The capital murder trial had been under way three and a half days when the gag order arrived, handed out after lunch by uniformed bailiffs to the media and other spectators seated in the courtroom.
Much of it was typical of what you’d find in a gag order issued during a tense trial:
- No media interviews with the witnesses, attorneys, prosecutors or court personnel
- No audio or visual recording equipment allowed in the courtroom
- No photographing of jurors
- No communication with any member of the jury
- No computers in the courtroom without prior approval of the judge
But the gag order issued on Jan. 6 by Visiting Judge Elizabeth Berry in Tarrant County Criminal District Court #4 did not stop there.
Berry ordered that media interviews could only be done in the courthouse lobby or outside the building. And nothing, the order stated, should be disseminated by the media unless it had occured in open court, presented in evidence or in argument with the jury present.
In other words, the media was being told they couldn’t report anything that happened in court outside the jury’s presence.
There were to be no blogs about court rulings on evidence. No testimony given without the jury to help the judge determine whether something should be admitted into evidence. No reporting even on the dressing-down the judge had given prosecutors and defense attorneys for their ongoing sniping.
Violation of the order could result in automatic expulsion from the courtroom or contempt of court, which carries a fine of up to $500 or six months in jail.
I stepped outside and called my editors at the Star-Telegram. It was time to get the lawyers involved.
Gag orders are not uncommon in high-profile cases such as the recent capital murder case against Kwame Rockwell, accused of killing two men — including a Mrs. Baird’s deliveryman — during a 2010 convenience store robbery.
Death penalty cases get intense scrutiny during the appeals process, and trial publicity can adversely affect the justice system if the jury panel becomes aware of the hooplah.
Most defense lawyers and prosecutors avoid discussing an ongoing case anyway, and in this case, the family members of the victims had already indicated to the Star-Telegram that they didn’t want to talk until after the trial.
But this gag order crossed the line. By prohibiting reporters from reporting on actions that occurred in open court, but outside the jury’s presence, the court had initiated a censorship policy known as prior restraint — telling the media that it cannot print something that occurs in a public forum.
Prior restraint was at the heart of the Pentagon Papers case in 1971, when the Nixon administration tried to stop The New York Times and Washington Post from publishing portions of top-secret documents related to the Vietnam War.
In a later case in Nebraska in 1979, the U.S. Supreme Court threw out a gag order that had imposed prior restraint on the media, saying such censorship was a violation of the First Amendment to the U.S. Constitution.
So what should you do if you’re hit with such a gag order? Take the lead from Star-Telegram attorney Tom Williams of Fort Worth, a noted First Amendment lawyer.
- Try to reason with the judge. Williams arrived in court within a few hours of the order being issued to talk with the judge about the decision. The Star-Telegram agreed immediately not to approach witnesses or attorneys for comment, but asked for permission to ask questions about routine information, such as the spelling of a witness’ name or confirmation of a date.
- Be polite. Make the judge aware that you are not trying to interfere with the justice system, and that you are willing to cooperate fully with her efforts to protect witnesses and court officials.
- Don’t back down on the big stuff. Judge Berry agreed to soften the order somewhat but initially refused to back down on the prior restraint order. Williams then indicated he would like a hearing on that issue, and it was scheduled for the following Monday. Before the hearing could begin, however, Berry had issued a new order revising the prior restraint requirement.
The key point to remember is this: Open court is a public forum, and no one can control reporting of what happens in open court.