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Published: Tuesday, 3/23/2010

Henry County judge's lawyers make case to top court

BY JIM PROVANCE
BLADE COLUMBUS BUREAU CHIEF

COLUMBUS - A Henry County judge told the Ohio Supreme Court Monday that his order prohibiting the media from promptly reporting on a manslaughter trial was necessary to prevent the publicity from tainting the jury pool for a second defendant who would later appear before him.

In a brief submitted on behalf of the trial court, attorneys said Common Pleas Judge Keith P. Muehlfeld did not issue the order lightly.

He first considered how pretrial publicity made it difficult to seat a jury in an earlier attempt to try one of the defendants, how much the rural county is saturated by local media interested in the case, and how the Internet has quickened dissemination of news in modern society.

"These facts came together to form a consistent picture of a rural, thinly populated county where many of the alternatives for assuring [the defendant] a fair, appeal-proof trial, short of a temporary, prior restraint of the press, were unlikely to work," reads the brief submitted by attorneys Max E. Rayle and Ronald J. Kozar.

"The formality of an evidentiary submission apprising Judge Muehlfeld of these facts was not necessary, because his years on the bench in Henry County had already acquainted him with those facts," they wrote. They noted the judge had been on the court since 1995 and had served as Napoleon Municipal Court judge and city law director before then.

"The orders at issue here, accordingly, were not plucked from evidentiary thin air as suggested by The Blade. Rather, they were anchored in detailed knowledge borne by years of experience," the brief reads.

At The Blade's urging, the Supreme Court placed Judge Muehlfeld's order on hold nearly two months ago while it considers briefs filed by both sides. He had issued the gag order for the trial of Jayme Schwenkmeyer, 24, who is charged with involuntary manslaughter and child endangerment in the 2007 drug overdose death of her 13-month-old daughter, Kamryn Gerken.

A separate trial of co-defendant David E. Knepley, 50, was to follow a week later in the same courtroom.

The order would have allowed reporters to attend Ms. Schwenkmeyer's trial along with the general public, but it forbade them from publishing or broadcasting what they saw and heard until after Mr. Knepley's jury was seated.

"The risk of convicting an innocent defendant is not the only nightmare that the [court and judge] have striven to avoid here," reads the judge's brief. "The other nightmare is that a guilty defendant might go free if pretrial publicity makes a fair jury trial impossible."

The Blade has characterized Judge Muehlfeld's order in court filings as "patently unconstitutional" prior restraint of speech and press, and argued that the judge allowed factors such as cost and inconvenience to influence his decision.

"The trial court's order violates the U.S. Constitution and is, literally, unprecedented. The brief filed today on behalf of the trial court acknowledges as much," said John Robinson Block, publisher and editor-in-chief of The Blade.

"It explicitly seeks a dramatic change in the constitutional rules, based on the judge's personal view that the Internet has changed everything else, so it should change the Constitution as well. This is a dangerous view, and not surprisingly, there is no legal or logical support for it."

The newspaper's attorney, Fritz Byers, declined to comment further yesterday.

The judge's attorneys agreed with The Blade that Judge Muehlfeld's order is rooted in speculation as to potential dangers from media coverage.

"It is true that Knepley, and therefore Judge Muehlfeld, can only speculate about what horses might try to bolt through the open door. But once a horse does bolt, it will then be too late. The horse will have 'gone for a gallop down the information superhighway,'•" they wrote, quoting a 2008 Texas decision.

Mr. Knepley's attorney, Clayton J. Crates, also filed a brief supporting the judge's decision, saying he recognizes the role of the press as a safeguard against abuse of the judicial system.

"That privileged status, however, does not elevate First Amendment considerations above all other freedoms, individually or collectively, contained in the Bill of Rights," he wrote.

The Ohio Criminal Defense Lawyers Association filed a brief in the case, but its argument centered on whether The Blade should have turned directly to the Supreme Court for help rather than challenge Judge Muehlfeld's order through normal court appeal channels.

Contact Jim Provance at:

jprovance@theblade.com,

or 614-221-0496.



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