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Published: Wednesday, 4/14/2010

Ohio court rejects judge's gag order on media

BY JIM PROVANCE
BLADE COLUMBUS BUREAU CHIEF

COLUMBUS — The Ohio Supreme Court found unanimously yesterday that a Henry County judge's gag order preventing the media from promptly reporting on a local manslaughter trial was “patently unconstitutional.”

At the request of The Blade, the court made permanent its prior temporary order preventing Common Pleas Judge Keith Muehlfeld from enforcing his order.

“Judge Muehlfeld's analysis proceeded from the erroneous premise that a criminal defendant's constitutional right to a fair trial should be accorded priority over the media's constitutional rights of free speech and press,” the court wrote.

It noted U.S. and Ohio Supreme Court precedent that the court's first duty is to try to protect both, not choose between them.

“The judge's refusal to accord equal importance and priority to the media's First Amendment rights was thus plainly erroneous,” the court wrote.

All six current members of the court agreed with The Blade's position.

The late Chief Justice Thomas Moyer was not involved in this decision, but prior to his death on April 2 had joined other members of the court in the temporary order placing Judge Muehlfeld's order on hold while it more fully considered the case.

The Blade's attorney, Fritz Byers, said the decision was not surprising given that it confirmed long-standing constitutional principles.

“But the decision is especially noteworthy for its rejection of the argument that we must revise and sacrifice our constitutional rights and our system of open government to accommodate evolving technologies,” he said.

“That argument is common and tempting, but it is dangerous, and the court's ringing rejection of it is an important statement,” he said.

Judge Muehlfeld's office said he had no comment on the decision. Ronald Kozar, a Dayton lawyer who represented the judge, said he had not seen the ruling and could not comment.

Judge Muehlfeld issued the gag order for the Dec. 7 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.

Because Ms. Schwenkmeyer's then-boyfriend and co-defendant, David E. Knepley, 50, was to go on trial on the same charges Feb. 8, Judge Muehlfeld said restrictions on immediate reporting on the first trial were necessary to prevent the tainting of the jury pool for the second.

Ms. Schwenkmeyer's first trial in December ended in a mistrial, and a new trial was then set for Feb. 1, one week before Mr. Knep-ley's, with the same gag order in place.

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

Both trials were placed on hold while the First Amendment issue was before the Ohio Supreme Court. Neither had been rescheduled yesterday, although attorneys for both defendants said they were eager to conclude the cases.

“I don't think that the Supreme Court ruling is going to have any greater effect on my client's ability to get a fair trial because we're going first,” said David Klucas, a Toledo lawyer who represents Ms. Schwenkmeyer. “If there is fallout that punishes a defendant in this case, it will be for Mr. Knepley who goes second.”

Clayton Crates, a Defiance lawyer who represents Mr. Knepley, said he had not decided whether to seek a change of venue for his client's trial.

Mr. Crates, who requested the gag order prior to Ms. Schwenk meyer's trial in December, said he respected the Ohio Supreme Court's decision.

“In this whole thing, it was never my intention to subvert the interests of the media, only to advance and protect the rights of my client,” Mr. Crates said.

In their brief, lawyers for Judge Muehlfeld and his court argued that the advance of the Internet has introduced elements into the debate not present when the U.S. Supreme Court issued its definitive ruling in this realm in a 1965 Nebraska case.

“In the two decades after [that ruling], a juror could avoid news by simply keeping televisions and radios turned off at dinnertime and bedtime and avoiding the newspaper,” the brief read.

“Today, however, every computer, laptop, BlackBerry, iPod, and cell phone is a medium for the potential receipt of e-mails, pop-ups, videos, Facebook posts, and Twitter tweets on every news item, celebrity pratfall, or random happening that any other user of the Internet deems worthy of posting or sending.”

The state Supreme Court, however, noted that the judge's lawyers cited no case in which advances in technology had prompted a court to retreat from the 1965 standard.

The high court faulted the judge for not holding an evidentiary hearing before issuing his order.

It found that he too quickly dismissed alternatives to prevent publicity from the first trial from infecting the jury pool in the second, such as more in-depth questioning of potential jurors, delaying the second trial, sequestration of the jury, and targeting the issue in the court's instructions to the jury.

It specifically questioned the judge's rejection of the idea of moving the trial outside Henry County because of the potentially high cost for the small rural county.

“Henry County borders Lucas County, a populous county, which would offer a more expansive jury pool that would be less likely to be impacted by the pretrial publicity,” the court wrote.

“We have also rejected a similar argument concerning costs of changing venue as a reason to justify a prior restraint. And the common pleas court is authorized to order the appropriation of reasonable and necessary expenses to cover any additional costs,” the court wrote.

The Washington-based Reporters Committee for Freedom of the Press, which filed a brief with the court supporting The Blade's position, hailed the decision.

“I am honestly astonished at how many trial court judges have no idea what the law is in this area,” said Lucy A. Dalglish, the committee's executive director. “We deal it with every day. Most reporters have a better sense than most sitting judges. I find that bizarre, but I've been doing this long enough to know it's true.

“This judge wasn't doing anything malicious,” she said. “He just wasn't up to speed on the law. We're now hopeful that all the other judges in Ohio will have their recollection of basic First Amendment law refreshed.”

Chris Link, executive director of the American Civil Liberties Union of Ohio, noted that it wasn't that Judge Muehlfeld didn't have valid concerns.

“They were not well balanced with other issues like openness,” she said. “Judges are coming up with, in part with homeland security, reasons to close a courtroom, for suppression of the press, and less allowing for the public to be present. There's been more discretion for judges, so this is a very good outcome from the Ohio Supreme Court.”

Staff Writer Jennifer Feehan contributed to this report.

Contact Jim Provance at: jprovance@theblade.com,or 614-221-0496.



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