Keeping Quiet On Justice?

There's an odd little battle playing out behind the scenes of Summit County Common Pleas Court in the case of the State of Ohio v Ashford Thompson -- and it doesn't have a thing to do with the eventual sentence the admitted killer of Twinsburg police officer Josh Miktarian will eventually get.

The issue is apparently answering questions from the media, namely Ed Meyer of the Akron Beacon Journal, regarding even the simplest of requests for information -- such as when a hearing will be held or scheduled.

Judge Elinore Marsh Stormer fired off an order dated June 25th, 2009 (read the .pdf version here; it's one page) which is unusual in that it specifically targets Summit County Chief Assistant Prosecutor Brad Gessner to keep his mouth shut.

This after Thompson, who admits he shot and killed Miktarian during what was apparently a routine traffic stop, already pleaded guilty and is awaiting sentencing. Not by a jury which may be swayed by comments in the media, but instead a panel of judges which will rule on a life-or-death sentence.

Gessner is talking back, but by motion -- filed July 7, 2009, in response to Stormer's motion. While Judge Stormer took two lines to have her say, Gessner's filing (read the .pdf version here) runs about a dozen pages and points out the power of judges to slap gag orders on cases usually stems from the desire to seat a fair, impartial jury unaffected by commentary or coverage by the media. Such gag orders are quite rare, and in this case it is pretty unusual to see it ordered in a case where the jury deciding Thompson's fate is actually made up of judges who are supposedly immune to public opinion.

Gessner argues the gag order doesn't fit the bill for the normal "purpose and intent" of gag orders, and should be either removed or expanded to include court employees who aren't covered by the order (right now it is aimed at prosecutors and defense lawyers, not court employees) and shouldn't be answering questions posed by the media to the state.

He has some pretty strong language on his side, citing a Fourth Circuit U.S. Court of Appeal (the Feds) decision noting that when a case is decided by a judge rather than a jury there are "...no compelling reasons to restricting lawyer's comments to assure a fair trial." The specific case even mirrors the Thompson case, where the defendant had already been convicted and was awaiting sentencing. In the Summit County case, it is a three-judge panel making this decision.

Gessner's response also note Ohio Supreme Court rulings that a gag order was "...a prior restraint on free speech," and there was a "heavy presumption against its constitutional validity..." when ruling against the broad use of gag orders by judges.

The quote that apparently started all of this? The Prosecutor's office was quoted by the ABJ's Meyer saying "Unfortunately, justice is not coming quickly" shouldn't be enough to issue a gag order, argues Gessner, even if the court (Marsh-Stormer) may find it "offensive." Meyer was questioning (as other news organizations also wondered) why it was taking until October to move forward in the mitigation phase of Thompson's sentencing. His story reported the costs taxpayers would wind up paying for expert witnesses on Thompson's behalf were enough cause for concern to the court.

Both sides were told to not comment on the case, but does that actually include answering procedural questions or something as generic as explaining the process? It has been a year since Miktarian was gunned down in the early morning hours after pulling up beside Thompson's car, and clearly there is interest from the public in seeing how justice is dispensed after the murder of a police officer.