Why the Loughner Trial Needs a Gag Order

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Sometime later this year, probably a month or two from now, court-appointed lawyers for Tucson shooting suspect Jared Lee Loughner will likely file a motion under Rule 21 of the Federal Rules of Criminal Procedure requesting a change of venue for their client's federal murder trial. If and when they do, they will likely argue, among other things, that Loughner cannot receive a fair trial anywhere in Arizona because of prejudicial pretrial publicity following the January 8th attack that left six dead, including a federal judge, and 13 wounded, including a member of Congress.

And when they make this argument, they will undoubtedly point to stories like the ones offered Tuesday night by the New York Times and the Washington Post, which both offered in graphic detail an account of the attack from law enforcement sources who characterized video surveillance tapes they've reviewed from inside the Safeway supermarket two weeks ago. The surveillance video -- more powerful to jurors than any dry signed confession ever could be -- almost certainly will be a huge part of the government's case against Loughner. It might even be Exhibit A if and when the case goes to trial. This is especially so because of the new wrinkle it has added to our knowledge about the event: Chief U.S. District Judge John M. Roll, whose murder forced the recusal of every federal trial judge in Arizona, may have died a hero, trying to save the life of Ronald Barber. 

That's the sort of story, of selflessness and sacrifice, of the last full measure of devotion to public service, that stays with a person the rest of their life, up to and including jury duty. Here is part of what the Times reported:

The video, according to Richard Kastigar, the investigative and operational bureau chief of the Pima County Sheriff's Department, also reveals that Judge John M. Roll appears to have died while helping to save the life of Ronald Barber, a Giffords employees. Mr. Barber, who was near Ms. Giffords when he was shot twice, has left the hospital. Mr. Kastigar said Tuesday that the video shows Ms. Giffords standing with her back a few inches from a wall when she was shot by the gunman, who approached in 'a hurried fashion' with the gun at his side and then raised it and fired a single bullet above her eye at a range of no more than two or three feet.

Good for the reporters at both news organizations for getting the videotape story (I wrote about their stories for Politics Daily, citing both reports). The stories offer intense, new detail about what is said to have happened. They are timely. And they seem impeccably sourced. After all, who else but law enforcement officials would be in a position to see and then leak this looming evidence? And what cynical motives would such media-friendly officials possibly have for disclosing, with such speed and zeal, relevant, material information about the facts of a pending murder trial? Especially before the presiding judge calls everyone in for a conference to warn about the dangers of inappropriately trying the case through the media.   

From the timing (10 days after the crime, just as interest in the story was beginning to wane)  to the tactics (the Times and the Post, for maximum distributive effect), the government's leaking of information about the tape, and the stories such leaking generated, are textbook examples of the sort of unduly prejudicial pretrial publicity that defense attorneys cite, and judges take seriously, when evaluating legitimate change of venue motions. And I would be very surprised if Loughner's sharp defense attorney, Judy Clarke, doesn't make that precise point in her briefs if she ends up requesting that her client's trial be held outside of Arizona.  

What is so unfair, you might rightly ask here, about accurate stories that describe factual events? Criminal defendants lose control of their lives in a million ways, why shouldn't vibrant coverage of news surrounding their alleged crimes be just another one of those ways? And especially here, where there doesn't appear to be a shadow of a doubt, let alone a reasonable doubt, about who pulled the trigger? If Loughner's on the tape, Loughner's on the tape. And why should public officials get all the grief? Doesn't the media (you included, Cohen) deserve a share of responsibility for the effects of prejudicial coverage on fair trial rights? All valid queries. But none of the answers would help us with the practical question here: Can Loughner get a constitutionally fair trial, especially a federal murder trial, anywhere in Arizona in the wake of the Tucson shootings?

When they decide to share this information, the police (and sometimes, the prosecutors) don't suddenly turn into First Amendment devotees so they can help out their reporter buddies. The leaks, and the way the leaks are duly reported, cannot help but inflame passions against the defendant. They cannot avoid further venerating and consecrating the victims. The stories create mental images for potential jurors, forming a cognitive narrative of guilt and culpability (and perhaps anger and retribution) that is then supposed to be dutifully submerged to the dictates of a judge's bleary and obtuse jury instruction about trial fairness. That's the point -- that is why the leaking occurs. There is a virtual library of earnest study -- mainly from the 1960s forward that chronicles the influence of media coverage and its impact upon potential jurors in high-profile cases. Staked out at the intersection of law and journalism, it's been a part of my professional life now for the past 14 years.

The week's big story (from the brazen Kastigar, who evidently allowed himself to be quoted by name without fear of professional repercussion) is in its own way a sly form of the "perp walk," the carefully-choreographed collaboration between the police and the press to ensure that the latter get a good (and perpetually used) photograph or television "walk shot" of a trial suspect, typically in prison garb and shackled. In both cases, the media get what they want, which is the money shot; the police get what they want, which is to influence potential jurors about the defendant's perceived guilt without a judicial filter; the prosecutors can plausibly deny any involvement, even though they often benefit from the leak; and the defense and the judge have to deal with the mess.

It's a game of chicken, really, between the executive branch (the police and prosecutors) and the judicial branch -- with the media productively playing the role of the oncoming trains.

It's a game of chicken, really, between the executive branch (the police and prosecutors) and the judicial branch -- with the media productively playing the role of the oncoming trains. How far can the leaked information go -- how prejudicial does it have to be, for how long, and in what fashion -- before a judge sees enough and moves a case? Obviously, the perp walk alone has never been enough. Nor, typically, is what Kastigar just did, as odious as the move may seem to the ends of dispassionate justice. Even where the prejudice to a defendant is manifest and pervasive, federal trials are rarely moved; for Pete's sake, Jeff Skilling couldn't get his Enron trial moved from Houston. The government typically goes right up to the line of undue prejudice before backing away and, when it crosses the line, judges typically declare anyway that they can remedy the resulting due process problem by selecting particularly earnest jurors following a particularly thorough voir dire. 

FRCP Rule 21 states:

Upon the defendant's motion, the court must transfer the proceeding against that defendant to another district if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there.

The rule, its interpretations over the years, and Tuesday's tape stories, all combine to mark the series of interconnected fault lines that lie beneath this case and the "Judge Roll as Hero" story which is now part of the public record. Here, in one place at one time, we see the tension between Sixth Amendment fair trial rights and First Amendment free press rights. Here we see conflict between legal ethics rules and rules about the zealous representation of a client; between a judge's ability to control a case and a judge's lack of power or will to control much beyond it.

Since being appointed to the case last week from San Diego, U.S. District Judge Larry A. Burns hasn't made any public pronouncements. Perhaps now would be a good time for him to do so. Given the delicate nature of this federal case -- the fact that it involves the shooting of a member of Congress and the murder of a federal judge -- it is not too soon for some kind of judicial order that puts the government and defense on explicit notice that only bad things can come from the continued pretrial dissemination of potential evidence. Yes, a gag order. It wouldn't be perfect -- none are -- but it is Judge Burns' job to help protect Loughner's rights and those rights include protection against the dissemination of devastatingly prejudicial information before trial. An early order here from the judge -- an early anti-Ito expression of control, you could say -- might also in turn help prosecutors when they try to defend the coming venue motion; the less that comes out now the stronger their venue defense will be later.

With that wrinkle in mind, here's what I want to know. Since he seems to be in a sharing, caring mood, perhaps Kastigar will answer a few questions for me. And if not for me perhaps then down the road for Judge Burns or Loughner's defense attorneys. Did federal prosecutors or other federal officials, or state officials or state prosecutors, know that Kastigar was revealing the content of the video to journalists? Did any federal or state official give him permission to do so? Did he ask for such permission or did he simply leak the information on his own? Have there been any conversations between local and state officials, and federal law enforcement officers, regarding their legal obligations not to try the case in public? Is the federal government satisfied or peeved that the stories got such great play? And does this incident presage future conflict between state and federal authorities? I mean, this is Arizona, after all.

Ask and ye shall receive. I wrote all of the above Wednesday afternoon. By Wednesday night, again courtesy of the Times, I had some answers. Evidently, state prosecutors, if not so far the feds, appear mindful of these conflicting rules and tensions, too, and their likely application to the Loughner case because of the surveillance-tape stories. From the Times:  

Meanwhile, the Pima County Sheriff's Department issued a statement Wednesday that it would not release to the public any more information on the shooting case due to a dispute with the office of County Attorney Barbara LaWall. Prosecutors have complained about the sheriff department's release to the media of many details of the investigation of JaredL. Loughner, 22, who has been charged in federal court with murder and attempted murder of five federal officials. 'Until further notice, due to a controversy between the Sheriff's Department and the County Attorney's office, no further information reference the January 8, 2011 shooting will be released,' Deputy Jason Organ, the department's public information officer, said in a statement.

On second thought, maybe now is not a good time to expect a call back from Kastigar. Look, in the end, the resolution of this case is going to rest on three factors:

  • Loughner's choice about a plea or directing his own defense.
  • The government's pending decision to seek the death penalty or not.
  • The defense team's strategy about Loughner's mental health.

None of these has to do with pretrial prejudicial publicity or Rule 21. Loughner's fate won't turn on what jurors know or do not know in advance about the surveillance tape. But there is a right way and a wrong way to prosecute a high-profile trial; there is a fair way and an unfair way for government officials to act. And it's never too early, especially in a murder trial, for lawyers and lawmen to do the right thing. 

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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