November 11, 2013
The gag order issued in the recent malpractice trial against cardiologist Mark Midei didn't prevent media from dredging up the disgraced doctor's past, from describing how he lost his medical license or how he has been sued by hundreds of former patients for allegedly performing improper stent procedures. It didn't keep his former employer's name — St. Joseph Medical Center —or the name of the Towson hospital's former parent, Catholic Health Initiatives, out of the papers.
Instead, it set up a scenario in which journalists had no way to verify their understanding of the complicated proceedings with the participants, who were barred from speaking to media, before reporting to the public. That led to speculative stories about the meaning of court rulings and more than a few contradictions in accounts. Given how fast and far information travels via social media and websites, allowing for such incomplete — if not outright incorrect — information can't be in the interests of justice or a fair trial no matter how good the intentions.
In Dr. Midei's case, the corporate defendants who once employed him asked for the gag, out of concern that lawyers for the plaintiff, Glenn Weinberg — a one-time patient who claimed he received unnecessary stents — would grandstand on the courthouse steps. The order from Baltimore County Circuit Court Judge Nancy M. Purpura barring lawyers from making "extrajudicial statements" to media is similar to those in place in other cases, past and present, against Dr. Midei. But such restrictions on the free speech of court officers are not limited to civil cases or those involving businesses with reputations to protect.
Gag orders were put in place during the Baltimore trials of twin teenage brothers accused of setting fire to a pit bull; during the murder trial of Michael Maurice Johnson, who is accused of killing 16-year-old Phylicia Barnes, then dumping her body; and in a sexual assault case filed against Nelson Bernard Clifford, who has repeatedly been charged with rape and has repeatedly been acquitted.
Two of those criminal cases — the ones against the brothers and Mr. Johnson — and the recent civil case against Dr. Midei resulted in mistrials, despite protective gags, ostensibly put in place to prevent jurors from being exposed to information they shouldn't see. Yet in all of those instances, media still reported to the public on potentially prejudicial aspects of the high-profile cases, including criminal histories, plea deal possibilities and evidence that couldn't be shown to jurors because of legal rules. They just did so without the benefit of added context from either side.
Jurors are instructed to avoid all outside sources of information about a proceeding, which means a gag wouldn't matter in an ideal world. Those who break the rules and seek out news anyway should at least get a full picture that has the benefit of balanced commentary from each side.
Gag orders became more commonplace after a 1976 U.S. Supreme Court ruling that said preventing the press from publishing details of a criminal case was improper. Courts worked around the decision by restraining the speech of their own officers, who are already bound by professional and ethical standards, instead of the media.
Because the right to gather news is less clear than the rights to publish it, reporters rarely challenge the orders, instead relying on unaffiliated "experts" to interpret proceedings.
Lawyers too can be loath to push back against gags they didn't request, even though it's their speech being restricted. The gag can, in some ways, make their lives easier by giving them a way out from probing interviews — they can blame their "no comment" on the court rather than their client.
Gag orders are often implemented at the start of a case, before anyone has had the chance to spout off. Such prior restraints on speech shouldn't be taken so lightly, especially when there are alternate safeguards.
Judges can warn participants about permissible statements, then trust them to be professional. Among the safe topics the American Bar Association recommends are a general description of the charges, legal strategies and the scheduling or result of judicial proceedings.
If a gag order is necessary to ensure the integrity of a proceeding, judges could appoint a court liaison for procedural questions or make themselves available to further control the message.
Not all judges espouse gag orders. Many never issue them at all, or only in extreme circumstances after public input. That's the model the justice system should follow. Automatic issuance is not in anyone's best interests.
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