Tuesday, April 14, 2009

Blogging in Court -- The Poplawski Case Gag Order Hearing

Judge Manning and Richard Poplawski (file photos)

[Here's my blog post from the court hearing on
the motion for a gag order in the Richard Poplawski case.

Tuesday, April 14, 2009.

I'm writing this in the courtroom of Judge Jeffrey Manning, who granted permission via his staff for me to use my laptop computer for notetaking during the proceeding. These are my raw notes on the hearing, not a comprehensive transcript. They'll help form the basis for my reporting later in the day. Not all quotes here are verbatim -- some are a paraphrasing or a summary of keywords.

10:10 AM

Poplawski not present in court for this hearing.

Common Pleas Administrative Judge Jeffrey Manning: notes for news media that use of laptops to take notes is permissible -- but not to transmit from the courtroom.

Assistant Public Defender Lisa Middleman: says she covered most of what she had to say in her written pleading. Notes that information from police reports and statements or confessions by defendants are among those things she seeks to have covered by a court order. Says her and the DA's office's desire is "to try this case once, in the cleanest way possible". Asks that the judge sign an order preventing further statements from police and prosecutors. Not asking that order cover anyone else. Says families in this case have been extraordinarily dignified.

Assistant District Attorney Mark Tranquilli: notes that he and District Attorney Zappala contacted members of Pittsburgh Police command staff, emphasized to them the importance of curtailing statements and dissemination of evidence to the media. He says he was assured would do so -- but it remains to be seen what effect those efforts have had. Says since dissemination has not abated -- the DA's office joins in asking for court order. Asks that it also cover court staff who have access to filings, pleadings, and to those responsible for housing defendant at the jail. Asks that order also cover agencies that have reports, audio, transcripts, to prevent release of those items to members of the media. Says the DA's office wants the evidence to be heard by twelve citizens, not tried in media. Says they are confident they can give the public the only accurate account of what happened on that terrible day, rather than have the account be the subject of unabated speculation in the media.

Middleman: doesn't think court can preclude release of public filings by attorneys.

Judge Manning: thinks that correct -- they are public record. Judge says any order does not prevent, for example, a police officer who is directing traffic from making a statement, or anyone else not involved in the case.

Middleman: their comments may ultimately reflect on ability to impanel jury, ability to get people who haven't been exposed to coverage of the case and formed an opinion.

Tranquilli: says the records he was referring to are sealed search warrants.

Judge Manning: they're sealed by order of court and will remain so. Notes that under Rule 110 of rules of civil procedure, he may issue an order on extra-judicial statements. Also says that under Rule 111, all court personnel are prohibited from releasing information that is not part of public record.

Judge Manning says that leading case on this issue is 43 years old -- cites case of Sam Sheppard in Cleveland, Ohio, in which the Supreme Court says the court should have acted to deal with this issue. Judge Manning says he will issue order restricting extra judicial statements that applies to all police officers directly or indirectly involved in the investigation, as well as all persons likely to be called as witnesses by the prosecution and the defense. He will prohibit the release any reports and any an all evidence without the authority of the court. Says he will issue his order within the next hour. Also will add to it the persons housing the defendant (at the jail).


Tom McGough, Attorney for the Pittsburgh Post-Gazette: cites a Nebraska case regarding gag orders. Addresses one: who does it apply to, and two: what does it restrict.

Judge Manning: will craft his order so as to not abridge free speech.

McGough: concerned that an order restricting all extra-judicial statements about the case is too broad. Says this is a case of high public concern. Matters that come up every day -- 911 system, Poplawski's confinement, the defendant's grandmother chaining herself to the house -- will beg comment from pubic officials. He suggests they look for state-of-the-art language as to what statements should be covered by the order. Notes Rules 3.6 and 3.8 of professional conduct. Says court tried to strike balance (between first amendment rights and right to a fair trial). Says the public has right to know about public safety, the conduct of judicial proceedings. Says there is often direct significant debate on public policy. Says the standard is whether particular communications will have substantial likelihood of prejudicing a judicial proceeding. Cites example of the Wecht case.

Ron Barber, Attorney for the Pittsburgh Tribune-Review: to expand -- in addition to case-specific matters in which public has interest, there may be other important examples in this case where public interest cries out. Cites hypothetical examples in which a witness feels pressure, or there is no minority representative in the jury pool. he says discussion of those could be covered by the court order if not carefully crafted.

Judge Manning: invites them to submit drafts for him to review. Says he will not issue his order until early this afternoon.

Middleman: Any interest the public may have is separate and distinct from the defendant. Says the defendant waives his right to have information regarding his housing be public, and waives any and all rights to a public proceeding at this point.

McGough: we'll have to wait for a public proceeding to see if that waiving is relevant.

Judge Manning: indicates that he will issue his court order this afternoon. At some point he notes that the news media likes to call it a gag order, but it is actually an order precluding extra-judicial statements by those involved in the investigation and in the court case. He concludes the hearing.

As Judge Manning was leaving the courtroom, I asked him if I could pose a quick hypothetical question: would any court order prevent an elected official from discussing the public safety aspects of the case in, say, a candidates debate?

Judge Manning indicated that it would not. He said it would obviously be better for such an official to discuss the broader public safety issues rather than the particulars of the case -- but that, no, the order would not restrict any elected officials or candidates from such discussions.



Infinonymous said...

Hey Bob

You watched Judge Manning and Mr. Tranquilli in court when the judge was crafting the order and the D.A.'s office was offering lofty comments about a desire to avoid trying the case in the media -- so I would welcome your comments concerning this.


Bob Mayo said...

Thanks for that link, Infinonmyous. I only recently discovered your blog, but I'm long familiar with your comments around the Pittsburgh blogosphere. The PG scanned and posted a pdf image of Judge Manning's order.

Here's a link to my WTAE report on the hearing before Judge Cashman. Lisa Middleman didn't argue that the the fallen officers' families should be sanctioned. Her argument before Judge Cashman was that the district attorney's office should have considered the family members to potential witnesses during any sentencing phase of during the upcoming trial. That is to say, they would be offering victim impact statements under oath. Middleman argued that in light of that, the prosecution should have told them not to speak to the media. Deputy DA Tranquilli argued that the families' comments were about their loss, not about Poplawski.