Judges muzzle trial participants

Tuesday, February 15, 2000

A roundup of recent judicial gag orders.

Florida: Tobacco companies want gag removed
MIAMI — Fearing a jury “award of unprecedented magnitude” and plummeting stock values in a landmark smokers’ trial, Philip Morris and several other tobacco companies have asked a state appeals court to lift a gag order in the case. The order restricts both sides from making any public statement about the case while it is pending. With the industry saying a verdict is possible by the end of the month, the 3rd District Court of Appeal agreed to a quick appeal and set arguments on the gag order for Feb. 23. In a motion filed Feb. 7, the companies said maintaining the gag after a punitive-damage decision could potentially hurt stock values, future business, the industry’s ability to raise capital and hiring. The order was imposed unilaterally by Circuit Judge Robert Kaye before opening statements in October 1998, and he has rebuffed repeated industry attempts to lift the order. The industry attacked the order as unconstitutional and overbroad with no scope or time limits. Normally, gag orders evaporate with a jury award, but this trial won’t end when a decision is reached on punitive damages. The jury is to decide whether to award compensatory damages to three class representatives. If the jury does, then it will decide whether to award lump-sum punitive damages for injuries incurred by all Florida smokers. Then, in another phase of the trial, other smokers could seek damages in mini-trials that could go on for years. Associated Press/ The Wall Street Journal
Georgia: Attorneys silenced in bond hearing for NFL player
ATLANTA — A judge imposed a gag order yesterday during a bond hearing for a professional football player charged with murder. Superior Court Judge Doris Downs issued the gag order on attorneys in the case involving Baltimore Ravens linebacker Ray Lewis. Lewis and two companions are charged with murder in two stabbing deaths during a post-Super Bowl brawl Jan. 31. Associated Press
Oklahoma: Participants barred from leaking evidence in bombing trial
OKLAHOMA CITY — An Oklahoma judge has issued a gag order in the state’s first-degree murder trial of bombing conspirator Terry Nichols. The order prohibits evidence in the case exchanged by the two sides from being leaked to the news media or anyone not involved in the case. Defense attorney Brian Hermanson said he wanted a gag order because Oklahoma County District Attorney Bob Macy was trying to manipulate the news media and fuel hostility toward Nichols and his lawyers. But Macy said he had already suggested a gag order. Associated Press
California: Lawyers for former SLA fugitive demand right to speak about case
LOS ANGELES — Lawyers for former Symbionese Liberation Army fugitive Sara Jane Olson have filed a motion seeking modification of a court-imposed gag order. First Amendment lawyer Roger Lowenstein argued Feb. 8 that the gag order constituted prior restraint of attorneys’ free-speech rights. Lowenstein said Olson’s lawyers should be allowed to comment on what occurs in court, the nature of the charges against her and the nature of her defense. He said the order was an overreaction traceable to the O.J. Simpson criminal trial, which was held in the same building as the Olson case. He said the Olson case does not have the vast interest the Simpson case had, and many of the prospective jurors were not born when the SLA and newspaper heiress Patty Hearst were in the news. The judge told prosecutors to file a response to the defense’s motion and set a hearing on the gag order for Feb. 28. He said he would decide then when the trial would begin. Associated Press
Louisiana: Appeal, stricter ban in federal fraud case
BATON ROUGE — State Insurance Commissioner Jim Brown says he will appeal a ruling that forbids him from speaking publicly about insurance-fraud charges lodged against him. Meanwhile, the federal judge in the case has imposed a stricter gag order. U.S. District Judge Frank Polozola refused to lift the gag order on Feb. 3, saying it was needed for a fair trial for both the defendants and the government. Brown filed a court notice on Feb. 7 that he would appeal Polozola’s ruling to the 5th U.S. Circuit Court of Appeals. Brown, former Gov. Edwin Edwards and four other men were indicted in September on federal charges of conspiracy, mail fraud, insurance fraud and witness tampering in connection with the 1996 liquidation of an insurance company. Polozola expanded the gag order on Feb. 8 after Edwards and the lead prosecutor in the case traded barbs outside the courtroom. Prosecutor Jim Letten asked Polozola to sanction Edwards for the exchange and for a separate incident in which, prosecutors charge, he tried to intimidate a witness. Taking both situations into consideration, an angry Polozola ruled that defendants were not to talk to government prosecutors for the remainder of the trial. He also ruled that neither attorneys nor defendants could give reporters their “spin” on courtroom statements. If that rule is violated, Polozola said, a $500 fine would be imposed for the first offense, a $1,000 fine for the second, a $2,000 fine for the next and so on. If necessary, Polozola said, he would start each day of court with contempt hearings. Associated Press
California: Labor union fights Texas order
SAN FRANCISO — A California labor union has gone to federal court to challenge a Texas judge’s order that prohibits union officials from saying anything in Texas — true or false — about a mental-health care company. The unusual order was issued Dec. 15 in response to a complaint by Telecare Mental Health Services of Texas that Oakland, Calif.-based Health Care Workers Union Local 250 was libeling the company in letters to Texas residents. The order prohibits the union from contacting current or prospective vendors or customers of Telecare, and from making “any purported statement of fact (in Texas) which directly or indirectly relates” to Telecare. The union and the Texas affiliate’s parent company, Alameda, Calif.-based Telecare Corp., are in a labor dispute involving employees of two Northern California facilities. The restraining order, issued by Tarrant County (Texas) District Judge Bob McCoy, expired Dec. 29, but the company has asked for an injunction that would remain in effect for a longer period. The union has asked a federal judge in Texas to take over that case, and sued the company on Feb. 8 for damages in U.S. District Court in Oakland. Union spokesman Ralph Cornejo said the union decided to sue in California because it lacks confidence that its members’ rights would be adequately protected in Texas. Associated Press
Pennsylvania: Judge blocks talk about builder’s lawsuit
PITTSBURGH — The female president of a steel fabrication business says promises of minority and female participation in building new stadiums for the Pittsburgh Steelers and Pirates are empty, but a judge won’t let anyone involved in her lawsuit talk about it. Allegheny County Judge Paul F. Lutty Jr. on Feb. 11 issued a gag order to parties of a lawsuit filed by Kathleen Kerr, president of Industrial Fabricating Systems Inc. in suburban Pittsburgh. The judge said none of the lawyers involved in the case could discuss Kerr’s allegations that the Sports and Exhibition Authority in Pittsburgh is not following through on requirements that women- and minority-owned businesses be involved in building the new stadiums. Witold Walczak, executive director of the Pittsburgh chapter of the American Civil Liberties Union, said he might sue this week to overturn the order. Associated Press