death row in 1999 for killing 11 people in Calaveras County.

DOUG MOUSER -- Convicted in 1999 for strangling his 14-year-old stepdaughter, Genna Lyn Gamble of Modesto, and dumping her nude body in a ravine near Waterford.

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