Attorneys for the Arkansas Democrat-Gazette and the Arkansas Press Association on Friday petitioned the Arkansas Supreme Court to overturn a gag order that has quashed details of the criminal investigation into four men charged with capital murder in connection with an Aug. 11 shooting at Southern Arkansas University in Magnolia.
The facts surrounding the campus shooting, which left one student dead and another hospitalized, have been strictly limited because of a gag order issued by Columbia County Circuit Judge David Talley Jr.
Talley issued four identical gag orders on publicity during an Aug. 17 arraignment hearing for the four suspects. The text of the order bars a broad swath of people from disseminating many categories of information about the case.
In the petition for the Supreme Court’s review, attorneys for the Democrat-Gazette and the press group asked the court to temporarily block the gag order while the court considers their request or, alternatively, to overturn it as an unconstitutional restriction on speech and the press.
The shooting occurred after 12:30 a.m. in a campus parking lot on the morning of the first day of fall classes, authorities have said. Southern Arkansas University senior Joshua Keshun Smith, 21, was killed. Another student who has yet to be identified was wounded and was treated at a local hospital, according to the university.
After the university in an initial statement said the suspects were not believed to be connected to the school, four men — three of them current students with erstwhile ties to the football program — were arrested in connection to the case Aug. 14.
The arrested individuals face capital murder and aggravated robbery charges.
SAU students Odies Wilson, 21, Le’Kamerin “Kam” Tolbert, 20, and Shaivonn “Shakey” Robinson, 19, have been charged. Also charged was a non-student, 19-year-old Quincy Lewis.
Talley denied them bail, and they are being held in the Columbia County jail.
During the Aug. 17 arraignment hearing, when explaining his rationale for issuing the gag order, Talley expressed a desire to “let this case proceed properly” and prevent the leak of “extraneous information,” the Democrat-Gazette reported earlier this month.
The text of the order refers to “the apparent public interest in this case and the extensive news media coverage as a result of such interest,” as well as “the rights of the Defendant and the State of Arkansas to receive a fair and impartial trial, and further to seek a fair balance between the constitutional guarantees of a free press.”
According to the order, parties to the case, their families or friends, attorneys and agencies connected to the case, the university, any media outlet, officers of the court, subpoenaed witnesses and public officials, including law enforcement officers, are barred from releasing “documents or exhibits or any evidence.”
People in these categories are also barred from making out-of-court statements “as to the weight, value, or effect of any evidence as tending to establish the guilt or innocence of the Defendant,” among other comments.
Basic details about the defendants, the circumstances of their arrests and charges, as well as public records of the court related to the case are not barred, according to the gag order.
Petition to the high court
Describing the four gag orders as “in excess of the circuit court’s authority, erroneous on their face, and an abuse of discretion,” attorneys for the newspaper and the press association argued in their petition that the orders represent an unconstitutional prior restraint on the press and individuals, and a blanket content-based restriction on speech that they called “vague and overbroad.”
Additionally, attorneys wrote that the order is in violation of Rule 38.1 of the Arkansas Rules of Criminal Procedure, which says that no “judicial order shall be promulgated that prohibits representatives of the news media from publishing any information in their possession relating to a criminal case.”
So far, the consequence of Talley’s gag order is that facts as reported in police reports or affidavits, frequently available in the aftermath of a newsworthy criminal incident, have been sealed from view in this case.
As a result, details that could potentially shed light on the incident and on the investigation leading up to the arrests of the four men are unavailable.
Requests for documents related to the shooting, including probable cause affidavits and incident reports held by the university police department, were denied by an SAU administrator as well as the Columbia County prosecuting attorney’s office. Both cited the gag order.
“At this time, I am unable to fulfill your request for copies of any case information in regard to the matter to which you refer,” Jeff Rogers, prosecuting attorney for the 13th Judicial Circuit, wrote in a recent email to the Democrat-Gazette.
“The Circuit Court has executed a ‘Gag’ order prohibiting all parties, agencies and institutions from speaking to the case,” Rogers continued. “Additionally, the Circuit Court has executed an Order sealing the probable cause affidavit. Furthermore, this matter is considered an on-going criminal investigation at this time.”
In response to a request for police reports related to the shooting, Dr. Donna Allen, the university’s vice president for student affairs, said in an email Aug. 18: “Due to the complexity of the ongoing investigation, no police reports are complete. In addition, the court has issued a gag order on all parties regarding the case including SAU. I’m sorry.”
In a follow-up email, Allen also cited an exemption under the Arkansas Freedom of Information Act that says “undisclosed investigations by law enforcement agencies of suspected criminal activity” may be withheld from public disclosure.
Additionally, Allen said she could not release emails and text messages pertaining to the shooting held by her and university President Trey Berry because of the gag order.
“I would be more than happy to comply if you reach out to him and find that Judge Talley releases us from the GAG [sic] order,” Allen wrote in an email.
Talley did not return voicemails seeking comment last week.
In an interview Aug. 20, Robert Steinbuch, a professor at the University of Arkansas at Little Rock’s William H. Bowen School of Law, said the facts of the case do not warrant a gag order.
“I don’t think that a gag order is appropriate in this case at all,” he said. “Moreover, the scope of the gag order is actually downright ridiculous.”
Steinbuch questioned how the court can gag individuals such as friends and family of the people involved. “They’re not parties,” he said. “How do you gag someone who’s not subject to the court’s control?”
Any non-petty crime will garner some interest from members of the public and the media, Steinbuch said, “because people are rightly concerned.”
Generally, Steinbuch said, gag orders are designed to stop attorneys or parties to a case from speaking in public in a way that is likely to affect a jury’s ability to conduct a fair trial.
“Because of course we all have a 1st Amendment right, and so if you’re impinging the 1st Amendment, you have to have a strong reason to do so,” Steinbuch said. “And it’s generally to protect the criminal defendant.”
Prior-restraint argument
John Tull, an attorney with the firm Quattlebaum, Grooms and Tull who serves as general counsel for the Arkansas Press Association and is one of the attorneys representing the media in the petition to the state Supreme Court, suggested the order constitutes prior restraint of the media.
In an interview last week, Tull said he believes the order does not pass “constitutional muster” under either the U.S. Constitution or the Arkansas Constitution.
Tull pointed out provisions in the order barring families or friends of parties to the case, any attorney or agency connected with the case and any media outlets from publicizing many categories of information related to the case.
“I don’t think the court has jurisdiction to enter that order, constitutionally,” Tull said, adding that the order seems “overly broad” with regard to the people it applies to.
He said that although sometimes courts will place a gag order on parties involved in a legal proceeding, “you offend the Constitution when you broaden it to the extent that this order does.”
Tull referred to a 2000 decision by the Arkansas Supreme Court, Arkansas Democrat-Gazette v. Zimmerman, in which the court sided with news organizations, including this newspaper, with an opinion that said a juvenile judge’s gag order prohibiting the publication of photos was too broad.
The judge in the case had ordered that no photos “of the juvenile defendant or any other juvenile who is present in the Courts Building shall be disseminated by the media, and no pictures of any juvenile entering or leaving the Courts Building shall be disseminated by the media.”
Asked about Talley’s gag order, Democrat-Gazette Managing Editor Eliza Gaines wrote in an Aug. 21 email, “The public deserves accurate, detailed and clear information concerning the proceedings of the criminal justice system in a case.”
“‘Public interest and extensive news media coverage’ does not mean that a restrictive order should automatically be applied to a case,” she added.
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