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Henry County Judge May Not Enforce ‘Gag Order’ Delaying Media Reporting on Trial

Court Rules Other Means Available to Avoid Biased Jury for Second Defendant

2010-0161.  State ex rel. Toledo Blade Co. v. Henry Cty. Court of Common Pleas, Slip Opinion No. 2010-Ohio-1533.
In Prohibition.  Writ granted.
Pfeifer, Acting C.J., and Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
The late Chief Justice Thomas J. Moyer did not participate in the decision in this case.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-1533.pdf

(April 13, 2010) The Supreme Court of Ohio today granted  a writ of prohibition sought by the Toledo Blade newspaper.  The writ bars the Henry County Court of Common Pleas and Judge Keith P. Muehlfeld from enforcing a “gag order” that would prohibit the news media from publishing or broadcasting stories about the proceedings in an upcoming  manslaughter  trial until after a jury has been impaneled for the separate trial of a second defendant charged in the same incident.

The case in which the gag order was issued involved the death of a child, for which the state charged the child’s mother, Jayme Schwenkmeyer, and her boyfriend, David Knepley, with manslaughter and child endangering.  The charges arose from a joint indictment, but the Henry County Court of Common Pleas granted the defendants’ motions that they be tried separately. 

After earlier scheduled trial dates were continued, the court scheduled Schwenkmeyer’s trial to begin on Dec. 7, 2009, and Knepley’s trial to begin on Feb. 8, 2010. Knepley’s attorneys asked the trial court to issue a gag order to “prevent the jury pool in (Knepley’s) case from being tainted by hearing or reading any published or broadcast media report of the State v. Schwenkmeyer trial.”  With the consent of the prosecutor and Schwenkmeyer’s attorneys, on Dec. 4, 2009, Judge Muehlfeld issued an order granting print and broadcast media access to the Schwenkmeyer trial proceedings, but barring the publication or broadcast of any news stories about the Schwenkmeyer trial “until a jury is impaneled for the trial in State v. Knepley.” Shortly after Schwenkmeyer’s trial commenced on Dec. 7, the court declared a mistrial and scheduled a new trial for Feb. 1, 2010, with Knepley’s trial remaining scheduled to begin on Feb. 8. 

On Jan. 19, 2010, attorneys for the Toledo Blade emailed Judge Muehlfeld requesting that he reconsider the Dec. 4 gag order barring immediate media reporting on the Schwenkmeyer trial. At a hearing on Jan. 26, 2010, Knepley’s attorney argued that the gag order “was absolutely necessary for (his) client to receive a fair trial,” and the Blade argued that the gag order imposed an unconstitutional prior restraint on the newspaper’s First Amendment right to publish truthful information about a public trial.  Neither party introduced evidence in support of its arguments.

In a decision announced on Jan. 28, 2010, Judge Muehlfeld reaffirmed his gag order barring media reporting on the Schwenkmeyer trial until after a jury had been impaneled for the Knepley trial. In his decision, the judge found that the fair trial rights of the defendants must take priority over the right of the Blade to file immediate stories about the trial, and held that without a gag order the combination of a small pool of potential jury candidates in Henry County, strong local interest in the case, and the very brief time interval between the Schwenkmeyer and  Knepley trials would make it nearly impossible for the court to seat  jurors for the Knepley trial who did not have prior knowledge and opinions about the case.

The Blade filed an original action in the Supreme Court seeking a writ of prohibition to bar Judge Muehlfeld from enforcing the gag order and allow the Blade to publish news stories about the Schwenkmeyer trial proceedings immediately.

In today’s 6-0 per curiam opinion, the Court held that Judge Muehlfeld’s gag order was unconstitutional and therefore unenforceable. Quoting from its 1976 decision in State ex rel. Beacon Journal Publishing Co. v. Kainrad, a similar case involving media coverage of separate trials for co-defendants in a murder case, the Court wrote: “(In Kainrad) we set forth the following test for prior restraints in which the defendant’s request for a fair trial is asserted as the basis for the order: ‘An order not to publish cannot be considered unless the circumstances are imperative, and it appears clearly in the record that a defendant’s right to a fair trial will be jeopardized and that there is no other recourse within the power of the court to protect that right or minimize the danger to it. ... Where the constitutional right of a criminal defendant to a fair trial can be protected by the traditional methods of voir dire, continuances, changes of venue, jury instructions or sequestration of the jury, the press and public cannot be excluded from a criminal trial or hearing and no order can be made which prohibits the publishing of news reports about statements made or testimony given during such proceedings until all other measures within the power of the court to insure a fair trial have been found to be unavailing or deficient.’”

Applying those criteria to this case, the Court held unanimously that Judge Muehlfeld had not made evidentiary findings sufficient to support a prior restraint of the Blade’s First Amendment right to report immediately on the Schwenkmeyer trial proceedings.

In its opinion, the Court pointed out that no evidentiary hearing was conducted before the trial court’s original gag order of Dec. 4, 2009 was issued, and that when Judge Muehlfeld later conducted a hearing on the Blade’s request to rescind that order, the court heard argument from both sides but no evidence was submitted supporting a claim that publicity about the Schwenkmeyer trial would be prejudicial to Knepley’s fair trial rights. 

With regard to the proper balancing of First Amendment rights of free speech and Sixth Amendment rights to a fair trial, the Court wrote: “Judge Muehlfeld’s analysis proceeded from the erroneous premise that a criminal defendant’s constitutional right to a fair trial should be accorded priority over the media’s constitutional rights of free speech and press. As Justice Black cogently observed more than half a century ago in Bridges v. California (1941), ‘free speech and fair trials are two of the most cherished policies of our civilization, and it would be a trying task to choose between them.’  ‘The authors of the Bill of Rights did not undertake to assign priorities as between First Amendment and Sixth Amendment rights, ranking one as superior to the other.’ ... ‘When there is a conflict between the First and the Sixth Amendment rights, as in the instant case, the trial court is required to act to resolve that conflict by protecting both the First and the Sixth Amendment rights when, as here, that can be done in a reasonable and lawful way.’ ... The judge’s refusal to accord equal importance and priority to the media’s First Amendment rights was thus plainly erroneous.”

The Court also noted that Judge Muehlfeld’s Jan. 28 decision reaffirming the gag order dismissed  other alternative measures for preventing bias of potential jurors “for reasons that are not supported by evidence or precedent.”  The Court wrote: “The judge rejected a change of venue because he considered it too costly and because it would infringe upon the defendant’s right to be tried in the county in which the offense is committed.  There was no evidence submitted at the hearing on the cost of changing venue, and even if we were to credit the prosecutor’s and judge’s affidavits filed in this writ action about the smaller jury pool in Henry County and the costs involved in requiring travel to a distant county, the result would not be altered.  Henry County borders Lucas County, a populous county, which would offer a more expansive jury pool that would be less likely to be impacted by the pretrial publicity. And the common pleas court is authorized to order the appropriation of reasonable and necessary expenses to cover any additional costs.”

“Nor does Knepley’s constitutional right to be tried by an ‘impartial jury of the county in which the offense is alleged to have been committed’ under Section 10, Article I of the Ohio Constitution preclude a change of venue.  R.C. 2901.12(K) and Crim.R. 18(B) authorize the court to sua sponte change venue when it appears that a fair and impartial trial cannot be held where the action is pending.”

The opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp.  The late Chief Justice Thomas J. Moyer did not participate in the decision.

Frederick Byers, 419.241.8013, for the Toledo Blade.

Max Rayle, 419.354.4442, for Judge Keith Muehlfeld.

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