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The Threat Is Illusory

September 22, 1985

Municipal Court Judge Elva Soper has issued a wide-ranging order forbidding anyone connected with the case of Richard Ramirez, the accused Night Stalker, from talking about it in public. That is a mistake.

This, like all gag orders, is based on the erroneous premise that an accused person cannot get a fair trial amid wide publicity. That is demonstrably incorrect. In high-publicity case after high-publicity case, juries have shown that they, like judges, can take their task seriously and decide matters on the basis of what they hear in court--without evident prejudice and apparently uncontaminated by the publicity, however extensive and emotional. Last year's trial of John DeLorean, for example, was attended by much publicity, but the jury returned a fair and thoughtful verdict that demonstrated its attention to the evidence and the court's instruction in the law.

Nevertheless, many judges persist in depriving people of their First Amendment rights of free speech in the name of protecting a defendant's right to a fair trial. The protection isn't necessary, because the threat is illusory. Judges need to reexamine this bit of conventional wisdom in light of the facts. Juries are more sophisticated than they are given credit for.

If anything, a defendant's ability to get a fair trial can be enhanced by public scrutiny and the expectation of public scrutiny in criminal proceedings. That exposure assures rigorous respect of equitable procedure and the law. What is going on in the Ramirez case while the participants are barred from speaking in public?

Soper's gag order serves no useful purpose. It only invites doubts and questions. It is not in the public interest to stifle discussion of public affairs, including criminal cases of wide interest. Let the lawyers and the witnesses speak. Ramirez will have his day in court, and the jurors will weigh the evidence presented in court against the law that the judge explains.

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