Federal judge lifts gag in Florida smokers’ trial

Friday, April 7, 2000

A roundup of recent judicial gag orders.

(Editor’s note: A three-judge panel of the 11th U.S. Circuit Court of Appeals on July 12, 2001, overturned U.S. District Judge Adalberto Jordan’s ruling lifting the gag order in the Florida smokers trial. The panel said the federal judge’s decision left the state trial judge open to contempt proceedings. But the panel intentionally avoided addressing the First Amendment issues raised by the gag order, saying these questions were moot because the trial ended a year ago.)

Florida: Federal judge lifts muzzle in landmark smoking trial
MIAMI — A federal judge decided to lift a gag order in a landmark tobacco industry trial hours after a state jury began deliberating whether to award damages to three smokers with cancer. The jury began deliberations yesterday on a request for $13.2 million in compensatory damages against the nation’s five biggest cigarette makers. The deliberations were to resume today. Besides the compensatory request, the industry fears a $300 billion punitive award for an estimated 500,000 sick Florida smokers. It is the first such case to make it to trial. The news media welcomed the judge’s decision allowing attorneys, their companies and smokers in the case to speak publicly for the first time in 18 months, but trial lawyers didn’t rush to comment. In a 20-page opinion, U.S. District Judge Adalberto Jordan ruled that state Circuit Judge Robert Kaye’s “broadly sweeping injunction on speech” silencing the parties since October 1998 was “facially unconstitutional.” Jordan noted the gag order was overbroad and never-ending and saw newsworthiness in “the unprecedented scope of the plaintiff class (of smokers) and the staggering amount of money at stake.” Dow Jones & Co., publisher of The Wall Street Journal, led five publishing companies in challenging the gag order last month. The tobacco industry lost a state appeal challenging the order in February. Smokers’ attorney Susan Rosenblatt declined comment until the issue is raised again with Kaye. A call for comment from lead industry attorney Dan Webb was not returned. The defendants are Philip Morris Inc., R.J. Reynolds Tobacco Co., Brown & Williamson, Lorillard Tobacco Co., Liggett Group Inc. and the industry’s Council for Tobacco Research and Tobacco Institute. Associated Press

California: Court considers modified gag in SLA fugitive case
LOS ANGELES — The lead attorneys on both sides of the Sara Jane Olson trial clashed late last month over a gag order that prevents them from commenting on the case. The prosecutor wants it to continue. The defense wants it lifted, and the judge says he wants it modified. “There is no question the order needs to be modified,” said Superior Court Judge James Ideman. “It is too broad. But I don’t intend to lift it entirely. I don’t think it is in the interest of justice to have a freewheeling discussion in Los Angeles.” Defense lawyer Susan Jordan, who wants permission for Olson to speak at fund-raising events, noted that there has been public debate about why the case is being pursued after so many years and suggested Olson should be free to comment on that. Olson is accused of conspiring to murder by putting bombs under police cars in a failed 1975 plot to avenge six SLA members killed in a shootout. Formerly known as Kathleen Ann Soliah, she was a fugitive until her arrest last year in St. Paul, Minn.

Deputy District Attorney Michael Latin said the prosecution wants a level playing field. “It is disadvantageous to us to have a publicity campaign on the other side,” he said. Latin objected to defense attacks on the credibility of his witnesses, notably newspaper heiress Patty Hearst Shaw. Jordan said Hearst Shaw has made public statements that as a convicted felon she lacks credibility and doesn’t want to testify. The judge ordered the defense and prosecution lawyers to submit less-sweeping gag orders. His original order prevented anyone involved in the case from talking to the media about anything. He said March 21 that he would issue a new order after studying the suggestions. Associated Press

Louisiana: State commissioner asks federal appeals panel to remove gag
NEW ORLEANS — The gag order forbidding Insurance Commissioner Jim Brown to talk about charges against him, former Gov. Edwin Edwards and two others is unnecessary, vague and unconstitutional, Brown’s attorney told a federal appeals panel this week. “The First Amendment says that if you’re indicted, you have a right to say, ‘I’m being treated unfairly,’ whether it’s true or not,” William Jeffress told a three-judge panel of the 5th U.S. Circuit Court of Appeals. Assistant U.S. Attorney Steve Higginson argued that the gag order is needed to ensure a fair trial and an unbiased jury. Edwards and six other defendants are being tried on racketeering charges. They are accused of plotting to manipulate the way riverboat casino licenses were awarded to get kickbacks from license applicants. Brown, Edwards, and two other defendants are scheduled for trial June 19 on insurance fraud charges.

U.S. District Judge Frank Polozola imposed a gag order in each case immediately after the indictments were made public. But, a week after he issued the order in Brown’s case in late September, he lifted it to avoid interfering with Brown’s rights to campaign for re-election. Edwards released 10 pages of transcripts almost immediately after the order was lifted. During the April 4 hearing, 5th Circuit Judge Will Garwood grinned when he noted that Edwards had called the temporary lifting of the order his “golden window of opportunity.” Brown was re-elected to his fourth term Nov. 20. Polozola reinstated the order after the polls closed. Several news media outlets have submitted a brief to the 5th Circuit supporting Brown’s position.

In February, a different 5th Circuit panel refused to lift the gag order in Brown’s case. Last month, yet another 5th Circuit panel refused to throw out a gag order Polozola issued last year in the riverboat gambling corruption case against Edwards, his son Stephen and five others. That trial has been under way since Jan. 10. The judges ruled that the Edwardses and their co-defendants waited too long to challenge the constitutionality of Polozola’s order. Associated Press/The (Baton Rouge) Advocate

Florida: Prosecution wants defense lawyer silenced
TAMPA — Prosecutors want a gag order placed on a lawyer representing a couple accused of faking their daughter’s disappearance, saying he is trying to sway public opinion with a manufactured defense and media interviews. Federal prosecutors asked a judge last week for sanctions and a gag order against Barry Cohen, saying he deliberately misstated evidence in an attempt to taint the jury pool in Steve and Marlene Aisenberg’s upcoming trial. The Aisenbergs are awaiting trial on charges they lied to authorities investigating the 1997 disappearance of their 5-month-old daughter, Sabrina. The parents maintain baby Sabrina was abducted from her crib in the middle of the night as the family slept. There has been no trace of the child since. Cohen will have a chance to respond to the accusations before U.S. District Judge Steven D. Merryday rules on the request. At the March 31 hearing, Merryday also granted Cohen’s request to delay the Aisenberg’s July trial. No new date was set. Prosecutors also argued Cohen violated a rule adopted by federal courts in central Florida barring involved lawyers from commenting on pending criminal matters outside the courtroom. They cited Cohen’s interviews with radio and a newspaper. Associated Press

Nevada: Judge rejects defense bid to silence prosecution in murder trial
STATELINE — A judge refused yesterday to issue a gag order sought by lawyers for a father and son charged in the throat-slashing death of a 9-year-old Tahoe girl. Justice of the Peace Steve McMorris rejected a defense motion aimed at the Douglas County district attorney and sheriff investigating the case of Thomas Soria Sr., 39, and his son, Thomas Soria Jr., 19. The Sorias could face the death penalty if convicted of murder, kidnapping and sexual assault in the death of Krystal Steadman, whose nude body was found dumped down a U.S. 50 slope, a day after her March 19 disappearance. McMorris ruled after Deputy District Attorney Tom Perkins objected to the gag order and said no further statements about the case would be made until the Sorias’ preliminary hearing, now scheduled to start May 9. Associated Press