JOE JAMES, JUDY JAMES, CHUCK PETITIONERS HADLEY, GWEN HADLEY, WAYNE STEGER, SABRINA STEGER, and MIKE BREEN v. R. JEFFREY HINES, JUDGE McCRACKEN CIRCUIT COURT COMMONWEALTH OF KENTUCKY, and MICHAEL CARNEAL
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RENDERED: August 17, 1998
TO BE PUBLISHED
MODIFIED: October 16, 1998; 2:00 p.m.
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001955-OA
JOE JAMES, JUDY JAMES, CHUCK
HADLEY, GWEN HADLEY, WAYNE
STEGER, SABRINA STEGER, and
MIKE BREEN
v.
PETITIONERS
ORIGINAL ACTION
REGARDING McCRACKEN CIRCUIT COURT
R. JEFFREY HINES, JUDGE
McCRACKEN CIRCUIT COURT
RESPONDENT
COMMONWEALTH OF KENTUCKY,
and MICHAEL CARNEAL
REAL PARTIES IN INTEREST
OPINION AND ORDER
GRANTING PROHIBITION
***
BEFORE:
***
***
BUCKINGHAM, GUIDUGLI and HUDDLESTON, JUDGES.
HUDDLESTON, Judge.
Petitioners, attorney Michael Breen and the
family members of three young girls allegedly slain by Michael
Carneal, filed an original action, pursuant to Rules 76.36 and 81
of the Kentucky Rules of Civil Procedure, asking this Court to
prohibit enforcement of two orders entered by Respondent, R.
Jeffrey Hines, Judge, McCracken Circuit Court, on June 24, 1998,
and July 28, 1998.
On June 23, 1998, petitioners held a press conference.
They released a psychiatric report on Carneal, alleged that the
investigation into their daughters’ deaths was inadequate, and
expressed their concern that the Commonwealth would not seek the
maximum penalty for Carneal.
On June 24, 1998, Judge Hines, sua
sponte, enjoined attorneys representing the parties in the criminal
action against Carneal, persons working for these attorneys, police
officers,
potential
witnesses,
and
attorneys
and
individuals
contemplating civil litigation from releasing or authorizing the
release of extrajuducial statements related to Commonwealth v.
Carneal, Indictment No. 97-CR-350.
On July 28, 1998, Judge Hines
signed an order which struck petitioners’ pleadings contesting the
June 24, 1998, injunction and prohibited any party other than the
Commonwealth of Kentucky or Carneal from filing pleadings in the
criminal action without leave of court.
This action followed.
Prohibition will only be granted if (1) a trial court is
proceeding outside its jurisdiction and there is no adequate remedy
by
appeal;
or
(2)
a
trial
court
is
proceeding
within
its
jurisdiction, but erroneously, there is no adequate remedy by
appeal, and irreparable harm or great injustice will result if no
relief is obtained.
Potter v. Eli Lilly and Co., Ky., 926 S.W.2d
449, 452 (1996).
Petitioners argue that prohibition is the appropriate
remedy because Judge Hines is acting within his jurisdiction, but
improperly. They contend the June 24, 1998, order deprives them of
their right to free speech and denies them due process which
-2-
results in irreparable harm.
Restraining free speech constitutes
immediate and irreparable harm, if unauthorized.
Nebraska Press
Association v. Stuart, 427 U.S. 539, 559, 96 S. Ct. 2791, 2803, 49
L. Ed. 2d 683, 697-98 (1976).
Furthermore, a party has standing to
contest an injunction constraining his actions, even if not a party
to the principal action.
Courier Journal v. Marshall, 828 F.2d
361, 363 (6th Cir. 1987); CBS, Inc. v. Young, 522 F.2d 234, 237-38
(6th Cir. 1975).
Prohibiting individuals from contesting an order
that constrains their conduct removes any adequate remedy by
appeal.
Petitioners
first
argue
that
Judge
Hines
improperly
asserted jurisdiction over them because they were not before the
circuit court as parties to the criminal proceeding involving
Carneal. A trial court may enjoin parties, attorneys and witnesses
to a case from making extrajudicial statements about that case.
See Sheppard v. Maxwell, 384 U.S. 333, 359, 86 S. Ct. 1507, 1520,
16 L. Ed. 2d 600, 618 (1966); In Re Russell, 726 F.2d 1007, 1010
(4th Cir. 1984).
Petitioners concede that as families of the
victims, they will likely be witnesses for the Commonwealth in the
penalty phase of this trial. Therefore, petitioners are subject to
the trial court’s jurisdiction, and may be enjoined by the court
from making extrajudicial statements.
Petitioners next argue that the order entered on June 24,
1998, violated their right to free speech under both the United
-3-
States Constitution, Amendment I1, and the Kentucky Constitution,
Section 82, and deprived them of their right to due process of law.
In the June 24, 1998, order, Judge Hines enjoined dissemination of
extrajudicial statements including, but not limited to:
a.
The prior criminal record of the defendant [Carneal]
including arrests, convictions, or other charges of crime
regardless of disposition;
b.
The character and reputation of the defendant;
c.
The
existence
of
the
contents
of
any
alleged
confession, statement or admission made by the defendants
or the failure or refusal of the defendant to make any
statement;
d. The existence or non-existence of any evidence or
prospective witnesses relating to the above-captioned
case;
e. The identity, prospective testimony or credibility of
any prospective witness;
f.
The possibility or likelihood of a plea of guilty to
offenses charged, or any lesser offenses whether by the
defendant or a prospective witness;
1
“Congress shall make no law . . . abridging the freedom
of speech . . . .”
2
“Printing presses shall be free to every person who
undertakes to examine the proceedings of . . . any branch of
government, and no law shall ever be made to restrain the right
thereof. Every person may freely and fully speak, write and
print on any subject, being responsible for the abuse of that
liberty.”
-4-
g.
Any opinion as to the guilt or innocence or as to the
merit
of
the
case
or
the
evidence
to
be
presented
therein;
h.
The fact of the offense and the fact that the
defendant
has
been
arrested
and
charged
with
that
offense;
I.
Any medical or mental health examinations or records
of the defendant.
Prior
restraint
on
speech
is
presumptively
unconstitutional. Nebraska Press, 427 U.S. at 558-59, 96 S. Ct. at
2802, 49 L. Ed. 2d at 697.
Prior restraint must be supported by
findings that a “clear and present danger of actual prejudice or an
imminent threat” to the defendant is present. Gentile v. State Bar
of Nevada, 501 U.S. 1028, 1069-71, 111 S. Ct. 2720, 2742, 115 L.
Ed. 2d 888, 919-21 (1991) (citations omitted).
However, parties
before a court may be regulated under a less demanding standard
than
that
established
in
Nebraska
Press.
If
a
trial
court
recognizes that there is a substantial likelihood of material
prejudice to the defendant, it may take measures to protect the
defendant and insure a fair trial.
Gentile, 501 U.S. at 1074-75;
111 S. Ct. at 2745, 115 L. Ed. 2d at 923.
This
attention.
case
However,
has
drawn
extensive
“pervasive,
inevitably lead to an unfair trial.”
adverse
national
publicity
and
local
does
not
Nebraska Press, 427 U.S. at
554, 96 S. Ct. at 2800, 49 L. Ed. 2d at 695.
All the constitution
requires is that a defendant receive a trial by an impartial jury
-5-
capable of fairly considering all of the evidence before rendering
a verdict on the defendant’s guilt or innocence. See Sheppard, 384
U.S.
at
361,
86
S.
Ct.
at
1522,
16
L.
Ed.
2d
at
613-14.
Nevertheless, freedom of discussion must yield if it infringes on
a defendant’s rights under the Sixth Amendment. Pennekamp v. State
of Florida, 328 U.S. 331, 347, 66 S. Ct. 1029, 1037, 90 L. Ed.
1295, 1303-04 (1946).
The trial court may resolve a potential conflict by
entering an order limiting trial participants from disclosing
information prior to trial.
However, before entering such an
order, the court must first determine whether there is a reasonable
likelihood that pretrial publicity will prejudice the defendant’s
right to a fair trial.
See Gentile 501 U.S. at 1074-76, 11 S. Ct.
at 2744-45, 115 L. Ed. 2d at 923-24.
The court should consider,
among other factors, the nature and extent of the publicity,
including whether the information would be admissible at trial,
whether the evidence is already generally known to the public, and
whether the dissemination of the information would infringe the
constitutional rights of the defendant. See Ashland Publishing Co.
v. Asbury, Ky. App., 612 S.W.2d 749, 753 (1980).
If the trial court determines that there is a reasonable
likelihood of material prejudice, it should consider prophylactic
measures before remedial measures are undertaken. Nebraska Press,
427 U.S. at 562, 96 S. Ct. at 2804, 49 L. Ed. 2d at 699.
restrictive
measures
include:
(1)
extensive
voir
dire;
Less
(2)
continuance of the trial; (3) sequestration of the jury; (4) change
-6-
of venue; and (5) explicit jury instructions and admonitions.
Sheppard, 384 U.S. at 358-63, 86 S. Ct. at 1519-22, 16 L. Ed. 2d at
620.
Each of these alternatives must be considered prior to
rejecting them as inadequate.
Dow Jones & Company, Inc. v. Simon,
842 F.2d 603, 611 (2nd Cir. 1988) cert. denied, 488 U.S. 946, 109
S. Ct. 377, 102 L. Ed. 2d 365 (1988).
Finally, if the trial court concludes that injunctive
relief is required, the injunction must be narrowly drawn.
See
Young, 522 F.2d at 238 (“[t]he restraint must be narrowly drawn and
cannot be upheld if reasonable alternatives are available having a
lesser impact on First Amendment freedoms”)
The participants
cannot be prohibited from stating that which is in the public
domain
--
that
an
indictment
was
issued
against
Carneal
for
allegedly killing their three daughters, that he has been arrested,
and that the case is scheduled for trial.
cannot
be
prohibited
from
Likewise, the parties
criticizing
the
manner
government officials or others are handling the case.
States v. Ford, 830 F.2d 596, 600 (6th Cir. 1987).
in
which
See United
The injunction
can only prohibit dissemination of information not within the
public
domain,
such
as
the
psychiatric
report
released
by
petitioners to the press.
Prior to issuing a permanent injunction which prohibits
the dissemination of information by parties, counsel and witnesses,
the
court
should
hold
an
evidentiary
hearing
at
which
all
potentially enjoined persons are given a right to be heard.
See
Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 226 (6th
-7-
Cir. 1996) (holding that ex parte orders restraining free speech
have “no place” in the “First Amendment realm” where no showing is
made that it is impossible to notify the interested parties and
give them an opportunity to be heard).3
See also Capital Cities
Media, Inc. v. Toole, 463 U.S. 1303, 1305-07, 103 S. Ct. 3524,
3526-27, 77 L. Ed. 2d 1284, 1287-89 (Brennan, Circuit Justice 1983)
(granting stay of order prohibiting release of juror names and
addresses where order was entered without a hearing and without
findings of fact justifying it).
The court should make clearly
articulated findings of fact addressing the probability that the
defendant’s right to a fair trial or his constitutional rights
would be irreparably damaged.
injunction
must
identify
Young, 522 F.2d at 239.
less
restrictive
alternatives
The
for
eliminating the prejudice, such as sequestration or voir dire, and
explicitly state why they are inadequate in the present case.
Jones, 842 F.2d at 611.
Dow
Finally, the injunction must be narrowly
drawn, and must address only those actions by counsel or witnesses
which would materially prejudice the defendant’s right to a fair
trial.
3
We perceive that Judge Hines’ June 24, 1998, order was a
permanent injunction rather than a temporary restraining order as
evidenced by the language in the order and his refusal to allow
the order to be challenged by the victims’ families despite their
standing even after a motion to enter a special appearance to
contest the gag order was filed. See Young, 522 F.2d at 237; Dow
Jones, 842 F.2d at 606-08. Ex parte temporary restraining orders
which gag parties, witnesses, etc., may be appropriate under
certain circumstances. See Proctor & Gamble Co. v. Bankers Trust
Co., 78 F.3d 219, 226 (6th Cir. 1995).
-8-
Judge Hines, faced with petitioners’ release of Carneal’s
psychiatric report, quickly acted to curtail a trial by media.
The prosecution and petitioners were at odds, and Judge Hines acted
to insure that Carneal and the Commonwealth would have a fair
trial.
Nevertheless, “any restrictive order involving a prior
restraint upon First Amendment freedoms is presumptively void and
may be upheld only on the basis of a clear showing that an exercise
of First Amendment rights will interfere with the rights of the
parties to a fair trial.”
Young, 522 F.2d at 241.
The trial court
in the case sub judice did not find that there was a reasonable
likelihood of material prejudice, did not consider prophylactic
measures, and did not limit the scope of its injunction.
Therefore, it is ORDERED that the petition seeking a writ
of
prohibition
is
GRANTED.
Judge
Hines
is
PROHIBITED
enforcing the orders of June 24, 1998, and July 28, 1998.
Hines
may
conduct
a
hearing
and
enter
a
pretrial
from
Judge
order
in
accordance with this opinion.
Regardless of any further action taken by Judge Hines,
this Court cautions attorneys involved in this case, including
those representing witnesses and potential witnesses, that they are
bound by Supreme Court Rule (SCR) 3.130(3.6).4
4
SCR 3.130(3.6) provides:
(a) A lawyer shall not make an extrajudicial statement
that a reasonable person would expect to be disseminated by means
of public communication if the lawyer knows or reasonably should
know that it will have a substantial likelihood of materially
prejudicing an adjudicative proceeding.
(continued...)
-9-
4
(...continued)
(b) A statement referred to in paragraph (a) ordinarily
is likely to have such an effect when it refers to a civil matter
triable to a jury, a criminal matter, or any other proceeding that
could result in incarceration, and the statement relates to:
(1) The character, credibility, reputation or criminal
record of a party, suspect in a criminal investigation or witness,
or the identity of a witness, or the expected testimony of a party
or witness;
(2) In a criminal case or proceeding that could result in
incarceration, the possibility of a plea of guilty to the offense
or the existence or contents of any confession, admission, or
statement given by a defendant or suspect or that person’s refusal
or failure to make a statement;
(3) The performance or results of any examination or test
or the refusal or failure of a person to submit to an examination
or test, or the identity or nature of physical evidence expected to
be presented;
(4) Any opinion as to the guilt or innocence of a
defendant or suspect in a criminal case or proceeding that could
result in incarceration;
(5) Information the lawyer knows or reasonably should
know is likely to be inadmissible as evidence in a trial and would
if disclosed create a substantial risk of prejudicing an impartial
trial; or
(6) The fact that a defendant has been charged with a
crime, unless there is included therein a statement explaining that
the charge is merely an accusation and that the defendant is
presumed innocent until and unless proven guilty.
(c) Not withstanding paragraphs (a) and (b)(1-5), a
lawyer involved in the investigation or litigation of a matter may
state without elaboration:
(1) The general nature of the claim or defense;
(2) The information contained in a public record;
(3) That an investigation of the matter is in progress,
including the general scope of the investigation, the offense or
claim or defense involved and, except when prohibited by law, the
identity of the persons involved;
(4) The scheduling or result of any step in litigation;
(5) A request for assistance in obtaining evidence and
information necessary thereto;
(6) A warning of danger concerning the behavior of a
person involved, when there is reason to believe that there exists
the likelihood of substantial harm to an individual or to the
public interest; and
(7) In a criminal case:
(I) The identity, residence, occupation and family status
of the accused;
(continued...)
-10-
ALL CONCUR.
ENTERED: August 17, 1998
/s/ Joseph R. Huddleston
JUDGE, COURT OF APPEALS
4
(...continued)
(ii) If the accused has not been apprehended, information
necessary to aid in apprehension of that person;
(iii) The fact, time and place of arrest; and
(iv) The identity of investigating and arresting officers
or agencies and the length of the investigation.
-11-
BRIEF AND ORAL
PETITIONER:
ARGUMENT
FOR
BRIEF AND ORAL
RESPONDENT:
Mike Breen
Bowling Green, Kentucky
ARGUMENT
FOR
J. Michael Dalton
James T. Blaine Lewis
WOODWARD, HOBSON &
FULTON, L.L.P.
Louisville, Kentucky
BRIEF FOR REAL PARTY IN
INTEREST, COMMONWEALTH OF
KENTUCKY:
Tim Kaltenbach
Commonwealth Attorney
Paducah, Kentucky
ORAL ARGUMENT FOR REAL PARTY
IN INTEREST, COMMONWEALTH OF
KENTUCKY:
Jim Harris
Assistant Commonwealth
Attorney
Paducah, Kentucky
NO APPEARANCE FOR
REAL PARTY IN INTEREST
MICHAEL CARNEAL
-12-
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