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Published: Sunday, 2/14/2010

Right to fair trial doesn't trump 1st Amendment

Last month The Blade took Henry County Common Pleas Judge Keith Muehlfeld to court - the Ohio Supreme Court.

And that made at least one reader hopping mad.

The judge was attempting to impose what's called a "gag order" to prevent the media from reporting on an involuntary manslaughter trial about to start in his court.

The Blade sued, saying this was "patently unconstitutional" and a violation of the First Amendment right of freedom of the press.

Judge Muehlfeld's position was that the defendant's right to a fair trial, something guaranteed under the Sixth Amendment to the Constitution, was more important than the First Amendment guarantee of freedom to report on what happened in his courtroom, or the right of citizens to read and hear about it.

The case involves two separate trials of a woman and her ex-boyfriend who are charged with involuntary manslaughter and child endangerment in the drug overdose death of her 13-month-old daughter, Kamryn Gerken, on Aug. 15, 2007.

The judge was afraid publicity might make it hard for the court to find impartial jurors. So he ordered the press not to write anything about the trials until they had been over for at least a week.

That seemingly violated years of rulings by the U.S. Supreme Court and lesser courts, rulings that indicated nobody could impose "prior restraint" on any newspaper before it published anything.

However, The Blade's lawsuit made one apparently anonymous reader hopping mad. "I cannot believe the position you are taking concerning the gag order I am all for our rights as citizens of this great land, but making sure these defendants get a fair trial is very important," wrote someone who signed himself "Kamryn Gerken."

The reader is right about a fair trial. It is important.

But not more important than the right of free speech and to freely report what goes on in public.

Your ombudsman teaches media law and history at Wayne State University in Detroit, and while I am not a lawyer, I am frankly baffled by the trial judge's thinking.

The Ohio Supreme Court swiftly acted, with six justices temporarily lifting the gag order until they have a chance to carefully review the matter. The seventh justice, Maureen O'Connor, said the court should have permanently ruled for The Blade immediately.

Judge Muehlfeld then delayed both trials until a final ruling is made by Ohio's highest court. Your ombudsman would be shocked, however, if the Supreme Court were to let the gag order stand.

Fair trials and impartial juries are essential to justice. But without a free press, fair trials and justice itself could quickly disappear, as they have in other countries. There are other ways the judge could prevent jurors from being "contaminated" by publicity about the case. He could move one trial to a different jurisdiction or choose both jury pools at the same time and order them sequestered.

What he cannot do is override the right of free press to report on proceedings in a public courtroom as it happened.

Ohio residents ought to be thankful that The Blade is vigilant and willing to spend money in support of their right to know.

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Duke Wheeler was one of a number of Toledoans upset by the newspaper's coverage of the tragic death of Lydia DiDio. A native of Brazil, she was an accomplished pianist and the former owner of the Toledo Montessori Day School. She was also the widow of Dr. Liberato DiDio, who came here in 1965 to help found the Medical College of Ohio, now the University of Toledo Medical Center.

By all accounts, she was a wonderful, loving, and vivacious woman, Unfortunately, she seems to have suffered some type of mental collapse last month and evidently decided to kill herself. She borrowed a neighbor's car and drove onto southbound U.S. 23 in Maumee, deliberately crashing into a tractor-trailer. When that failed to kill her, she walked across the freeway, trying to get other motorists to hit her. Eventually, she threw herself under the wheels of another huge truck and perished.

Some readers thought the newspaper should not have written about those events. "It was unnecessary and insensitive to go into all the accident details," Mr. Wheeler said. "The person that died was not the one that we all knew and loved."

Your ombudsman understands that very well. Had she ended her life at home, the circumstances would have been private.

But unfortunately, it was necessary to write about the details of her suicide because it was a very public act. Dozens of people saw the horrifying sight of a woman throwing herself at rush-hour traffic.

Many of those people had to have wondered what in the world was going on. Newspapers are not in the business of suppressing information but explaining events to people.

Even when those events are tragic and sad. Incidentally, I met Mrs. DiDio and her husband at a social event long ago, and they were both charming and wonderful people.

Anyone who as a concern about fairness or accuracy in The Blade is invited to write me, c/o The Blade, 541 N. Superior St., Toledo, OH 43660, or at my Detroit office, 563 Manoogian Hall, Wayne State University, Detroit, MI 48202, or call me at 1-888-746-8610, or e-mail me at OMBLADE@aol.com. I cannot promise to address every question in the newspaper, but I do promise that everyone who contacts me with a serious question will get a personal reply. Reminder, however: If you don't leave me an e-mail address or a phone number, I have no way to get in touch with you.

Jack Lessenberry is a member of the journalism faculty at Wayne State University in Detroit and a former national editor of The Blade.



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