Free Speech

Secret Gag Order on Lawyers in Ohio Capital Murder Trial—Supported by Secret Arguments

Kind of like with the turtles, it's seals all the way down. [UPDATE: The local publicity appears to have led the court to unseal the gag order -- so now we know what people aren't allowed to talk about, though they're still not allowed to talk about it.]

|The Volokh Conspiracy |

The Sandusky Register (Brandon Addeo) reports:

Daniel Myers' capital murder trial in the 2015 death of Heather Bogle was delayed indefinitely Wednesday morning by Sandusky County Common Pleas Court Judge John Dewey.

The judge … also issued a secret gag order on prosecutors and defense attorneys, and sealed records explaining why he took that action….

The Register requested copies of Dewey's rulings, which were not accessible in a search of the courthouse's record system. An employee in the clerk's office at the courthouse on Wednesday told a Register reporter both motions were sealed and not available to view.

Judge Dewey's rulings on Wednesday will keep the public in the dark as the trial goes forward, if it goes forward….

The story quotes media lawyer David Marburger as saying the following, which sounds correct to me:

We do not know what the gag order prohibits. That is extraordinary. The order sealing it prevents the public from even knowing what the gag order says. It prohibits the public from knowing the grounds for sealing the record.

Keeping the public in the dark about these things is extremely rare. For a court to seal a litigants' motion that asks the court for some relief virtually never happens. It is so rare. It is even more rare, even more extraordinary for the court to seal its own order where the order directs other people to do certain things, in this case ordering the lawyers not to speak. We don't know what the gag order says. We don't know how far reaching it is.

The most outrageous part of all of this is the court's own secrecy about its own order, about the request for the order and the claimed grounds for the order, all of that is secret. All of it is being withheld from the public, in a case, I presume, the public has an acute interest in.

The whole idea of the judicial system is to adjudicate in a public way. The reason for that is so the public can have great confidence that judges are resolving disputes without favoritism, without improper use of power, and thoughtfully. That's why we are willing to take our disputes to the courts because we believe, through its own transparency, that judges dispense justice transparently, without prejudices or favoritism.

If the judge is going to seal from the public what it has ordered and why it has ordered it that can only diminish public confidence in the courts.

David Marburger, by the way, is famous for the "What Is a Copier?" deposition (quite unrelated to this case, but not to be missed; recall that the video is a reenactment of the transcript, so the tone, volume, and the like are only inferred):

UPDATE: The local publicity appears to have led the court to unseal the gag order—it was entered on the defense lawyers' request, and it gags not just the prosecutors, defense counsel, and court and law enforcement employees, but also all "potential witnesses" from release "any and all information … relating to [the case] … to any and all third parties."

The court's rationale is that "There has been extensive news reports, newspaper articles, internet articles and postings that have covered this criminal matter and any extrajudicial statements will have a substantial likelihood of materially influencing the ongoing criminal proceeding against the Defendant and therefore preventing a fair trial and impeding the administration of justice." This has indeed been seen by courts as justifying some restrictions on lawyers (see Gentile v. State Bar (1991)) and government employees. It has also been seen as justifying restrictions on speech by the litigants and witnesses, if there's a showing of of sufficient danger to the fairness of the trial. (The two categories of speakers may be different; for government employees and lawyers, the argument that one of the conditions of the job or of bar membership is not saying things that unduly interfere with the administration of justice—but litigants, especially defendants, and witnesses have never taken on any such job.)

At the same time, such orders are supposed to be used sparingly, see, e.g., U.S. v. Ford (6th Cir. 1987) and State ex rel. Cincinnati Enquirer v. Oda (Ohio Ct. App. 2018). In the words of the Ohio Court of Appeals,

It is evidence, not speculation, that must be made part of the record to demonstrate that a gag order is necessary to ensure the defendant will receive a fair trial. "We cannot assume or speculate our way to these necessary findings; there must be some evidence in the record that speaks to the possible publicity and its effect on the jury pool." … [N]o such evidence was presented in this case. Therefore, while we certainly understand Judge Oda's concerns, we agree with the Enquirer when it states Judge Oda's "sweeping conclusion" that a gag order is necessary in this case serves as nothing more than "an impermissible leap from his findings that the case has garnered media attention."

Our holding is further supported by the fact that there is little evidence indicating Judge Oda fully considered any less restrictive alternatives than the gag order at issue, nor any evidence in the record to support Judge Oda's finding there was "no lesser restrictive alternative" available in this case. Instead, the record indicates Judge Oda considered only the fact that the gag order at issue did not exclude any media outlets from public areas within courthouse and/or from "coming to court, watching the proceedings, and talking about what they observed."

Had the record contained sufficient evidence to prove other less restrictive alternatives had been fully considered, coupled with supporting evidence indicating no other less restrictive alternatives would suffice, the gag order at issue may very well have withstood judicial scrutiny. That simply did not occur here.

Therefore, although we believe Judge Oda acted with his best intentions at heart, because gag orders should only be considered as a last resort, we find the gag order at issue in this case cannot stand and a writ of prohibition barring its enforcement is proper. Nothing about this decision, however, should be considered an invitation for either the state or the defendant to try this case in the court of public opinion as opposed to the court of law, nor does this court's decision bar Judge Oda from revisiting this issue in the future if justice so requires.

It's not clear to me what evidence the court relied on in issuing the gag order, and I don't know if that information has been sealed alongside the order.

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  1. Awesome photocopier video. Wish I could have seen the original deposition!

  2. Back to the post itself and the sealed sealing order … it makes me think of trying to worm a secret out of someone who won’t even explain why they can’t say something because to say why would disclose the secret. “Why can’t you tell me where you were?” “Because if I told you I was at the jeweler’s buying you a present it would give away the surprise.”

    There are sealed warrants and indictments (IANAL so if that terminology is wrong, oops!) for big criminal sweeps. Could this not be the same, something so surprising that if it were known now, it would alert criminals to their imminent arrest? “I murdered because the mayor blackmailed me” or something of the sort. Is there any indication that this is a permanent ban, or just one or two days?

    I don’t know enough about these things to quite understand how extraordinary it is, regardless of how rare it is.

  3. Records of the official actions of public official should be public.

    1. absolute power corrupts absolutely.

      1. Limited power corrupts just a bit.

      2. Absolute power, and a photocopier machine to go with it, not that’s such a powerful concept that we can’t even allow it a name.

  4. “The whole idea of the judicial system is to adjudicate in a public way”

    which is why grand jury proceedings are secret. And petit jury deliberations.

    Here’s the thing. In the fullness of time, one of two things will happen: The reason for the secrecy will abate, the trial will be held, and the reason(s) for all the secrecy will be disclosed. Or they won’t. If it’s the first one, we can look at the case with hindsight and second-guess the judge, or say “Oh, so that was it. Yep, that was the right call, all right.” In the alternative, where the secrecy is never lifted, THEN is the time to start asking pointed questions about it.
    I don’t know which one it will turn out to be, but I still have sufficient faith in judges and judgment to sit and wait to find out. Call me an optimist, I guess.

  5. Well, the trial judge’s actions are likely approved of by at least one Supreme Court Justice, who appears to support maintaining secrecy about the gag orders he issued in the past.

    “I don’t know Senetaor….have you ever issued a gag order while playing devil’s triangle?!”

    1. Them grapes are sour.

      1. QBC is well past grapes and into full-on unripe Hachiya persimmon territory.

  6. I don’t disagree that totem-pole secrecy is odd indeed. While I have no in-depth knowledge of the case, apparently early on in the investigation a former sheriff deliberately leaked all the case investigation records, leaving some who were under investigation to wonder when they might plan on recovering their lives. Perhaps the judge thinks that enough leakage has occurred already. But he could at least send the public a note.

    http://www.sanduskyregister.com/story/201710210024

  7. Since we do not know the contents of the gag order(s), this blog and all comments thereon may be in violation and we may be held in contempt.

    However, if contempt of court was taken literally, a significant number of Americans would be violators.

    1. I don’t think so — among other things, a court order isn’t binding on people who haven’t been put on notice that they’re bound by it.

  8. “If the judge is going to seal from the public what it has ordered and why it has ordered it that can only diminish public confidence in the courts.”

    Not much confidence left to diminish……

  9. If there is no way to explain why something needs to be sealed without revealing the very thing that you’re trying to seal – and that seems quite plausible – I’m not sure what else the judge is supposed to do. As long as the Parties know the reasons for the sealing order, they can always appeal, and that’s going to have to suffice.

    1. Sure there is. Specifically, as written:

      “To preserve the interests of justice and to maintain a fair trial, parties are not to discuss (material non-public) information about the case”

      Explaining the rationale (maintain a fair trial) does not at all require divulging the thing being prohibited (material non-public information about the case).

  10. If either side were trying the case in the media, just tell everybody to stop doing dumb things. The judge can start making rulings which can send a message if they don’t comply.

  11. ” we believe Judge Oda acted with his best intentions at heart …”

    Is this the equivalent of ‘we know he beat her because he loves her?’

  12. Meh. He was just looking for an excuse to say there wasn’t a photocopier. Seems like typical legal shenanigans.

  13. It appears the Conspiracy’s ‘free speech advocates’ won’t have much to say about the gag order imposed on Jamal Khashoggi, or about the Trump administration’s appeasement of the lethal Saudi censors, until movement conservatives and the Saudis get their stories straight.

    1. Nice change of topic. I breathlessly await your words on responses to Tienanmen Square, Russia’s killing of dissidents in places like Great Britain, or (back to China!) the imprisonment of thousands of Uighurs in re-education centers? Or — almost forgot — how about Myanmar’s atrocities toward Rohingya Muslims? There are a lot of examples, if you want to continue.

      Having got that out of the way — what actions do you actually suggest concerning the Khashoggi murder?

      1. Stop this BS, for starters, and quit making up stories about “rogue killers” and whatnot.

        Also quit using non-existent arms sales as an excuse for ignoring the whole thing.

        The point here is that for all the love of free expression coming from the right, including Conspirators, we hear not a peep of criticism of Trump’s attacks on the press, or his praise of Gianforte for assaulting a reporter.

        Pretty selective outrage.

        1. The Conspiracy is a delivery system for paltry partisanship, especially with respect to freedom of expression.

          And these guys seem to wonder why strong faculties and institutions do not invite more loud movement conservatives to associate with our strongest schools.

          1. I don’t fully agree, but it has become impossible to take EV’s concern for free expression seriously.

        2. I’m glad /someone/ took that seriously.

          But you’re not completely correct about “not a peep of criticism of Trump’s attacks” at this site.

  14. In the court of (my) public opinion, this guy is toast.

    This court case has been going on for almost 1.5 years (spaces added): http://www.cncpunishment.com/ forums/showthread.php?11691-Death-Penalty-Trial- Set-for-October-22-2018-for-Daniel-Myers- in-2015-OH-Murder-of-Heather-Bogle

    And then there’s this:

    Through the course of the investigation into Myers’ alleged involvement with Bogle, Hilton confirmed that the sheriff’s office is investigating the death of Myers’ ex-girlfriend Leigh Ann Sluder, who was found dead by Myers at a trailer he owned in 2009. Sluder suffered a gunshot wound through her chest, and was lying on a bed in the mobile home at Emerald Estates next to a rifle. Her death was initially ruled a suicide.

  15. The court’s rationale is that “There has been extensive news reports, newspaper articles, internet articles and postings that have covered this criminal matter and any extrajudicial statements will have a substantial likelihood of materially influencing the ongoing criminal proceeding against the Defendant and therefore preventing a fair trial and impeding the administration of justice.

    1. Yes, that’s why in England reporting restrictions on ongoing trials are quite common. You can have any two of free reporting, jury trials, and fair trials, but not all three.

  16. In real life I bet Eugene is just like that yelly guy in the video:P

  17. it gags not just the prosecutors, defense counsel, and court and law enforcement employees, but also all “potential witnesses” from release “any and all information … relating to [the case] … to any and all third parties.

    Surely that cannot be right.

    Newspaper guy: when is the next public hearing on this case?
    Court employee: December 3rd, 4PM, courtroom #8

    Great, now you’ve just released information . . . relating to [the case] . . . to a third party.

    There’s got to be a ‘material and non-public’ modifier on ‘information’ hiding somewhere in the ellipsis.

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