Constitutional Law
Jun. 21, 2002
Gag Order After Speech Trial Seems to Miss Point
SAN FRANCISCO - U.S. District Judge's Claudia Wilken's controversial gag order silencing the Earth First jury drew a strong challenge this week by lawyers for the San Francisco Chronicle, joined by the Oakland Tribune.
The newspapers' application to intervene and motion to vacate the order will be considered June 28 during a post-trial hearing before Wilken in Oakland.
At that hearing Wilken also will consider what to do about the jury's inability to decide whether plaintiff Darryl Cherney's arrest violated his Fourth Amendment rights.
"I have directed my lawyers to request a new trial on that issue," Cherney said Wednesday. "This case is not going away."
Cherney, the Earth First leader who was injured - and arrested - with the late Judi Bari in a 1990 car bombing, said the door remains open to a government offer to settle.
Another possibility is that a new trial could be delayed while Earth First appeals Wilken's decision to exclude from the defense list former San Francisco FBI chief Richard Held Jr., Cherney said.
"Her gag order makes it hard for us to understand exactly what the jury had in mind when they hung on my arrest," Cherney said. "It's a mystery."
The gag order was almost instantly broken by one juror, who spent 17 days deliberating the environmentalists' First Amendment rights only to have the judge squelch his or her own freedom of speech.
That juror spoke last week on condition of anonymity to reporter Mike Geniella of the Santa Rosa Press Democrat.
He or she told Geniella the jury believed from the beginning that FBI agents and Oakland police violated Bari's and Cherney's constitutional rights in their investigation of the bombing.
The rest of the jury's long consideration of the case was spent working out the details of just which defendant did what to whom, and how much cash damages to assess each, the juror said. The total came to $4.4 million.
The juror did not answer Cherney's question about why the panel failed to reach a verdict on his Fourth Amendment arrest claim.
After she read the verdict, the judge ordered the jurors not to discuss the case with anyone but their families until any appeal is decided.
Wilken is a former federal public defender; she was appointed to the bench by President Clinton in 1994. Her left-leaning background includes attendance at meetings of the National Lawyers Guild, though she has said she can't remember whether she was actually a member.
A Daily Journal profile written before the Earth First trial quoted defense lawyers protesting that on the bench Wilken betrayed her liberal roots by excluding important evidence of prior FBI civil rights abuses.
Early in its deliberations, the jury sent a note asking Wilken for a copy of the First and Fourth Amendments.
Government lawyers asserted that those fundamental laws of our nation should be withheld from the panel because they were not in evidence.
Wilken said she'd feel "sheepish" about keeping the Bill of Rights from federal jurors. But without explanation she refused to hand over the document; instead, she read the First and Fourth Amendments aloud.
Her rationale for gagging the jury was similarly unclear.
She said it was because of defense claims that the jury had been tainted by overhearing an Earth First rally outside the courthouse. Wilken queried each juror about that event; each said the demonstration had not influenced deliberations.
The gag order, Wilken said, was necessary because the rally might become an appellate issue. Defense lawyers earlier had unsuccessfully complained that the rally was grounds for dismissal of the case and for sanctions against the plaintiffs.
But by putting the jurors' assertions about the rally on the record, Wilken appeared to have dealt with the issue.
What further good could a gag order do?
"What the jurors have said is available for an appellate court to consider, because the judge questioned them," said attorney Terry Francke, of the California First Amendment Coalition in Sacramento.
"It's not clear what harm the court feels is threatened here. I don't know of any authority for this at all."
Or, as the Chronicle's Roger R. Myers, of Steinhart & Falconer, put it in his motion for dismissal:
"In this case, it appears the court entered its order without prior notice to the public, and without the formal factual findings required of any restriction on the media's contact with trial participants.
"On that basis alone, the gag order violated the First Amendment."
John Roemer
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