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IN THE CRIMINAL COURT
FOR
CROSSVILLE, TENNESSEE ________________________ Case No. 5346
STATE OF TENNESSEE v. BYRON LOOPER
MOTION TO INTERVENE TO CHALLENGE THE CONSTITUTIONALITY OF GAG ORDER
Petitioner Geoffrey Davidian as editor of The Putnam Pit hereby submits the within motion to intervene in the above-entitled action in order to challenge the constitutionality of the gag order which was entered on February 10, 1999. In addition to Mr. Looper's Sixth and Fourteenth Amendment tights to a public and fair trial, and the gag order's impermissible prior restraint of the defendant and his counsel's freedom of expression under the First Amendment, the breadth of 'the gag order also impinges upon the First Amendment rights of the media and the public to have access to information fundamental to the integrity of the judicial system. According to the United
States Supreme Court in New York Times Co. v. United States, 403 U.S. 713,
714 (1971) (per curiam), the Court stated:
It hardly requires repetition that "'[any] system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity,"' and that the State "'carries a heavy burden of showing justification for the imposition of such a restraint."'
Although the responsibility of a prosecutor as representative of the public requires him to be sensitive to the due process rights of a defendant to a fair trial, the District Attorney in this case has flaunted this responsibility through his numerous press conferences, and the only effect of the gag order will be to punish Mr. Looper while sanctioning the District Attorney General's misconduct. Moreover, the gag order is geared specifically at protecting the District Attorney General, and not Mr. Looper, since the public has been made well aware of the State's case whereas Mr. Looper has yet been able to explain the evidence within his attorney's possession that the District Attorney may have actually sought to set him up. Specifically, Mr. Looper alleges that District Attorney General has been accused by a confidential informant of trying to get him to illegally set up Mr. Looper a year before the killing of Senator Burks as well as having had him illegally set up numerous citizens in Cumberland County in poker machine cases. The public has an interest in getting to the truth of the matter as to whether or not the District Attorney General and prosecutor in this case is guilty of illegally misusing his office to try to set up Mr. Looper and other individuals by having them charged and convicted with crimes they did not commit. It is without question that there is a strong societal interest in public trials, and that Openness in Court Proceedings may improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously and generally give the public an opportunity to observe the judicial system. Estes v. Texas, 381 U.S., at 583 (Warren, C. J., concurring). This can be no more true than in a case in which the misconduct of a public official is at issue because as representatives of their constituents, they are answerable to the public for any alleged wrongdoing. In fact, the public-trial guarantee ensures that all participants in the criminal justice system are subjected to public scrutiny as they conduct the public's business of prosecuting crime. This publicity "guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism." Sheppard v. Maxwell, 384 U.S., at 350. Publicity "serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice." Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492 (1975). Indeed, such scrutiny is "of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business." Id., at 495. n2 See also Estes v. Texas, 381 U.S. 532, 541 (1965) In addition, as set forth in the Objection to the Gag Order filed on Mr. Looper's behalf, the gag order in the instant case is overly broad and intrudes upon the Constitutional rights of the public to the facts surrounding a public event and constitutes an unconstitutional restraint on the freedom of speech of Mr. Looper and his counsel. According to the United States Supreme Court in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), a defense attorney are restrained solely from making "an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication in which the lawyers should know will have a substantial likelihood of materially prejudicing the trial." In fact, the Court specifically stated: A defendant cannot speak without fear of incriminating himself and prejudicing his defense, and most criminal defendants have insufficient means to retain a public relations team apart from defense counsel for the sole purpose of countering prosecution statements, These factors underscore my conclusion that blanket rules restricting speech of defense attorneys should not be accepted without careful First Amendment scrutiny.Id. at 1065. The sole inquiry is whether defense counsel's intended press conference and his future statements to the press would substantially infringe upon Mr. Looper's right to a fair trial. Most assuredly, the answer to this question is no since Mr. Looper himself has requested access to the press to counter the substantial damage the pretrial publicity the case has received due to the multiple press conferences held by the District Attorney General at its inception. Accordingly, Petitioner respectfully requests the Court to reconsider the issuance of the gag order and modify same to protect the defendant's rights as well as the media and public's rights to have access to the attorneys in the case and their relative positions, particularly concerning the evidence of prosecutorial misconduct and corruption. Dated: February 18, 1999 Respectfully submitted, (GEOFFREY DAVIDIAN, Petitioner
CERTIFICATE OF SERVICE I certify that I have
served true and exact copies of the foregoing document upon District Attorney
General William Gibson and defense counsel Doug Trant by hand delivery
this 18th day of February, 1999
GEOFFREY DAVIDIAN |
IN THE CRIMINAL COURT
FOR
CROSSVILLE, TENNESSEE ________________________ Case No. 5346
STATE OF TENNESSEE v. BYRON LOOPER
MOTION TO INTERVENE TO CHALLENGE THE CONSTITUTIONALITY OF GAG ORDER
Petitioner Ken Layne, as editor of Tabloid.net, hereby submits the within motion to intervene in the above-entitled action in order to challenge the constitutionality of the gag order which was entered on February 10, 1999. In addition to Mr. Looper's Sixth and Fourteenth Amendment tights to a public and fair trial, and the gag order's impermissible prior restraint of the defendant and his counsel's freedom of expression under the First Amendment, the breadth of 'the gag order also impinges upon the First Amendment rights of the media and the public to have access to information fundamental to the integrity of the judicial system. According to the United
States Supreme Court in New York Times Co. v. United States, 403 U.S. 713,
714 (1971) (per curiam), the Court stated:
It hardly requires repetition that "'[any] system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity,"' and that the State "'carries a heavy burden of showing justification for the imposition of such a restraint."'
Although the responsibility of a prosecutor as representative of the public requires him to be sensitive to the due process rights of a defendant to a fair trial, the District Attorney in this case has flaunted this responsibility through his numerous press conferences, and the only effect of the gag order will be to punish Mr. Looper while sanctioning the District Attorney General's misconduct. Moreover, the gag order is geared specifically at protecting the District Attorney General, and not Mr. Looper, since the public has been made well aware of the State's case whereas Mr. Looper has yet been able to explain the evidence within his attorney's possession that the District Attorney may have actually sought to set him up. Specifically, Mr. Looper alleges that District Attorney General has been accused by a confidential informant of trying to get him to illegally set up Mr. Looper a year before the killing of Senator Burks as well as having had him illegally set up numerous citizens in Cumberland County in poker machine cases. The public has an interest in getting to the truth of the matter as to whether or not the District Attorney General and prosecutor in this case is guilty of illegally misusing his office to try to set up Mr. Looper and other individuals by having them charged and convicted with crimes they did not commit. It is without question that there is a strong societal interest in public trials, and that Openness in Court Proceedings may improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously and generally give the public an opportunity to observe the judicial system. Estes v. Texas, 381 U.S., at 583 (Warren, C. J., concurring). This can be no more true than in a case in which the misconduct of a public official is at issue because as representatives of their constituents, they are answerable to the public for any alleged wrongdoing. In fact, the public-trial guarantee ensures that all participants in the criminal justice system are subjected to public scrutiny as they conduct the public's business of prosecuting crime. This publicity "guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism." Sheppard v. Maxwell, 384 U.S., at 350. Publicity "serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice." Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492 (1975). Indeed, such scrutiny is "of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business." Id., at 495. n2 See also Estes v. Texas, 381 U.S. 532, 541 (1965) In addition, as set forth in the Objection to the Gag Order filed on Mr. Looper's behalf, the gag order in the instant case is overly broad and intrudes upon the Constitutional rights of the public to the facts surrounding a public event and constitutes an unconstitutional restraint on the freedom of speech of Mr. Looper and his counsel. According to the United States Supreme Court in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), a defense attorney are restrained solely from making "an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication in which the lawyers should know will have a substantial likelihood of materially prejudicing the trial." In fact, the Court specifically stated: A defendant cannot speak without fear of incriminating himself and prejudicing his defense, and most criminal defendants have insufficient means to retain a public relations team apart from defense counsel for the sole purpose of countering prosecution statements, These factors underscore my conclusion that blanket rules restricting speech of defense attorneys should not be accepted without careful First Amendment scrutiny.Id. at 1065. The sole inquiry is whether defense counsel's intended press conference and his future statements to the press would substantially infringe upon Mr. Looper's right to a fair trial. Most assuredly, the answer to this question is no since Mr. Looper himself has requested access to the press to counter the substantial damage the pretrial publicity the case has received due to the multiple press conferences held by the District Attorney General at its inception. Accordingly, Petitioner respectfully requests the Court to reconsider the issuance of the gag order and modify same to protect the defendant's rights as well as the media and public's rights to have access to the attorneys in the case and their relative positions, particularly concerning the evidence of prosecutorial misconduct and corruption. Dated: February 18, 1999 Respectfully submitted, KEN LAYNE, Petitioner
[By Matt Welch]
CERTIFICATE OF SERVICE I certify that I have
served true and exact copies of the foregoing document upon District Attorney
General William Gibson and defense counsel Doug Trant by hand delivery
this 18th day of February, 1999
MATT WELCH. |
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