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Published: Tuesday, 3/30/2010

Gag order targeted; Coverage limit forbidden, Blade contends

BY JIM PROVANCE
BLADE COLUMBUS BUREAU CHIEF

COLUMBUS - The Blade yesterday told the Ohio Supreme Court that there is no test that can be applied to circumvent the constitutional right of the press to report on what takes places inside a public criminal trial.

The latest filing before the high court was in reaction to Henry County Common Pleas Judge Henry P. Muehlfeld's gag order preventing reporters from promptly publishing or broadcasting what they see or hear in the manslaughter trial of Jayme Schwenkmeyer, 24.

The order is aimed at preventing information from Ms. Schwenkmeyer's trial from saturating the public before a jury can be seated in the separate trial a week later of her co-defendant, David E. Knepley, 50. Both are charged with involuntary manslaughter and child endangerment in the 2007 drug overdose death of her 13-month-old daughter, Kamryn Gerken.

"According to [Judge Muehlfeld and his court, The Blade] 'comes close to asserting' that the Ohio and United States Constitutions absolutely forbid prior restraints of the kind at issue in this case,'' reads the brief filed by the newspaper's attorneys, Fritz Byers and Scott Ciolek.

"This description is inaccurate,'' it adds. "[The Blade] does not merely 'come close' to so arguing. An absolute prohibition is, rather, exactly what the Constitutions impose.''

At The Blade's request, the Supreme Court placed the judge's gag order on hold two months ago while it considers the case. Judge Muehlfeld last week asked the court to schedule oral arguments. It has yet to rule on that motion.

The court's attorneys argued in a brief filed that week that the judge took into consideration how pretrial publicity made it difficult to seat a jury in an earlier attempt to try Ms. Schwenkmeyer, how much the rural county is saturated by local media interested in the case, and how the Internet has accelerated the dissemination of news in recent years.

"These facts came together to form a consistent picture of a rural, thinly populated county where many of the alternatives for assuring [Mr. Knepley] a fair, appeal-proof trial, short of a temporary, prior restraint of the press, were unlikely to work,'' the Henry County court's brief read.

The Blade, however, challenged the judge's ability to reach such conclusions without holding an evidentiary hearing. It also took aim at the argument that modern advances in communications like the Internet have changed the dynamic.

"Every advance in communications technology raises new possibilities and new practical questions,'' The Blade argues. "It is precisely the function of the Constitution to assure the timelessness of our core liberties, to provide for their protection without regard to technological change, and to erect an enduring barrier against the whims of those who would scuttle the Constitution in the face of some supposedly novel crisis that requires a supposedly new society fix.''

The newspaper has contended Judge Muehlfeld has other options short of a gag order on a free press that, though complicated, could work. Those options include closer questioning of potential jurors to detect bias, simultaneous trials, or simultaneous jury selection for both trials.

Contact Jim Provance at:

jprovance@theblade.com

or 614-221-0496.



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