The Ventura County judge who banned a newspaper from publishing details of a court document in a murder case admits his order was unfair and unenforceable, but he declines to lift the ruling until a defendant can ask an appellate court to uphold the order, the San Francisco Chronicle reports. See the Ventura County Star’s previous story here.
Judge won’t lift order he says is unenforceable
Bob Egelko, Chronicle Staff Writer
Tuesday, December 16, 2008
A Southern California judge refused Monday to immediately lift his order prohibiting a newspaper from publishing a story about a mistakenly released document in a murder case – despite the judge’s admission that the order was both unfair and unenforceable.
Judge Ken Riley of Ventura County Superior Court said he will dissolve his gag order at 5 p.m. Thursday, allowing the murder defendant’s lawyer time to ask an appellate court to leave the order in place. The Ventura County Star promptly posted an article about the court document on its Web site and said it will print the story in today’s paper, despite Riley’s ruling.
“We’ve said all along that this gag order was invalid, it was unconstitutional,” editor Joe Howry said. Riley “tells me that even though the gag order is unenforceable, I can’t publish until two days from now. That makes no sense.”
The article on the Star’s Web site includes an account by a sheriff’s detective of a purported confession by the defendant, Calvin Sharp, charged with killing a 6-year-old boy with a meat cleaver in Newbury Park in August 2007. A detective quoted Sharp as saying after his arrest that he had obeyed commands from a satellite radio.
The county public defender’s office – which had argued that information in the document could jeopardize Sharp’s right to a fair trial – will review Riley’s order and decide what to do next, said Assistant Public Defender Steve Lipson.
“We’re hoping that they abide by his ruling,” Lipson said.
Riley’s order Wednesday, forbidding the Star to print material from portions of a search warrant affidavit in Sharp’s case, was an unusual instance of a prior restraint – a judge prohibiting a news organization from publishing information it has obtained legally.
Any government attempt to block publication bears “a heavy burden of presumption against its constitutionality” under the First Amendment guarantee of a free press, the U.S. Supreme Court declared in 1971 when it allowed the Washington Post and the New York Times to print articles about the Pentagon Papers, a secret Defense Department study of the origins of the Vietnam War.
The Star and other media outlets in Ventura County have long sought information about the sheriff’s investigation that led to Riley’s arrest in the death of 6-year-old Sev’n Molina and the wounding of his mother, Sandra Ruiz, who was repeatedly slashed as she tried to protect her son. Riley released portions of the search warrant affidavit Wednesday but ordered the Star not to publish any other material from the document.
The newspaper said a court clerk had inadvertently given one of its reporters an unedited version of the document in November. The clerk provided the same document to a local radio station, KVTA, which ran excerpts two weeks ago.
The Star obeyed the order, under threat of contempt of court, but urged Riley to reconsider at a hearing Monday, against joint opposition from the public defender’s and district attorney’s offices.
In his decision later in the day, the judge noted the radio broadcast and said it would be “unfair to prohibit the Star from using information” that has already been publicly aired. Riley said his gag order would also be “unenforceable by this court since the Star may have obtained the information from other sources” besides the radio station.
But he said he will delay the effect of his ruling until Thursday afternoon to allow time for an appeal – an action that bewildered the Star’s lawyer, Ron Bamieh.
While stressing that he can’t advise a client to defy a court order, Bamieh said he can’t think of any reason to delay publication any further. “You cannot be in contempt of an unenforceable order,” he said.