| |
Corrine
Olson
Argus Leader
published:
9/22/2002
Judges,
media differ on gag orders, courtroom cameras
Most court proceedings in South Dakota are open to the public,
but judges in high-profile cases commonly issue gag orders preventing
participants from talking to news reporters during the case.
And the state was the last in the nation to allow cameras in courtrooms,
a practice adopted in some states two decades ago.
The arguments underlying both issues are similar. Judges and lawyers
often believe too much news coverage could prevent a fair trial.
Media advocates say such coverage helps the public monitor proceedings
to assure fairness.
Judges in South Dakota argue that the gag orders are necessary
in a small state, where people often hear the details of a case
before trial. Such public discussions impede the chances of selecting
an impartial jury, judges and lawyers say, and they have to weigh
the defendant's right to a fair trial against the public's right
to know.
Media representatives say there are already safeguards to prevent
lawyers from discussing cases. The proliferation of gag orders
worries some journalists.
"It seems to me that the more open and free access we have to
the courts, the better the public gets a fairer picture of what's
going on with these cases," said Ray Chavez, professor and head
of the Contemporary Media and Journalism Department at the University
of South Dakota in Vermillion.
Chavez said judges may be overreacting. "I wonder if they are
overly concerned about publicity that might be embarrassing rather
than what it might mean for the case."
Beadle County States Attorney Mike Moore recently worked under
a gag order in the Nikko Briteramos case. The Si Tanka Huron University
student was charged with intentionally exposing another to HIV.
Moore said the gag order didn't change the way he did his job
because rules of professional conduct already prohibit prosecutors
from discussing cases while they are being tried. "That, in every
case, is enough to restrict what I'm allowed to say," he said.
Circuit Court Judge Lee Anderson of Mitchell, who has served on
the bench for 12 years, said gag orders are sometimes necessary.
In the early days of the trial of Robert LeRoy Anderson, a Sioux
Falls man convicted of murdering two area women, the judge issued
a gag order to stop discussion of the case in public.
"One of the reasons is to try to preserve the person's right to
have the case heard and not (be) hurt in advance," he said. "Particularly,
people get concerned in a small town. If you try a case in Salem
or Plankinton, people tend to learn what everyone knows at coffee
talk."
Anderson said in many cases, prosecution and defense attorneys
agree that a gag order is a good idea. "They'll say, ÔI don't
want to discuss it, and I don't want my opponent to discuss it.'
"
But John Schlimgen, who represented Robert LeRoy Anderson, questioned
the necessity of gag orders. "Unlike some areas of the country,
I don't think there's a lot of trying of cases in the media, and
it's certainly not my practice," he said.
Circuit Judge Max Gors recently issued a gag order barring individuals
from discussing a high-profile custody case. He said at the time
that the child in the middle of the dispute, Timmie Meldrum, had
requested the gag order. Gors said the order, which he extended
beyond the completion of the case until Meldrum turns 18, was
allowed under the state's juvenile protection statutes.
Scott Abdallah, a former Lincoln County state's attorney now in
private practice, said he doesn't think gag orders infringe on
the public's right to know because citizens still can sit in on
the trial, and the media have access to all the information in
court records. "I think a lot of times, they are issued just to
remind everyone what the ground rules are," he said.
Mike Butler, a Sioux Falls lawyer who represented Donald Moeller
in the state's first death penalty case, understands the temptation
to talk.
"The first time I was involved in the Moeller trial, I, by my
own admission, was too talkative. In hindsight, I regret that,"
he said, adding that he doesn't think that affected the outcome
of the trial.
Butler said he would hate to see gag orders widely used. "I don't
think they are normally needed," he said.
South Dakota journalists won a different battle for access in
summer 2001, when the state Supreme Court decided to allow cameras
in its proceedings. But there still is no access to lower courts,
something allowed in many states.
Mark Millage, news director for KELO television, said he hopes
the Supreme Court experience will help establish greater access.
"Seeing it work in the Supreme Court allows the judges to see
that open government isn't a bad thing."
South Dakota is not alone in use of gag orders, and even states
with more liberal camera policies have judges who are reluctant
to allow the cameras. Concerns are widespread enough that the
Reporters Committee for the Freedom of the Press, a national group
that monitors media legal issues, has an ongoing study of public
access to judicial proceedings.
And while the media push for access, Millage said, the real beneficiary
is the public. "From a practical standpoint, it allows the public
to witness what goes on in a courtroom," he said. "Not everyone
has time to travel to a courthouse."
©
2002 Copyright Argus Leader.
|
|
