Newspaper publishers seek right to speak to attorneys in Florida smokers’ trial

Thursday, March 16, 2000

Judge Robert Pa...
Judge Robert Paul Kaye, center, listens to attorney Dan Webb, left, representing the tobacco industry and Stanley Rosenblatt, right, attorney for the Florida smokers during a sidebar Dec. 2, 1999 in the Florida tobacco trial at the Miami-Dade County Court in Miami.

A roundup of recent judicial gag orders.

Florida: Five publishing companies sue to lift gag on smokers’ trial
MIAMI — Five major newspaper publishing companies have filed suit in federal court seeking to lift a gag order imposed by a state judge in a smokers’ trial threatening to produce a record-setting damage award. The news media companies say in their March 10 lawsuit that they want to be able to talk to attorneys handling “one of the largest, most important and newsworthy trials” in U.S. history. “Our view is the judge went way beyond what is necessary or appropriate under the circumstances,” news media attorney Sanford Bohrer said after he filed the suit. Both sides in the smokers’ trial are barred from commenting on the case outside court. Circuit Judge Robert Kaye imposed the order on the attorneys and their clients in 1998 although neither side requested it.

Publishers of USA TODAY, The Wall Street Journal, The New York Times, The Miami Herald, the Tampa Tribune and the Richmond (Va.) Times-Dispatch want a federal order dissolving the gag order before jurors decide the next phase of the case: compensatory damages for three smokers. The tobacco industry lost a state court appeal challenging the gag order last month. The three-judge panel of the 3rd District Court of Appeal wrote that the gag order did not violate the companies’ First Amendment rights and that the limitations were necessary to ensure a fair trial. Asked if he thought a federal judge would be more receptive to the First Amendment suit than the state judges, Bohrer said, “We wouldn’t be filing it if we didn’t think so.

The tobacco industry fears an estimated 500,000 sick Florida smokers may win $300 billion from the Miami jury hearing the case. The largest jury award to date was a $4.9 billion verdict last year against General Motors Corp. for six people burned in a rear-end collision. The potential award “raises the question of whether the tobacco industry will remain solvent and in a position to pay the billions of dollars promised to the states,” the publishers’ lawsuit said. As long as the gag order stays in place, “one of the most important business cases in our nation’s history will always carry the shroud of secrecy.”

The jury in the smokers’ case already has decided that the tobacco industry fraudulently conspired to produce a defective and dangerous product. If the same panel awards compensatory damages to any of the three representative smokers, it will be asked to return for more testimony and set punitive damages. The defendants in the smokers’ case are: Philip Morris Inc., R.J. Reynolds Tobacco Co., Brown & Williamson Tobacco Corp., Lorillard Tobacco Co., Liggett Group Inc., the Council for Tobacco Research and the Tobacco Institute. Associated Press

California: Judge reprimands SLA fugitive’s attorneys for televised comments
LOS ANGELES — Superior Judge James Ideman warned attorneys for former Symbionese Liberation Army fugitive Sara Jane Olson that he would not tolerate violations of the gag order in the case. At a hearing March 6, Ideman told defense attorney Susan Jordan that televised remarks made by Olson and her former attorney Stuart Hanlon at a fund-raiser last month in Minnesota suggested the prosecution was politically motivated. The statements could prejudice a jury, he said. “The only issue in this case is a very powerful bomb was placed under a car in front of a crowded restaurant,” he said. Jordan insisted her client did not violate the gag order. Olson’s lawyers filed a motion last month seeking modification of the gag order. A hearing on the issue was set for March 21. Olson, formerly known as Kathleen Ann Soliah, is accused of conspiring to murder by planting bombs under police cars in a 1975 plot to avenge six SLA members killed during a shootout. The bombs didn’t explode. She was indicted in 1976 and was a fugitive until her arrest last year near her home in St. Paul, Minn., where she had built a new life. Her trial has been delayed until Aug. 14 to give a new defense lawyer time to prepare. Associated Press/ Los Angeles Times

New York: Real estate mogul sentenced for violating order to keep quiet
NEW YORK — Real estate mogul Abe Hirschfeld has been sentenced to 90 days in jail because he violated a gag order in his trial. He is charged with trying to hire a hit man to kill his business partner. Hirschfeld was sentenced on March 9 after a federal judge two days earlier refused to block the sentencing. The 80-year-old millionaire, who once offered Paula Jones $1 million to drop her sexual harassment lawsuit against President Clinton, was convicted of contempt of court in a non-jury trial last January. At that time, state Supreme Court Judge Harold Beeler ruled that Hirschfeld had disobeyed the gag order by running newspaper advertisements that might influence jurors hearing his trial. Hirschfeld was found in contempt after Assistant District Attorney Gilda Mariani accused him of violating the order Beeler imposed Sept. 22, 1999, just before the trial began. Hirschfeld is accused of trying to hire a hit man to kill business partner Stanley Stahl in 1996. Stahl died last August of natural causes.

Hirschfeld’s first case ended in a mistrial, and a second trial is pending. Representing himself in state and federal court, Hirschfeld admitted that he paid for newspaper ads reprinting a New York Daily News article from Oct. 7, 1999. The article highlighted inconsistencies in the testimony of a key prosecution witness in the criminal solicitation case. Hirschfeld said he did not think he violated the gag order because he paid only to reprint an article that had already been published and because he only intended to repair his reputation in the Jewish community, not to influence the trial jury. In finding Hirschfeld guilty, Beeler ruled that Hirschfeld chose to publish the advertisement in geographical areas where the jurors resided, without reference to the Jewish community. Hirschfeld then took the case to federal court in Brooklyn, claiming that the judge violated his right to free speech. U.S. District Judge Allyne R. Ross, however, refused to block Hirschfeld’s sentencing, saying she lacked jurisdiction to address his claims.

Hirschfeld brought several newspaper stories to court March 9 in an effort to convince Beeler that he was too honest and important to go to jail. The judge was not convinced, however, and also fined Hirschfeld $8,000. The judge had issued a warrant for Hirschfeld’s arrest March 8 after Hirschfeld failed to show up for sentencing. Hirschfeld apparently attended the opening of a play at a theater he redeveloped in Palm Beach, Fla., on March 8, and he showed up in court in a gold and silver lamé dinner jacket. As he was led from the courtroom, Hirschfeld yelled at court officers, “Stop pushing me! Nazis!” Associated Press.