January 15, 2004 Gag order debate: Right to a fair trial vs. press freedom Judge to rule on gag order at arraignment By DAWN HOBBS NEWS-PRESS STAFF WRITER Attorneys go to court on Friday over a gag order in Michael Jackson’s child molestation case, underscoring a tug-of-war between the right to a fair trial and the public’s right to know. Proponents — such as District Attorney Tom Sneddon in this case — say that silencing attorneys, police and witnesses is an effective way to minimize pre-trial publicity in an age of 24-hour tabloid journalism. Opponents — usually the media — say leaks are inevitable, especially in celebrity cases, and that gag orders are ineffective efforts to stop rumor-mongering. Since 1995, when the O.J. Simpson murder trial riveted readers and TV viewers, media outlets have highlighted the legal battles of the rich and famous, prompting fears that high-profile defendants would have a hard time getting a fair trial in their hometowns — or anywhere else. Attorneys have a variety of tools to use on behalf of their clients in this battle. A change of venue —asking a judge to move a trial to a a different town — is one. A gag order that bars lawyers and witnesses from commenting on the proceedings is another. In Santa Barbara County, the hotly contested gag order requested by Mr. Sneddon will be considered by Superior Court Judge Rodney S. Melville at the entertainer’s arraignment. An attorney for several media organizations, including the Santa Barbara News-Press, and Mr. Jackson’s attorney, Mark Geragos, are opposing it. Gag orders were recently approved in two other criminal cases that have drawn intense media coverage: Kobe Bryant’s rape case in Eagle County, Colo., and Scott Peterson’s double murder case in Stanislaus County. However, other celebrity cases are proceeding without gag orders, including the murder trials of actor Robert Blake and record producer Phil Specter, both in Los Angeles. During the last five years in Santa Barbara County, judges have approved four gag orders. The latest was less than a year ago in the drunken driving case against Superior Court Judge Diana Hall. In that case, Deputy District Attorney Kimberly Smith said: “A pre-trial publicity order may prohibit discussions of the merits of the case, the evidence, arguments to be adduced by either side or trial tactics.” She said the order was necessary because it “assured each party in the action received a fair trial.” Justice is a balancing act, said Imperial County District Attorney Gilbert Otero, president of the California District Attorney’s Association, and gag orders can help balance the scales: “They are good because then you can’t use the press as a tool to influence public opinion. But on the flip side of that, I personally think the public has a right to know.” Some legal experts say efforts to silence the participants are futile when a celebrity like Mr. Jackson is involved. Gerald Uelmen, who was on Mr. Simpson’s defense team, said: “All the information about the case then comes from leaks and unidentified sources…. I think the public is better served by knowing where their information came from because they can then assess it accordingly.” For example, despite the gag order issued in June in the Peterson case, the tabloids and entertainment press published numerous stories citing unnamed sources close to the case. Among them are a People magazine cover story in August headlined “The Secret Laci Files,” and National Enquirer stories headlined: “Laci was Suffocated” and “Laci Died on Scott’s Boat: Shocking Evidence He Left Behind.” Laurie Levenson, professor at the Loyola School of Law, said that attempting to control media coverage can backfire: “It may even build it into a frenzy because everyone starts chasing whatever information is out there — even if it isn’t reliable.” Whether a gag order is issued “really depends on the individual judge and what confidence they have in controlling the proceedings without using something like a gag order,” she said. “But the smaller jurisdictions may also use them because they have less of a jury pool to draw from, so they have a heightened concern about tainting the jury pool.” Allan Parachini, public information officer for the Los Angeles County Superior Courts, said: “I think it’s clear that a smaller county can much more easily be overwhelmed by intense media interest than in a court of our size and scale where we deal with very high-profile and celebrity cases every day. They are just part of the routine for us…. I haven’t even heard of a threat of a gag order in any of the high-profile cases here.” He added that “there have been situations where a judge has been displeased with what may be attributed to one or more attorneys in a particular case, but that tends to be handled rather sternly by the judge from the bench or in chambers.” In King County, Wash., where nearly 2 million people reside, a gag order was never imposed in the case of serial killer Gary Ridgway, the “Green River Killer,” who was sentenced last month for the murders of 48 women. And a gag order wasn’t imposed in the Unabomber trial held in Sacramento in 1997. In the request filed by Mr. Sneddon’s office, prosecutors point to excessive “tabloid television” coverage and target Mr. Geragos for stating on national television that the allegations are a “shakedown” motivated by the “greed” of the accuser’s family. The prosecution cited the need for the people’s right to a fair trial and protection of the evidence. In response, Mr. Geragos pointed out that Mr. Sneddon has appeared on national television shows himself and spoke on behalf of the accuser and his mother. Theodore J. Boutrous, the attorney representing the media, filed a separate motion Monday challenging the district attorney’s request, stating it is so broad it violates the First Amendment stringent test for approval: The speech sought to be restrained must pose a clear danger or serious threat to a protected competing interest, the order must be narrowly tailored to protect that interest and less restrictive alternatives are unavailable. Source: http://www.sbcoast.com/mjacksonupdate/0115gagdebate.htm

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