A prior restraint on due process

[Fair warning: the only things I know about the First Amendment are what I learn from reading Popehat and Randazza and that it’s a good thing.]

See updates below.

A story that I first read here at Reason last week is increasingly gaining steam and it is this: In the pending case of the People of Colorado vs. James Holmes, the trial judge entered a pre-trial order ‘Limiting Pretrial Publicity’ as well as several “gag” orders preventing prosecutors, defense attorneys and law enforcement officers from discussing certain details of the case with the press.

In July 2012, a reporter at Fox News named Jana Winter published a “scoop” about a diary penned by the Aurora suspect James Holmes. Here is what she “revealed”:

“Inside the package was a notebook full of details about how he was going to kill people,” the source told FoxNews.com. “There were drawings of what he was going to do in it — drawings and illustrations of the massacre.”

A second law enforcement source said authorities got a warrant from a county judge and took the package away Monday night. When it was opened, its chilling contents were revealed.

Both of FoxNews.com’s sources said the intended recipient of Holmes’ notebook was a professor who also treated patients at the psychiatry outpatient facility, located in Building 500, where the first suspicious package was delivered. It could not be verified that the psychiatrist had had previous contact with Holmes, who was a dropout from the school’s neuroscience doctoral program and had studied various mental health issues and ailments as part of his curriculum.

So, recently, James Holmes’ attorneys filed a motion with the court seeking to disclose the source of the leak. The gag order, of course, applies only to the parties to the proceeding and most certainly not to the press, see Nebraska Press Association vs. Stuart. For a judge to prohibit the press from writing about a public case would be a prior restraint on speech and that is almost universally prohibited.

What the judge, however, is being asked to do is to order Winter to disclose who violated the judge’s court order. The “gag” order itself is valid because it is directed only at the parties to the case and so must be enforced.

The problem arises when, as here, all possible culprits are questions and deny involvement. Then the judge turns to Winter, as she is the only one who knows (besides the offenders themselves).

You will read stories that she’s facing jail time and that’s technically correct. If the judge orders her to reveal her source and she refuses, she’s violating a court order and can face contempt of court – usually up to 6 months.

This is made even more complicated by the fact that most states – including Colorado – have press shield laws that protect the press from being pressured into revealing their confidential sources. The law, however, is not absolute, just like prior restraint. Colorado’s law provides the following exceptions:

(3) Notwithstanding the privilege of nondisclosure granted in subsection (2) of this section, any party to a proceeding who is otherwise authorized by law to issue or obtain subpoenas may subpoena a newsperson in order to obtain news information by establishing by a preponderance of the evidence, in opposition to a newsperson’s motion to quash such subpoena:

(a) That the news information is directly relevant to a substantial issue involved in the proceeding;

(b) That the news information cannot be obtained by any other reasonable means; and

(c) That a strong interest of the party seeking to subpoena the newsperson outweighs the interests under the first amendment to the United States constitution of such newsperson in not responding to a subpoena and of the general public in receiving news information.

As of last week, the judge had questioned 11 law enforcement officials, all of whom had denied disobeying the judge’s orders. Arguably, (b) has been satisfied.

So that leaves (a) and (c), which pose greater philosophical questions: is the dissemination of this information harmful to the right to due process; to what extent do we really care about due process anymore and what is the value to be placed on respect for a court’s orders.

To me, the latter two are inextricably intertwined. The first question seems to be summarily disposed of by most people writing about this by posing the rhetorical question “what does this diary have to do with whether James Holmes’ pulled the trigger killing all those people?”

I will grant you that, narrowly stated, it has little to do with that question. But that is not the question. The question isn’t whether the dissemination of this information will unfairly taint whether he is guilty or not: the question is whether his right to Due Process will be violated. And Due Process is greater than whether someone is guilty or not. In fact, Due Process is exclusive of guilt or innocence. Because the Due Process of law must be the same for everyone regardless of the final outcome of the particular circumstances of the case.

As Chief Justice Burger writes in Nebraska:

The problems presented by this case are almost as old as the Republic. Neither in the Constitution nor in contemporaneous writings do we find that the conflict between these two important rights was anticipated, yet it is inconceivable that the authors of the Constitution were unaware of the potential conflicts between the right to an unbiased jury and the guarantee of freedom of the press.

The unusually able lawyers who helped write the Constitution and later drafted the Bill of Rights were familiar with the historic episode in which John Adams defended British soldiers charged with homicide for firing into a crowd of Boston demonstrators; they were intimately familiar with the clash of the adversary system and the part that passions of the populace sometimes play in influencing potential jurors. They did not address themselves directly to the situation presented by this case; their chief concern was the need for freedom of expression in the political arena and the dialogue in ideas. But they recognized that there were risks to private rights from an unfettered press.

In the overwhelming majority of criminal trials, pretrial publicity presents few unmanageable threats to this important right. But when the case is a “sensational” one tensions develop between the right of the accused to trial by an impartial jury and the rights guaranteed others by the First Amendment.

The right to a fair trial encompasses a right to an impartial jury of people untainted by outside knowledge and prejudice who can render a verdict based solely on information presented in court. In a case like this that is bound to cause passionate reactions, the risk of contaminating an already vitriolic jury pool is even greater.

Which is why I suspect it was incredibly infuriating for Holmes’ defense to learn that the judge’s order had been violated and damaging and incriminating evidence about their client was leaked to the press and thus the general public. I don’t know the defense or the relevance of this information to the trial (although I suspect it may be pertinent to a mental health defense if one is raised) and whether it will be admitted or not (prophetic, in light of the update).

It’s about more than just the First Amendment; it’s about something that is all too common in American jurisprudence: the Government, the State act in ways that are illegal routinely without consequence. There is no one to slap their hand when it’s caught in the cookie jar and there are no repercussions for their illegal behavior. If they aren’t punished for their wrongdoing, what will stop them from doing it again? Do we care so little about the rule of law and the encroachment of the government into our personal liberties? Are we to stand by while the judiciary is so emasculated and disrespected? All because we revel in what that violation brought us?

Or is it because that very press that we are now seeking to fete in this case has routinely made a mockery of due process itself, running what are essentially glorified press releases for prosecutors? Justice Clark had this to say about the role of the press:

The principle that justice cannot survive behind walls of silence has long been reflected in the “Anglo-American distrust for secret trials.” In re Oliver, 333 U. S. 257, 350*350 268 (1948). A responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field. Its function in this regard is documented by an impressive record of service over several centuries. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.

Sheppard v. Maxwell, 384 US 333 (1966). “Subjecting the police, prosecutors and judicial processes”. Hardly something that can be said about our press today – one that is all too quick to vilify and anoint as guilty someone and then never bother to correct or amend their stories. A press that is all too concerned about sensational headlines and endorses a view of the criminal justice system wherein all those who are arrested are guilty, are guilty of exactly what they’re arrested for, in which any victory for individual rights and freedom is an assault on victims by activist courts and which wouldn’t know where to look up Due Process if one gave them a copy of the Constitution.

I wonder how much damage Nebraska v. Stuart did to Due Process by permitting sensationalism to become a commodity. Or perhaps the Court never did envision that the press would so abandon its role as examiner of the Government and protector of the people and the people’s rights.

Update: It seems as though the judge has put off a ruling on whether Winter must testify until he determines whether the notebook is admissible in court:

At the same time, Holmes’ attorneys argued that the notebook was protected by doctor-patient privilege and should not be evidence in the case. Both sides in the case ultimately agreed the notebook would remain off-limits until Holmes decides whether to raise a mental-health defense.

As long as the notebook is sealed, Samour ruled the issue isn’t important enough to the case to overcome the protections Winter has against revealing her sources.

“If the notebook is not privileged and is ruled admissible, it may well prove to be a critical piece of evidence in the case,” Samour wrote in his order. “On the other hand, if the Court concludes that the notebook is privileged and inadmissible, it is difficult to discern why the credibility of one or more of the … witnesses would be of importance.”

This, I think, is the right decision. If Holmes decides to pursue a mental health defense, what he said to a psychiatrist prior to the shootings would become critical evidence and then the court, by virtue of the leak, has confidential information in the public realm that may affect the fundamental fairness of the trial.

Update 2: For further analysis and opinion, see this excellent post by Cathy Gellis and this one by the inimitable Ken Popehat

I think the judge in Holmes’ case has a tough decision to make with Winter. But while we all reflect on the dangers allegedly posed to the First Amendment, we should take a minute and reflect what we’ve done to the Fifth, Sixth and Fourteenth in the meantime.


11 thoughts on “A prior restraint on due process

  1. Max Kennerly

    IMHO, the subpoena fails (c). Discovery of the source of the notebook will do what, exactly, to protect Holmes’ due process rights? Will it provide grounds for sanctions against some prosecutor or police officer? Likely so, but while I believe sanctions would be warranted (assuming someone on the prosecution side was the source, which I do), it doesn’t do much to advance Holmes’ defense. There is no realistic chance of the judge dismissing the prosecution or altering the admissibility of evidence based upon the violation of the gag order, so what’s the real benefit to Holmes other than winning a punitive tactical strike?

    That said, I certainly agree Holmes has been prejudiced by the leak, so I’d quash the subpoena then come up with some other remedy. Delay in trial? Removing gag order upon defense counsel to speak to the press? I’d open the floor to Holmes’ lawyer to make some suggestions, and then probably do most or all of them.

    1. Gideon Post author

      I think I agree with you for the most part and certainly agree that the circumstances in which a 6th Amendment right outweighs a 1st Amendment right are severely limited by Nebraska (I mean, if it was okay in that case, then there are almost no cases in which it won’t be okay), but I do think some of the remedies are inadequate.

      Where is the judge going to move to the trial? To another State? And if you delay the trial, you’ll get the hounds circling again crying that the justice system is slow and further victimizes victims, etc.

      It’s a tough spot, in my opinion, and highlights what we have come to value in this country and – more importantly – what we have abandoned.

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  3. Ilove me. somelaw

    Oh dear. You know I’m not a lawyer so I am going to ask for a couple days here to really read and digest. But I will confess to being terribly TERRIBLY disappointed about what you said about Stuart and “sensationalism becoming a commodity”. I disagree on the face: holding gov’t accountable (exec branch ESP) is the cornerstone of the Fourth Estate. More later.

    1. Gideon Post author

      Your initial question was along the lines of why wasn’t this a classic prior restraint: that’s because, as I wrote above, the gag order doesn’t apply to the press. The court’s order applies only to the parties.

  4. Olive Mesumlaw

    Jeezez, Gid, I think you’re full of shit in that overblown, sweeping indictment of “the press”: “Or perhaps the Court never did envision that the press would so abandon its role as examiner of the Government and protector of the people and the people’s rights.”
    I’m an ex-journo (print) and covered courts and crime for about 7 years (including 3 DP trials). The fact is, sometimes crime is just insane and no matter how you try to describe it, it’s going to be lurid. But facts are stubborn things,and sometimes people do really terrible, disgusting things to each other. Like a father who beats his wife for years, then on the morning he’s supposed to leave the house, shoots her and his two little girls and sets them on fire. And a violent drug addict who rapes a 91-year-old woman. And the grandpa, a man with deep ties to his church, who had sex with his granddaughter when she was five years old. You know that shit happens all the time. But a good reporter does get behind the initial headline and digs deeper, examines the root causes, the impact of race and poverty and drugs and even having too much of a good thing. A good reporter writes about a judge’s lecture of a prosecutor who’s behaving like a douchebag, or an appellate decision that cites prosecutorial misconduct (and yeah, it IS always prosecutorial conduct). That’s what I did and I was thought of as being very fair by both the PD’s office and the state’s atty’s office because i cared about what I did and what I wrote and I knew its potential impact on society. Are there shitty reporters? Of course there are. But I think the bigger problem is that there are too few reporters, and those left behind aren’t given the time or the resources to tap deeper into stories. Talk to any reporter and they will tell you: I don’t have time. There’s no one left in this fucking newsroom and my editor(s) want stories every day, not once a week. So yeah, the press does have to report the sensational, because it exists. Sorry for that. But don’t blame the media for trying to get every detail because it is what they do. (OK having said all that, don’t get me started on the CT media’s obsession with sandy hook and the victims and the victim’s families, and the friends of the victim’s families, and the fourth cousin of someone who drove through newtown once…ENOUGH already!)

    1. Gideon Post author

      1. Yes, I think you have the “you’re full of shit” part right;
      2. Yet, you seem to agree with me at the end;
      3. So I don’t know what there rest of the rant is about;
      4. Except that I agree that there need to be more reporters or better informed reporters?
      5. And that I’m sorry you don’t report any more and I’m sure you were great?
      6. But I’m still unsure what any of this has to do with the point of my post?
      7. Anyway – and I mean this sincerely -thanks for reading and commenting; come again soon.

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