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Twohig v. Blackmer5/20/1996
eginning of the trial, the trial court concluded that an order prohibiting communication with the media by trial participants was necessary. Id. at 437. In justifying its order, the court also noted the association of one defense counsel with an attorney not involved in the case but whom the trial Judge considered to have "repeatedly and brazenly transgressed the local rules" regarding extrajudicial statements. Id. at 436.
{25} The Seventh Circuit concluded that newspaper articles that had been published outside the jurisdiction more than seven months before the gag order was issued and association by one of defendant's counsel with another attorney not involved in the pending criminal matter were irrelevant. & n.1. While the Seventh Circuit agreed that cases should be tried in the courts rather than in the media, it did not agree that the trial court had found specific facts sufficient to justify a complete ban on all further speech. Id. See also Davenport v. Garcia, 834 S.W.2d 4, 10, 11 (Tex. 1992) (holding that there must be "specific findings supported by evidence that (1) an imminent and irreparable harm to the judicial process will deprive litigants of a just resolution of their dispute, and (2) the judicial action represents the least restrictive means to prevent that harm," and striking down gag order because it failed to identify any miscommunication, did not indicate any specific harm to the judicial process, and did not indicate why any harm caused by further statements could not be remedied by less drastic measures).
{26} The findings in this case did not warrant imposition of a gag order. The gag order issued in this case contains no specific findings to support the generalized Conclusion that "extrajudicial statements . . . must be restricted by this Court to protect the RIGHT of BOTH the Defendant AND the citizenry of New Mexico to fair and impartial JURY trial(s)." The court nowhere laid out the factual foundation for finding a substantial likelihood of prejudice or clear and present danger to a fair and impartial trial. The order merely draws the Conclusion that "Counsel for both sides have made numerous extrajudicial statements to the media and in public fora which they knew--or reasonably should [have known--will have a SUBSTANTIAL LIKELIHOOD of MATERIALLY PREJUDICING . . . JURY trial(s) in this case." The order does not contain any analysis of the facts supporting the court's Conclusion that a gag order was necessary. Nor does the order indicate that the court considered alternatives less restrictive of free speech rights than an outright ban on all communication with the media--what may not be said, when it may not be said, where it may not be said, who may not say it, and why less restrictive alternatives would not suffice.
{27} Unlike the defendant in Sheppard, House was not to be tried where a majority of the publicity was generated. News stories published at the time of jury selection in House's first trial suggest that despite the tremendous amount of publicity the case had received in Albuquerque, residents of Taos, where House's first and second trials were held, knew almost nothing about the case. See Ed Asher, Gordon House? Who's That? Taos Asks, Albuquerque Trib., June 7, 1994, at A1. Further, the court, attorneys for the State, and attorneys for House had used another tool to combat potential prejudice caused by pretrial publicity--extensive voir dire--which also was available for use in the third trial. Jurors in House's first trial were selected from a venire of ninety persons. These ninety persons were questioned at length about their opinions on drinking and driving, migraine headaches, possible prejudices against Native Americans, and what they
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