Latest / Beyond The Horizon / Murder In Moscow: Bryan Kohberger And The Memo On Gag Order Points And Authorities

Transcript

Murder In Moscow: Bryan Kohberger And The Memo On Gag Order Points And Authorities · Beyond The Horizon

• 0:00
  Speaker 1: What's up, everyone, and welcome back to the program. On
• 0:04
  Speaker 1: this episode, we're going to take a look at some
• 0:06
  Speaker 1: more of the court dumps. And in this one, we're
• 0:09
  Speaker 1: checking out the memorandum of points and authorities relating to
• 0:13
  Speaker 1: the non-dissemination order. Case number CR 29-22-2805. State of Idaho
• 0:23
  Speaker 1: plaintiff versus Brian Christopher Kohlberger, the defendant. To aid the
• 0:28
  Speaker 1: court in review of the motion submitted by Mr. Gray
• 0:32
  Speaker 1: to appeal, amend, and or clarify amended non-dissemination order, the
• 0:37
  Speaker 1: state provides this memorandum of points and authorities. The state's
• 0:41
  Speaker 1: interest relating to this order is to ensure that the
• 0:44
  Speaker 1: defendant and the state are provided a fair and impartial
• 0:48
  Speaker 1: jury trial and that the integrity of any conviction is maintained,
• 0:53
  Speaker 1: for it's the duty of the prosecutor as a public
• 0:55
  Speaker 1: officer to to see that the accused has a fair
• 0:59
  Speaker 1: and impartial trial. State v. Spencer, 74, Idaho, 173, 183, 1953.
• 1:08
  Speaker 1: Below are the points, cases, and statements made in cases
• 1:12
  Speaker 1: that the state located to aid this court. These points
• 1:16
  Speaker 1: are largely presented in block quote and without commentary by
• 1:19
  Speaker 1: the state. All right, folks, buckle up. We're about to
• 1:22
  Speaker 1: dive into a lot of legalese. Part one. Table of
• 1:26
  Speaker 1: Cases and Authorities Bridges v. California 314 U.S. 252 62 S.CT.190 86L. ED
• 1:32
  Speaker 1: 192 1941 Pages 3, 6, and 7 Farr v. Pitches
• 1:34
  Speaker 1: 522 F2D 464 9th Circuit 1975 Page number 4 Gentile
• 1:55
  Speaker 1: versus the State Bar of Nevada, 501 U.S. 1030, 111 S.C.T. 2720,
• 1:57
  Speaker 1: 115 L.E.D. 2D-8888-1991, pages 5, 6, 7, and 8. Irvin
• 1:59
  Speaker 1: and Dowd, 366 U.S. 717-81 S.C.T.
• 2:00
  Speaker 2: 1639-6L.E.D.
• 2:01
  Speaker 1: 2D, 751, 1961, page number three. Lafferty v. Jones, 336, Conn, 332, 346, A3D, 429, Connecticut, 2020,
• 2:27
  Speaker 1: pages six, seven, and eight. Landmark Communications Incorporated v. Virginia, 435, U.S. 829, 98, CT. 1535,
• 2:32
  Speaker 1: 56 L.E. 2D 1 1978. Page 7 and 8. Marshall
• 2:54
  Speaker 1: versus the United States. 360 U.S. 310 79 S.C.T. 1171
• 2:55
  Speaker 1: 3 L.E. 2D 1250 1959. Page 3. Illinois versus Goss.
• 2:57
  Speaker 1: 141 N.E. 2D 385 Illinois, 1957, page 8. Seattle Times
• 3:22
  Speaker 1: Company v. Reinhart, 467 U.S., 20, 104 S.C.T., 2199, 81 L.E.D., 2D, 17, 1984,
• 3:25
  Speaker 1: page 8. Shepard v. Maxwell, 384 U.S., 333, 86 S.C.T., 1507, 16, L.E.,. 2D- 600, 1966,
• 3:50
  Speaker 1: pages 3, 4, 5, and 7. Standing Committee on Discipline vs. Yagman. 55F. 3D- 1430,
• 3:54
  Speaker 1: 9th Circuit, 1995, page 7. State vs. Spencer, 74, Idaho, 173, Idaho, 1953,
• 3:57
  Speaker 1: page 1. Turney vs.
• 3:58
  Speaker 2: Pugh.
• 3:58
  Speaker 1: 400, F. 3D, 1197, 9th Circuit, 2005, page 7. U.S. v. Davis, 904, F.SUP.564, E.D.L.A, 1995,
• 4:19
  Speaker 1: page 6. Other Authorities, Advocacy and Contempt, Constitutional Limitations on
• 4:23
  Speaker 1: the Judicial Contempt, Power, Part 1. The Conflict Between Advocacy
• 4:27
  Speaker 1: and Contempt. 65 Washington dot L dot Rev dot 477 1990.
• 4:54
  Speaker 1: Page number eight. Part two. Summary of points and authorities.
• 5:00
  Speaker 1: The U.S. Supreme Court and Ninth Circuit Court of Appeals
• 5:03
  Speaker 1: require that the court take affirmative steps to ensure that
• 5:07
  Speaker 1: the defendant receives a trial by an impartial jury free
• 5:11
  Speaker 1: from outside influences and to protect their process. From prejudicial
• 5:16
  Speaker 1: outside interferences. In the case of Shepard v. Maxwell, the U.S.
• 5:20
  Speaker 1: Supreme Court was asked to review the habeas corpus application
• 5:24
  Speaker 1: of a person convicted of first-degree murder in a case
• 5:28
  Speaker 1: which received intense publicity and media attention. 384 U.S., 333, 1966.
• 5:36
  Speaker 1: Prior to and during the trial, the courtroom was packed
• 5:40
  Speaker 1: with media. There were five volumes filled with clippings from
• 5:44
  Speaker 1: each of the three Cleveland newspapers covering the period from
• 5:47
  Speaker 1: the murder until Shepard's conviction in December 1954. At 3.42,
• 5:54
  Speaker 1: in granting the habeas petition, the U.S. Supreme Court found
• 5:58
  Speaker 1: that the trial court failed to act to preserve Shepard's
• 6:01
  Speaker 1: right to a fair trial. The court stated, 1. Legal
• 6:06
  Speaker 1: trials are not like elections to be won through the
• 6:08
  Speaker 1: use of the meeting hall, the radio, and the newspaper.
• 6:12
  Speaker 1: Bridges v. State of California, Supra 314, U.S. at 271, 62S. CT
• 6:20
  Speaker 1: at 197. Among these legal procedures is the requirement that
• 6:25
  Speaker 1: the jury's verdict be based on evidence received in open court,
• 6:29
  Speaker 1: not from outside sources. Thus, in Marshall v. United States, 360, U.S. 310-79-S.C.T. 1171-3L.E.D.2D-1250-1959,
• 6:43
  Speaker 1: we set aside a federal conviction where the jurors were
• 6:49
  Speaker 1: exposed through news accounts to information that was not admitted
• 6:53
  Speaker 1: at trial. We held that the prejudice from such material
• 6:58
  Speaker 1: may indeed be greater than when it is part of
• 7:00
  Speaker 1: the prosecution's evidence for evidence it is then not tempered
• 7:04
  Speaker 1: by protective procedures. At 313-79-S.C.T. at 1173. At the same time,
• 7:14
  Speaker 1: we did not consider dispositive the statement of each juror
• 7:18
  Speaker 1: that would be influenced by the news articles that he
• 7:21
  Speaker 1: could decide the case only on the evidence of record
• 7:24
  Speaker 1: and that he felt no prejudice against petitioner as a
• 7:27
  Speaker 1: result of these articles. At 312-79-S.C.T. at 1173. Likewise, Irwin v.
• 7:37
  Speaker 1: Dowd at 366 U.S. 717-81-SCT 1639 6L. ED. 2D 751-1961, even though
• 7:49
  Speaker 1: each juror indicated that he could render an impartial verdict
• 7:53
  Speaker 1: despite exposure to prejudicial newspaper articles, we set aside the
• 7:58
  Speaker 1: conviction holding with his life at stake it is not
• 8:01
  Speaker 1: requiring too much that petitioner be tried in an atmosphere
• 8:05
  Speaker 1: undisturbed by so huge a wave of public passion. Regarding
• 8:18
  Speaker 1: the statements of witnesses and other possible participants to the press,
• 8:22
  Speaker 1: the U.S. Supreme Court stated, Secondly, the court should have
• 8:25
  Speaker 1: insulated the witnesses. All of the newspapers and radio stations
• 8:29
  Speaker 1: apparently interviewed prospective witnesses at will and in many instances
• 8:34
  Speaker 1: disclosed their testimony. A typical example was the publication of
• 8:39
  Speaker 1: numerous statements by Susan Hayes before her appearance in court
• 8:43
  Speaker 1: regarding her love affair with Shepard. Although the witnesses were
• 8:47
  Speaker 1: barred from the courtroom during the trial, the full verbatim
• 8:50
  Speaker 1: testimony was available to them in the press. This completely
• 8:55
  Speaker 1: nullified the judge's imposition of the rule. See Estes v.
• 8:59
  Speaker 1: State of Texas Supra 381, U.S. at 54785S. CT at 1635. Thirdly,
• 9:08
  Speaker 1: the court should have mandated or should have made some
• 9:11
  Speaker 1: effort to control the release of leads, information, and gossip
• 9:15
  Speaker 1: to the press by police officers, witnesses, and the counsel
• 9:19
  Speaker 1: for both sides. Much of the information thus disclosed was inaccurate,
• 9:23
  Speaker 1: leading to groundless rumors and confusion. that the judge was
• 9:28
  Speaker 1: aware of his responsibility in this respect may be seen
• 9:32
  Speaker 1: from the warning to Steve Shepard, the accused brother, who
• 9:35
  Speaker 1: had apparently made public statements in an attempt to discredit
• 9:38
  Speaker 1: testimony for the prosecution. The judge made this statement in
• 9:43
  Speaker 1: the presence of the jury. It is obvious that the
• 9:45
  Speaker 1: judge should have further sought to alleviate this problem by
• 9:49
  Speaker 1: imposing control over the statements made by the news media,
• 9:53
  Speaker 1: by counsel, witnesses, and especially the coroner and police officers. Finally,
• 10:00
  Speaker 1: the court ultimately held due process requires that the accused
• 10:04
  Speaker 1: receive a trial by an impartial jury free from outside
• 10:07
  Speaker 1: influences given the pervasiveness of modern communications and the difficulty
• 10:13
  Speaker 1: of effacing prejudicial publicity from the minds of the jurors,
• 10:17
  Speaker 1: the trial courts must take strong measures to ensure that
• 10:20
  Speaker 1: the balance is never weighed against the accused. And appellate
• 10:23
  Speaker 1: tribunals have the duty to make an independent evaluation of
• 10:28
  Speaker 1: the circumstances. But where there is a reasonable likelihood that
• 10:32
  Speaker 1: prejudicial news prior to a trial will prevent a fair trial,
• 10:36
  Speaker 1: the judge should continue the case until the threat abates
• 10:40
  Speaker 1: or transfer it to another county not so permeated with publicity.
• 10:45
  Speaker 1: In addition, Sequestration of the jury was something the judge
• 10:49
  Speaker 1: should have raised sui sponte with counsel. The courts must
• 10:52
  Speaker 1: take such steps by rule and regulation that will protect
• 10:56
  Speaker 1: their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense,
• 11:02
  Speaker 1: the accused witnesses, court staff, nor enforcement officers coming under
• 11:07
  Speaker 1: the jurisdiction of the court should be permitted to frustrate
• 11:10
  Speaker 1: its function. Collaboration between counsel and the press as to
• 11:14
  Speaker 1: information affecting the fairness of of a criminal trial is
• 11:17
  Speaker 1: not only subject to regulation, but is highly censurable and
• 11:21
  Speaker 1: worthy of disciplinary measures. These notions are further reflected in
• 11:27
  Speaker 1: the Ninth Circuit Court of Appeals precedent in the case
• 11:30
  Speaker 1: of Farr v. Pitches, where the court considered a trial
• 11:33
  Speaker 1: court order that prohibited any attorney, court attache, or witness
• 11:39
  Speaker 1: from releasing for public dissemination the contents or nature of
• 11:43
  Speaker 1: proposed trial testimony or other evidence. 522 F. 2D 464-466 Ninth
• 11:51
  Speaker 1: Circuit 1975. In upholding the order, the Ninth Circuit Court
• 11:56
  Speaker 1: of Appeals stated, In a criminal case, the trial judge
• 12:01
  Speaker 1: has a duty and obligation to attempt to protect the
• 12:05
  Speaker 1: right of the defendant to a fair trial free of
• 12:08
  Speaker 1: adverse publicity. Where the case is a notorious one, that
• 12:11
  Speaker 1: burden on the court is heavy. The most practical and
• 12:14
  Speaker 1: recommended procedure to ensure against dissemination of prejudicial information is
• 12:20
  Speaker 1: the entry of an order directing that attorneys, court personnel,
• 12:25
  Speaker 1: enforcement officers, and witnesses refrain from releasing any information which
• 12:30
  Speaker 1: might interfere with the right of the defendant to a
• 12:33
  Speaker 1: fair trial. Shepard v. Maxwell 384 U.S. 333 86 S.C.T.
• 12:36
  Speaker 1: 1507 2. The Court has power to evaluate the types
• 12:45
  Speaker 1: of speech which could impact the right to a fair trial,
• 12:48
  Speaker 1: and to take measures where a case is highly publicized.
• 13:08
  Speaker 1: In the case of Gentile v. The State Bar of Nevada,
• 13:11
  Speaker 1: the U.S. Supreme Court considered whether a disciplinary action by
• 13:15
  Speaker 1: the State Bar of Nevada against a defense attorney for
• 13:18
  Speaker 1: holding a press conference and stating his client is innocent
• 13:22
  Speaker 1: of the charges and that the police department was corrupt
• 13:25
  Speaker 1: violated the dictates of the First Amendment. 501 U.S. 1030-1058-1991
• 13:32
  Speaker 1: While the court found that the defense attorney's statements were
• 13:35
  Speaker 1: protected by the First Amendment, It noted that his conduct
• 13:38
  Speaker 1: did not demonstrate any real or specific threat to the
• 13:42
  Speaker 1: legal process, and that only the occasional case presents a
• 13:46
  Speaker 1: danger of prejudice from pre-trial publicity. ID at 1058-1054. The
• 13:54
  Speaker 1: holding in Gentile that the bar on the attorney's one-time
• 13:57
  Speaker 1: political speech violated the First Amendment was well distinguished by
• 14:01
  Speaker 1: the U.S. District Court in Louisiana's when it considered a
• 14:05
  Speaker 1: gag order related to a highly publicized criminal case and stated,
• 14:11
  Speaker 1: In Gentile, the defendant was indicted and within a few
• 14:14
  Speaker 1: hours of the indictment, his attorney held a press conference.
• 14:17
  Speaker 1: The attorney denounced the government and charged certain officials with corruption.
• 14:22
  Speaker 1: This occurred six months before trial and was a one-time event.
• 14:26
  Speaker 1: After trial, the attorney was brought before the State Bar
• 14:29
  Speaker 1: Association for violating its general prohibition against lawyers making statements
• 14:34
  Speaker 1: to the press that would have substantial likelihood of materially
• 14:39
  Speaker 1: prejudicing the proceedings. The Bar Association recommended a private reprimand,
• 14:44
  Speaker 1: which was affirmed by the state Supreme Court. The attorney appealed.
• 14:48
  Speaker 1: In terms of distinguishing features, secondly, the Supreme Court and
• 14:52
  Speaker 1: Gentile emphasized that the attorney's comments were classic political speech.
• 14:58
  Speaker 1: It characterized the issue in the case as constitutionality of
• 15:02
  Speaker 1: a ban on political speech critical of the government and
• 15:05
  Speaker 1: its officials and stated that speech critical of the exercise
• 15:09
  Speaker 1: of the state's power lies at the very center of
• 15:12
  Speaker 1: the First Amendment. ID 501 US at 1034 111 S
• 15:18
  Speaker 1: dot CT at 2724. No claim has been made in
• 15:22
  Speaker 1: this case that the parties with or without the partial
• 15:25
  Speaker 1: gag order have anything to say to the media, much
• 15:28
  Speaker 1: less anything that would constitute political speech. Thirdly, the Supreme
• 15:33
  Speaker 1: Court in Gentile was dealing with a generic Bar Association
• 15:36
  Speaker 1: rule restricting extrajudicial comment in cases across the board, not one,
• 15:42
  Speaker 1: as here, tailored to specific case with its unique problems
• 15:46
  Speaker 1: of publicity. Finally, the Supreme Court in Gentile noted that
• 15:51
  Speaker 1: the attorney's speech was a one-time event six months before
• 15:55
  Speaker 1: trial and could not have conceivably affected the fairness of
• 15:58
  Speaker 1: the trial. The partial gag order here is an ongoing
• 16:02
  Speaker 1: prophylactic measure to assure a fair trial. As noted in Gentile,
• 16:07
  Speaker 1: there are occasional cases where the court must take extensive
• 16:10
  Speaker 1: measures to protect the fundamental right to a fair and
• 16:14
  Speaker 1: impartial trial. The recent decision by the Connecticut Supreme Court
• 16:29
  Speaker 1: in Lafferty v. Jones provides a comprehensive review of the
• 16:33
  Speaker 1: cases addressing restraints on speech of litigants and the power
• 16:38
  Speaker 1: of the courts to sanction such speech. To aid the
• 16:41
  Speaker 1: court in considering its order and any potential free speech interests,
• 16:45
  Speaker 1: the state submits that the recent decision by the Connecticut
• 16:49
  Speaker 1: Supreme Court in Lafferty v. Jones... provides a comprehensive review
• 16:54
  Speaker 1: of decisions by other courts and a test employ. At
• 16:59
  Speaker 1: its highest level, the Connecticut court reviewed and applied numerous U.S.
• 17:01
  Speaker 1: Supreme Court decisions by stating, The leading case is Bridges v.
• 17:16
  Speaker 1: California 314 U.S. 252 275-7762 S.CT.190 86 L.ED.192 1941, in
• 17:18
  Speaker 1: which the Supreme Court considered whether a union leader could
• 17:22
  Speaker 1: be held in contempt when a newspaper published statements that
• 17:27
  Speaker 1: he had made threatening a strike. the court considered whether
• 17:41
  Speaker 1: speech presented a clear and present danger to the administration
• 17:45
  Speaker 1: of justice. ID at 261-262-27362 S.CT.190. Specifically, the court analyzed
• 17:56
  Speaker 1: the particular utterances in question and circumstances of their publication
• 18:01
  Speaker 1: to determine what extent the substantive evil of unfair administration
• 18:07
  Speaker 1: of justice was likely consequence. and whether the degree of
• 18:11
  Speaker 1: likelihood was sufficient to justify summary punishment. ID at 271-62-S.CT-190
• 18:21
  Speaker 1: The United States Supreme Court has held that speech otherwise
• 18:24
  Speaker 1: entitled to full constitutional protection may nonetheless be sanctioned if
• 18:29
  Speaker 1: it obstructs or prejudices the administration of justice. Standing Committee
• 18:34
  Speaker 1: on Discipline v. Yagman Supra 55F. 3D At. 1442. Citing. Gentile. Versus.
• 18:42
  Speaker 1: State Bar of Nevada. Supra. 501. U.S. At. 1074. Dash. 75. 111. S. Dot.
• 18:45
  Speaker 2: C.T.
• 18:46
  Speaker 1: 2720. And. Shepherd. Versus. Maxwell. 384.
• 18:47
  Speaker 2: U.S.
• 18:47
  Speaker 1: 333. 363. 86. S.
• 18:48
  Speaker 2: Dot.
• 18:49
  Speaker 1: C.T. 1507.
• 18:49
  Speaker 2: 16L.
• 18:49
  Speaker 1: Dot. E.D. 2D. 600. 1966. Properly.
• 18:50
  Speaker 2: Applied.
• 19:09
  Speaker 1: The test requires a court to make its own inquiry
• 19:12
  Speaker 1: into the imminence and magnitude of the danger set to
• 19:15
  Speaker 1: flow from the particular utterance and then to balance the
• 19:19
  Speaker 1: character of the evil as well as the likelihood against
• 19:22
  Speaker 1: the need for free and unfettered expression. Landmark Communications, Inc. vs.
• 19:28
  Speaker 1: Virginia Supra 435 U.S. at 842-43 98 S.C.T. 1535 See also,
• 19:38
  Speaker 1: Turney v. Pew, 400 ID at 353-361. After reviewing standards
• 19:46
  Speaker 1: applied by the U.S. Supreme Court and other courts, the
• 19:49
  Speaker 1: court in Jones chose to apply the most rigorous and
• 19:52
  Speaker 1: searching review of any infringement of amendment rights, i.d. the
• 19:57
  Speaker 1: court reasoned the United States Supreme Court has held that
• 20:01
  Speaker 1: speech otherwise entitled to full constitutional protections nonetheless can be
• 20:06
  Speaker 1: sanctioned if it obstructs or prejudices the administration of justice,
• 20:10
  Speaker 1: Standing Committee on Discipline v. Yogman v. Supra 55 F. 3D
• 20:14
  Speaker 1: at 1442, citing Gentile v. State Bar of Nevada Supra
• 20:17
  Speaker 1: 501 U.S. at 1074-75-111 S.CT 2720 and Shepard v. Maxwell
• 20:19
  Speaker 1: 384 U.S. 333-363-86S. ct 1507 16l. ed 2d 600 1966 importantly
• 20:43
  Speaker 1: a rule governing speech even speech entitled to full constitutional
• 20:47
  Speaker 1: protection need not use the words clear in present danger
• 20:51
  Speaker 1: in order to pass constitutional muster gentile versus state bar
• 20:55
  Speaker 1: of nevada supra at 10 36 1111 S.C.T. 2720 Kennedy J.
• 21:02
  Speaker 1: Because the Supreme Court has not yet clearly supplanted clear
• 21:06
  Speaker 1: and present danger in the area of extrajudicial speech, we
• 21:11
  Speaker 1: will use it as a guideline in our analysis. Even still,
• 21:14
  Speaker 1: it is necessary to refine the standard to our present
• 21:17
  Speaker 1: circumstances to incorporate the requirements of Brandenburg and the inquiries
• 21:23
  Speaker 1: outlined in Gentile. Properly applied requirements The test requires a
• 21:28
  Speaker 1: court to make its own inquiry into the imminence and
• 21:31
  Speaker 1: magnitude of the danger set to flow from the particular
• 21:34
  Speaker 1: utterance and then to balance the character of evil as
• 21:37
  Speaker 1: well as the likelihood against the need for free and
• 21:40
  Speaker 1: unfettered expressions. Landmark Communications, Inc. v. Virginia Supra 435 U.S.
• 21:47
  Speaker 1: at 842-4398 S.C.T. 1535 See also Turney v. Pew 400 F. 3D
• 21:58
  Speaker 1: 1197 1202 9th Circuit 205 2005. Courts must have the
• 22:03
  Speaker 1: ability to restrict the rights of participants to the extent
• 22:07
  Speaker 1: necessary to protect the fairness of the litigation. Although litigants
• 22:11
  Speaker 1: do not surrender their First Amendment rights at the courthouse door,
• 22:14
  Speaker 1: those rights may be subordinated to other interests that arise
• 22:18
  Speaker 1: in this setting. For instance, on several occasions, the court
• 22:22
  Speaker 1: has approved restrictions on the communication's of trial participants where
• 22:27
  Speaker 1: necessary to ensure a fair trial for a criminal defendant.
• 22:31
  Speaker 1: In the conduct of a case, a court often finds
• 22:34
  Speaker 1: it necessary to restrict the free expressions of participants, including counsel, witnesses,
• 22:40
  Speaker 1: and jurors. Citations omitted. Internal quotation marks omitted. Seattle Times
• 22:47
  Speaker 1: Company v. Reinhart, 467 U.S. 2032-33, end. 18.
• 22:55
  Speaker 2: 104S. CT- 2199- 81L. ED- 2D- 17- 1984. Neither prosecutors, counsel, for defense, the accused, witnesses, court staff,
• 23:08
  Speaker 2: nor enforcement officers coming under any of the jurisdiction of
• 23:12
  Speaker 2: the court should be permitted to frustrate its function.
• 23:15
  Speaker 1: Internal quotation marks omitted. Gentile v. State Bar of Nevada, Supra,
• 23:20
  Speaker 1: 501 U.S. at 1072. 111 S.C.T. 2720. The United States
• 23:27
  Speaker 1: Supreme Court expressly contemplated that the speech of those participating
• 23:32
  Speaker 1: before the courts could be limited. This distinction between participants
• 23:37
  Speaker 1: in the litigation and strangers to it is brought into
• 23:40
  Speaker 1: sharp relief by the holding in Seattle Times Company versus
• 23:44
  Speaker 1: Reinhart Supra at 20 104 S.C.T. 2199. Emphasis omitted. Footnote omitted.
• 24:04
  Speaker 1: The primary danger of extrajudicial speech to the administration of
• 24:08
  Speaker 1: justice must be that the outcome of a judicial proceeding
• 24:12
  Speaker 1: or the ability to the court to do its work
• 24:15
  Speaker 1: might be improperly influenced by people who have no legitimate
• 24:19
  Speaker 1: part in the courts. Resolution of that matter. Of course,
• 24:23
  Speaker 1: the person making an extrajudicial statement might actually be a
• 24:27
  Speaker 1: party in an ongoing proceeding, or an out-of-court statement might
• 24:31
  Speaker 1: not affect any pending matter, but might influence the course
• 24:35
  Speaker 1: of some future proceeding. The point is that an attempt
• 24:39
  Speaker 1: to interfere with the outcome of a case is properly
• 24:42
  Speaker 1: punishable because justice is being affected through means other than
• 24:46
  Speaker 1: those established for the proper disposition of a controversy. L. Ravison,
• 24:53
  Speaker 1: Advocacy and Contempt, Constitutional Limitations on the Judicial Contempt Power,
• 24:58
  Speaker 1: Part 1, The Conflict Between Advocacy and Contempt, 65 Washington.L.Rev, 477-499-500-1990.
• 25:03
  Speaker 1: A related but not necessary inquiry considers the timing and
• 25:07
  Speaker 1: the nature of the speech. Speech is more likely to
• 25:17
  Speaker 1: interfere with the administration of justice if it is calculated
• 25:21
  Speaker 1: to intimidate or threaten other participants in the litigation. Additionally,
• 25:27
  Speaker 1: the possibility that other measures will serve the state's interests
• 25:30
  Speaker 1: should also be weighed. Landmark Communications Incorporated v. Virginia Supra
• 25:35
  Speaker 1: 435 U.S. at 843-98-S.CT-1535. We also consider whether the sanction
• 25:37
  Speaker 1: is narrowly tailored to achieve the government's substantial interest in
• 25:47
  Speaker 1: ensuring the administration of justice. Gentile v. The State Bar
• 25:51
  Speaker 1: of Nevada, Supra 501, U.S. at 1075-111-S.CT-2720. See also People v. Goss,
• 25:54
  Speaker 1: 10 Illinois. 2D- 533- 536- 37- 141- N. E. 2D- 385- 1957. upholding contempt order under clear and present danger
• 26:16
  Speaker 1: test when non-party appeared on television show and accused party
• 26:20
  Speaker 1: to court proceeding of being from a family with, court admitted,
• 26:23
  Speaker 1: hoodlum connections and called witness professional sneak and liar. Internal
• 26:28
  Speaker 1: quotation marks omitted. ID at 361-365. Thus, the Jones Court
• 26:35
  Speaker 1: outlines a two-part inquiry while incorporating standard First Amendment jurisprudence
• 26:41
  Speaker 1: on tailoring which largely requires the court to identify the
• 26:44
  Speaker 1: party seeking to speak, the timing and nature of the speech,
• 26:48
  Speaker 1: and whether such speech would cause a clear and present
• 26:52
  Speaker 1: danger to the defendant's right to a fair and impartial trial. Finally,
• 26:56
  Speaker 1: the state submits the attached affidavit of William Thompson Jr.,
• 27:00
  Speaker 1: which notes that the members of the Gonsalves family, represented
• 27:04
  Speaker 1: by Mr. Shannon Gray, are potential witnesses at a trial
• 27:08
  Speaker 1: and or sentencing in this matter. And this has been
• 27:11
  Speaker 1: signed by Bradley J. Rudley, Chief Civil Deputy Prosecuting Attorney.
• 27:19
  Speaker 1: All right, folks, there you have it. That is our
• 27:22
  Speaker 1: latest court document drop. And it was the memorandum of
• 27:26
  Speaker 1: points and authorities relating to the non-dissemination order. That's going
• 27:31
  Speaker 1: to do it for this one. All of the information
• 27:34
  Speaker 1: that goes along with this episode can be found in
• 27:37
  Speaker 1: the description box.