It is naive to think that a judicially imposed gag order does anything other than benefit the prosecution in a criminal case. So why do Connecticut criminal court judges swoon over them? First, Judge Roland D. Fasano imposed orders in the Cheshire home invasion cases. Now Judge Edward J. Mullarkey has placed his imprimatur on a gag order involving comments about those accused of murdering University of Connecticut football player Jasper Howard.
The theory of the gag order sounds fine and noble: Let’s make sure the defendant gets a fair trial by limiting comments to the press. No point in poisoning the atmosphere with bad publicity, right?
But gag orders are almost always imposed long after the damage is done to a defendant. Unless an arrest warrant is sealed, the press gets access to a concise and damning statement of the state’s case. Reporters write freely about the alleged facts giving rise to the arrest. A gag order prevents the defense from responding. Does anyone really think that press coverage devoted to one side of an issue preserves the right to a fair trial?
Federal prosecutors have a variant of this game down to a science. It is not uncommon for a statement to be read to the press as a newly arrested defendant is presented in court for the first time. Imagine standing next to your client knowing only that he has been arrested and the crime charged, while, in a separate building, the government is telling the press all about your client. In no other context other than criminal defense would we call this fair.
Indeed, there are discouraging signs that, at least so far as the federal government is concerned, the battle for the hearts and minds of television viewers has become a top priority. In years past, it was possible to extract a commitment from a federal prosecutor that the target of an investigation would not be roused unawares from the security of his home to be arrested. In a more civilized era, you could arrange to turn your client in when a grand jury indictment was returned.
David Fein, Connecticut’s United States Attorney, has instituted a new policy. The office will no longer make such commitments. I’ve asked several prosecutors about this in recent months. There is little enthusiasm for a practice that will assure only the defendants are made subjects of the dreaded "perp walk." That’s where federal agents drag your client through a phalanx of television reporters and cameras, so that the entire world can see the person presumed innocent in chains, looking like Public Enemy Number One.
Of course, the worst application of gag rules involves the order imposed in the case of Joshua Komisarjevsky, who has yet to be tried for his role in the Cheshire home invasion. Whatever utility such an order might have had when the case was first charged has long since evaporated. The world’s press covered the first trial in this case, that of Steven Hayes, as if it were the first coming of Satan himself. If there is a Connecticut resident unfamiliar with the basic horror of it all by now, I am surprised. What purpose is served now in gagging the defense other that to leave the public to fume over what it learned in the trial of Steven Hayes?
I am aware of the argument that cases should be tried in the courts and not in the press. What’s more, once a gag order is imposed, it is typically imposed on both parties. But by the time gag orders are imposed, great damage has already been done to the defendant. The state’s allegations appear in print and on the airwaves before a defendant’s lawyer has a chance to study the file and give a meaningful response. A defense lawyer laboring under such an order is prohibited from rebutting the horrible image of a client led away in handcuffs. Gag orders freeze the playing field in a position of permanent tilt in favor of the state.
Jury selection is where we screen those who cannot decide the case based solely on the facts. We say a properly instructed jury follows the law. Why then this silliness involving gag orders? The only persons hurt by them are the folks presumed innocent. Why can’t their lawyers speak to vindicate that presumption?
Reprinted courtesy of the Connecticut Law Tribune.