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State v. House11/20/1997
for comments the prosecution made criticizing jurors from Taos County who voted to acquit Defendant in the previous trials. In fact, the State became concerned enough about the negative comments being made in the media that it moved for a gag order shortly after the second mistrial was declared.
{34} The State argued that comments defense counsel was making in the media prior to the third trial that were critical of the prosecution were improper, would make it impossible for the State to receive a fair trial, and required the district court to issue a gag order. In particular, the State pointed to an Op-Ed article defense counsel wrote for the Albuquerque Journal, as well as a couple of appearances defense counsel made on local talk shows. In response, defense counsel contended that his remarks were simply in response to improper comments made by the district attorney in the media and were also intended to counteract all the negative and inaccurate information that was being circulated in the press. To substantiate his position, defense counsel submitted a collection of over 200 newspaper articles to show the negative publicity against Defendant. In addition, defense counsel also submitted a video tape containing numerous television news reports of this case. Finally, defense counsel submitted a complaint he filed with the state disciplinary board against the district attorney as evidence of his claim that the district attorney was making untrue and inflammatory comments in the press to prejudice Defendant's right to a fair trial.
{35} The district court ultimately granted the State's motion for a gag order and the decision was reversed by our Supreme Court pursuant to a writ of superintending control. See . In Twohig, our Supreme Court recounted the history of this case as it unfolded in the media. (summary of public comments and accusations between prosecution and defense). But even though our Supreme Court characterized the publicity in this case as unprecedented, the Court concluded that there was a complete lack of factual findings to support the Conclusion that the parties' right to a fair trial was endangered by attorney comments in the press. . We believe that the same lack of factual foundation that was fatal in Twohig exists in this case, particularly since our Supreme Court noted that the inquiry is the same whether the Court is called upon to analyze the constitutionality of a gag order or determine whether pretrial publicity has deprived the defendant of a fair trial.
{36} However, because Twohig approached the case from the perspective of defense counsel's and Defendant's right to free speech, the opinion does not fully resolve whether the negative publicity directed against the State rose to such a level that the State would be unable to receive a fair trial in Taos County. The district court was apparently concerned about the negative publicity against the State that occurred in response to statements made by the district attorney criticizing Taos jurors who voted to acquit. However, to the extent that negative publicity against the State occurred in response to comments made by the district attorney in the press, the State may not rely on such pretrial publicity to support its motion for change of venue. See ) (party moving for a change of venue may not rely on pretrial publicity that the movant caused).
{37} The district court also specifically referred to comments made by former and current Taos state senators to support its Conclusion that a fair trial was not possible in Taos County. The first item referred to by the court was a letter to the editor of the Taos News purportedly written by Francisco "El Comanche" Gonzales, a former state senator from
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