Tuesday, September 21, 2010

Ga. Judge's Gag Gaffe

McDuffie County Confederate Monument, Thomson,...Image by J. Stephen Conn via Flickr
The Thomson, Georgia-based weekly McDuffie Mirror reports that Toombs Circuit Chief Judge Roger W. Dunaway issued a gag order barring disclosure of testimony at a pretrial hearing in the murder trial of Helen Irene Ansley.

According to the newspaper, Judge Dunaway announced near the conclusion of the hearing that information concerning the hearing could not be released to the public. Judge Dunaway made the ruling from the bench at the behest of prosecutor Durwood Davis, with the consent of defense counsel Harold Wallace.

The oral gag order bars disclosure of the identities of the witnesses who appeared at the hearing as well as the testimony given in open court.  In Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), Chief Justice Warren Burger ruled that the right to attend criminal trials was implicit in the First Amendment.  Just sayin'.
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  1. These gag orders are a disturbing and alarming trend.

    As Lord Chief Justice Hewart wrote in 1924 in the English Appeal ruling of R v Sussex Justices: "But while that is so, a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."

    Justice cannot be seen through a veil of secrecy.

    As you point out, the Supreme Court has ruled that the right to attend criminal trials is implicit in the First Amendment. In the spirit of that ruling, the press is a proxy of the people, and pretrial hearings are a part of the criminal trial process.

    I don't understand the compliance of any Prosecutor (least of all his/her request as is the case here) or Judge in these gag orders. Secrecy -- excuse me, nondisclosure, may benefit the defense by suppressing negative public reaction, so their consent is at least more understandable.

    Rulings like this are undermining faith and trust in the justice system.

  2. Concern is always balancing 1st Amendment goals against the 6th Amendment right of a defendant to an impartial jury. The Supreme Court has written that before a judge may issue a gag order against the press, there needs to be a showing that the case at issue is the type to generate potentially prejudicial pretrial publicity, that traditional means of curtailing prejudicial publicity (e.g. continuance, change of venue, sequestration)would be ineffective, that the gag order would serve its purpose and would be narrowly construed and not overbroad. In any case, there are a host of decisions that frown on after-the-fact declarations by the judge as in this case (US v. Dickinson, 465 F.2d 496 (5th Cir. 1972) springs to mind.)