A statewide group of DUI lawyers filed a friend of the court brief opposing the latest attempt by the Santa Barbara County District Attorney’s Office to gag investigative journalist Peter Lance and his attorney in Mr. Lance’s misdemeanor DUI case a clear violation the First Amendment. The action by a Statewide group of D.U.I. lawyers took place five days after the initial action by the prosecutor and the Santa Barbara’s District Attorneys Office. In the past this type of illegal action would have went through and the defendant would have been forced to comply while probably being illegally convicted. While you read the following News Press story keep this question in the front of your mind.
My question is this If this Statewide Lawyers organization had not filed their opposing brief would Judge Hill and the Santa Barbara’s District Attorneys office gotten away with it?
Lance gag order slammed by lawyers group
By SCOTT STEEPLETON NEWS-PRESS CITY EDITOR 10/19/11
A statewide group of DUI lawyers filed a friend of the court brief opposing the latest attempt by the Santa Barbara County District Attorney’s Office to gag investigative journalist Peter Lance and his attorney in Mr. Lance’s misdemeanor DUI case. The brief, filed Tuesday in Santa Barbara County Superior Court by Palm Springs attorney Michael Kennedy on behalf of the nonprofit California DUI Lawyers Association, states the decision Judge Brian Hill makes regarding the sweeping order proposed ex parte that is without the defense having a say by prosecutors in Mr. Lance’s case “will likely have significant impact on criminal and constitutional litigation in California.”
The proposed order, filed Oct. 13 by Deputy District Attorney Michael Carrozzo, seeks to bar Mr. Lance and his attorney Darryl Genis “from commenting on this case in any manner during the pendency of trial.” Mr Carrozzo also seeks to have Messrs. Genis and Lance “remove any comments or information regarding This case that is currently posted on the Internet in any form.” In addition, the declaration supporting the proposed Order seeks to silence defense witnesses, and asks that Mr Lance and his attorney file any future legal documents under seal. Left out of the filing submitted to the judge is any mention that the order also apply to the prosecution. Perhaps written in a state of fury over Mr Lance’s first-hand reports on possible government corruption involved in his case published by the News-Press and comments about the case by Mr Lance, Mr. Genis and defense witnesses here and elsewhere, Mr Carrozzo nonetheless seeks a scrubbing of the Internet unheard of in its history “Wow,” says Mr Kennedy. “We note the glaring absence of any authority empowering the court to issue Nebraska Press v. Stuart states some adverse affect on potential jurors is not enough to limit speech such a sweeping command of censorship and of clean-up of things already in cyberspace, nor could any such thing ever properly issue ex parte (without the defense having a say) anyway. “What jurisdiction does the court have over defense witnesses and over other interested persons regarding their First Amendment rights?” Mr.Kennedy continues. Noting that Mr. Carrozzo left lead prosecutor on the case, Sanford Horowitz, off the list of people he seeks to gag, Mr Kennedy writes: “Bizarrely, the one person the court has arguable jurisdiction over, the attorney of record, is not a named victim of that proposed order.” When the proposed motion was first reported last week by the News Press, a superior said the intent of the order was to simply prevent Mr Lance and his attorney from commenting about the case in the future. But that’s not what the order states. Nor does it propose how anyone would go about removing from the Internet the original posts, repost and altered posts that have resulted from the case. Mr Kennedy’s filing notes the difficulty of this proposition when he writes, “It would not take testimony from the late Steven Jobs or from Bill Gates to convincingly establish that to reel back in things cast into the vast and limitless ocean of cyberspace would be an impossibility” The law, Mr Kennedy adds by way of citing the Civil Code, “never requires impossibilities.” In a moment of snarkiness, Mr Kennedy says, “I guess we did overstate one matter: the People did supply what they suggest is an authority, the only authority they supplied, and we suspect they pasted and stuck it from something else, because it certainly does not assist them here; that is Sheppard v. Maxwell.” The famous case, in which Sam Sheppard’s conviction of murdering his wife Marilyn was reversed by the Supreme Court because prejudicial publicity at trial, says Mr Kennedy, is cited by prosecutors ostensibly because they see it empowering the court to issue a gag order to protect the defendant’s due process. This case notes due process requires the accused receive a fair trial by an impartial jury free of outside influences – and the courts “must take strong measures to ensure that the balance is never weighed against the accused.” And while the court in the Sheppard case had a duty to protect the defendant from the circus-like atmosphere of the trial, “There is no suggestion there that, absent the defendant’s complaint, the court has the power or duty to do anything, nor is there any suggestion whatsoever that any court has the power to command the undoing of that which is already broadcast.” And undoing what is already broadcast is, in essence, what prosecutors in the Lance case are seeking to do. But from a constitutional standpoint, says Mr. Kennedy, due process is a procedural limitation on government’s power against and over individuals. He posits that the prosecution’s proposed order is simply an effort by government to muzzle a man who dares to speak out about a cop, in this case arresting Officer Kasi Beutel of the Santa Barbara Police Department,engaged in questionable and perhaps illegal activity Not only does Mr Lance contend the officer witnessed a forged signature purported to be his on a form waiving his right to provide a blood sample at the time of his arrest New Year’s Day, but he uncovered evidence that she tried to have a reverend backdate her marriage certificate – a move that would have run the reverend afoul of the law. Officer Beutel also is known to have gone into the field with pre filled DUI forms; a move the defense contends show she was out to frame motorists for DUI. These examples and others, including the Santa Barbara Police Department shredding evidence that Mr Lance sought in his defense,amounts to gross governmental misconduct the defense says should be ground for dismissal. If, on First Amendment grounds, the courts can’t prevent kids from getting their hands on violent video games or the public from viewing depictions of animal cruelty, “there would be a heavy burden to carry for government to propose that prior restraint on the communication to the public of governmental corruption could be ordered. “How a community’s police conduct themselves in their relationship with the polity is axiomatically political speech,” says Mr Kennedy. And in the end, whether the speech is about the police, the defendant or anyone else involved, case law comes down hard on limiting that speech, true or false, in advance of trial no matter how it affects the defendant. As Nebraska Press v Stuart states, some adverse affect on potential jurors is not enough to limit speech. “It is not clear that further publicity, unchecked, would so distort the views of potential jurors that 12 could not be found who would, under proper instructions, fulfill their sworn duty to render a just verdict exclusively on the evidence presented in open court.” Summing up his brief to deny the prosecution motion, Mr. Kennedy states, “There is no authority for the requested protective order, no authority that any protective order can be issued ex parte, and it accordingly should not be granted, lest a host of constitutional problems would be loosed upon the land.” Judge Hill will take up the matter Oct 25. In a related matter, Superior Court Judge Clifford Anderson last week issued a gag order in the DUI case of Parker O’Sullivan, who was arrested by Officer Beutel on March 3 in a hit-and-run incident. While also represented by Mr Genis and prosecuted by Mr Horowitz, Mr O’Sullivan’s proceedings haven’t attracted any of the media attention Mr. Lance’s case has seen. Mr Horowitz last week brought a motion for a protective order to the judge, who in response barred the defendant and attorneys from making comments about the case. The matter was back in front of Judge Anderson Tuesday. On Friday, the judge will consider a motion from Mr. Genis to reconsider the gag order if the case isn’t settled. Judge Anderson said there are potentially related issues in both cases, and the key concern should be having a fair trial in which the jury hasn’t been influenced by outside sources. Mr Genis argued no need for such an order has been shown.