Time for a Gag Order in Sniper Case

Every day we are more appalled by the leaks of untested information coming from "unnamed officials" about the evidence in the sniper case. Yesterday the media cooperated with the leakers by printing supposed confessions by 17 year old John Lee Malvo. Today, two high-ranking law enforcement sources say Malvo admitted shooting a 13 year old boy as part of the alleged killing spree.

All of the courts in the states in which these two defendants have been charged need to slap a gag order on the prosecution now. We haven't seen such audacious leaks since the Oklahoma bombing case. The leaking mostly stopped once Judge Matsch issued a gag order. The media appealed the gag order to the Tenth Circuit, and lost.

The disclosure and dissemination of purported confessions and details of the investigation indicate a lack of self-restraint and a lack of an ethical compass by those responsible. It's up to the prosecutors to control their agents and "senior officials." The media needs to exercise restraint as well. Trials must take place in courtrooms, not living rooms, and the media's complicity in and furtherance of the lynch-mob mentality is shameful.

While courts can restrain parties to a case, their court staff, and individuals operating under their direction and control (such as police and investigators), they have far less power over the media. But if the others don't leak to the media, the media won't have the information to disseminate.

In Judge Matsch's "gag order" in the McVeigh case, reported at 931 F. Supp. 756 (D.C. Colo. 1996), here's what he proscribed:

"A. None of the lawyers appearing in this case or any persons associated with them, including any persons with supervisory authority over them, will release or authorize the release of information or opinion about this criminal proceeding which a reasonable person would expect to be disseminated by any means of public communication, if there is a reasonable likelihood that such disclosure will interfere with a fair trial of the pending charges or otherwise prejudice the due administration of justice.

B. This duty to refrain from prejudicial disclosures requires all counsel to take reasonable precautions to prevent all persons who have been or are now participants in or associated with the investigations conducted by the prosecution and defense from making any statements or releasing any documents that are not in the public record and that are reasonably expected to be publicly disseminated which would be likely to materially prejudice the fairness of this criminal proceeding.

C. None of the lawyers appearing in this case or any persons associated with them, including any persons having supervisory authority over them, shall release or authorize the release of any extrajudicial statement which a reasonable person would expect to be disseminated by any means of public communication, concerning any of the following matters related to this case:

(1) The prior criminal record (including arrests, indictments, or other charges of crime), or the character or reputation of the defendants.

(2) The existence or contents of any statements given by the defendants to any law enforcement personnel or the refusal or failure of the defendants to make any statements to law enforcement personnel.

(3) The performance of any examinations or tests or any defendant's refusal or failure to submit to any examination, or test.

(4) The identity, testimony, or credibility of all prospective witnesses.

(5) The possibility of a plea of guilty to the offenses charged or a lesser offense.

(6) Any opinion as to the guilt or innocence of the defendants or as to the merits of the case or the quality or quantity of evidence as to any charge in the case.

D. The foregoing shall not be construed to prevent any of the lawyers appearing in this case or any persons associated with them, including any persons having supervisory authority over them, from quoting or referring without comment to public records of the court in the case; from announcing the scheduling or result of any step in the judicial process; from requesting assistance in obtaining evidence; or from announcing without further comment that the defendants deny all charges made against them.

E. Before the trial jury is empaneled, none of the lawyers in this case or those associated with them, including those with supervisory powers over them, shall give or authorize any extrajudicial statement or interview relating to the trial or the parties or issues in the trial, which a reasonable person would expect to be disseminated by means of public communication if there is a reasonable likelihood that such dissemination will interfere with a fair trial, except that a lawyer may quote from or refer without comment to public records of the court in the case and may give such explanations of pleadings and hearings as may assist the public in understanding the legal issues being presented and the relationship of any hearing or ruling to the trial process without expressing any opinions as to the merits of the positions and arguments of any party or giving any predictions concerning the expected result.

F. All court supporting personnel, including among others, marshals, deputy marshals, court clerks, deputy court clerks, bailiffs, court reporters and employees or subcontractors retained by the court-appointed official reporters, are prohibited from disclosing to any person, without authorization by the court, any information relating to this criminal case that is not a part of the public records of the court. All personnel are also forbidden from divulging information concerning any sealed filings, in camera arguments and hearings held outside the presence of the public.

G. Counsel for all parties shall exercise caution in filing papers in the public record in this case to avoid references to documents exchanged in discovery or such references to information contained in them as would reveal the sources and contents of those documents. If a proper presentation of a party's position requires the use of copies of discovery documents or such references to the information in them as described herein, that portion of the filing shall be submitted under seal. If an entire pleading involves discovery material, the party submitting it will proceed under paragraph 3 of this court's Memorandum Opinion and Order on Media Motions entered on January 24, 1996."

The defense is in a different position than the prosecution when it comes to out of court statements. Judge Matsch and countless other judges have quoted this Supreme Court decision on the issue:

"Justice Kennedy, writing for the Supreme Court of the United States, made the following pertinent comment about the role of defense counsel in the opinion deciding Gentile v. State Bar of Nevada, 501 U.S. 1030, 1043, 115 L. Ed. 2d 888, 111 S. Ct. 2720 (1990):"

"An attorney's duties do not begin inside the courtroom door. He or she cannot ignore the practical implications of a legal proceeding for the client. Just as an attorney may recommend a plea bargain or civil settlement to avoid the adverse consequences of a possible loss after trial, so too an attorney may take reasonable steps to defend a client's reputation and reduce the adverse consequences of indictment, especially in the face of a prosecution deemed unjust or commenced with improper motives. A defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charges, including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried." (emphasis supplied)

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