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Judge Plans Gag Order in Kennedy Nephew's Rape Case : Courts: News coverage is 'polluting' potential jury panel, she says. Prosecutor claims the senator is using national television to support his relative.

June 08, 1991|RONALD J. OSTROW | TIMES STAFF WRITER

WEST PALM BEACH, Fla. — The judge in the William Kennedy Smith rape case, declaring that "incessant" news coverage is "polluting the potential jury panel," said Friday that she will issue a sweeping gag order barring statements outside the courtroom by prosecutors, defense attorneys, witnesses and investigators.

County Circuit Judge Mary Lupo said the order will cover Sen. Edward M. Kennedy (D-Mass.), Smith's uncle. She described Kennedy as "clearly . . . a witness" after prosecutor Moira Lasch charged that the senator "continually uses a national network of publicity" to present Smith's defense.

Lupo, contending that limiting pretrial publicity about the case is "extremely urgent," acted after giving attorneys only a day's notice of the hearing Friday.

Smith's lawyers had sought a more limited order that would have required prosecutors and police to adhere to Florida's limits on what may be said about pending cases, which the defense attorneys maintain have been repeatedly ignored.

"I am deeply concerned that material that has been published in the media containing graphic detail concerning the alleged events can seriously jeopardize the rights of both the state and defense to a fair trial," Lupo said.

Smith, 30, has been charged with sexual battery--rape in other states--and battery of a 29-year-old woman who drove him back to the Kennedy family's oceanfront estate in Palm Beach, where he, Kennedy and other family members and friends were spending the Easter weekend.

Smith has pleaded not guilty and called the woman's version of events "outrageous lies."

Smith met the woman at a nightclub, where he had gone with Kennedy and the senator's son Patrick, a Rhode Island legislator. In a sworn statement, Patrick Kennedy said Smith had acknowledged having sex with the woman.

At the hearing Friday, Smith's Florida lawyer, Mark Schnapp, withdrew his motion asking that the alleged victim be given an AIDS virus test, similar to the examination Lupo ordered on Smith's blood. Schnapp said the information he sought for Smith had been received.

Lupo indicated that she would issue the order barring out-of-courtroom statements next week, perhaps as soon as Monday, when she has asked prosecutors and defense attorneys to submit a proposed draft of the ban. The judge set a hearing on the issue for next Friday, when attorneys for news media could present arguments.

Lupo repeatedly cited the 1966 Supreme Court case overturning the conviction of an Ohio doctor, Sam Sheppard, for the murder of his wife, partly on grounds that the trial judge had failed to protect the defendant from inherently prejudicial publicity. She said the coverage of the Smith case "very closely parallels" that cited by the high court in the Sheppard case.

"Truth is supposed to be discovered through the trial process," Lupo said. "If we have the trial before we impanel the jury, we're going to have a severe miscarriage of justice for everybody involved here."

Lasch, in asking that the court's order apply specifically to Kennedy, said the senator had commented on the evidence during a national television interview.

She apparently was referring to Kennedy's comments on NBC's "Today" show Wednesday, on which he said that, when he attended law school in Virginia, sexual battery was considered a misdemeanor.

When Smith's lawyer, Randall Turk, noted that he did not represent Kennedy but that he would pass on Lupo's concern to the senator's lawyer, Lasch jumped to her feet, saying: "For them to say they are not in contact with Sen. Kennedy is a total fiction."

The proposed order outlined by Lupo would cover any statements on the jury, potential jurors, witnesses or credibility of witnesses and merits of the case.

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