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.