A gag order issued by the judge presiding over proceedings stemming from the kidnap and murder of Danielle van Dam has done nothing to abate the media’s or the public’s fascination with every nuance of the case. But last week, reader Don Hartman questioned why he was seeing articles in The San Diego Union-Tribune after the gag order had been imposed.
“What exactly is a gag order?” Hartman asked in an e-mail. “And most importantly, what is the role of the press in this case?”
His questions go to the heart of the role of a responsible press in a free society, which is to act as the eyes and ears of the public and to monitor the system to make sure it works as it should.
The gag order does not prohibit the media from reporting on the case. In fact, criminal proceedings in this country are open to the public, and that includes the media. It’s the principals who are gagged, not the media. Witnesses and attorneys anyone involved with the case are under court order not to discuss the case.
Journalists who want to put what they’ve learned in context find themselves relying on uninvolved parties who may not know as much as they think they know, or who can do no more than speculate.
The gag order cut off journalists’ access to informed sources those intimate with this case. That includes not only the prosecution, but attorneys for David Westerfield, a van Dam neighbor who faces trial on charges of murder, kidnapping and possession of child pornography in connection with the death of the 7-year-old girl. The order was sought by Westerfield’s attorneys, who argued it would prevent misleading information and “inadmissible evidence” from being disseminated.
In issuing the gag order, Superior Court Judge H. Ronald Domnitz said it was necessary “to prohibit the case from being tried in the media.”
While a gag order cannot prohibit the media from reporting on the case, it can hamper accuracy, said Kelli Sager, a First Amendment attorney from Los Angeles. Gag orders, she said, are harmful because they result in “rumors and speculation instead of factual information because the people with the facts aren’t allowed to talk . . . It tends to feed inaccuracies and give the public less information than they should have in what’s going on with court proceedings.”
Gag orders, she said, make everyone nervous about confirming even innocuous information. She said there have been cases in which lawyers have gone so far as to say they cannot confirm whether there will be a hearing because they fear they will get in trouble with the court.
Sager said one of the difficulties with gag orders is that they’re rarely effective. “Someone is going to leak information to the press they think is helpful to them,” she added.
The judge in the dog mauling case that is being heard in Los Angeles issued a gag order, after which the defense attorney went on a talk show, she said, adding, “Now, they are going to have to have a hearing on whether the gag order was violated . . . when they should be focusing on the trial.”
Why is it important to journalists to have access to those close to the case? Isn’t it enough to be able to cover the court proceedings when witnesses are under oath and sworn to tell the truth?
Journalists rely on experts to explain to them what they don’t understand, and to confirm or deny what they have learned through their reporting. But when there is a gag order, reporters cannot get an explanation about something they don’t understand. Access to witnesses also helps reporters determine what is rumor and what is fact. It also can give reporters access to both sides of a story.
“I’m sure we all want the same thing, and that is to see justice applied,” reader Hartman wrote. “A fair trial is the only option . . . I would be willing to hear absolutely nothing about this case until verdict if it would ensure justice.”
A dearth of media coverage does not ensure justice. Neither does a gag order. A fair trial does, and that’s up to the court.
The Westerfield case is in its infancy, and already the media has devoted considerable resources to it. The preliminary hearing concluded Thursday, and Westerfield was bound over for trial. There’s a long road ahead. Isn’t it in the interest of justice and the parties involved to make sure that what is reported is accurate? Isn’t accurate reporting hampered when questions cannot be answered?
I agree with those who say that an informed public does not mean a defendant cannot get a fair trial. Being informed and impartial are not mutually exclusive.
