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HEAR IT: Gag order in Bryan Kohberger Murder Case Amended · Crime Stories with Nancy Grace

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Speaker 1: Crime stories with Nancy Grace.
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Speaker 2: Hi, guys, Nancy Grace. Here.
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Speaker 3: So much happening in the Brian Coburger prosecution. A lot
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Speaker 3: of motions have been filed, some denied, some granted. But
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Speaker 3: let's hear verbatim word for word critical motions and rulings in.
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Speaker 2: The Brian Coburger case.
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Speaker 3: All of these legal maneuverings going on while the victims'
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Speaker 3: families wait for justice.
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Speaker 2: Dave mac kick it.
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Speaker 4: Off in the District Court of the Second Judicial District
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Speaker 4: of the State of Idaho and in for the County
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Speaker 4: of Leatah, State of Idaho Plaintiff versus Brian Cee Coberger Defendant,
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Speaker 4: case number c ARE two nine dash to twoh two
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Speaker 4: eight zero five Ordered denying the Associated Press's motion to
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Speaker 4: vacate the Amended Non Dissemination Order introduction. This order addresses
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Speaker 4: the motion to vacate the amended non Dissemination Order filed
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Speaker 4: by interveners, a coalition of twenty media outlets that will
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Speaker 4: be collectively referred to as the Associated Press. The amended
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Speaker 4: non Dissemination Order does not restrict, restrain, or in any
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Speaker 4: way enjoin the press from reporting on or publishing information
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Speaker 4: they obtained through their own investigations or interviews. The amended
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Speaker 4: non dissemination Order is not a gag order on the media. Instead,
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Speaker 4: the page two amended non Dissemination Order restricts attorneys directly
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Speaker 4: involved in the case who are representing a party, a witness,
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Speaker 4: or a victim's family, and the agents for those attorneys,
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Speaker 4: including law enforcement, from making certain statements about the case
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Speaker 4: to the media or the public. Because quote, membership in
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Speaker 4: the bar is a privilege burdened with conditions unquote. Genteel
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Speaker 4: versus State Bar of Nevada, nineteen ninety one, the U. S.
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Speaker 4: Supreme Court has recognized that quote, the speech of lawyers
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Speaker 4: representing clients impending cases may be regulated under a less
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Speaker 4: demanding standard than that established for regulation of the press unquote.
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Speaker 4: As officers of the court, court personnel, and attorneys have
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Speaker 4: a fidiciary responsibility not to engage in public debate that
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Speaker 4: will rebound to the detriment of the accused or that
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Speaker 4: will obstruct the fair administration of justice. The purpose of
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Speaker 4: the amended non dissemination Order, which was stipulated to by
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Speaker 4: the parties, is to protect defendant Bryan C. Coburger's right
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Speaker 4: to a fair trial by an impartial jury as guaranteed
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Speaker 4: by the sixth Amendment. Quote, few, if any interests under
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Speaker 4: the Constitution are more fundamental than the right to a
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Speaker 4: fair trial by impartial jurors, and an outcome affected by
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Speaker 4: extra judicial statements would violate that fundamental right unquote. The
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Speaker 4: Associated Press's motion to vacate the amended non dissemination Order
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Speaker 4: is denied. This Court has the authority to regulate the
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Speaker 4: speech of attorneys participating in this case and the agents
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Speaker 4: for those attorneys, to ensure that Coburger is not denied
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Speaker 4: his right to affair trial by an impartial jury because
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Speaker 4: of extrajudicial prejudicial statements. However, this Court will issue a
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Speaker 4: revised amended non dissemination order that clarifies what cannot be
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Speaker 4: discussed and what can be Page three discussed the revised
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Speaker 4: Amended non Dissemination Order. One is limited to apply only
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Speaker 4: to speech that is substantially likely to have a material
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Speaker 4: prejudicial effect on the right to a fair trial. Two
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Speaker 4: applies equally to all attorneys participating in the case. Three
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Speaker 4: is neutral as two points of view, and four restricts
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Speaker 4: attorney's comments only until after the trial and any sentencing
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Speaker 4: proceedings that may take place. The revised amended non dissemination
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Speaker 4: order is reasonable considering the facts of this case. One
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Speaker 4: the evidence presented by the defense showing the pervasiveness of
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Speaker 4: media coverage, including coverage prejudicially Coburger in coverage that includes
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Speaker 4: extra judicial statements by an attorney participating in the case,
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Speaker 4: and two the impact such prejudicial news coverage has on
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Speaker 4: potential jurors and the fair administration of justice. The restriction
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Speaker 4: imposed serves a legitimate purpose, and the very limited incidental
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Speaker 4: effects of the revised amended non dissemination order on the
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Speaker 4: media's First Amendment rights are overridden by the compelling interest
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Speaker 4: in ensuring that Coburger's right to a fair trial under
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Speaker 4: the sixth Amendment is not jeopardized. Two background. On November thirteen,
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Speaker 4: twenty twenty two, four University of Idaho's students Kailey Gonzavez,
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Speaker 4: Madison Mogen, Xana Crenodle, and Ethan Chapin were found deceeize
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Speaker 4: in Gonzavs, Mogen, and Crenodle's off campus home in Moscow, Idaho.
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Speaker 4: The cause of death for each was ruled a homicide.
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Speaker 4: As news of the tragedy broke, media outlets from around
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Speaker 4: the country descended upon Moscow as law enforcement investigated, news stations, newspapers,
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Speaker 4: and social media were flooded with stories and speculation about
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Speaker 4: the homicides and law enforcement's investigative efforts and abilities. Throughout
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Speaker 4: the course of the investigation, the Moscow Police Department, in
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Speaker 4: partnership with the University of Idaho, the Leytau County Prosecutor's Office,
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Speaker 4: and the Idaho State Police held press briefings to answer
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Speaker 4: questions and reassure the public appropriately. The information released was
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Speaker 4: limited to protect the integrity of the ongoing investigation. Page four.
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Speaker 4: On December thirtieth, twenty twenty two, Coburger was arrested and
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Speaker 4: charged with four counts of murder in the first degree
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Speaker 4: and one count of burglary. Again, media outlets descended upon Moscow,
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Speaker 4: and the news coverage quickly focused on Coburger. The same
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Speaker 4: day that Coburger was charged, his attorney filed a motion
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Speaker 4: for non dissemination order, asking the magistrate judge to enter
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Speaker 4: an order quote barring parties, their attorneys, investigators, law enforcement personnel,
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Speaker 4: and potential witnesses from discussing the case with any public
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Speaker 4: communication media thereafter. On January three, twenty twenty three, the
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Speaker 4: defense and the state filed a stipulation for non dissemination
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Speaker 4: order quote prohibiting attorneys, investigators, and law enforcement personnel from
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Speaker 4: making any extra judicial statement, written or oral concerning this
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Speaker 4: case other than a quotation from or reference to, without
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Speaker 4: comment the public records of the court in this case.
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Speaker 4: The same day, the magistrate Judge entered a non dissemination
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Speaker 4: order prohibiting the parties to the case, including investigators, law
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Speaker 4: enforcement personnel, attorneys, and agents of the prosecuting attorney or
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Speaker 4: defense attorney, from making extra judicial statements, written or oral
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Speaker 4: concerning this case other than a quotation from or referenced to,
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Speaker 4: without comment, the public records of the case. On January thirteen,
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Speaker 4: twenty twenty three, the Magistrate Judge held an in chambers,
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Speaker 4: off the record conference with Leytak County Prosecuting Attorney, William W. Thompson,
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Speaker 4: Junior Senior Deputy Prosecutor, Actually S. Jennings, FN's Council and C. Taylor,
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Speaker 4: attorneys for two witnesses in the case, and Shannon Gray,
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Speaker 4: attorney for the Gonzavz family. A summary of the meeting,
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Speaker 4: as prepared by the parties in the case, was filed
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Speaker 4: with the Idaho Supreme Court on March third, twenty twenty three,
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Speaker 4: as part of the declaration of Deborah A. Ferguson in
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Speaker 4: the case of Petition for rid of Mandamness or rid
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Speaker 4: of Prohibition Idaho April twenty four to twenty twenty three.
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Speaker 4: The purpose of the conference was to address the applicability
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Speaker 4: of the non dissemination order to the attorneys both present
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Speaker 4: as Page five parties to the case and the attorneys
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Speaker 4: participating in the case. The Magistrate judge reminded the attorneys
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Speaker 4: that this case is a high profile case with both
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Speaker 4: national and international media coverage, and that they have a
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Speaker 4: duty under the Idaho Rules of Professional Conduct to not
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Speaker 4: interfere with the party's right to a fair trial. The
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Speaker 4: magistrate advised the attorneys that it was not their job
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Speaker 4: to disseminate information to the media. The Magistrate judge stated
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Speaker 4: that the non dissemination order did not reachtrect the attorney's
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Speaker 4: non party clients from speaking to the media, but reiterated
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Speaker 4: the importance of the case being tried in a court
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Speaker 4: of law and not the media, and encouraged each attorney
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Speaker 4: to advise their clients accordingly in order to preserve the
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Speaker 4: right to affair trial by an impartial jury. On January eighteenth,
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Speaker 4: twenty twenty three, the magistrate judge, based on the stipulation
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Speaker 4: of the parties, entered the amended non dissemination order to
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Speaker 4: balance co burghers and the state's right to a fair
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Speaker 4: trial and quote the right to free expression as afforded
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Speaker 4: under both the United States and Idaho Constitution unquote. The
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Speaker 4: magistrate noted that quote, to preserve the right to a
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Speaker 4: fair trial, some curtailment of the dissemination of information in
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Speaker 4: the case is necessary and authorized under the law unquote.
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Speaker 4: The amended non dissemination Order reads, it is hereby ordered
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Speaker 4: one the attorneys for any interested party in this case,
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Speaker 4: including the prosecuting attorney, defense attorney, and any attorney representing
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Speaker 4: a witness, victim, or victim's fe family, as well as
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Speaker 4: the parties to the above entitled action, including but not
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Speaker 4: limited to, investigators, law enforcement personnel, and agents for the
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Speaker 4: prosecuting attorney or defense attorney, are prohibited from making extra
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Speaker 4: judicial statements, written or oral, concerning this case, except without
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Speaker 4: additional comment, a quotation from or reference to the official
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Speaker 4: public record of the case. Two. This order specifically prohibits
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Speaker 4: any statement which a reasonable person would expect to be
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Speaker 4: disseminated by means of public communication that relates to the
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Speaker 4: following A Evidence regarding the occurrences or transactions involved in
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Speaker 4: this case. B The character, credibility, reputation, or criminal records
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Speaker 4: of a party, victim, or witness, or the identity of
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Speaker 4: a witness, or the expected testimony of a party, victim,
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Speaker 4: or witness. Page six. See the performance or results of
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Speaker 4: any examination or test, or the refusal or failure of
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Speaker 4: a person to submit to an examination or test. D
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Speaker 4: Any opinion as to the merits of the case, or
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Speaker 4: the claims or defense of a party. E. Any information
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Speaker 4: a lawyer knows or reasonably should know is likely to
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Speaker 4: be an admissible as evidence in a trial, and that would,
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Speaker 4: if disclosed, create a substantial risk of prejudicing an impartial jury.
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Speaker 4: F Any information reasonably likely to interfere with a fair
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Speaker 4: trial in this case afforded under the United States and
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Speaker 4: Idaho constitutions, such as the existence or contents of any confession, admission,
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Speaker 4: or statement given by the defendant, the possibility of a
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Speaker 4: plea of guilt, or any opinion as to the defendant's
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Speaker 4: guilt or innocence. On February sixth, twenty twenty three, the
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Speaker 4: Associated Press filed a petition for writ of mandamness or
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Speaker 4: a writ of prohibition with the Idaho Supreme Court related
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Speaker 4: to the amended non dissemination order. On April twenty fourth,
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Speaker 4: twenty twenty three, the Idaho Supreme Court issued an opinion
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Speaker 4: dismissing the Associated Press's petition, finding that although the media
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Speaker 4: did have standing to challenge the amended non dissemination order,
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Speaker 4: they must first present their petition to the trial court. Thereafter,
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Speaker 4: on May second, twenty twenty three, the Associated Press filed
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Speaker 4: a motion to intervene and a motion to vacate the
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Speaker 4: amended nomin dissemination order. The magistrates set a scheduling conference
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Speaker 4: for May twenty second, twenty twenty three. On May sixteen,
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Speaker 4: twenty twenty three, an indictment was filed against Coburger, and
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Speaker 4: this Court began presiding over the case. On May twenty second,
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Speaker 4: twenty twenty three, after Coburger's arraignment, this Court conducted a
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Speaker 4: scheduling conference and set a briefing schedule and hearing for
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Speaker 4: oral argument. The Associated Press's motion to vacate the amended
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Speaker 4: non dissemination order was extensively briefed, and both the State
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Speaker 4: and Coburger submitted extensive briefing in opposition to the motion.
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Speaker 4: Oral argument was heard on June nine, twenty twenty three.
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Speaker 4: The State was represented by William W. Thompson, Junior and
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Speaker 4: Bradley J. Rudley Letac County Prosecutor's Office. Coberger was represented
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Speaker 4: by N. C. Taylor and J. W. Logson Katouni County
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Speaker 4: Public Defender's Office. The Associated Press was represented by Wendy
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Speaker 4: Olsen and Corey Coron page seven. During the hearing, the
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Speaker 4: defense put on the testimony of two expert witnesses. First,
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Speaker 4: Gene R. Sascier, Senior Vice President of Truscope North America,
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Speaker 4: testified and some Miss Saucier testified to the quantity of
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Speaker 4: media coverage in this case. It is undisputed that media
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Speaker 4: coverage in this case is rampant ongoing, including on television,
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Speaker 4: the Internet, social media, and the radio. News surrounding the
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Speaker 4: case is being reported by reliable sources of news, unreliable
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Speaker 4: news outlets, and individuals engaged in spreading or fueling rumors, theories,
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Speaker 4: and unfounded speculation. It is also worth noting that Miss
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Speaker 4: Saucier's testimony and the exhibits she showed demonstrate that in
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Speaker 4: the share of voice media coverage category, Shannon Gray's stories
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Speaker 4: in the media had the highest POTENTI reach of five
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Speaker 4: hundred and sixty one million, one hundred and twelve thousand,
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Speaker 4: five hundred and seventy three impressions, with impressions being the
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Speaker 4: quote opportunities to see unquote a story. Exhibit A to
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Speaker 4: Defendant's objections to media's mot to vacate the amended non
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Speaker 4: dissemination order. Shannon Gray is the attorney for the Gonzavees
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Speaker 4: family and is bound by the amended non dissemination order.
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Speaker 4: The defense also submitted several news articles demonstrating that at
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Speaker 4: least some portion of the news, if not most of it,
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Speaker 4: is prejudicial to Coburger see motion to take judicial notice
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Speaker 4: of press coverage. Second, doctor Amani Lalley, social psychologist and
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Speaker 4: social cognition researcher, testified to the impact such media can
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Speaker 4: have on a potential juror. It was doctor Lalley's opinion
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Speaker 4: that vacating the non dissemination order would increase the potential
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Speaker 4: for bias among prospective jurors, both initially and throughout the trial.
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Speaker 4: Doctor Lley further opined that my review of research ille
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Speaker 4: illustrates that anti defendant pre trial publicity increases the probability
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Speaker 4: of guilty verdicts, and that this bias persists despite the
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Speaker 4: receipt of trial arguments and evidence admonitions to disregard the publicity,
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Speaker 4: information and jury deliberation commentary by individuals with status slash
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Speaker 4: expertise Page eight e g. Police attorneys and judges in
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Speaker 4: the media coverage create more potential for bias jurors exhibit
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Speaker 4: deep to defend his objection to media's In MOTI to
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Speaker 4: Vacate the Amended Non Dissemination Order three issues presented, the
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Speaker 4: Associated Press argues that the amended Non Dissemination Order restrains
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Speaker 4: their constitutional right to gather news before it can be exercised,
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Speaker 4: in violation of the First Amendment. Memorandum ins support of
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Speaker 4: MOTI to Vacate Amended Non Dissemination Order at fifteen. The
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Speaker 4: Associated Press asserts that their First Amendment rights are being
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Speaker 4: violated because the media does not make the news it
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Speaker 4: reports the news ID at seventeen. The argument continues that
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Speaker 4: if a court w orders an individual not to provide
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Speaker 4: information to the media, then the media has nothing to report.
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Speaker 4: ID intervener's speech is thus being restrained before they can
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Speaker 4: even speak id At fifteen. Thus, the Associated Press alleges
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Speaker 4: that the amended non dissemination order is a prior restraint
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Speaker 4: in the media and does not survive the strict scrutiny
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Speaker 4: test applied to prior restraints on the press. This decision
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Speaker 4: addresses the following one the obligation of the court to
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Speaker 4: ensure that Coburger's right to a fair trial is not
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Speaker 4: being jeopardized by prejudicial extra judicial statements. Two, the Court's
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Speaker 4: authority to impose restrictions on the speech of those attorneys
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Speaker 4: and their agents involved in this case. And three the
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Speaker 4: standard applied to reviewing constitutional challenges by the media to
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Speaker 4: non dissemination orders aimed at trial participants, especially lawyers. Finally,
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Speaker 4: this decision applies the law to the facts of this
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Speaker 4: case in addressing the Associated Press's argument that the amended
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Speaker 4: non dissemination order violates their First Amendment rights four law.
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Speaker 4: In nineteen sixty six, the US Supreme Court recognized the
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Speaker 4: definish right to a trial by an impartial jury free
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Speaker 4: from outside influences in the face of massive, pervasive and
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Speaker 4: prejudicial publicity Shepherd versus Maxwell nineteen sixty six, page nine.
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Speaker 4: While recognizing that a responsible press has always been regarded
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Speaker 4: as the handmaiden of effective judicial administration, especially in the
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Speaker 4: criminal field, the court chastised the trial judge for not
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Speaker 4: taking strong measures to ensure Shepherd's right to a fair trial.
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Speaker 4: In Shepherd, there was not a non dissemination order on
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Speaker 4: trial participants or any gag order on the media. Notably,
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Speaker 4: in overturning Shepherd's conviction. The Court listed several things that
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Speaker 4: the trial court should have done. One, the judge should
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Speaker 4: have adopted strict rules governing the use of the court
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Speaker 4: room by newsmen and should have more closely regulated the
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Speaker 4: conduct of newsmen in the court room. Two the court
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Speaker 4: should have insulated the witnesses. All of the newspapers and
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Speaker 4: radio stations apparently interviewed prospective witnesses at will, and in
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Speaker 4: many instances disclosed their testimony. Three the court should have
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Speaker 4: made some effort to control the release of leads, information
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Speaker 4: and gossip to the press by police officers, witnesses, and
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Speaker 4: the council for both sides. Much of the information thus
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Speaker 4: disclosed was inaccurate, leading to groundless rumors and confusion. Four
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Speaker 4: the judge should have at least warned the newspapers to
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Speaker 4: check the accuracy of their accounts. And five, it is
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Speaker 4: obvious that the judge should have further sought to alleviate
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Speaker 4: inaccurate prejudicial news by imposing control over the statements made
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Speaker 4: to the news media by council witnesses, and especially the
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Speaker 4: coroner and police officers. In summary, the court stated that
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Speaker 4: the trial court might well have proscribed extra judicial statements
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Speaker 4: by any lawyer, party witness, or court official which divulged
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Speaker 4: prejudicial matters such as the refusal of Shepherd to submit
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Speaker 4: to interrogation or take any light detector tests, the identity
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Speaker 4: of prospective witnesses or their probable testimony, any belief in
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Speaker 4: guilt or innocence, or like statements concerning the merits of
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Speaker 4: the case. In this manner, Shepherd's right to a trial
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Speaker 4: free from outside influence would have been given out of
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Speaker 4: protection Page ten without corresponding for tailment of the news media.
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Speaker 4: Had the judge, the other officers of the court, and
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Speaker 4: the police placed the interest of justice first, the news
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Speaker 4: media would have soon learned to be content with the
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Speaker 4: task of reporting the case as it unfolded in the
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Speaker 4: court room, not pieced together from extra judicial statements. In
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Speaker 4: addressing the tension between the First Amendment and the sixth Amendment,
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Speaker 4: the Court stated, from the cases coming here, we note
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Speaker 4: the unfair and prejudicial news comment on pending trials has
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Speaker 4: become increasingly prevalent. Due process requires that the hused receive
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Speaker 4: a trial by an impartial jury free from outside influences.
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Speaker 4: Given the pervasiveness of modern communications and the difficulty of
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Speaker 4: efficing prejudicial publicity from the minds of the jurors, the
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Speaker 4: trial courts must take strong measures to ensure that the
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Speaker 4: balance is never weighed against the accused, and appellate tribunals
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Speaker 4: have the duty to make an independent evaluation of the circumstances.
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Speaker 4: Of course, there is nothing that prescribes the press from
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Speaker 4: reporting events that transpire in the courtroom. But where there
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Speaker 4: is a reasonable likelihood that prejudicial news prior to trial
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Speaker 4: will prevent a fair trial, the judge should continue the
19:38
Speaker 4: case until threat debates or transferred to another county not
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Speaker 4: so permeated with publicity. In addition, sequestration of the jury
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Speaker 4: was something the judge should have raised susponte with counsel
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Speaker 4: if publicity during the proceedings threatens the fairness of the trial,
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Speaker 4: a new trial should be ordered, but we must remember
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Speaker 4: that reversals are but paidives. The cure lives in those
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Speaker 4: remedial measures that will prevent the prejudice at its inception.
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Speaker 4: The court must take such steps by rule and regulation
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Speaker 4: that will protect their processes from prejudicial outside interferences. Neither prosecutors,
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Speaker 4: counsel for defense, the accused, witnesses, court staff, or enforcement
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Speaker 4: officers coming under the jurisdiction of the court should be
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Speaker 4: permitted to frustrate its function. Collaboration between Council and the
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Speaker 4: press as to information affecting the fairness of a criminal
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Speaker 4: trial is not only subject to regulation, but is highly
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Speaker 4: sensorable and worthy of disciplinary measures. The Associated Press relies
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Speaker 4: heavily on CBS Inc. Verjong in support of their position
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Speaker 4: that the amended non dissemination order is unconstitutional and must
20:51
Speaker 4: be vacated. In that case, the Appellate Court issued a
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Speaker 4: decision addressing a non dissemination order entered in a civil case.
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Speaker 4: There the non dissemination order prohibited all counsel and court
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Speaker 4: Page eleven personnel, all parties concerned with this litigation, whether
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Speaker 4: plaintiffs or defendants, their relatives, close friends, and associates from
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Speaker 4: discussing any manner whatsoever these cases with members of the
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Speaker 4: news media or the public. The press challenged the order
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Speaker 4: as violating the press's rights under the First Amendment. The
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Speaker 4: Court held as follows. Before a trial court can limit
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Speaker 4: defendants and their attorney's exercise of First Amendment rights of
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Speaker 4: freedom of speech, the record must contain sufficient specific findings
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Speaker 4: by the trial court establishing that defendants and their attorney's
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Speaker 4: conduct is a serious and imminent threat to the administration
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Speaker 4: of justice. Applying either the standard that the speech must
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Speaker 4: create a clear and present danger of a serious and
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Speaker 4: eminent threat to the administration of justice or the lesser
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Speaker 4: standard that there must be a reasonable likelihood of a
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Speaker 4: serious and imminent threat to the administration of justice, we
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Speaker 4: hold that the trial court's order is constitutional impermissible. The
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Speaker 4: Court reasoned that the order issued by the trial court
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Speaker 4: constituted a prior direct restraint upon freedom of expression. In
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Speaker 4: sweeping terms. It seals the lips of all parties concerned
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Speaker 4: with this litigation, whether plaintiffs or defendants, their relatives, close friends,
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Speaker 4: and associates, from discussing in any manner whatsoever these cases
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Speaker 4: with members of the news media, or the public. Although
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Speaker 4: the news media are not directly enjoined from discussing the case,
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Speaker 4: it is apparent that significant and meaningful sources of information
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Speaker 4: concerning the case are effectively removed from them and their representatives.
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Speaker 4: To that extent, their protected right to obtain information concerning
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Speaker 4: the trial is curtailed and impaired. The court continued, we
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Speaker 4: find the order to be an extreme example of a
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Speaker 4: prior restraint upon freedom of speech and expression, and one
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Speaker 4: that cannot escape the prescriptions of the First Amendment unless
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Speaker 4: it is shown to have been required to obviate serious
22:56
Speaker 4: and imminent threats to the fairness and integrity of the
22:59
Speaker 4: trial twelve. In this Court's view, the Young Court's reliance
23:03
Speaker 4: on the high standard applied to Craig v. Harney and
23:06
Speaker 4: Would be Georgia is misplaced. Both of those cases dealt
23:10
Speaker 4: with contempt proceedings and did not address non dissemination orders
23:13
Speaker 4: restricting extra judicial statements by specific persons to preserve the
23:18
Speaker 4: right to a fair trial. In Harney, three media personnel
23:21
Speaker 4: were found guilty of criminal contempt and sentenced to three
23:24
Speaker 4: days in jail for publications during an ongoing civil case
23:29
Speaker 4: in which they criticized the presiding judge. The judge found
23:33
Speaker 4: the news reports were designed to falsely represent to the
23:37
Speaker 4: public the nature of the proceedings and to prejudice and
23:40
Speaker 4: influence the court to grant a new trial. In reversing
23:44
Speaker 4: the decision of the trial court, the Court held that,
23:46
Speaker 4: giving the editorial all the vehemence which the Court below
23:50
Speaker 4: found in it, we failed to see how it could,
23:53
Speaker 4: in any realistic sense, create an imminent and serious threat
23:56
Speaker 4: to the ability of the court to give fair consideration
23:59
Speaker 4: to the motion for rehearing. This Court agrees that any
24:03
Speaker 4: attempt by a court to hold the media in contempt
24:06
Speaker 4: and even jail them for publications critical of the court,
24:09
Speaker 4: should be viewed under the strictest scrutiny. However, the facts
24:13
Speaker 4: in Harney have no similarity to the restriction on the
24:16
Speaker 4: speech of trial participants in this case or in the
24:19
Speaker 4: Young case. In Wood, a grand jury was impaneled and
24:23
Speaker 4: instructed by the judge to investigate a voting issue within
24:27
Speaker 4: the county. While the grand jury was in session, the
24:30
Speaker 4: elected sheriff issued a public statement criticizing the judge for
24:35
Speaker 4: singling out the African American community and essentially attempting through
24:39
Speaker 4: the judicial process to intimidate and silence the African American vote.
24:44
Speaker 4: The sheriff also wrote a letter to the grand jury
24:47
Speaker 4: implying that the court's charge was false, among other things.
24:51
Speaker 4: A month later, the sheriff was cited for contempt. Following
24:54
Speaker 4: a trial where the court failed to make any findings
24:57
Speaker 4: or articulate any reasoning for its decision, the sheriff was
25:01
Speaker 4: found guilty of Page thirteen contempt and sentenced to twenty
25:05
Speaker 4: days in jail. In overturning the contempt conviction, the Supreme
25:08
Speaker 4: Court held that as an elected official, the sheriff had
25:12
Speaker 4: the right to enter the field of political controversy, particularly
25:15
Speaker 4: where his political life was at stake. The role that
25:18
Speaker 4: elected officials play in our society makes it all the
25:21
Speaker 4: more imperative that they be allowed freely to express themselves
25:25
Speaker 4: on matters of current public importance. Our examination of the
25:29
Speaker 4: content of the petitioner's statements and circumstances under which they
25:32
Speaker 4: were published leads us to conclude that they did not
25:36
Speaker 4: present a danger to the administration of justice that should
25:40
Speaker 4: a vitiate his freedom to express his opinions in the
25:43
Speaker 4: manner chosen again, the facts in would have no similarities
25:48
Speaker 4: to the amended non dissemination order in this case or
25:51
Speaker 4: the facts in Young. Additionally, the Young Court's finding that
25:54
Speaker 4: before a trial court can limit defendants and their attorney's
25:58
Speaker 4: exercise of First Amendment rights freedom of speech, the record
26:01
Speaker 4: must contain sufficient specific findings by the trial court establishing
26:05
Speaker 4: that defendants and their attorney's conduct is a serious and
26:09
Speaker 4: imminent threat to the administration of justice is at odds
26:12
Speaker 4: with the Supreme Court's later holding in Genteel that will
26:16
Speaker 4: be discussed below, but see Levigne b us. District Court
26:20
Speaker 4: for Central District of California, Ninth Circuit, nineteen eighty five.
26:25
Speaker 4: The trial court imposed a restraining order prohibiting attorneys involved
26:29
Speaker 4: in the case from communicating with the media regarding the
26:32
Speaker 4: merits of the case. In reviewing the restraining order, the
26:36
Speaker 4: Ninth Circuit applied strict scrutiny regardless of the standard applied
26:41
Speaker 4: to a constitutional challenge by a lawyer restricted by a
26:44
Speaker 4: non dissemination order, a less demanding standard is applied when
26:48
Speaker 4: the media challenges such an order. Radio and Television News
26:52
Speaker 4: Association of Southern California versus U. S. District Court for
26:55
Speaker 4: Central District of California, Ninth Circuit, nineteen eighty six. In
27:00
Speaker 4: nineteen seventy six, the US Supreme Court again addressed the
27:04
Speaker 4: tensions between the First Amendment and the Sixth Amendment in
27:07
Speaker 4: Nebraska Press Association b.
27:09
Speaker 1: Stewart Crime Stories with Nancy Grace, page fourteen.
27:26
Speaker 4: Even then, in nineteen seventy six, the Court acknowledged that
27:30
Speaker 4: the speed of communication and the pervasiveness of the modern
27:33
Speaker 4: news media have exacerbated the tension between the First Amendment
27:37
Speaker 4: and the Sixth Amendment. Unlike in this case, Nebraska Press
27:41
Speaker 4: dealt with a restraint on the media's ability to publish
27:44
Speaker 4: or broadcast specific information, i e. Restraint on freedom of
27:48
Speaker 4: the press, and not a restraint on freedom of speech.
27:52
Speaker 4: The Court recognized that when the case is a sensational one,
27:56
Speaker 4: tensions developed between the right of the accused to trial
28:00
Speaker 4: by an impartial jury and the rights guaranteed others by
28:03
Speaker 4: the First Amendment. The Court noted that a prior restraint
28:06
Speaker 4: on speech is most serious and the least tolerable infringement
28:10
Speaker 4: on the First Amendment rights, while also acknowledging that when
28:15
Speaker 4: the death penalty is on the table, it is not
28:18
Speaker 4: requiring too much that a defendant be tried in an
28:21
Speaker 4: atmosphere undisturbed by so huge a wave of public passion.
28:25
Speaker 4: The Court stated that it is not asking too much
28:28
Speaker 4: to suggest that those who exercise First Amendment rights in
28:32
Speaker 4: newspapers or broadcasting enterprises directs some effort to protect the
28:37
Speaker 4: rights of an accused to a fair trial by unbiased jurors.
28:41
Speaker 4: In a footnote in the concurring opinion authored by Justice Brennan,
28:45
Speaker 4: the following was noted. A significant component of prejudicial pre
28:50
Speaker 4: trial publicity may be traced to public commentary on pending
28:53
Speaker 4: cases by court personnel, law enforcement officials, and the attorneys
28:58
Speaker 4: involved in the case. In in Shepherd v. Maxwellsupra, we
29:01
Speaker 4: observed that the trial court might well have prescribed extrajudicial
29:06
Speaker 4: statements by any lawyer, party witness, or court official which
29:09
Speaker 4: divulged prejudicial matters. The judge should have further sought to
29:13
Speaker 4: alleviate this problem of publicity that misrepresented the trial testimony
29:17
Speaker 4: by imposing control over the statements made to the news
29:20
Speaker 4: media by council witnesses and especially the coroner and police
29:25
Speaker 4: officer Page fifteen. As officers of the court, court personnel
29:29
Speaker 4: and attorneys have a fidiciary responsibility not to engage in
29:33
Speaker 4: public debate that will redound to the detriment of the accused,
29:37
Speaker 4: or that will obstruct the fair administration of justice. It
29:40
Speaker 4: is very doubtful that the Court would not have the
29:43
Speaker 4: power to control release of information by these individuals in
29:47
Speaker 4: appropriate cases, and to impose suitable limitations whose transgression could
29:52
Speaker 4: result in disciplinary proceedings. Similarly, in most cases, courts would
29:58
Speaker 4: have ample power to control such actions by law enforcement personnel.
30:02
Speaker 4: Shepard and Nebraska Press leave no doubt that in appropriate cases,
30:07
Speaker 4: the court has the authority to regulate the speech of
30:10
Speaker 4: attorneys involved in a case, as well as their agents,
30:12
Speaker 4: such as law enforcement, to prevent prejudicial pre trial statements
30:16
Speaker 4: to preserve the right to a fair trial by an
30:19
Speaker 4: impartial jury. In nineteen eighty five and nineteen eighty six,
30:23
Speaker 4: the Ninth Circuit Court of Appeals addressed the situation strikingly
30:27
Speaker 4: similar to the one now before the Court in two
30:29
Speaker 4: separate opinions. As way of background, defendant Richard Miller, a
30:34
Speaker 4: former FBI agent, was charged with espionage. The case received
30:39
Speaker 4: extensive local and national media coverage after attorneys for both
30:43
Speaker 4: the prosecution and the defense engaged in extra judicial statements
30:47
Speaker 4: to the medium. The trial court entered an order prohibiting
30:51
Speaker 4: all attorneys in the case from making any statements to
30:54
Speaker 4: members of the news media concerning any aspect of the
30:58
Speaker 4: case that bears upon the merits to be resolved by
31:01
Speaker 4: the jury. In Levigne, the Court addressed a challenge to
31:05
Speaker 4: the non dissemination order brought by Defense Council. The Court
31:09
Speaker 4: framed the issue as addressing the clash between the basic
31:13
Speaker 4: and fundamental right to a fair criminal jury trial and
31:16
Speaker 4: the First Amendment right of attorneys to engage in free speech.
31:20
Speaker 4: In reviewing the restraining order, the Ninth Circuit noted that
31:24
Speaker 4: the District Court's order, page sixteen, applies only two participants.
31:29
Speaker 4: The Supreme Court has suggested that it is appropriate to
31:32
Speaker 4: impose greater restrictions on the free speech rights of trial
31:35
Speaker 4: participants than on the rights of non participants. The case
31:39
Speaker 4: for restraints on trial participants is especially strong with respect
31:43
Speaker 4: to attorneys. The Court nevertheless applied strict scrutiny Accordingly, the
31:47
Speaker 4: District Court's order may be upheld only if the government
31:51
Speaker 4: establishes that one the activity restraint poses either a clear
31:55
Speaker 4: and present danger or a serious and imminent threat to
31:57
Speaker 4: a protected competing interest. Two, the order is narrowly drawn
32:01
Speaker 4: and three less restrictive alternatives are not available. The Court
32:06
Speaker 4: concluded that the speech of the lawyers did pose a
32:10
Speaker 4: serious and imminent threat to the administration of justice, and
32:13
Speaker 4: that the trial court's choice of remedy was appropriate. However,
32:17
Speaker 4: the Court found that the non dissemination order was over
32:20
Speaker 4: broad and directed the District Court as follows. It is
32:24
Speaker 4: apparent that many statements that bear upon the merits to
32:27
Speaker 4: be resolved by the jury present no danger to the
32:29
Speaker 4: administration of justice. After the filing of this opinion, the
32:33
Speaker 4: District Court must determine which types of extra judicial statements
32:38
Speaker 4: pose a serious and imminent threat to the administration of justice.
32:41
Speaker 4: In this case, the District Court then must fashion an
32:45
Speaker 4: order specifying the prescribed types of statements. With regard to
32:49
Speaker 4: statements by the prosecution, it would be appropriate for the
32:52
Speaker 4: District Court to order the government to observe the self
32:56
Speaker 4: imposed limitations step forth in twenty eight CFI fifty point
33:01
Speaker 4: two b nineteen eighty four. With regard to statements by
33:05
Speaker 4: the defense, it would be appropriate to prescribe statements relating
33:09
Speaker 4: to one or more of the following subjects. One the character,
33:14
Speaker 4: credibility or reputation of the party. Two the identity of
33:18
Speaker 4: a witness or the expected testimony of a party or
33:21
Speaker 4: a witness. Three the contents of any pre trial confession, admission,
33:26
Speaker 4: or statement given by a defendant, or that person's refusal
33:31
Speaker 4: or failure to make a statement. Four the identity or
33:34
Speaker 4: nature of physical evidence expected to be presented, or the
33:37
Speaker 4: absence of such physical evidence. Five the strengths or weaknesses
33:42
Speaker 4: of the case of either party, And six any other
33:45
Speaker 4: information the lawyer knows or reasonably should know is likely
33:50
Speaker 4: to be inadmissible as evidence and would create a substantial
33:53
Speaker 4: risk of prejudice if disclosed Page seventeen, id at five
33:57
Speaker 4: nine nine, citing Model Rules of Professional Conduct Rule three
34:00
Speaker 4: point six, nineteen eighty three, ABA Standards for a Criminal
34:04
Speaker 4: Justice Standard eight DASH one point one, nineteen eighty two,
34:07
Speaker 4: Model Code of Professional Responsibility DR sevenh one oh seven,
34:11
Speaker 4: nineteen seventy nine. The case then went back to the
34:13
Speaker 4: trial court. The trial court amended its restraining order to
34:17
Speaker 4: adopt the six categories of speech by lawyers specified by
34:20
Speaker 4: the Ninth Circuit as appropriate to prescribe. The Radio and
34:24
Speaker 4: Television News Association then filed for a rid amandamus with
34:27
Speaker 4: the Ninth Circuit, arguing that the restraining order, even as amended,
34:31
Speaker 4: posed an unconstitutional prior restraint infringing freedom of the press.
34:37
Speaker 4: The Ninth Circuit addressed the media's challenge in radio like Here,
34:41
Speaker 4: the media argued that the order, by effectively denying media
34:45
Speaker 4: access to trial participants, constitutes an unconstitutional restraint on the
34:49
Speaker 4: media's ability to gather news. Much of the court's opinion
34:52
Speaker 4: concluded that the trial court's amended restraining order was reasonable
34:56
Speaker 4: and served a legitimate purpose. Is worth repeating. The impact
35:01
Speaker 4: on the media in this case is significantly different from
35:04
Speaker 4: situations where the media is denied access to a criminal
35:08
Speaker 4: trial or is restricted in disseminating any information it obtains.
35:13
Speaker 4: In contrast, the district Court's order in this case is
35:16
Speaker 4: not directed towards the press at all. On the contrary,
35:20
Speaker 4: the media is free to attend all of the trial
35:23
Speaker 4: proceedings before the District Court and to report anything that happens.
35:27
Speaker 4: In fact, the press remains free to direct questions at
35:30
Speaker 4: trial council. Trial council simply may not be free to answer.
35:35
Speaker 4: In some the media's right to gather news and disseminated
35:38
Speaker 4: to the public has not been restrained. As we noted
35:41
Speaker 4: in Levine, the District Court's order raises a freedom of
35:44
Speaker 4: the press issue that is analytically distinct from the issue
35:48
Speaker 4: that were raised in Associated Press and CBS. Rather, the
35:52
Speaker 4: RTNA asserts a First Amendment right of full access to
35:57
Speaker 4: trial participants. This assertion is not supported by constitutional case law.
36:02
Speaker 4: See Pel v. Procrnier, nineteen seventy four. In holding that
36:07
Speaker 4: freedom of the press was not infringed by government restrictions
36:11
Speaker 4: on interviews with prison inmates, court rejected media assertion of
36:15
Speaker 4: right of access to the sources of what is regarded
36:18
Speaker 4: as newsworthy information. The press does enjoy a constitutional interest
36:23
Speaker 4: in access to our criminal courts and criminal justice process.
36:27
Speaker 4: In Richmond Newspapers, Page eighteen, nineteen eighty, the Supreme Court
36:32
Speaker 4: affirmed the First Amendment right of access or right to
36:35
Speaker 4: gather information granted to the press with respect to criminal trials. However,
36:40
Speaker 4: the Court described that right only as a right to sit, listen, watch,
36:45
Speaker 4: and report. In Nixon v. Warner Communications, the Supreme Court
36:50
Speaker 4: held that the First Amendment generally grants the press no
36:54
Speaker 4: right to information about a trial superior to that of
36:57
Speaker 4: the general public. The First Amendment does not grant the
37:02
Speaker 4: press a constitutional right of special access to information not
37:06
Speaker 4: available to the public. Generally, as with the public, the
37:09
Speaker 4: press has no greater privilege than the right to attend
37:12
Speaker 4: the trial. In short, the media's right to gather information
37:16
Speaker 4: during a criminal trial is no more than a right
37:19
Speaker 4: to attend the trial and report on their observations. Kpn
37:23
Speaker 4: X Broadcasting Company, nineteen eighty four, holding that limitations on
37:27
Speaker 4: the media's ability to interview trial participants do not violate
37:31
Speaker 4: the First Amendment. The media is granted access to the
37:34
Speaker 4: same information, but nothing more that is available to the public.
37:38
Speaker 4: The district court, having determined that the free speech rights
37:41
Speaker 4: to the trial council must be restrained, the media has
37:44
Speaker 4: no greater right than the public to hear that speech.
37:47
Speaker 4: The media never has any guarantee of or right to
37:51
Speaker 4: interview council in a criminal trial. Trial council are, of
37:54
Speaker 4: course free to refuse interviews, whether or not restrained by
37:58
Speaker 4: court order. If such an individual refuses an interview, the
38:02
Speaker 4: media has no recourse to relief based upon the First Amendment.
38:06
Speaker 4: In some the media's collateral interest in interviewing trial participants
38:11
Speaker 4: is outside the scope of protection offered by the First Amendment.
38:15
Speaker 4: The media's desire to obtain access to certain sources of
38:19
Speaker 4: information that otherwise might be available is not sufficient interest
38:23
Speaker 4: to establish an infringement of freedom of the press in
38:26
Speaker 4: this case. Consequently, we are not required to consider whether
38:30
Speaker 4: the District Court's amended restraining order can withstand strict scrutiny
38:34
Speaker 4: as a prior restraint on constitutional freedom of the press.
38:37
Speaker 4: We need only examine whether the restrictions imposed are reasonable,
38:41
Speaker 4: and whether the interests of the government override the very
38:45
Speaker 4: limited incidental effects of the order on First Amendment rights.
38:48
Speaker 4: The restrictions imposed also must not serve as an illegitimate purpose.
38:54
Speaker 4: The District Court found that restrictions on the extra judicial
38:57
Speaker 4: statements of trial council to the press were necessary to
39:01
Speaker 4: reduce prejudicial publicity. We cannot say it was unreasonable for
39:05
Speaker 4: the District Court to conclude the statements by trial counsel
39:08
Speaker 4: on matters bearing on the merits of the trial might
39:11
Speaker 4: impair the fairness of the trial or threaten the integrity
39:14
Speaker 4: of the judicial process. Nor is there any indication in
39:17
Speaker 4: the record that the District Court's order was intended to
39:20
Speaker 4: conceal the workings of the criminal justice system. The press
39:24
Speaker 4: remains free to attend the trial and scrutinize the fairness
39:27
Speaker 4: of the proceedings. On the basis of this limited standard
39:31
Speaker 4: of review. The page nineteen District Courts Amended restraining order
39:36
Speaker 4: is reasonable and serves a legitimate purpose. Radio makes clear
39:40
Speaker 4: that strict scrutiny does not apply to challenges by the
39:43
Speaker 4: press of non dissemination orders that do not restrain the
39:47
Speaker 4: media but instead restrain trial participants, as in this case. Instead,
39:52
Speaker 4: the standard to be applied is whether the restrictions imposed
39:56
Speaker 4: are reasonable and whether the interests of the government override
40:00
Speaker 4: the very limited incidental effects of the order on First
40:03
Speaker 4: Amendment rights, and whether the restrictions imposed serve a legitimate purpose.
40:08
Speaker 4: As expressly recognized by the Supreme Court in nineteen ninety one,
40:12
Speaker 4: the speech of those participating before the courts can be limited.
40:16
Speaker 4: In Genteel, a defense attorney held at press conference after
40:21
Speaker 4: his client was indicted. Genteel proclaimed that the evidence at
40:24
Speaker 4: trial would prove his client was innocent and that crooked
40:27
Speaker 4: cops were the ones responsible for stealing the drugs and
40:30
Speaker 4: money at issue. Genteel also commented on other aspects of
40:35
Speaker 4: the defense's case. Six months later, Genteel's client was acquitted. Thereafter,
40:40
Speaker 4: the Nevada State Bar filed a complaint against Genteel, alleging
40:43
Speaker 4: that he violated Nevada Supreme Court Rule one seventeen, which
40:47
Speaker 4: prohibited a lawyer from making extra judicial statements to the
40:51
Speaker 4: press that had a substantial likelihood of materially prejudicing a trial. However,
40:56
Speaker 4: Rule one seventeen expressly allowed a lawyer to d without
41:00
Speaker 4: elaboration the general nature of the defense. The State Bar's
41:05
Speaker 4: disciplinary board found Genteel in violation of Rule one seventeen
41:08
Speaker 4: and recommended that he be reprimanded. Ultimately, the Supreme Court
41:12
Speaker 4: held that Nevada Supreme Court Rules Rule one seventeen, as
41:15
Speaker 4: applied to the facts of the Genteel case, was unconstitutionally vague.
41:19
Speaker 4: The Court noted that the safe harbor provision misled Gentiel
41:23
Speaker 4: into thinking that he could make the statements he made
41:26
Speaker 4: without discipline, page twenty. Despite the holding that Rule one
41:30
Speaker 4: seventeen was unconstitutionally void for vagueness as applied, the Court
41:35
Speaker 4: continued to recognize that the speech of lawyers representing clients
41:39
Speaker 4: impending cases may be regulated under a less demanding standard
41:43
Speaker 4: than that established for regulation of the press in Nebraska
41:47
Speaker 4: Press Association b. Stewart in nineteen seventy six and the
41:50
Speaker 4: cases which preceded it. Lawyers representing clients impending cases are
41:54
Speaker 4: key participants in the criminal justice system, and the state
41:58
Speaker 4: may demand some adherents to the precepts of the system
42:01
Speaker 4: in regulating their speech as well as their conduct. As
42:05
Speaker 4: officers of the court, court personnel and attorneys have a
42:08
Speaker 4: fiduciary responsibility not to engage in public debate that will
42:13
Speaker 4: redound to the detriment of the accused or that will
42:16
Speaker 4: obstruct the fair administration of justice. Because lawyers have special
42:20
Speaker 4: access to information through discovery and client communications, their extra
42:24
Speaker 4: judicial statements pose a threat to the fairness of appending
42:27
Speaker 4: proceeding since lawyers statements are likely to be received as
42:32
Speaker 4: especially authoritative. The key takeaways from Levigne and Genteel are
42:37
Speaker 4: that a court can to protect the right to affair
42:40
Speaker 4: trial prohibit lawyers involved in a case from making extra
42:44
Speaker 4: judicial statements to the press, so long as the regulation
42:48
Speaker 4: is not overbroad, it's clear and provides notice of what
42:52
Speaker 4: is prohibited. While the Levine Court applied strict scrutiny, Genteel
42:56
Speaker 4: suggests that a less demanding standard applies to restrictions on
43:00
Speaker 4: the speech of lawyers participating and pending cases. The ability
43:04
Speaker 4: of a court to restrict the speech of a lawyer
43:06
Speaker 4: participating in a case is rooted in a lawyer status
43:09
Speaker 4: as an officer of the legal system and a public
43:13
Speaker 4: citizen having special responsibility for the quality of justice IRPC Preamble.
43:19
Speaker 4: A lawyer's responsibility. A lawyer should demonstrate respect for the
43:24
Speaker 4: legal system and for those who serve it, including judges,
43:29
Speaker 4: other lawyers, and public officials. While it is a lawyer's duty,
43:33
Speaker 4: when necessary, to Page twenty one challenge the rectitude of
43:38
Speaker 4: official action, it is also a lawyer's duty to uphold
43:41
Speaker 4: legal process. As an officer of the court, a lawyer
43:46
Speaker 4: has a duty to preserve the integrity of the legal system,
43:49
Speaker 4: search for the truth, while maintaining a professional, courteous, and
43:53
Speaker 4: civil attitude toward all persons involved. Lawyers licensed to practice
43:59
Speaker 4: law in Idaho are governed by the Idaho Rules of
44:02
Speaker 4: Professional Conduct. Rule three point six A specifically states that
44:08
Speaker 4: a lawyer who is participating or has participated in the
44:12
Speaker 4: investigation or litigation of a matter shall not make an
44:16
Speaker 4: extra judicial statement that the lawyer knows or reasonably should know,
44:21
Speaker 4: will be disseminated by means of public communication, and will
44:25
Speaker 4: have a substantial likelihood of materially prejudicing and adjudicative proceeding
44:30
Speaker 4: in the matter. Comment five to Rule three point six
44:34
Speaker 4: gives specific examples of subjects that are more likely than
44:38
Speaker 4: not to have a material prejudicial effect on a proceeding,
44:42
Speaker 4: particularly when they refer to a criminal matter or any
44:45
Speaker 4: other proceeding that could result in incarceration. One the character, credibility, reputation,
44:54
Speaker 4: or criminal record of a party, suspect in a criminal investigation,
44:58
Speaker 4: or witness, or the idea entity of a witness, or
45:01
Speaker 4: the expected testimony of a party or witness. Two in
45:05
Speaker 4: a criminal case or proceeding that could result in incarceration,
45:09
Speaker 4: the possibility of a plea of guilty to the offense,
45:12
Speaker 4: or the existence or contents of any confession, admission, or
45:17
Speaker 4: statement given by a defendant or suspect, or that person's
45:20
Speaker 4: refusal or failure to make a statement. Three the performance
45:25
Speaker 4: or results of any examination or test, or the refusal
45:29
Speaker 4: or failure of a person to submit to any examination
45:33
Speaker 4: or test, or the identity or nature of physical evidence
45:36
Speaker 4: expected to be presented. Four any opinion as to the
45:41
Speaker 4: guilt or innocence of a defendant or suspect in a
45:44
Speaker 4: criminal case or proceeding that could result in incarceration. Five
45:49
Speaker 4: Information that the lawyer knows or reasonably should know is
45:54
Speaker 4: likely to be inadmissible as evidence in a trial that would,
45:58
Speaker 4: if disclosed, create a tancial risk of prejudicing an impartial trial.
46:03
Speaker 4: Or six the fact that a defendant has been charged
46:07
Speaker 4: with a crime, unless there is excluded therein a statement
46:12
Speaker 4: explained that the charge is merely an accusation, and that
46:16
Speaker 4: the defendant is presumed innocent until and unless proven guilty.
46:22
Speaker 4: Bag twenty two. Rule three point six also expressly allows
46:26
Speaker 4: lawyers participating in a matter to state the following one
46:30
Speaker 4: the claim, offense or defense involved, and accept when prohibited
46:35
Speaker 4: by law, the identity of the persons involved. Two information
46:40
Speaker 4: contained in a public record. Three that an investigation of
46:45
Speaker 4: a matter is in progress. Four the scheduling or result
46:49
Speaker 4: of any step in litigation. Five a request for assistance
46:54
Speaker 4: in obtaining evidence and information necessary. There too, a warning
47:00
Speaker 4: of danger concerning the behavior of a person involved when
47:04
Speaker 4: there is a reason to believe that there exists the
47:07
Speaker 4: likelihood of substantial harm to an individual or to the
47:10
Speaker 4: public interest and seven in a criminal case, in addition
47:13
Speaker 4: to sub paragraphs one through six, rom numeral one the identity, residence, occupation,
47:19
Speaker 4: and family status of the accused Roman numeral two, if
47:23
Speaker 4: the accused has not been apprehended, information necessary to aid
47:27
Speaker 4: an apprehension of that person, Roman Numeral three, the fact,
47:31
Speaker 4: time and place of arrest, and romnumeral fourth the identity
47:35
Speaker 4: of investigating and arresting officers or agencies, and the length
47:39
Speaker 4: of the investigation. Comment one to Rule three point six
47:43
Speaker 4: recognizes the difficulty in striking a balance between protecting the
47:46
Speaker 4: right to a fair trial and safeguarding the right of
47:49
Speaker 4: free expression. Preserving the right to a fair trial necessarily
47:53
Speaker 4: entails some curtailment of the information that may be disseminated
47:57
Speaker 4: about a party prior to trial, particularly where the trial
48:00
Speaker 4: by jury is involved. Similarly, Comment six to Rule three
48:04
Speaker 4: point six states that criminal jury trials will be most
48:07
Speaker 4: sensitive to extra judicial speech. The American Bar Association has
48:12
Speaker 4: also promulgated standards for conduct of attorneys. Standards eight DASH
48:17
Speaker 4: two point one governs the conduct of lawyers participating in
48:21
Speaker 4: a criminal matter. Standard eight DASH two point one reads
48:24
Speaker 4: a subject to any additional limitations imposed by local or
48:28
Speaker 4: professional rules. During the dependency of a criminal matter, a
48:32
Speaker 4: lawyer participating in that criminal matter should not make cause
48:35
Speaker 4: to be made, condone, or authorize the making of a
48:39
Speaker 4: public extra judicial statement that if the lawyer knows or
48:44
Speaker 4: reasonably should know, that, it will have a substantial likelihood
48:47
Speaker 4: of influencing the outcome of that or any related criminal trial,
48:54
Speaker 4: or prejudicing the jury veneer, even if an untainted panel
49:00
Speaker 4: ultimately can be found Page twenty three. Remnumeral two unnecessarily
49:04
Speaker 4: heightening public condemnation of a defendant or a person or
49:07
Speaker 4: entity who has been publicly identified in the context of
49:11
Speaker 4: a criminal investigation, or of a witness or victim, or
49:15
Speaker 4: Remnumeral three undermining the public's respect for the judicial process
49:20
Speaker 4: ABA Standards for Criminal Justice, fair Trial, and public discourse
49:24
Speaker 4: for the Edition twenty sixteen five analysis. While only the
49:29
Speaker 4: occasional case presents a danger of prejudice from pre trial publicity,
49:35
Speaker 4: this case, as recognized by the Idaho of Supreme Court,
49:38
Speaker 4: has drawn widespread publicity, garnering worldwide media attention and much speculation,
49:44
Speaker 4: and therefore pre trial publicity does present a real danger
49:49
Speaker 4: of prejudice. In petition for a rid of mandamness or
49:53
Speaker 4: rid of prohibition number five zero four eight two two
49:57
Speaker 4: zero two three w L three zero five zero ex
50:00
Speaker 4: eight two nine at star I, Idaho, April twenty four
50:03
Speaker 4: to twenty twenty three. Recognizing the high profile nature of
50:06
Speaker 4: the case and extensive coverage it has received, along with
50:10
Speaker 4: the need to minimize possible pre trial prejudice, the party
50:14
Speaker 4: stipulated to entry of the original non dissemination order and
50:18
Speaker 4: the amended non dissemination order, as was noted by District
50:22
Speaker 4: Judge Stephen W. Boyce in his memorandum decision on ordering
50:26
Speaker 4: prohibiting video and photographic coverage in the case of State
50:30
Speaker 4: of Idaho versus Lori Noreen Ballo aka Lori Nereene Balot
50:34
Speaker 4: de bel agreement between the State and defense on any
50:37
Speaker 4: issue in a capital case is rare. Further confirming to
50:41
Speaker 4: the court the legitimacy and level of concern Council have raised,
50:45
Speaker 4: the same is true in this instance. One. This court
50:49
Speaker 4: has an obligation to take measures to ensure Coburger's right
50:53
Speaker 4: to a fair trial, including proscribing potentially prejudicial extra judicial
50:58
Speaker 4: statements by any lawyer part ti pticipating in the case few,
51:02
Speaker 4: if any, interests under the Constitution are more fundamental than
51:07
Speaker 4: the right to affair trial by impartial jurors, and an
51:10
Speaker 4: outcome affected by extra judicial statements would violate that fundamental right.
51:16
Speaker 4: This Court also recognizes the Page twenty four important role
51:20
Speaker 4: the press plays in the judicial system. A responsible press
51:23
Speaker 4: has always been regarded as the handmaiden of effective judicial administration,
51:28
Speaker 4: especially in the criminal field. However, with the advent of
51:32
Speaker 4: the Internet and social media, the tensions between the First
51:35
Speaker 4: Amendment and the sixth Amendment continue to increase. As was
51:38
Speaker 4: outlined in Shepherds, trial courts must take strong measures to
51:42
Speaker 4: ensure that the balance is never weighed against the accused.
51:46
Speaker 4: In this case, the amended non dissemination order in place
51:49
Speaker 4: by the party's stipulation to protect Coburger's right to affair
51:52
Speaker 4: trial is not directed toward the press at all. Like
51:56
Speaker 4: in radio Intellivision News, the amended non dissemination order is
51:59
Speaker 4: amimimed at attorneys participating in the case and their agents,
52:03
Speaker 4: such as law enforcement. The US Supreme Court is made
52:06
Speaker 4: clear that a trial court can prescribe extra judicial statements
52:10
Speaker 4: by any lawyer, party witness, or court official which divulged
52:14
Speaker 4: pre judicial matters. By doing so, the trial court can
52:18
Speaker 4: help to insure a trial free from outside influence without
52:22
Speaker 4: corresponding curtailment of the news media. Such restraining orders raise
52:26
Speaker 4: a freedom of the press issue that is analytically distinct
52:29
Speaker 4: from prior restraints on the media. Non dissemination orders that
52:34
Speaker 4: restrain the speech of lawyers representing clients in pending cases
52:38
Speaker 4: may be regulated under a less demanding standard than that
52:41
Speaker 4: established for a regulation of the press. In Nebraska Press
52:44
Speaker 4: Association b. Stewart, Lawyers, Page twenty five have a fiduciary
52:49
Speaker 4: responsibility not to engage in public debate that will redound
52:52
Speaker 4: to the detriment of the accused or that will obstruct
52:55
Speaker 4: the fair administration of justice. In a case as high
52:58
Speaker 4: profile as this one, a non dissemination order echoing the
53:01
Speaker 4: responsibilities of a lawyer found in the Idaho Rules of
53:04
Speaker 4: Professional Conduct does not violate the attorney's First Amendment rights.
53:09
Speaker 4: The parties have a legitimate concern about information being disseminated
53:12
Speaker 4: to the media by way of attorneys participating in the case. Obviously,
53:16
Speaker 4: the state and the defense are privy to confidential information,
53:20
Speaker 4: but so to our attorneys representing a victim's family or
53:23
Speaker 4: a witness, as noted by the Court Engineteel, because lawyers
53:27
Speaker 4: have a special access to information through discovery and client communications,
53:32
Speaker 4: their extra judicial statements pose the threat to the fairness
53:36
Speaker 4: of opending proceedings, since lawyer's statements are likely to be
53:39
Speaker 4: received as especially authoritative. This concern was echoed by defense
53:43
Speaker 4: expert doctor l Alealey, who opined that commentary by individuals
53:48
Speaker 4: with status slash expertise, eg. Police attorneys and judges in
53:53
Speaker 4: media coverage create more potential for bias jurors Exhibit D
53:57
Speaker 4: to defendant's objection to media's and to vacate the amended
54:01
Speaker 4: non dissemination order. Membership in the bar is a privilege
54:05
Speaker 4: burdened with conditions requiring attorneys involved in the case to
54:09
Speaker 4: comply with IRPC three point six, as echoed in the
54:13
Speaker 4: revised Amended non Dissemination Order, is not unreasonable and does
54:17
Speaker 4: not unconstitutionally impinge upon the First Amendment. This Court has
54:22
Speaker 4: an obligation to help protect Coburger's constitutional right to affair trial,
54:26
Speaker 4: and this is just one measure that the US Supreme
54:29
Speaker 4: Court has endorsed in appropriate cases to help ensure the
54:32
Speaker 4: Sixth Amendment is not violated. Thus, this Court has the
54:36
Speaker 4: authority to restrain prejudicial speech by attorneys participating in the case,
54:41
Speaker 4: Page twenty six two. Strict scrutiny does not apply to
54:45
Speaker 4: the media's constitutional challenge of the amended non Dissemination Order.
54:49
Speaker 4: When the media challenges in order restraining the speech of
54:52
Speaker 4: lawyers participating in a pending case, the court need only
54:56
Speaker 4: examine whether the restrictions imposed are reasonable and whether the
54:59
Speaker 4: interest of the government override the very limited incidental effects
55:03
Speaker 4: of the order on First Amendment rights. The restrictions imposed
55:07
Speaker 4: also must not serve an illegitimate purpose. This is not
55:10
Speaker 4: strict scrutiny. The rationale for a lower standard of constitutional
55:14
Speaker 4: review is because the impact on the media is significantly
55:17
Speaker 4: different from situations where the media is denied access to
55:21
Speaker 4: a criminal trial or is restricted in disseminating any information
55:25
Speaker 4: it obtains. Strict scrutiny would apply in such a case.
55:29
Speaker 4: While the press does have a right of access or
55:32
Speaker 4: write to gather information with respect to criminal trials, that
55:35
Speaker 4: right is described only as a right to sit, listen, watch,
55:40
Speaker 4: and report. The media's desire to obtain access to certain
55:44
Speaker 4: sources of information that otherwise might be available is not
55:48
Speaker 4: a sufficient interest to establish an infringement of freedom of
55:52
Speaker 4: the press in this case. As such, strict scrutiny does
55:56
Speaker 4: not apply. Three. The restrictions on the extra utidial statements
56:00
Speaker 4: of counsel and their agents to the press are necessary
56:04
Speaker 4: to reduce prejudicial publicity and protect Coburger's right to a
56:07
Speaker 4: fair trial. The evidence presented by the defense shows that one,
56:12
Speaker 4: media coverage in this case is rampant ongoing. Two at
56:16
Speaker 4: least some, if not most, of the news coverage is
56:18
Speaker 4: prejudicial to Coburger. Three a portion of the statements being
56:22
Speaker 4: made to the media are coming from an attorney participating
56:26
Speaker 4: in the case. Four Vacating the non dissemination order would
56:30
Speaker 4: increase the potential for bias among prospective jurors, both initially
56:34
Speaker 4: and throughout the trial. And five anti defendant pre trial
56:38
Speaker 4: publicity increases the probability of guilty verdicts, and that this
56:42
Speaker 4: bias persists despite the page twenty seven Page twenty seven
56:48
Speaker 4: receipt of trial argument slash evidence ambunitions to disregard the publicity, information,
56:53
Speaker 4: and jury deliberation commentary by individuals with status slash expertise
56:58
Speaker 4: e g. Police attorneys and judges in the media coverage
57:02
Speaker 4: create more potential for biased jurors. Exhibit D to defend
57:07
Speaker 4: its objection to media's mot to vacate the Amended Non
57:11
Speaker 4: Dissemination Order. As currently drafted, the Amended Non Dissemination Order
57:15
Speaker 4: is arguably overbroad and vague in some areas. However, it
57:19
Speaker 4: does deserve as legitimate purpose, and restricting the speech of
57:23
Speaker 4: attorneys participating in the case is reasonable. The very limited
57:27
Speaker 4: incidental effects of the speech restrictions on the media's First
57:30
Speaker 4: Amendment rights are overridden by the compelling interest in ensuring
57:33
Speaker 4: a fair trial by an impartial jury. Statements by council
57:37
Speaker 4: participating in the case on matters bearing on the merits
57:40
Speaker 4: of the case might impair the fairness of the trial
57:43
Speaker 4: or threaten the integrity of the judicial process. The Amended
57:47
Speaker 4: Non Dissemination Order is not intended to conceal the workings
57:50
Speaker 4: of the criminal justice system from the public. The media
57:54
Speaker 4: is not restrained in any way and is free to
57:56
Speaker 4: attend hearings and report on what they observe and hear.
58:00
Speaker 4: For these reasons, the media's request that the Amended Non
58:03
Speaker 4: Dissemination Order be vacated is denied. However, because the amended
58:08
Speaker 4: non Dissemination Order is arguably over broad and vague. The
58:11
Speaker 4: Court will issue a revised amended non Dissemination Order to
58:16
Speaker 4: further clarify and narrow what speech by lawyers participating in
58:20
Speaker 4: the case and their agents is allowed and prohibited by
58:23
Speaker 4: giving specific examples. The revised Amended non Dissemination Order is
58:28
Speaker 4: narrowly drawn to prohibit only extra judicial statements that have
58:32
Speaker 4: a substantial likelihood of materially prejudicing this case. The restriction
58:37
Speaker 4: on attorney speech applies equally to all attorneys participating in
58:41
Speaker 4: the pending case and will restrict the attorney's comments only
58:45
Speaker 4: until after the trial and any sentencing proceedings. The regulation
58:49
Speaker 4: of attorneys speech meets the Page twenty eight less demanding
58:54
Speaker 4: standards set forth in Genteel, as well as strict scrutiny.
58:58
Speaker 4: The restrictions are necessary to protect Coburger's right to a
59:01
Speaker 4: fair trial and the fair administration of justice. As to
59:05
Speaker 4: the media's constitutional challenge, the restrictions imposed on attorneys participating
59:09
Speaker 4: in the case and their agents are not only reasonable
59:12
Speaker 4: and legitimate considering the high profile nature of this case,
59:16
Speaker 4: but also meet the strict scrutiney standard sixth conclusion the
59:22
Speaker 4: Associated Press requests that the amended non dissemination Order be
59:25
Speaker 4: vacated is denied. However, the revised Amended non Dissemination Order
59:30
Speaker 4: will replace the amended non Dissemination Order and will clarify
59:34
Speaker 4: and narrow the restrictions on speech and the individuals whose
59:37
Speaker 4: speech is restrained. So ordered this twenty third day of
59:41
Speaker 4: June twenty twenty three, signed John C. Judge, District Judge.
1:00:00
Speaker 1: Some stories with Nancy Grace.
1:00:03
Speaker 4: In the District Court of the Second Judicial District of
1:00:05
Speaker 4: the State of Idaho and in for the County of Leatah,
1:00:08
Speaker 4: State of Idaho, Plaintiff versus Brian C. Coburger, Defendant case
1:00:12
Speaker 4: number c R two nine Dash two two DASH two
1:00:15
Speaker 4: A zero five Revised Amended Non Dissemination Order as discussed
1:00:19
Speaker 4: in detail in this Court's order denying Shanning Gray's request
1:00:23
Speaker 4: to be exempt from the amended non Dissemination Order and
1:00:26
Speaker 4: granting requests that the order be clarified, and this Court's
1:00:30
Speaker 4: order denying the Associated Press's motion to vacate the Amended
1:00:33
Speaker 4: non Dissemination Order. The Court must attempt to balance the
1:00:37
Speaker 4: sixth Amendment right to a fair trial with the First
1:00:39
Speaker 4: Amendment rights to free speech and free press. To preserve
1:00:43
Speaker 4: the right to a fair trial, some curtailment of the
1:00:46
Speaker 4: dissemination of information in this case is necessary and authorized
1:00:50
Speaker 4: under the law. Therefore, the following is ordered. One. Prosecuting attorneys,
1:00:55
Speaker 4: defense attorneys, any agents of the prosecuting attorneys and defense attorneys,
1:01:00
Speaker 4: and any attorneys representing witnesses, victims, or a victim's family
1:01:04
Speaker 4: are prohibited from making extra judicial statements written or oral
1:01:09
Speaker 4: that the Page two lawyer or agent knows or reasonably
1:01:13
Speaker 4: should know, will have substantial likelihood of materially prejudicing or
1:01:18
Speaker 4: otherwise influencing the outcome of the case. This order specifically
1:01:22
Speaker 4: prohibits any out of court statement which a reasonable person
1:01:26
Speaker 4: would expect to be disseminated by means of public communication
1:01:29
Speaker 4: that relates to the following a the identity or nature
1:01:32
Speaker 4: of evidence expected to be presented at trial or any
1:01:35
Speaker 4: sentencing phase of the proceedings. B Any information a lawyer
1:01:39
Speaker 4: knows or reasonably should know is likely to be inadmissible
1:01:43
Speaker 4: as evidence in a trial, and that would, if disclosed,
1:01:46
Speaker 4: create a substantial risk of prejudicing an impartial jury. C
1:01:50
Speaker 4: The character, credibility, reputation, or criminal record of a party, victim,
1:01:54
Speaker 4: or witness. D the identity of a witness e, the
1:01:59
Speaker 4: expected test stimony of a party, victim or witness. F
1:02:03
Speaker 4: The performance or results of any examination or test, or
1:02:07
Speaker 4: the refusal or failure of the defendant or a witness
1:02:10
Speaker 4: to submit to an examination or test. G. Any opinion
1:02:14
Speaker 4: as to the guilt or innocence of the defendant. H.
1:02:17
Speaker 4: The possibility of a plea of guilty to the offenses,
1:02:20
Speaker 4: or any comment on any plea discussions. I. The existence
1:02:25
Speaker 4: of or contents of any confession, admission, or statement by
1:02:29
Speaker 4: the defendant, or the refusal of the defendant to make
1:02:32
Speaker 4: any statement. J. Any information obtained by witnesses, the victim's families,
1:02:38
Speaker 4: or their attorneys from the state that is confidential and
1:02:41
Speaker 4: has not been publicly disclosed by the prosecuting attorneys. Two
1:02:45
Speaker 4: attorneys involved in the case and their agents, as outlined
1:02:48
Speaker 4: in paragraph one, may make extra judicial statements, written or oral,
1:02:52
Speaker 4: concerning the following A the claim, offense, or defense involved
1:02:57
Speaker 4: in except when prohibited by law, the identity of the
1:03:00
Speaker 4: parties involved. B information contained in the public record. C
1:03:05
Speaker 4: that an investigation is ongoing. D this scheduling or result
1:03:10
Speaker 4: of any step in the litigation. Page three. E A
1:03:15
Speaker 4: request for assistance from the public in obtaining evidence an
1:03:18
Speaker 4: information necessary to the state's case or the defense's case. F.
1:03:23
Speaker 4: A warning of danger concerning the behavior of a person
1:03:25
Speaker 4: involved when there is a reason to believe that there
1:03:28
Speaker 4: exists the likelihood of substantial harm to an individual or
1:03:32
Speaker 4: to the public interest. G. The identity, residence, occupation, and
1:03:37
Speaker 4: family status of the accused, h the fact, time and
1:03:42
Speaker 4: place of arrest, I, the identity of investigating and arresting
1:03:47
Speaker 4: officers or agencies, and the length of the investigation.
1:03:50
Speaker 1: And J.
1:03:52
Speaker 4: A statement that a reasonable lawyer would believe is required
1:03:56
Speaker 4: to protect a client from the substantial, undue, prejudicial effect
1:03:59
Speaker 4: of recent publicity not initiated by the lawyer or the
1:04:03
Speaker 4: lawyer's client. Any such statement shall be limited to such
1:04:06
Speaker 4: information as is necessary to mitigate the recent adverse publicity. Three.
1:04:11
Speaker 4: No individual covered by this revised amended non Dissemination Order
1:04:16
Speaker 4: shall deliberately avoid its prescriptions by actions directly or indirectly
1:04:20
Speaker 4: that result in violating this order. For this revised Amended
1:04:24
Speaker 4: non Dissemination Order shall remain in full force and effect
1:04:28
Speaker 4: until the conclusion of a trial and any sentencing proceedings
1:04:31
Speaker 4: that may follow, unless otherwise ordered by this Court, So
1:04:35
Speaker 4: ordered this twenty third day of June twenty twenty three,
1:04:38
Speaker 4: John C. Judge, District Judge
1:04:41
Speaker 2: Nancy Grace signing off goodbye friend,