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Why Gag the Lawyers?

March 08, 1985

U.S. District Judge David V. Kenyon Jr. has decreed that lawyers in the trial of Richard W. Miller, the FBI agent charged with being a Soviet spy, may not comment on the case outside court. His order is unnecessary, uncalled for and harmful to the public interest.

The judge, citing an interview with Miller's lawyers published in Sunday's Los Angeles Times, said that he was imposing the gag rule in the interest of justice. "This trial will not become a circus show outside the courtroom," he said, clearly thinking of last summer's trial of John Z. DeLorean, in which the lawyers held forth daily on the courthouse steps. But where is the evidence that justice suffered in that case, or in any recent case that received wide coverage?

Frequently the running commentary provided by lawyers after court illuminates the trial and helps the public understand what is going on. The average reader and viewer knows that lawyers are advocates representing one side or the other, and that everything they say is meant to advance that goal. Few people confuse a lawyer's assertions with unchallenged truth.

In the Miller case Kenyon is concerned that pretrial publicity will make it difficult to empanel an impartial jury. But there is no evidence that pretrial publicity adversely affects potential jurors or their ability to render a fair verdict. If anything, interviews with jurors after major trials show how conscientiously and thoughtfully they carried out their duty to weigh the evidence presented in court and to apply the law as explained by the judge. Besides, Miller's lawyers were only responding to the evidence against Miller that has been made public by the government.

In the recent trial in New York of Ariel Sharon's libel suit against Time magazine--which received extensive coverage, including daily interviews with the opposing lawyers--the jury returned a carefully considered and carefully reasoned decision that gave no indication of having been affected by the "circus show outside the courtroom." Gagging the lawyers in that case or in the DeLorean case would have had no effect on the quality of justice delivered. It would only have kept the public in the dark.

Kenyon may find it unseemly for opposing lawyers to annotate a trial while it is going on and to make derogatory statements about each other, but he can hardly maintain that justice is harmed by such behavior. Restricting the First Amendment rights of lawyers is a serious step that should be taken only for the most pressing reasons, which do not exist in this case. The only effect of the judge's order will be to limit public understanding of this important trial. He should reconsider his decision, lift the order and let the lawyers speak.

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