Resh Case Gag Order: My "Comment" to Eric Mansfield

Thanks to Village Green, I found out that local news anchor Eric Mansfield has a blog. Content-wise it's a good blog. Eric is a solid writer and offers interesting behind-the-scenes information and insight. We've long known that Eric was no mere Guy Smiley and it's confirmed by the blog.

He also asks questions aloud, including one about the Resh case that I will get to in a moment.

Good as the content is, the blog has two major technical shortcomings. There are, I think, three essential technical elements to blogness: A static front-page url on which the most recent content appears, a comments section and a feed. Everyone but Slate has the first. Eric's blog falls short on the second two.

There simply is no comments section. Now from the blog we know that he reviews his email and apparently when comments on a post are running hot it can take over a blogger's day (not that it's ever happened to me), so it's understandable he'd be tempted to not allow comments, but still unacceptable. Also, there's no feed, so I have to remember to check that one blog to keep up to date rather than keep track in my Reader.

So yesterday he wondered out loud why the prosecution in the Randy Resh case asked for a gag order. His question seemed to assume that the prosecution was trying to protect itself from jury contamination. My guess is that the prosecutors don’t fear publicity hurting their case with the jury so much as they fear an appellate court declaring that the pretrial publicity prevented the defendants from getting a fair trial. Pre-trial publicity claims are messy and unpredicatable. The trial court will ask jurors about pretrial publicity, opening the first potential trap door – that they won’t be able to empanel an impartial jury.

But the real headaches start after the trial. The defense may ask for a post trial hearing about the extent of the publicity, usually in the form of a Motion for a New Trial. The trial court listens to the evidence and basically guesses what affect the publicity would have on the jurors without the jurors testifying because the general rule is that you can’t challenge a verdict by hauling jurors into court.

Then whatever the trial court determines is inevitably appealed and the appellate court has to make the same guesses about the affect of the publicity on the jury.

All of this is a pain and a bit of a crapshoot. Neither courts nor attorneys relish litigating pretrial publicity claims. Partly because of the difficulty in litigating the claims, courts pay special attention to the actions of the State. If prosecutors try the case in the media, they are more likely to see the verdict overturned. Conversely, if they do everything they can, like for instance asking for a gag order, the reviewing court will look more kindly on their case.

I would note that if anything, the gag order is more likely to hurt the state’s case. Like, nature, the press hates a vacuum. Without new information on a high-profile case, the press is more likely to run reset stories about the mess that was the first trial, possibly generating sympathy for the defendants.

So that’s what I would have said in a simple comment. Since Mansfield’s blog doesn’t allow comments, he and I get to share it with a hundred or so of my close friends. Meanwhile, I'll be adding Eric to my sidebar once I figure out where to put him.