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Mega Edition: Shannon Gray's Motion To Be Exempt From The Gag Order Is Denied (8/16/26) · Beyond The Horizon

0:00
Speaker 1: What's up, everyone, and welcome back to the program. This episode,
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Speaker 1: we're diving back into those core documents, and this time
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Speaker 1: we're going to take a look at the order denying
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Speaker 1: Shannon Gray's request to be exempt from the amended non
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Speaker 1: dissemination Order and granting requests the order be clarified. And
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Speaker 1: this is a twenty seven page order, so we're going
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Speaker 1: to break it down into several parts. That way it's
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Speaker 1: more digestible. So with that said, let's get busy. Case
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Speaker 1: number c R twenty nine DASH twenty two DASH twenty
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Speaker 1: eight oh five the State of Idaho, Plaintiff First Brian C. Coberger,
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Speaker 1: the defendant introduction. This order addresses the motion to appeal
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Speaker 1: amend and or clarify amended non dissemination Order filed by
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Speaker 1: Shannon Gray, attorney for the Gonsalves family. At the outset.
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Speaker 1: The Court would like to make clear that the amended
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Speaker 1: non dissemination Order does not restrict the Gonsalvist family from
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Speaker 1: speaking about the case to the media or anyone else. Instead,
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Speaker 1: the order restricts attorneys for the parties, attorneys representing victim's families,
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Speaker 1: and attorneys representing witnesses from speaking about the case, Grey's
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Speaker 1: motion asks this Court to exempt him from any regulation
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Speaker 1: on his ability to speak to the media and the public,
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Speaker 1: or at least to clarify the amended non dissemination order.
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Speaker 1: Deciding the motion, the Court must balance Gray's First Amendment
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Speaker 1: rights against defendant Bryan C. Coberger's right to affair trial
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Speaker 1: by an impartial jury, as guaranteed by the sixth Amendment.
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Speaker 1: Few if any interests under the Constitution are more fundamental
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Speaker 1: than the right to affair trial by impartial jurors, and
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Speaker 1: an outcome effected by extra judicial statements would violate that
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Speaker 1: fundamental right. Genteel First State Bar of Nevada, five oh
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Speaker 1: one US ten thirty ten seventy five, one eleven, Supreme Court,
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Speaker 1: twenty seven to twenty twenty seven forty five one fifteen
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Speaker 1: L Dot ed Dot two D eight eighty eight eight,
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Speaker 1: nineteen ninety one. Because membership in the bar is privileged
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Speaker 1: burdened with conditions id at ten sixty six, one eleven,
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Speaker 1: Supreme Court at twenty seven forty, the Supreme Court is
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Speaker 1: recognized that the speech of lawyers representing clients in pending
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Speaker 1: cases may be regulated under a less demanding standard than
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Speaker 1: that established for regulation of the press id at. Ten
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Speaker 1: seventy six, one eleven, Supreme Court at twenty seven forty four.
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Speaker 1: As officers of the court, court personnel and attorneys have
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Speaker 1: a fiduciary responsibility not to engage in public debate that
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Speaker 1: will rebound to the detriment of the accused or that
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Speaker 1: will obstruct the fair administration of justice. Id at. Ten
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Speaker 1: seventy four, one eleven, Supreme Court at twenty seven forty four.
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Speaker 1: Gray's request to be exempted from the amended non dissemination
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Speaker 1: Order is denied. However, this Court will issue or revised
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Speaker 1: amended non dissemination order that clarifies what cannot be discussed
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Speaker 1: and what may be discussed. The revised amended non dissemination
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Speaker 1: Order is limited to apply only to speech that is
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Speaker 1: substantially likely to have a materially prejudicial effect on the
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Speaker 1: right to affair trial. Two, It applies equally to all
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Speaker 1: attorneys participating in the case. Three it is neutral as
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Speaker 1: to points of view, and four it limits Gray's restricted
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Speaker 1: comments only after the trial and any sentencing proceedings that
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Speaker 1: may take place. The regulation on Gray's speech is narrowly
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Speaker 1: tailored to balance the competing interests of the first Amendment
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Speaker 1: and the sixth Amendment, Section two background. On November thirteenth,
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Speaker 1: twenty twenty two, four University of Idaho students, Kilee Gonsalves,
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Speaker 1: Madison Mogen, zan A Kernodle, and Ethan Chapin were found
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Speaker 1: deceased in Mogen's Gonsalves in Kernodle's off campus home in Moscow, Idaho.
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Speaker 1: The cause of death for each was ruled a homicide.
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Speaker 1: The news of the tragedy broke media outlets from around
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Speaker 1: the country descended upon Moscow. As law enforcement investigated. New stations, newspapers,
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Speaker 1: and social media were flooded with stories and speculation about
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Speaker 1: the homicides and law enforcements, investigative efforts and abilities. Throughout
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Speaker 1: the course of the investigation, the Moscow Police Department, in
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Speaker 1: partnership with the University of Idaho, the Leatah County Prosecutor's Office,
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Speaker 1: and the Idaho State Police held press briefings to answer
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Speaker 1: questions and reassure the public appropriately. The information released was
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Speaker 1: limited to protect the integrity of the ongoing investigation. As
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Speaker 1: represented by Gray during the hearing held on June ninth,
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Speaker 1: twenty twenty three, the Gonsalvas family retained him to represent
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Speaker 1: them around December fifth, twenty twenty two. During the hearing,
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Speaker 1: Gray did not dispute representations made that he himself, as
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Speaker 1: well as members of the Gonsalves family, had participated in
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Speaker 1: several interviews with the media, which, as Gray described, were
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Speaker 1: critical of the homicide investigation. On December thirtieth, twenty twenty two,
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Speaker 1: Coburger was arrested and charged with four counts of murder
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Speaker 1: in the first degree and account of burglary. Again, media
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Speaker 1: outlets descended upon Moscow, and the news coverage quickly focused
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Speaker 1: on Coburger. The same day that Coburger was charged, his
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Speaker 1: attorney filed a motion for non dissemination order asking the
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Speaker 1: magistrate judge to enter an order barring parties, their attorneys, investigators,
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Speaker 1: law enforcement personnel, and potential witnesses from discussing the case
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Speaker 1: with any public communications media thereafter. On January third, twenty
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Speaker 1: twenty three, the defense in the state filed a stipulation
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Speaker 1: for non dissemination order prohibiting attorneys, investigators, and law enforcement
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Speaker 1: personnel for making any extra judicial statements, written or oral
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Speaker 1: concerning this case other than a quotation from or reference to,
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Speaker 1: without comment, the public records of the Court in this case.
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Speaker 1: The same day, the Magistrate Judge entered a non dissemination
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Speaker 1: order prohibiting the parties to the case, including investigators, law
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Speaker 1: enforcement personnel, attorneys, and agents of the prosecuting attorney or
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Speaker 1: defense attorney, from making extra judicial statements written or oral
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Speaker 1: concerning this case other than a quotation from or a
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Speaker 1: reference to, without comment, the public records of the case.
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Speaker 1: On January thirteenth, twenty twenty three, the Magistrate Judge held
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Speaker 1: an inn chambers off the record conference with Letaw County
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Speaker 1: Prosecuting Attorney William W. Thompson, Junior Senior Deputy Prosecutor, Ashley S. Jennings,
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Speaker 1: defense counsel and C. Taylor, attorneys for two witnesses in
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Speaker 1: the case, and Gray. A summary of the meeting, as
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Speaker 1: prepared by the parties in the case, was filed with
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Speaker 1: the Idaho Supreme Court on March third, twenty twenty three,
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Speaker 1: as part of the declaration of Deborah A. Ferguson in
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Speaker 1: response to petition for rid of Mandamus or rid of
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Speaker 1: Prohibition Number five zero four eight two two zero two
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Speaker 1: to three w L three zero five zero eight A
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Speaker 1: two nine, Idaho, April twenty fourth, twenty twenty three. The
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Speaker 1: purpose of the conference was to address the applicability of
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Speaker 1: the non dissemination order to the attorneys both present as
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Speaker 1: parties to the case and the attorneys participating in the case.
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Speaker 1: The Magistrate Judge reminded the attorneys that this case is
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Speaker 1: a high profile case with both national and international media coverage,
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Speaker 1: and that they each have a duty under the Idaho
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Speaker 1: Rules of Professional Conduct to not interfere with the party's
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Speaker 1: right to a fair trial. The magistrate advised the attorneys
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Speaker 1: that it was not their job to disseminate information to
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Speaker 1: the media. The magistrate judge stated that the non dissemination
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Speaker 1: order did not restrict the attorney's non party clients, including
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Speaker 1: the Gonsalvas family, from speaking to the media, but the
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Speaker 1: importance of the case being tried in a court of
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Speaker 1: law and not the media, and encouraged each attorney to
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Speaker 1: advise their clients accordingly to preserve the right to affair
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Speaker 1: trial by impartial jury. On January eighteenth, twenty twenty three,
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Speaker 1: the Magistrate Judge, based on the stipulation of the parties,
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Speaker 1: entered the amended non dissemination order to balance Coburger's right
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Speaker 1: to affair trial and the right to free expression, as
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Speaker 1: afforded under both the United States and Idaho Constitution. The
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Speaker 1: magistrate noted that to preserve the right to affair trial,
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Speaker 1: some curtailment of the dissemination of information in this case
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Speaker 1: is necessary and authorized under the law. The amended non
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Speaker 1: dissemination Order reads, it is hereby ordered one the attorneys
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Speaker 1: for any interested party in this case, including the prosecuting attorney,
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Speaker 1: defense attorney, and any attorney representing a witness, victim, or
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Speaker 1: victim's family, as well as the parties to the above
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Speaker 1: entitled action, including but not limited to, investigators, law enforcement personnel,
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Speaker 1: and agents for the prosecuting attorney or defense attorney, are
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Speaker 1: prohibited from making extra judicial statements, written or oral, concerning
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Speaker 1: this case, except without additional comment, a quotation from or
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Speaker 1: reference to the official public record of the case. Two.
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Speaker 1: This order specifically prohibits any statement which a reasonable person
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Speaker 1: would expect to be disseminated by means of public communication,
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Speaker 1: that relates to the following a evidence regarding the occurrences
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Speaker 1: or transactions involved in this case. B the character, credibility, reputation,
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Speaker 1: or criminal records of a party, victim, or witness, or
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Speaker 1: the identity of a witness or the expected testimony of
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Speaker 1: a party, victim, or witness. C The performance or results
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Speaker 1: of any examination or test, or the refusal or failure
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Speaker 1: of a person to submit to an examination or a test.
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Speaker 1: D Any opinion to the merits of the case, or
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Speaker 1: the claims or defense of a party. E. Any information
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Speaker 1: a lawyer knows or reasonably should know is likely to
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Speaker 1: be inadmissible as evidence in a trial, and that would,
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Speaker 1: if disclosed, create a substantial risk of prejudicing and impartial trial.
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Speaker 1: F Any information reasonably likely to interfere with a fair
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Speaker 1: trial in this case afforded under the United States an
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Speaker 1: Idaho Constitution, such as the existence or contents of any confession, admission,
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Speaker 1: or statement given by the defendant, the possibility of a
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Speaker 1: plea of guilt, or any opinion as to the defendant's
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Speaker 1: guilt or innocence pallas. On February third, twenty twenty three,
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Speaker 1: Gray filed a notice of appearance stating that he represents
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Speaker 1: the Gonsalvas family and himself in all pleadings, motions, and notices.
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Speaker 1: That same day, Gray filed a motion to appeal amend
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Speaker 1: and or clarify amended non dissemination, along with a memorandum
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Speaker 1: in support of motion on February sixth, twenty twenty three.
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Speaker 1: The Associated Press. Associated press is used to refer to
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Speaker 1: roughly twenty seven media entities that were involved in litigation
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Speaker 1: before the Idaho Supreme Court involving the amended non dissemination
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Speaker 1: order in this case, as well as the twenty media
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Speaker 1: entities that are now involved in the litigation before this court.
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Speaker 1: To vacate the amended non dissemination order, filed a petition
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Speaker 1: of rid of mendamus or a rid of prohibition with
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Speaker 1: the Idaho Supreme Court related to the amended non dissemination Order.
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Speaker 1: On February eighth, twenty twenty three, the state filed a
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Speaker 1: memorandum of points and authorities relating to non dissemination order
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Speaker 1: and the affidavid of Leyta County Prosecutor William W. Thompson, Junior,
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Speaker 1: stating that members of the Gonsalvas family who are represented
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Speaker 1: by Shannon Gray, are potential witnesses in this case, including
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Speaker 1: at trial, end or sentencing. On February ninth, twenty twenty three,
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Speaker 1: Coburger filed an objection to motion to appeal amend and
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Speaker 1: door clarify non dissemination order. On February twenty sixth, twenty
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Speaker 1: twenty three, the Magistrate issued a notice regarding hearing date
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Speaker 1: on motion to appeal amend and or clarify amended non
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Speaker 1: dissemination Order, informing the Gonsalvices that their motion would be
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Speaker 1: set for hearing after the Idaho Supreme Court issued a
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Speaker 1: decision on the Associated Press petition. On April twenty fourth,
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Speaker 1: twenty twenty three, the Idaho Supreme Court issued an opinion
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Speaker 1: dismissing the Associated Press's petition, finding that although the media
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Speaker 1: did have standing to challenge the amended non dissemination order,
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Speaker 1: they must first present their petition to the trial court.
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Speaker 1: The magistrate then set a hearing on the Gonsava's motion
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Speaker 1: for May twenty fifth, twenty twenty three. Thereafter, on May second,
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Speaker 1: twenty twenty three, the Associated Press filed a motion to
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Speaker 1: intervene and a motion to vacate eight the amended non
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Speaker 1: dissemination order. Because of the Associated Press's filings, the Magistrate
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Speaker 1: vacated the hearing on the Gonsabast motion set for May
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Speaker 1: twenty fifth, twenty twenty three, and set a scheduling conference
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Speaker 1: for May twenty second, twenty twenty three. On May sixteenth,
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Speaker 1: twenty twenty three, an indictment was filed against Coburger, and
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Speaker 1: this court began presiding over the case. On May twenty second,
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Speaker 1: twenty twenty three. After Colberger's arraignment, this Court conducted a
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Speaker 1: scheduling conference and set a briefing schedule and hearing for
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Speaker 1: oral argument. Gray did not file any additional briefing in
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Speaker 1: support of the motion to appeal amend and or clarify
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Speaker 1: amended non dissemination order. On June sixth, twenty twenty three,
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Speaker 1: the state filed a concurrence with Colburger's February ninth, twenty
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Speaker 1: twenty three filing. Oral argument was heard on June ninth,
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Speaker 1: twenty twenty three. The state was represented by William W. Thompson,
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Speaker 1: Junior and Bradley J. Rudley Leyta County Process Cocutter's Office.
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Speaker 1: Koburger was represented by Ann Taylor and J. W. Logsdon
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Speaker 1: Cootney County Public Defender's Office. The Gonsalvas family was represented
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Speaker 1: by Gray. During the hearing, representations were made to the
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Speaker 1: court that are important to note. First, Gray represented both
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Speaker 1: in briefing and during the hearing that the state has
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Speaker 1: not shared any information regarding the case with himself or
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Speaker 1: his clients, and that the State has not made any
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Speaker 1: attempt to interview his clients. The state deny these allegations,
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Speaker 1: calling them misrepresentations at best. The state represented that it
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Speaker 1: has shared information with the Gonsalvast family, but must limit
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Speaker 1: the information they share to protect the integrity of the
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Speaker 1: investigation and the state's case. The state also represented that
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Speaker 1: its investigators have attempted to interview members of the Gonsalvast family,
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Speaker 1: but that Gray has not allowed the interviews to occur.
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Speaker 1: Both the State and the defense can curd in their
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Speaker 1: positions that Gray has repeatedly issued statements and he participated
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Speaker 1: in television interviews that the parties view as a violation
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Speaker 1: of the amended non dissemination order. Gray did not dispute
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Speaker 1: that despite the amended non dissemination order, he has continued
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Speaker 1: to speak with the media by way of statements and
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Speaker 1: interviews because it is his belief that the court does
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Speaker 1: not have the authority to impose any regulations on his
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Speaker 1: speech and that Rule three dot six of the Idaho
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Speaker 1: Rules of Professional Conduct does not apply to him in
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Speaker 1: this case. All right, folks, we're gonna wrap up right
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Speaker 1: here and In the next episode, we're gonna pick up
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Speaker 1: where we left off with section three, and that is
15:36
Speaker 1: the issues presented. All of the information that goes with
15:40
Speaker 1: this episode can be found in the description box. What's
15:43
Speaker 1: up everyone, and welcome back to the program. In this episode,
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Speaker 1: we're going to continue taking a look at the order
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Speaker 1: by Judge Judge denying Shannon Gray's request to be exempt
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Speaker 1: from the gag order. Part three Issues presented. The Gonzi
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Speaker 1: Salava's family's motion raises two distinct issues. First, does the
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Speaker 1: amended non dissemination order prohibit the Gonsalvis family from speaking
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Speaker 1: to the media or the public about the case. The
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Speaker 1: amended non dissemination order does not apply to the Gonsalvis family. Also,
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Speaker 1: the court's revised amended non dissemination order will not restrict
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Speaker 1: the Gonsalva's family's speech. However, while the speech of the
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Speaker 1: victims' families is not and will not be restrained by
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Speaker 1: court order, this case is indisputably high profile and the
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Speaker 1: law requires the case to be tried in a court
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Speaker 1: of law and non the press or the public. As
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Speaker 1: the U. S. Supreme Court is stated, it is not
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Speaker 1: asking too much to suggest that those who exercise First
16:43
Speaker 1: Amendment rights in newspapers or broadcasting enterprises directs some effort
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Speaker 1: to protect the rights of an accused to a fair
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Speaker 1: trial by unbiased jurors. Nebraska Press Association versus Stuart, four
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Speaker 1: twenty seven US five thirty nine, five sixty ninety six,
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Speaker 1: Supreme Court two seven nine to one, two eight Ozho
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Speaker 1: three forty nine, LED two D six eighty three, nineteen
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Speaker 1: seventy six. The same is true for those participating in
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Speaker 1: a case and privy to confidential information. The second issue
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Speaker 1: raised as the gonsalvast family's motion as to whether the
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Speaker 1: Court has the authority to restrict the speech of Gray,
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Speaker 1: an attorney involved in but not a party two the case. Further,
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Speaker 1: this motion argues that the amended non dissemination order violates
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Speaker 1: Gray's First Amendment right to free speech. In fact, the
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Speaker 1: amended non dissemination order does prohibit Gray, an attorney representing
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Speaker 1: a victim's family members who are also potential witnesses, from
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Speaker 1: speaking to the public and the media about the case.
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Speaker 1: Gray argues that as an attorney for one of the
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Speaker 1: victim's families, he is allowed to relay to the media
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Speaker 1: any of the opinions, views, or statements of those family
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Speaker 1: members regarding any part of the case, memorandum in support
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Speaker 1: of motion for appeal and or clarification of the amended
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Speaker 1: non dissemination Order. At four. Gray also argues that he
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Speaker 1: himself is allowed to comment on the case and other
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Speaker 1: issues surrounding the investigation pursuant to IRPC Rule three dot six.
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Speaker 1: In Gray's view, the court does not have the authority
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Speaker 1: to restrict his First Amendment rights at all, because he
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Speaker 1: and his clients are not parties to the case. This
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Speaker 1: decision addresses one obligation of the court to ensure that
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Speaker 1: Coburger's right to a fair trial is not jeopardized by
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Speaker 1: prejudicial extra judicial statements. Two, the court's authority to impose
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Speaker 1: restrictions on the speech of attorneys and their agents involved
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Speaker 1: in this case, and the standard applied to reviewing a
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Speaker 1: constitutional challenge by a lawyer whose speech has been restrained
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Speaker 1: by a non dissemination order. Finally, this decision will apply
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Speaker 1: the law and rules applicable to attorneys to the facts
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Speaker 1: of this case. In addressing Gray's argument that the amended
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Speaker 1: non dissemination order violates his First Amendment right to free speech,
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Speaker 1: Part four, the law to begin, this court must first
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Speaker 1: address the status of the Gonsalvast family in this case.
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Speaker 1: This court agrees with Gray that the Gonsalvast family members
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Speaker 1: are not parties to this case. However, as victims and
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Speaker 1: potential witnesses, their status separates them from regular citizens. A
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Speaker 1: crime victim is an individual who suffers direct emotional harm
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Speaker 1: as the result of the commission of a crime I dot.
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Speaker 1: See Section nineteen dash five three zh six. Crime victims
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Speaker 1: and specifically, immediate families of homicide victims, are afforded both
19:41
Speaker 1: statutory and constitutional rights i dot. See section nineteen five
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Speaker 1: three zero six, Article one and section twenty two of
19:50
Speaker 1: the Idaho Constitution. The Gonsalvast family, as well as the
19:54
Speaker 1: families of the other three victims, are undoubtedly victims in
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Speaker 1: this case. As such, they are afforded rights that the
20:01
Speaker 1: public is not, including the rights to communicate with the prosecution,
20:05
Speaker 1: to prior notification of trial court proceedings, to read presentans
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Speaker 1: reports relating to the crime, as well as other rights.
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Speaker 1: These rights put the victims' families and Gray, as the
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Speaker 1: attorney representing the Gonsalvas family, in a position to know
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Speaker 1: details about the crime and the prosecution's case that the
20:23
Speaker 1: public has no right to know at this stage in
20:26
Speaker 1: the proceedings. Additionally, while the Gonsavas family members are victims,
20:31
Speaker 1: they are also potential witnesses in the case for both
20:34
Speaker 1: trial and sentencing. Again, this puts them in a unique
20:38
Speaker 1: position and sets them apart from the public. In nineteen
20:42
Speaker 1: sixty six, the US Supreme Court recognized the defendant's right
20:46
Speaker 1: to a trial by an impartial jury free from outside
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Speaker 1: influences in the face of a massive, pervasive, and prejudicial
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Speaker 1: publicity Shepherd versus Maxwell, three eighty four US three thirty three,
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Speaker 1: three thirty five thx xty two eighty six. Supreme Court,
21:02
Speaker 1: fifteen oh seven, fifteen oh eight, fifteen twenty two, sixteen
21:06
Speaker 1: L Dot ed Dot two D six hundred, nineteen sixty six.
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Speaker 1: The Court chastised the trial judge for not taking strong
21:15
Speaker 1: measures to ensure Shepherd's right to a fair trial at
21:19
Speaker 1: three sixty two eighty six. Supreme Court at fifteen twenty two.
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Speaker 1: The trial court did not enter a non dissemination order
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Speaker 1: restricting the speech of trial participants or any gag order
21:31
Speaker 1: on the media. In overturning Shepherd's conviction, the Court listed
21:35
Speaker 1: several things that the trial court should have done. One,
21:38
Speaker 1: the judge should have adopted stricter rules governing the use
21:42
Speaker 1: of the court room by newsmen and should have been
21:44
Speaker 1: more closely regulated the conduct of newsmen in the court room.
21:48
Speaker 1: Two the court should have insulated the witnesses. All of
21:52
Speaker 1: the newspapers and radio stations apparently interviewed prospective witnesses at
21:56
Speaker 1: will and in many instances disclose their testimony. Three the
22:00
Speaker 1: court should have made some effort to control the release
22:03
Speaker 1: of leads, information and gossip to the press by police officers, witnesses,
22:08
Speaker 1: and the council for both sides. Much of the information
22:12
Speaker 1: thus disclosed was inaccurate, leading to groundless rumors and confusion.
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Speaker 1: Four the judge should have at least warned the newspapers
22:20
Speaker 1: to check the accuracy of their accounts. And five it
22:23
Speaker 1: is obvious that the judge should have further sought to
22:26
Speaker 1: alleviate inaccurate prejudicial news by imposing control over the statements
22:31
Speaker 1: made to the news media by council, witnesses, and especially
22:35
Speaker 1: the coroner and police officers Idaho at three point fifty
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Speaker 1: eight three sixty eighty six Supreme Court at fifteen twenty
22:44
Speaker 1: and twenty one, emphasis added in summary, the Court stated
22:48
Speaker 1: that the trial court might well have prescribed extra judicial
22:52
Speaker 1: statements by any lawyer, party, witness, or court official which
22:56
Speaker 1: divulge prejudicial matters, such as the refusal of Shepherd to
23:00
Speaker 1: submit to interrogation or take any lie detector tests, the
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Speaker 1: identity of prospective witnesses or their probable testimony, any belief
23:10
Speaker 1: in guilt or innocence, or like statements concerning the merits
23:13
Speaker 1: of the case id. At. Three sixty one eighty six.
23:17
Speaker 1: Supreme Court at fifteen twenty one. In addressing the tension
23:21
Speaker 1: between the First Amendment and the sixth Amendment, the Court stated,
23:25
Speaker 1: from the cases coming here, we note the unfair and
23:28
Speaker 1: prejudicial news comment on pending trials has become increasingly prevalent.
23:33
Speaker 1: Due process requires that the accused receive a trial by
23:37
Speaker 1: impartial jury, free from outside influences. Given the pervasiveness of
23:41
Speaker 1: modern communications and the difficulty of effacing prejudicial publicity from
23:46
Speaker 1: the minds of jurors, the trial courts must take strong
23:49
Speaker 1: measures to ensure that the balance is never weighed against
23:53
Speaker 1: the accused, and appellate tribunals have the duty to make
23:57
Speaker 1: an independent evaluation of the circumstances. Of course, there is
24:01
Speaker 1: nothing that proscribes the press from reporting events that transpire
24:06
Speaker 1: in the court room. But where there is a reasonable
24:09
Speaker 1: likelihood that prejudicial news prior to trial will prevent a
24:13
Speaker 1: fair trial, the judge should continue the case until the
24:16
Speaker 1: threat of bates or transfer it to another county not
24:20
Speaker 1: so permeated with publicity. In addition, sequestering the jury was
24:24
Speaker 1: something the judge should have raised suspontee with counsel. If
24:29
Speaker 1: publicity during the proceedings threatens the fairness of the trial,
24:33
Speaker 1: a new trial should be ordered. But we must remember
24:35
Speaker 1: that reversals are but palliatives. The cure lies in those
24:40
Speaker 1: remedial measures that will prevent the prejudice at its inception.
24:44
Speaker 1: The court must take such steps by rule and regulation
24:48
Speaker 1: that will protect their process from prejudicial outside interferences. Neither prosecutors,
24:54
Speaker 1: counsel for defense, the accused, witnesses, court staff, nor enforcement
24:58
Speaker 1: officers coming under the jurisdiction of the court should be
25:02
Speaker 1: permitted to frustrate its function. Collaboration between council and the
25:06
Speaker 1: press as to information affecting the fairness of a criminal
25:10
Speaker 1: trial is not only subject to regulation, but is highly
25:13
Speaker 1: censurable and worthy of disciplinary measures Idaho Court at. Three
25:19
Speaker 1: sixty two, sixty three eighty six. Supreme Court, fifteen oh
25:23
Speaker 1: seven at fifteen twenty two. In nineteen seventy six, the
25:27
Speaker 1: US Supreme Court again addressed the tensions between the First
25:30
Speaker 1: Amendment and the Sixth Amendment in Nebraska Press. Even then,
25:34
Speaker 1: in nineteen seventy six, the Court acknowledged the speed of
25:37
Speaker 1: communication and the pervasiveness of the modern news media have
25:41
Speaker 1: exasperated the tension between the First Amendment and the Sixth Amendment.
25:46
Speaker 1: Nebraska Press Association for twenty seven US at. Five forty
25:50
Speaker 1: eight ninety six, Supreme Court at twenty seven, ninety eight.
25:54
Speaker 1: Unlike in this case, Nebraska Press dealt with a restraint
25:57
Speaker 1: on the media's ability to publish or broadcast specific information, ie.
26:02
Speaker 1: A restraint on freedom of the press, and not a
26:05
Speaker 1: restraint on freedom of speech. The Court recognized that when
26:08
Speaker 1: the case is a sensational one, tensions developed between the
26:12
Speaker 1: right of the accused to trial by impartial jury and
26:15
Speaker 1: the rights guaranteed others by the First Amendment ID At
26:20
Speaker 1: five point fifty one, ninety six. Supreme Court at twenty
26:23
Speaker 1: seven ninety nine. The Court noted that a prior restraint
26:26
Speaker 1: on speech is most serious and the least tolerable infringement
26:30
Speaker 1: on the First Amendment rights, while also acknowledging that when
26:34
Speaker 1: the death penalty is on the table, it is not
26:36
Speaker 1: requiring too much that the defendant be tried in an
26:40
Speaker 1: atmosphere undisturbed by so huge a wave of public passion.
26:44
Speaker 1: Id at five point fifty two ninety six, Supreme Court
26:48
Speaker 1: at twenty seven ninety nine. Quoting Irvin versus Dowd three
26:51
Speaker 1: sixty six US seven seventeen seven, twenty eight eighty one,
26:56
Speaker 1: Supreme Court, sixteen thirty nine, sixteen forty five six L
27:00
Speaker 1: Dot ed Dot two D seven fifty one, nineteen sixty one,
27:05
Speaker 1: the Court stated that it is not asking too much
27:07
Speaker 1: to suggest that those who exercise First Amendment rights in
27:11
Speaker 1: newspapers or broadcasting enterprises directs some efforts to protect the
27:15
Speaker 1: rights of an accused to a fair trial by unbiased
27:18
Speaker 1: jurors id at. Five sixty ninety six, Supreme Court at
27:23
Speaker 1: twenty eight oh three. The same is true for trial participants,
27:27
Speaker 1: including lawyers who are privy to confidential information. In a
27:31
Speaker 1: footnote in the concurring opinion authored by Justice Brennan, the
27:34
Speaker 1: following was noted a significant component of prejudicial pre trial
27:39
Speaker 1: publicity may be traced the public commentary on pending cases
27:44
Speaker 1: by court personnel, law enforcement officials, and the attorneys involved
27:48
Speaker 1: in the case. In Shepherd versus Maxwell, Supra. We observe
27:52
Speaker 1: that the trial court might well have prescribed extra judicial
27:56
Speaker 1: statements by any lawyer, party witness, or court officials which
28:00
Speaker 1: divulge prejudicial matters three eighty four US at. Three sixty one,
28:05
Speaker 1: eighty six, Supreme Court at fifteen twenty one. See also
28:09
Speaker 1: Idea at three sixty eighty six, Supreme Court at fifteen
28:12
Speaker 1: twenty one. The judge should have further sought to alleviate
28:15
Speaker 1: this problem of publicity that misrepresented the child testimony by
28:20
Speaker 1: imposing control over the statements made to the news media
28:24
Speaker 1: by counsel, witnesses, and especially the coroner and police officers
28:29
Speaker 1: Idea at three fifty nine, three sixty three eighty six,
28:32
Speaker 1: Supreme Court at fifteen twenty one, fifteen twenty two. As
28:37
Speaker 1: officers of the court, court personnel and attorneys have a
28:40
Speaker 1: fiduciary responsibility not to engage in public debate that will
28:45
Speaker 1: rebound to the detriment of the accused or that will
28:48
Speaker 1: obstruct the fair administration of justice. It is very doubtful
28:52
Speaker 1: that the Court would not have the power to control
28:55
Speaker 1: release of information by these individuals inappropriate cases. C. Sawyer,
29:01
Speaker 1: three sixty US six twenty two seventy nine. Supreme Court,
29:05
Speaker 1: thirteen seventy six, three L. Dot ed Dot two D.
29:10
Speaker 1: Fourteen seventy three, nineteen fifty nine, and to impose suitable
29:14
Speaker 1: limitations whose transgressions could result in disciplinary proceedings. Cf. New
29:20
Speaker 1: York Times Company versus United States, four oh three US
29:24
Speaker 1: at seven twenty eight, seven thirty ninety one, Supreme Court at.
29:28
Speaker 1: Two one four eight two one four nine, Stuart JA.
29:31
Speaker 1: Joined by White J. Concurring Similarly, in most cases, courts
29:36
Speaker 1: would have ample power to control such actions by law
29:39
Speaker 1: enforcement personnel. All right, folks, that's gonna wrap it up
29:43
Speaker 1: for part two, and Part three is on the way.
29:47
Speaker 1: All of the information that goes with this episode can
29:49
Speaker 1: be found in the description box and then welcome back
29:53
Speaker 1: to the program. This episode, we're gonna pick up where
29:56
Speaker 1: we left off with the order denying Shannon Gray's request
30:00
Speaker 1: to be exempt from the gag order. Shepard and Nebraska
30:05
Speaker 1: Press leave no doubt that in appropriate cases, the Court
30:09
Speaker 1: has the authority to regulate the speech of attorneys involved
30:12
Speaker 1: in a case, to prevent prejudicial pre trial publicity, to
30:16
Speaker 1: preserve the right to affair trial by an impartial jury.
30:20
Speaker 1: Gray's argument that the court only has the authority to
30:22
Speaker 1: regulate the speech of parties to a case is unpersuasive
30:26
Speaker 1: and not supported by case law. In nineteen eighty five,
30:30
Speaker 1: the Ninth Circuit Court of Appeals addressed a challenge to
30:34
Speaker 1: a non dissemination order brought by two defense attorneys whose
30:37
Speaker 1: speech was restricted under the court Levigne versus U s.
30:41
Speaker 1: District Court for Center District of California, seven sixty four f.
30:46
Speaker 1: Dot two d five, ninety Ninth Circuit, nineteen eighty five.
30:50
Speaker 1: As a way of background, defendant Richard Miller, a former
30:53
Speaker 1: FBI agent, was charged with espionage. The case received extensive
30:58
Speaker 1: local and national media coage after attorneys for both the
31:02
Speaker 1: prosecution and the defense engaged in extra judicial statements to
31:06
Speaker 1: the media. The trial court entered an order prohibiting all
31:10
Speaker 1: attorneys in the case from making any statements to members
31:13
Speaker 1: of the news media concerning any aspect of the case
31:16
Speaker 1: that bears upon the merits to be resolved by the jury.
31:20
Speaker 1: Levigne seven point sixty four Ft. Two d At five
31:24
Speaker 1: ninety three. Miller's attorneys challenged the constitutionality of the order.
31:29
Speaker 1: In reviewing the order, the Court addressed the clash between
31:31
Speaker 1: the basic and fundamental right to a fair criminal jury
31:35
Speaker 1: trial and the First Amendment right of attorneys to engage
31:39
Speaker 1: in free speech id At five ninety one. The Court
31:43
Speaker 1: noted that the district Court's order applies only to trial participants.
31:47
Speaker 1: The Supreme Court has suggested that it is appropriate to
31:50
Speaker 1: impose greater restrictions on the free speech of rights of
31:54
Speaker 1: trial participants than on the rights of non participants. The
31:58
Speaker 1: case for restraints on rile participants is especially strong with
32:03
Speaker 1: respect to attorneys idea. At five ninety five, nine Circuit
32:06
Speaker 1: nineteen eighty five. Internal citations omitted, emphasis added. The Court
32:12
Speaker 1: nevertheless applied strict scrutiny in reviewing the order. Accordingly, the
32:17
Speaker 1: District Court's order may be upheld only if the government
32:20
Speaker 1: establishes that one the activity restrained poses either a clear
32:25
Speaker 1: in present danger or a serious an eminent threat to
32:28
Speaker 1: a protected competing interest, two the order is narrowly drawn,
32:33
Speaker 1: and three less restrictive alternatives are not available. Id At
32:37
Speaker 1: five ninety six. The Court concluded that the speech of
32:41
Speaker 1: the lawyers did not pose a serious and imminent threat
32:44
Speaker 1: to the administration of justice, and that the trial court's
32:47
Speaker 1: choice of remedy was appropriate. However, the court found that
32:51
Speaker 1: the non dissemination order was overbroad. The court noted, it
32:55
Speaker 1: is apparent that many statements that bear upon the merits
32:58
Speaker 1: to be resolved by the jury present no danger to
33:01
Speaker 1: the administration of justice. After the filing of this opinion,
33:05
Speaker 1: the District Court then must fashion in order specifying the
33:09
Speaker 1: prescribed types of statements. With regard to statements by the prosecution,
33:14
Speaker 1: it would be appropriate for the District Court to order
33:16
Speaker 1: the government to observe the self imposed limitations set forth
33:20
Speaker 1: in twenty eight ceed dot fr. Section five zero dot
33:24
Speaker 1: two b nineteen eighty four. With regard to statement by
33:28
Speaker 1: the defense, it would be appropriate to prescribe statements relating
33:31
Speaker 1: to one or more of the following subjects. One character
33:35
Speaker 1: credibility or reputation of a party. Two the identity of
33:39
Speaker 1: a witness or expected testimony of a party or a witness.
33:43
Speaker 1: Three contents of any pre trial confession, admissions or statements
33:48
Speaker 1: given by a defendant, or that person's refusal or failure
33:52
Speaker 1: to make a statement. Four the identity or nature of
33:55
Speaker 1: physical evidence expected to be presented, or the absence of
33:59
Speaker 1: such physical evidence, five the strengths or weaknesses of the
34:03
Speaker 1: case of either party, And six any other information the
34:07
Speaker 1: lawyer knows or reasonably should know is likely to be
34:11
Speaker 1: inadmissible as evidence and would create a substantial risk of
34:15
Speaker 1: prejudice if disclosed, id at five ninety nine, citing Model
34:19
Speaker 1: Rules of Professional Conduct Rule three dot six, nineteen eighty three,
34:23
Speaker 1: ABA Standards for Criminal Justice Standard eight Dash one dot one,
34:28
Speaker 1: nineteen eighty two, Model CODA Professional Responsibility d R seven
34:33
Speaker 1: Dash one oh seven, nineteen seventy nine. In nineteen ninety one,
34:37
Speaker 1: the Supreme Court expressly recognized that the speech of those
34:41
Speaker 1: participating before the courts can be limited. Genteel vers State
34:45
Speaker 1: Bar of Nevada, five oh one US ten thirty ten,
34:48
Speaker 1: seventy two one one one. Supreme Court, twenty seven, twenty
34:53
Speaker 1: twenty seven, forty three one fifteen L dot e D
34:57
Speaker 1: two D eight eighty eight, nine ninety one. In Genteel Genteel,
35:01
Speaker 1: a defense attorney held a press conference after his client
35:04
Speaker 1: was indicted. Genteel proclaimed that the evidence at trial would
35:08
Speaker 1: prove his client was innocent and that Criocket cops were
35:11
Speaker 1: the ones responsible for stealing the drugs and money at issue.
35:15
Speaker 1: Genteel also commented on other aspects of the defense's case.
35:19
Speaker 1: Six months later, Gentiel's client was acquitted. Thereafter, the State
35:23
Speaker 1: Bar filed a complaint against Gentiel, alleging that he violated
35:28
Speaker 1: Nevada Supreme Court Rule one seventeen, which prohibited a lawyer
35:32
Speaker 1: from making extra judicial statements to the press that had
35:35
Speaker 1: a substantial likelihood of materially prejudicing a trial. However, Rule
35:40
Speaker 1: one seventeen expressly allowed a lawyer to state, without elaboration,
35:45
Speaker 1: the general nature of the defense ID at ten forty eight,
35:49
Speaker 1: one eleven Supreme Court at twenty seven thirty one. The
35:53
Speaker 1: State Bar's disciplinary board found Genteel in violation of rule
35:57
Speaker 1: one seventeen and recommended that he be reprimanded. Ultimately, the
36:01
Speaker 1: Supreme Court held that Nevada Supreme Court Rules Rule one seventeen,
36:05
Speaker 1: as applied to the facts of Gentiel's case, was unconstitutionally vague.
36:10
Speaker 1: The court noted that the safe harbor provision misled Genteel
36:14
Speaker 1: into thinking that he could make statements he had without discipline.
36:18
Speaker 1: Despite the holding, that Rule one seventeen was unconstitutionally void
36:23
Speaker 1: for vagueness as applied. The Court continued to recognize that
36:27
Speaker 1: the speech of lawyers representing clients and pending cases may
36:30
Speaker 1: be regulated under a less demanding standard than the establishment
36:35
Speaker 1: for regulation of the press in Nebraska Press Association verus
36:39
Speaker 1: Stuart for twenty seven US five point thirty nine ninety six.
36:43
Speaker 1: Supreme Court, twenty seven ninety one, forty nine l. Dot
36:46
Speaker 1: ed Dot two D six eighty three, nineteen seventy six,
36:50
Speaker 1: and the cases which preceded it. Lawyers representing clients and
36:54
Speaker 1: pending cases are key participants in the criminal justice system,
36:58
Speaker 1: and the state made demand and some adherence to the
37:01
Speaker 1: precepts of that system in regulating their speech as well
37:05
Speaker 1: as their conduct Idea. Ten seventy four one to eleven
37:09
Speaker 1: Supreme Court at twenty seven forty four. As officers of
37:14
Speaker 1: the court, court personnel and attorneys have a fiduciary responsibility
37:18
Speaker 1: not to engage in public debate that will redound to
37:21
Speaker 1: the detriment of the accused or that will obstruct the
37:24
Speaker 1: fair administration of justice. Because lawyers have a special access
37:28
Speaker 1: to information through discovery and client communications, their extra judicial
37:33
Speaker 1: statements pose a threat to the fairness of appending proceeding,
37:36
Speaker 1: since lawyer's statements are likely to be received as especially authoritative.
37:42
Speaker 1: The key takeaways from Levine versus Genteel are that to
37:46
Speaker 1: protect the right to a fair trial, a court can
37:49
Speaker 1: prohibit lawyers involved in a case from making extra judicial
37:53
Speaker 1: statements to the press, so long as the regulation is
37:56
Speaker 1: not overbroad, is clear, and provides notice of what is prohibited.
38:01
Speaker 1: While the Levin court applied strict scrutiny, Genteel suggests that
38:05
Speaker 1: a less demanding standard applies to restrictions on the speech
38:08
Speaker 1: of lawyers participating in pending cases. The ability of a
38:12
Speaker 1: court to restrict the speech of a lawyer participating in
38:15
Speaker 1: a case is rooted in a lawyer's status as an
38:18
Speaker 1: officer of the legal system and a public citizen having
38:21
Speaker 1: special responsibility for the quality of justice I dot RPC preamble.
38:27
Speaker 1: A lawyer's responsibilities. A lawyer should demonstrate respect for the
38:31
Speaker 1: legal system and for those who serve it, including judges,
38:34
Speaker 1: other lawyers, and public officials. While it is a lawyer's duty,
38:38
Speaker 1: when necessary, to challenge the restitude of official action, it
38:43
Speaker 1: is also a lawyer's duty to uphold legal process id
38:48
Speaker 1: As an officer of the court, a lawyer has a
38:50
Speaker 1: duty to preserve the integrity of the legal system, search
38:54
Speaker 1: for the truth, while maintaining a professional, courteous, and civil
38:58
Speaker 1: attitude toward all persons involved in the process. Lawyer's license
39:02
Speaker 1: to practice law in Idaho are governed by the Idaho
39:06
Speaker 1: Rules of Professional Conduct. Rule three dot six A specifically
39:10
Speaker 1: states that a lawyer who is participating or who has
39:13
Speaker 1: participated in the investigation or litigation of a matter shall
39:17
Speaker 1: not make any extra judicial statement that the lawyer knows
39:21
Speaker 1: or reasonably should know will be disseminated by means of
39:24
Speaker 1: public communication, and will have a substantial likelihood of materially
39:28
Speaker 1: prejudicing and adjudicative proceeding in the matter. Comment five to
39:33
Speaker 1: Rule three dot six gives specific examples of subjects that
39:37
Speaker 1: are more likely than not to have material prejudicial effect
39:41
Speaker 1: on a proceeding, particularly when they refer to a criminal
39:44
Speaker 1: matter or any other proceeding that could result in incarceration.
39:49
Speaker 1: One the character, credibility, reputation, or a criminal record of
39:53
Speaker 1: a party suspect in a criminal investigation, or a witness,
39:57
Speaker 1: or the identity of a witness, or the expect the
40:00
Speaker 1: testimony of a party or witness two in a criminal
40:04
Speaker 1: case or proceeding that could result in incarceration, The possibility
40:09
Speaker 1: of a plea of guilty to the offense, or the
40:12
Speaker 1: existence or contents of any confession, admission, or statement given
40:16
Speaker 1: by a defendant or suspect, or that person's refusal or
40:20
Speaker 1: failure to make a statement. Three, the performance or results
40:24
Speaker 1: of any examination or test, or the refusal or failure
40:27
Speaker 1: of a person to submit to any examination or test,
40:31
Speaker 1: or the identity or nature of physical evidence expected to
40:35
Speaker 1: be presented quickly. Any opinion as to the guilt or
40:39
Speaker 1: innocence of a defendant or suspect in a criminal case
40:42
Speaker 1: or proceeding that could result in incarceration. Five Information that
40:47
Speaker 1: the lawyer knows or reasonably should know is likely to
40:50
Speaker 1: be inadmissible as evidence in a trial, and that would,
40:53
Speaker 1: if disclosed, create a substantial risk of prejudicing an impartial trial.
40:59
Speaker 1: Or six the fact that a defendant has been charged
41:02
Speaker 1: with a crime, unless there is included therein a statement
41:05
Speaker 1: explaining that the charge is merely an accusation, and that
41:09
Speaker 1: the defendant is presumed innocent until and unless proven guilty.
41:13
Speaker 1: Rule three dot six also expressly allows lawyers participating in
41:18
Speaker 1: a matter to state the following one the claim, offense
41:22
Speaker 1: or defense involved, and, except when prohibited by law, the
41:27
Speaker 1: identity of persons involved. Two information contained in a public record.
41:32
Speaker 1: Three that an investigation of a matter is in progress,
41:35
Speaker 1: for the scheduling or result of any step in litigation.
41:39
Speaker 1: Five requests for assistance in obtaining evidence and information necessary
41:44
Speaker 1: there too. Six a warning of danger concerning the behavior
41:49
Speaker 1: of a person involved when there is a reason to
41:51
Speaker 1: believe that there exists a likelihood of substantial harm to
41:55
Speaker 1: an individual or the public interest. And seven in a
41:59
Speaker 1: criminal case, in addition to the sub paragraphs one through six,
42:03
Speaker 1: the identity, residence, occupation, and family status of the accused,
42:07
Speaker 1: if the accused has not been apprehended, information necessary to
42:11
Speaker 1: aid an apprehension of the person, the fact, time and
42:15
Speaker 1: place of arrest end, the identity of investigating and arresting
42:20
Speaker 1: officers or agencies, and the length of the investigation. Comment
42:25
Speaker 1: one to Rule three dot six acknowledges the difficulty in
42:28
Speaker 1: striking a balance between protecting the right to a fair
42:31
Speaker 1: trial and safeguarding the right to free expression. Preserving the
42:36
Speaker 1: right to a fair trial necessarily entels some curtillment of
42:40
Speaker 1: the information that may be disseminated about a party prior
42:44
Speaker 1: to a trial, particularly where a trial by jury is involved. Similarly,
42:50
Speaker 1: Comment six to Rule three dot six states the criminal
42:53
Speaker 1: jury trials will be most sensitive to extra judicial speech.
42:58
Speaker 1: The American Bar Association has also promulgated standards for conduct
43:03
Speaker 1: of attorneys. Standards eight Dash two dot one governs the
43:07
Speaker 1: conduct of lawyers participating in a criminal matter. Standard eight
43:12
Speaker 1: two dot one reads a subject to any additional limitations
43:16
Speaker 1: imposed by local or professional rules during the pendency of
43:20
Speaker 1: a criminal matter, a lawyer participating in that criminal matter
43:24
Speaker 1: should not make cause to be made, condone or authorize
43:27
Speaker 1: the making of a public extra judicial statement if the
43:31
Speaker 1: lawyer knows or reasonably should know that it will have
43:34
Speaker 1: a substantial likelihood of a influencing the outcome of that
43:39
Speaker 1: or any related criminal trial, or prejudicing the Jerry venier,
43:44
Speaker 1: even if an untainted panel ultimately can be found. Two
43:49
Speaker 1: Unnecessarily heightening public condemnation of a defendant or a person
43:53
Speaker 1: or entity who has been publicly identified in the context
43:57
Speaker 1: of a criminal investigation, or a of a witness or victim,
44:02
Speaker 1: or undermining the public's respect for the judicial process. Notably,
44:07
Speaker 1: there is nothing in the language of Rule three dot
44:09
Speaker 1: six or ABA Standard eight Dash two dot one that
44:13
Speaker 1: limits the application of those provisions to attorneys representing a
44:17
Speaker 1: party to a case. Instead, Rule three dot six applies
44:21
Speaker 1: to lawyers participating in the investigation or litigation or a matter. Similarly,
44:27
Speaker 1: ABA Standards eight Dash two dot one applies to a
44:30
Speaker 1: lawyer participating in a criminal matter. Again, Rule three dot
44:35
Speaker 1: six of the Idaho Rules of Professional Conduct and ABA
44:39
Speaker 1: Standard eight Dash two dot one is not limited to
44:42
Speaker 1: lawyers representing a party. All right, folks, that's going to
44:46
Speaker 1: do it for this section. In our next episode, we
44:48
Speaker 1: have the analysis where we're gonna wrap things up. All
44:52
Speaker 1: of the information that goes with this episode can be
44:54
Speaker 1: found in the description box. Hey I'm kat mom. What's
44:59
Speaker 1: up everyone, and welcome back to the program. In this episode,
45:03
Speaker 1: we're going to finish off the order by Judge Judge
45:07
Speaker 1: denying Chaddon Gray and his request to be exempt from
45:11
Speaker 1: the gag order Part five. Analysis one. This court has
45:17
Speaker 1: an obligation to take measures to ensure Coburger's right to
45:20
Speaker 1: a fair trial, including prescribing potentially prejudicial extra judicial statements
45:26
Speaker 1: by any lawyer participating in the case, Few, if any,
45:30
Speaker 1: interests under the Constitution are more fundamental than the right
45:33
Speaker 1: to a fair trial by impartial jurors, and an outcome
45:37
Speaker 1: effected by extra judicial statements would violate that fundamental right.
45:41
Speaker 1: Genteel five oh one US at. Ten seventy five, one
45:45
Speaker 1: to eleven, Supreme Court at. Twenty seven to forty five.
45:48
Speaker 1: This Court also recognizes the fundamental right to free speech
45:53
Speaker 1: under the First Amendment. However, with the advent of the
45:56
Speaker 1: Internet and social media in ore Petition for Writ of
46:00
Speaker 1: Mendamus or a Writ of Prohibition Number five zero four
46:04
Speaker 1: eight two two zero two three WL three zero five
46:08
Speaker 1: zero eight two nine at eleven, Idaho, April twenty fourth,
46:13
Speaker 1: twenty twenty three, the tensions between the First Amendment and
46:16
Speaker 1: the Sixth Amendment continue to increase. As was outlined in
46:20
Speaker 1: Shepherd Trial, courts must take strong measures to ensure that
46:24
Speaker 1: the balance is never weighed against the accused Shepherd, three
46:28
Speaker 1: eighty four US at. Three sixty two eighty six, Supreme
46:32
Speaker 1: Court at. Fifteen twenty two. In this case, the amended
46:36
Speaker 1: non dissemination order in place by the party stipulation to
46:39
Speaker 1: protect Coburger's right to a fair trial is aimed at
46:42
Speaker 1: attorneys participating in the case and their agents. The US
46:46
Speaker 1: Supreme Court has made clear that a trial court can
46:49
Speaker 1: prescribe extra judicial statements by any lawyer, party, witness, or
46:54
Speaker 1: court official which divulged prejudicial matters Idaho at. Three sixty one,
47:00
Speaker 1: eighty six, Supreme Court at fifteen twenty one. Also see
47:03
Speaker 1: Nebraska Press Association for twenty seven US at. Six oh
47:07
Speaker 1: one and twenty seven ninety six Supreme Court at twenty
47:12
Speaker 1: eight twenty three, end dot twenty seven. Neither prosecutors, counsel
47:16
Speaker 1: for defense, the accused, witnesses, court staff, nor enforcement officers
47:21
Speaker 1: coming under the jurisdiction of the court should be permitted
47:24
Speaker 1: to frustrate its function collaboration between council and the press,
47:28
Speaker 1: as the information affecting the fairness of a criminal trial
47:31
Speaker 1: is not only subject to regulation, but is highly censurable
47:35
Speaker 1: and worthy of disciplinary measures. By regulating and restraining the
47:40
Speaker 1: speech of trial participants, the trial court can help to
47:43
Speaker 1: ensure a trial free from outside influence without corresponding curtailment
47:48
Speaker 1: of the news media Idaho at. Three sixty two, eighty
47:52
Speaker 1: six Supreme Court at fifteen twenty two. As was stated
47:56
Speaker 1: by the Ninth Circuit Court in Levigne, the case for
47:59
Speaker 1: restraints on trial participants is especially strong with respect to
48:03
Speaker 1: attorneys Lavigne, seven sixty four ft two d At five
48:08
Speaker 1: ninety five. This was echoed by the Supreme Court in Genteel.
48:12
Speaker 1: The speech of lawyers representing clients in pending cases may
48:16
Speaker 1: be regulated under a less demanding standard than the strict scrutiny,
48:20
Speaker 1: because lawyers involved in a case are key participants in
48:23
Speaker 1: the criminal justice system, and the state may demand some
48:26
Speaker 1: adherence to the precepts of that system in regulating their
48:30
Speaker 1: speech as well as their conduct Genteel, five oh one
48:34
Speaker 1: US at ten seventy four, one eleven Supreme Court at
48:38
Speaker 1: twenty seven forty four. As was discussed in detail above,
48:42
Speaker 1: the rationale for allowing the attorney's speech to be more
48:45
Speaker 1: regulated than speech by a non attorney is one a
48:48
Speaker 1: lawyer's status as an officer of the legal system and
48:51
Speaker 1: a public citizen having special responsibility for the quality of justice. Two.
48:56
Speaker 1: Lawyers participating in a case have special access to confidential
49:01
Speaker 1: information through discovery and client information. N Three. Lawyer statements
49:06
Speaker 1: are likely to be received as especially authoritative I dot
49:10
Speaker 1: R dot PC preamble a Lawyer's responsibilities Genteel five oh
49:15
Speaker 1: one US at. Ten seventy four one to eleven. Supreme
49:19
Speaker 1: Court at twenty seven forty four, Dash forty five, quoting
49:23
Speaker 1: Nebraska Press for twenty seven US at. Six oh one,
49:26
Speaker 1: n Dot twenty seven ninety six at twenty eight twenty
49:29
Speaker 1: three n Dot twenty seven. Rule three dot six of
49:33
Speaker 1: the Idaho Rules of Professional Conduct set for specific requirements
49:37
Speaker 1: and restrictions for lawyers participating in a case when it
49:41
Speaker 1: comes to trial publicity. The purpose of the rule is
49:44
Speaker 1: to guard against materially prejudicial extra judicial statements by attorneys
49:49
Speaker 1: participating in a case that might impair the right to
49:52
Speaker 1: a fair trial. Similarly, the ABA has promulgated a standard
49:57
Speaker 1: for lawyers participating in a criminal matter that stricts extra
50:01
Speaker 1: judicial statements that one may have a substantial likelihood of
50:05
Speaker 1: influencing or prejudicing the outcome of a trial or a jury,
50:09
Speaker 1: two that heighten public condemnation of a defendant, a witness,
50:13
Speaker 1: or a victim, or three that undermine the public's respect
50:16
Speaker 1: for the judicial process. ABA Standards eighth two dot one.
50:21
Speaker 1: Taken together, the case law and the standards governing attorneys
50:25
Speaker 1: make clear that one, the Court has an obligation to
50:28
Speaker 1: take measures to ensure that the balance between the First
50:31
Speaker 1: Amendment and the sixth Amendment is not weighted against Coburger,
50:35
Speaker 1: and two, the Court has authority to impose restrictions on
50:39
Speaker 1: the speech of attorneys participating in the case when it
50:42
Speaker 1: comes to extra judicial statements that have a substantial likelihood
50:47
Speaker 1: of materially prejudicing potential jurors and a fair trial. Two.
50:52
Speaker 1: Strict scrutiny and a less demanding standard have both been
50:55
Speaker 1: applied to restrictions on a lawyer's speech, as detailed above.
51:00
Speaker 1: In nineteen eighty five, the Ninth Circuit Court in Levine
51:03
Speaker 1: applied strict scrutiny in reviewing a non dissemination order being
51:07
Speaker 1: challenged by two lawyers whose speech was restrained. The burden
51:11
Speaker 1: was on the government to establish that one the restrained
51:14
Speaker 1: activity posed either a clear and present danger or a
51:18
Speaker 1: serious and imminent threat to a protected competing interest. Two
51:22
Speaker 1: the order was narrowly drawn, and three less restrictive alternatives
51:26
Speaker 1: were not available Levine, seven sixty four f. Dot two
51:30
Speaker 1: d at five ninety six. However, in nineteen ninety one,
51:34
Speaker 1: the Supreme Court held that the speech of lawyers representing
51:38
Speaker 1: clients in pending cases may be regulated under a less
51:42
Speaker 1: demanding standard than strict scrutiny. Genteel five oh one US at.
51:46
Speaker 1: Ten seventy four one to eleven Supreme Court at twenty
51:50
Speaker 1: seven forty four. The rationale for a less demanding standard
51:54
Speaker 1: has been detailed above here, as will be discussed below.
51:57
Speaker 1: The restraints on Gray's speech and the speech of all
52:00
Speaker 1: attorneys involved in the case set forth in the Court's
52:03
Speaker 1: revised Amended non dissemination Order will meet the higher standard
52:07
Speaker 1: of strict scrutiny. Three. The case law and ethical rules
52:11
Speaker 1: support of finding that Gray's speech can be restrained without
52:14
Speaker 1: violating the First Amendment. The Court's revised Amended non dissemination
52:18
Speaker 1: Order will narrow and clarify what speech is restrained and
52:22
Speaker 1: what speech is not restrained to withstand strict scrutiny. While
52:27
Speaker 1: only the occasional case presents a danger of prejudice from
52:30
Speaker 1: pre trial publicity Genteel five oh one US at. Ten
52:34
Speaker 1: fifty four one to eleven Supreme Court at twenty seven
52:37
Speaker 1: thirty four, this case is recognized by the Idaho Supreme
52:40
Speaker 1: Court has drawn widespread publicity, garnering worldwide media attention and
52:45
Speaker 1: much speculation, and therefore pre trial publicity does present a
52:49
Speaker 1: real danger of prejudice. Petition of rid of mendamus or
52:54
Speaker 1: rid of prohibition Number five zero four A two twenty
52:57
Speaker 1: twenty three w L three zero five five zero eight
53:01
Speaker 1: two nine at one, Idaho, April twenty fourth, twenty twenty three.
53:06
Speaker 1: Recognizing the high profile nature of the case and the
53:08
Speaker 1: extensive coverage it has received, along with the need to
53:11
Speaker 1: minimize possible pre trial prejudice, the party stipulated to entry
53:16
Speaker 1: of the original non dissemination order and the amended non
53:20
Speaker 1: dissemination Order id as was noted by District Judge Stephen W.
53:24
Speaker 1: Boyce in his memorandum decision and order prohibiting video and
53:28
Speaker 1: photographic coverage in the case of State versus Idaho versus
53:33
Speaker 1: Loreen Noreene Valo aka Lori Noreen Valo Dabel CR. Twenty
53:39
Speaker 1: two Dash twenty one Dash sixteen twenty four, agreement between
53:43
Speaker 1: the State and defense on any issue in a capital
53:46
Speaker 1: case is rare. Further confirming to the court the legitimacy
53:50
Speaker 1: and level of concern Council have raised the same is
53:53
Speaker 1: true in this instance, as was presented at the hearing
53:56
Speaker 1: on June ninth, the parties have a legitimate concern for
53:59
Speaker 1: information being disseminated to the media by attorneys involved in
54:03
Speaker 1: the case, including attorneys representing the families of the victims
54:07
Speaker 1: and attorneys representing witnesses. While the attorneys and their clients
54:11
Speaker 1: are not party to the case, they are undoubtedly participating
54:15
Speaker 1: in the case. Because the victims' families are themselves victims
54:19
Speaker 1: in the case and are also potential witnesses, they are
54:22
Speaker 1: in a unique position and have a right to obtain
54:25
Speaker 1: information not available to the public. As noted by the
54:28
Speaker 1: Court in Genteel. Because lawyers have special access to information
54:33
Speaker 1: through discovery and client communications, their extra judicial statements pose
54:38
Speaker 1: a threat to the fairness of appending proceeding, since lawyer's
54:41
Speaker 1: statements are likely to be received as especially authoritative. Genteel.
54:46
Speaker 1: Five oh one US at. Ten seventy four one to eleven.
54:49
Speaker 1: Supreme Court at. Twenty seven, forty four and forty five,
54:52
Speaker 1: quoting Nebraska Press for twenty seven US at. Six oh
54:56
Speaker 1: one and not twenty seven ninety six. Supreme Court at
55:00
Speaker 1: twenty eight twenty three n Dot twenty seven. As Defense
55:04
Speaker 1: Council stated during oral argument, When mister Gray speaks, people listen.
55:09
Speaker 1: It matters to have counsel abide by the ethical rules. Additionally,
55:14
Speaker 1: because Gray has initiated a tort claim against the City
55:16
Speaker 1: of Moscow, law Enforcement, and University of Idaho on behalf
55:20
Speaker 1: of the Gonsalves and Mogan families, he may also have
55:24
Speaker 1: special access to information through discovery that again is not
55:28
Speaker 1: open to the public. This access to confidential information, coupled
55:32
Speaker 1: with the advent of the Internet and social media over
55:36
Speaker 1: the past several decades, makes this Court's task of balancing
55:39
Speaker 1: Gray's First Amendment rights with Coburger's sixth Amendment right an
55:43
Speaker 1: even more difficult task than it was for the Courts
55:46
Speaker 1: and Shepherd Nebraska Press, Levigne, and Genteel in response to
55:50
Speaker 1: petition for rid of mandamus or rid of Prohibition Number
55:54
Speaker 1: five zero four eight two twenty twenty three w. L.
55:57
Speaker 1: Three zero five zero eight two nine eleven, Idaho, April
56:01
Speaker 1: twenty fourth, twenty twenty three. But the facts of this
56:04
Speaker 1: case and the circumstances presented to the Court during argument
56:07
Speaker 1: may clear the obligation of the Court to ensure all
56:10
Speaker 1: attorneys participating in the case are at the least abiding
56:15
Speaker 1: by the ethical rules that restrain comments to the media
56:18
Speaker 1: and public about certain aspects of the case. This is
56:21
Speaker 1: the high profile case with a substantial media attention. Any
56:25
Speaker 1: statements made to the media by those involved in the
56:28
Speaker 1: case spread like wildfire, and at times have been twisted
56:31
Speaker 1: and misconstrued. The stakes are high for both parties, but
56:35
Speaker 1: especially for Coburger, who is potentially facing the death penalty
56:38
Speaker 1: if found guilty. Given this backdrop, the court must take
56:42
Speaker 1: measures to ensure Coburger's right to a fair trial and
56:45
Speaker 1: impartial jury. Gray, through his clients and other attorneys participating
56:50
Speaker 1: in the case, have special access to confidential information as
56:54
Speaker 1: represented by the parties during the hearing. Gray has issued
56:57
Speaker 1: statements and participated in television in our views that the
57:00
Speaker 1: party's view as a violation of the current amended non
57:03
Speaker 1: dissemination order. Gray did not dispute these representations. Extra Judicial
57:09
Speaker 1: statements by lawyers involved in a case pose a threat
57:11
Speaker 1: to the fairness of appending proceeding, since lawyer's statements are
57:14
Speaker 1: likely to be received as especially authoritative. Genteel five oh
57:18
Speaker 1: one US at. Ten seventy four one to eleven Supreme
57:21
Speaker 1: Court at twenty seven, forty four and forty five, based
57:25
Speaker 1: on the circumstances of the case and these facts, this
57:28
Speaker 1: Court finds that extra judicial statements by lawyers participating in
57:32
Speaker 1: the case that have a substantial likelihood of materially prejudicing
57:36
Speaker 1: a fair trial or sentencing pose a clear and present
57:40
Speaker 1: danger or a serious and eminent threat to Coburger's fundamental
57:43
Speaker 1: right to a fair trial by an impartial jury. Further,
57:48
Speaker 1: this Court finds that there are not less restrictive alternatives
57:51
Speaker 1: available to prevent prejudicial information from being leaked to the
57:54
Speaker 1: media by lawyers, as noted in Genteel. While change of venue,
57:58
Speaker 1: delay of trial, or sequestering the jury may be tactics
58:02
Speaker 1: used to help filter out the effects of pre trial publicity,
58:05
Speaker 1: the state has a substantial interest in preventing officers of
58:09
Speaker 1: the court, such as lawyers, from imposing such costs on
58:12
Speaker 1: the judicial system and on the litigants. Genteel, five oh one,
58:17
Speaker 1: US at ten seventy five, one eleven. Supreme Court at.
58:21
Speaker 1: Twenty seven forty five. A non dissemination order aimed at
58:24
Speaker 1: attorneys and their agents privy to confidential information is the
58:28
Speaker 1: best prophylactic measure to ensure a fair trial. While other
58:33
Speaker 1: measures may be necessary down the road, requiring Gray and
58:36
Speaker 1: any attorney involved in the case to comply with I
58:39
Speaker 1: dot R dot P dot C three dot six as
58:42
Speaker 1: echoed in the Court's revised Amended non dissemination Order, is
58:46
Speaker 1: a reasonable action at this time. Finally, while the current
58:50
Speaker 1: amended non dissemination Order is arguably over broad and vague
58:54
Speaker 1: in some areas, this Court's revised a mended non dissemination
58:57
Speaker 1: Order is narrowly drawn to prehit bhibit only extra judicial
59:01
Speaker 1: statements that have a substantial likelihood of materially prejudicing this case.
59:07
Speaker 1: The revised amended non Dissemination Order includes specific examples of
59:11
Speaker 1: what speech is prohibited and what speech is allowed. The
59:14
Speaker 1: restriction on attorneys speech applies equally to all attorneys participating
59:19
Speaker 1: in the pending case, and will restrict the attorney's comments
59:23
Speaker 1: only until after the trial and any sentencing proceedings. The
59:27
Speaker 1: regulation of Gray's speech and the speech of all attorneys
59:30
Speaker 1: involved in this case is again narrowly drawn and necessary
59:34
Speaker 1: to protect Coburger's right to a fair trial. Conclusion. Gray's
59:38
Speaker 1: request to be exempted from the amended non dissemination order
59:42
Speaker 1: is denied. However, Gray's request that the non dissemination order
59:46
Speaker 1: be clarified is granted Gray as an attorney participating in
59:50
Speaker 1: this case by representing a victim's family who are also
59:53
Speaker 1: potential witnesses, must imply with Rule three dot six as
59:57
Speaker 1: echoed in the Revised Amended non dedas Semination Order. This
1:00:01
Speaker 1: was signed by Judge Judge and it was signed on
1:00:05
Speaker 1: June twenty third of twenty twenty three. All right, folks,
1:00:09
Speaker 1: that's gonna wrap up our look at the order by
1:00:12
Speaker 1: Judge Judge denying the request of Shannon Gray to be
1:00:16
Speaker 1: exempt from the gag order. All of the information that
1:00:20
Speaker 1: goes with this episode can be found in the description box.
1:00:24
Speaker 1: Prescription products are