By: M. Kaz
For the public that has followed the murders of the four Idaho University College students, the gag order felt like cutting off an information life-line. But, this isn’t the first time a gag order has been issued in a high-profile case.
On January 3, 2023, a gag order was issued in the case of the murders of four Idaho University College students. Madison Mogen, Kaylee Goncalves, Xana Kernodle and Ethan Chapin were murdered in their off-campus housing in the middle of the night on November 13, 2022. A man was arrested in connection with the murders on December 30 of that year.
In response, Latah County Magistrate Judge Megan Marshall issued the gag order only days later, prohibiting investigators, law enforcement, prosecutors and defense attorneys from discussing the details of the homicides. For the public who had been following the investigation from the moment the murders were discovered, the order effectively ended the up-to-the-minute flow of information that had been feeding traditional media, social media, podcasts and blogs.
In a culture of on-demand media gratification and reality television shows, it is only natural that when a high-profile court case hits the news, we want constant and immediate information. This also rings true for a community like Uncovered that thrives on curiosity, attention to detail and thirst for answers to the mysteries that have long baffled intrepid at-home sleuths.
When a judge issues a gag order and cuts the cord of information that feeds this collective curiosity, it may be met with animosity and frustration from those on the outside of a case.
However, there is a reasoning behind the use of the gag order that has roots in the sense of justice and fairness that we want to see in our criminal justice system.
What is a gag order?
To start, a gag order is an order issued by a judge in a state or federal court that restricts the release of any information about a pending civil or criminal case to the public or the press; it is also often referred to as a “protective order.” The order may be made by the judge sua sponte (by the judge on his/her own) or requested in a motion by either side at any time after a case is commenced before a court.
The judge sets the parameters of the gag order, including who it applies to (ie, attorneys, witnesses, law enforcement, court personnel, etc.); how long it is in effect and what information may be disseminated. These decisions are often made with the accused’s Sixth Amendment right to a fair trial and Fourteenth Amendment right to due process in mind. When a gag order limits the conversation about a case to the courtroom and those surrounding the case are prohibited from speaking to the press, it is not surprising that judges are accused of running afoul of the First Amendment and face criticism on the grounds of limiting free speech, promoting courtroom secrecy and exercising control over what media outlets can disseminate about a case.
Sheppard v. Maxwell
The Supreme Court tackled these challenges as early as 1966 in the decision on Sheppard v. Maxwell, 384 U.S. 333.
Dr. Sam Sheppard, convicted of second-degree murder for the bludgeoning death of his pregnant wife, appealed his conviction on the grounds that he was deprived of a fair trial because of the massive, pervasive and invasive media presence surrounding his prosecution. During the pretrial period, the press had unfettered access to all of the participants in the trial, including Sheppard. Sheppard was examined for more than five hours without an attorney in a televised three-day inquest conducted before an audience of several hundred spectators in a gymnasium. Newspapers published the names and addresses of prospective jurors, who were then bombarded with letters and phone calls from the public.
During the trial, deference was given to the press by the judge, with approximately twenty reporters placed in assigned seating close enough to Sheppard and his attorney so that privacy between the attorney and client was eliminated. Additionally, jurors had to pass by a broadcasting station that had been allowed by the judge to be set up outside of their deliberation room, leaving them vulnerable to the publicity that was consuming the entire trial.
The Court recognized that the defendant did not receive a fair trial consistent with the Due Process Clause of the Fourteenth Amendment and overturned the conviction. Furthermore, the decision chided the trial court for failing to “invoke procedures which would have guaranteed [Sheppard] a fair trial” and suggested procedures that included stricter rules for courtroom access for the media, a limit on the number of reporters in and around the courtroom, protection of witnesses and jurors, and control over the release of information to stymy the flow of gossip and misinformation reaching the public. 384 U. S. at 358-362. *
For a more modern example, in a 2005 murder trial, a Contra Costa County, California judge issued a blanket gag order that prohibited anyone involved with the trial against the man arrested for killing the victim, Pamela Vitale, from engaging with the press before or during the trial. Reporters were allowed to attend and report on court proceedings; however, attorneys, witnesses and law enforcement could not be interviewed. The court reasoned that the defendant’s right to a fair and impartial trial would be jeopardized by heavy publicity that could taint the jury pool before a jury could be selected.
While it appears that a majority of the gag orders issued are in criminal cases, a judge presiding over a high-profile civil case may also decide to issue such an order.
For instance, in 2022, the Harris County, Texas judge overseeing approximately 500 consolidated civil cases brought on behalf of the victims who were killed and seriously injured during a crowd surge at the Astroworld concert festival issued an extensive gag order that placed serious limitations on what the attorneys and their clients could speak publicly about. The judge’s ruling, delivered on the record during court proceedings, was based upon the high-profile subject matter of the case and its participants (a wrongful death lawsuit against a popular rapper married to a popular reality TV personality), the extensive national and local media coverage of the incident, and the number of interviews and social media postings already made by the attorneys on both sides.
The judge clarified that only public courtroom proceedings could be discussed with the media, sans opinions or editorializing, and stressed that the cases would be tried in a courtroom, not in press releases or social media posts.
When gag orders are invoked to protect the rights of a defendant to a fair trial, what is the effect on the victims and their loved ones?
Do Gag Orders Unjustly Silence Victims?
On January 18, 2023, Judge Marshall extended the reach of the gag order she issued in the case of the State of Idaho v. Bryan C. Kohberger. The revised order now prohibits attorneys representing the victims, their families, survivors and witnesses from publicly speaking about the case in addition to the parties named originally in the order. This has been interpreted as applying to the victims’ families, who could potentially become witnesses in the death penalty phase of the case, should the defendant be convicted.
Critics have argued that the gag order would effectively and unjustly silence the victims and their families during what could potentially be a very long pretrial period of preparation.
Additionally, over twenty news outlets, including the Associated Press, have rallied together to oppose the order as an unnecessarily broad missive that would impede the public’s understanding of a criminal prosecution that has impacted the community and the country as a whole. Yet, amidst the legal sparring, despite the strict gag order, pieces of information from the case have still been leaked and reported, and it remains to be seen how, and if, the parties responsible will be penalized, sanctioned or held in contempt of court.
Love this post? Meet the Author.
M. Kaz is an attorney practicing criminal law in New York. Part of her career was spent in a specialized unit that investigated homicides, suspicious deaths, and vehicular deaths alongside NYPD homicide detectives, resulting in the indictments and convictions of many perpetrators. She has also worked with the NYPD cold case squad to investigate unsolved murders and disappearances. Additionally, she is on the board of Private Investigations for the Missing, a nonprofit organization that provides provides the services private investigators to the loved ones of missing persons.