Lubbock federal jurist has said they protect jury, deliberative process
01/31/2000
Associated Press
LUBBOCK - A federal district judge's penchant for instituting gag orders on nearly every case set for trial in recent years has raised concerns about the right to free speech, legal and media experts say.
During the last two years, U.S. District Judge Sam R. Cummings has ordered parties and attorneys in 219 civil and criminal cases to deny interviews with news reporters, a study by the Lubbock Avalanche-Journal concluded. That count excluded gag orders placed on pending cases, the newspaper reported Sunday.
"It seems a part of his established operating procedure for his court," constitutional-law scholar Rodric Schoen said. "Judge Cummings' orders are far too sweeping. . . . This does involve a very serious infringement on free-speech rights."
Judge Cummings does not speak to the press, his secretary told the newspaper. A woman who answered the telephone at a Lubbock residence of Sam Cummings on Sunday said he wasn't taking calls.
Traditionally, gag orders are applied when a jury pool appears likely to be tainted by excessive publicity or when a defendant's right to a fair trial hangs in the balance, Mr. Schoen said.
"I'm not sure Judge Cummings has the authority to silence the parties," he said. "He seems to think he has direct authority over the free speech of a criminal defendant."
Charles Babcock, the Dallas media law attorney who defended Oprah Winfrey in a 1998 defamation lawsuit brought against her by West Texas cattlemen, said gag orders are "the exception rather than the rule."
"A gag order cannot be imposed as a matter of convenience," he said.
A Supreme Court decision in Gentile vs. Nevada State Bar held that attorneys could be disciplined if their statements could prejudice a case or the fairness of potential jurors.
In an opinion supporting a 1997 gag order, Judge Cummings said his "restrictive orders" protected the jury and the deliberative process.
He interpreted the Gentile case as granting trial courts the ability to "impose restrictive orders on trial participants upon a finding that extrajudicial comments by those participants are reasonably likely to prejudice the defendant's right to a fair trial."
But Mr. Schoen said he thought that the ruling applied only to attorneys. The parties, Mr. Schoen argued, were not addressed. In other words, the Supreme Court has never ruled on whether trial participants can be gagged, Mr. Schoen said.
"Once a jury has been selected, restrictive orders further prevent irrelevant or prejudicial information," Judge Cummings wrote.
But his critics are quick to point out that many of the gag orders were imposed on cases in which there was no jury.
In 1998 and 1999, Judge Cummings ordered at least 80 gags in civil cases.
"I can think of almost no situation where they are called for in a civil case," said Lucy Daglish, executive director of the Reporters Committee for Freedom of the Press. "I think it reflects blatant arrogance on the part of the judge."
In one instance, defendant Patsy Wooten asked Judge Cummings to remove the gag from the case involving Henry Cisneros, former secretary of housing and urban development. Ms. Wooten is the sister of Mr. Cisneros' former mistress, Linda Jones.
"My client just had to go through hell to get justice and was unable to complain openly about the injustice publicly," said Chuck Lanehart, Ms. Wooten's attorney.
Without comment, the 5th U.S. Circuit Court of Appeals agreed with Judge Cummings on the Wooten case and kept the gag order in place.
But when a similar order was imposed on prosecution and defense counsel in the case of the World Trade Center bombing, in the United States vs. Salameh, the 2nd U.S. Circuit Court struck it down.
"You have to trust the jury will listen to the evidence they hear in court and not read the newspaper and the TV reports and be swayed," Mr. Schoen said. "That's the best guarantee we have for a jury to be fair and impartial."