Where is the Media When Gag Orders Chock?

Submission of Opinion Editorial

January 18, 2007

Contact Information Concerning this Op-Ed:

Robert S. “Bob” Bennett
bbennett@bennettlawfirm.com
schauveaux@bennettlawfirm.com
(713) 225-6000
(832) 566-1490
(713) 225-6001 fax

When Cameron County prosecutors convened local press to announce the arrest and indictment of Pastor Arthur Daniel Hayes, they knew exactly what they were doing. They knew the salacious nature of the charges leveled—phony doctors and sexual assaults—would lead to sure headlines and sound bites for the DA’s office. And it did, hundreds of headlines from local to national markets that all, without technically violating journalistic rules of accuracy, characterize Pastor Hayes as a criminal. When the evidence on its face, suggests he is not. When it appeared Pastor Hayes and his lawyers were prepared to answer the allegations waged through the media, the DA suddenly became concerned about pre-trial press coverage. So concerned, he refused to honor his own open-file policy and asked the county judge to gag all parties in the matter, blaming Pastor Hayes’ lawyers for trying the case in the media.

“Trying the case in the media—” it’s a chorus that the DA’s have written and learned to sing, and it’s been going on for decades in Texas and across the nation. It’s becoming far too easy to claim; to the degree at least recently in Texas courts. In the interest of our clients, defense attorneys understand the ways in which media outlets may be manipulated during the course of a criminal proceeding and the courts’ responsibility to guard against jury tampering. But there have to be some standards/criteria. A cursory search on the internet will yield hundreds of recently issued gag orders and not only in high profile cases.

For far too long, reporters who cover the courts have accepted gag orders as a fact of life, without considering how our civil rights are impacted. They need to demand that courts consider the constitutionality of their actions. In Texas, the Davenport case requires “imminent and irreparable harm” to the judicial process before a gag order is appropriate.

Unless this standard is met, the media should be involved in the sacred trust of protecting the First Amendment. So far in Cameron County, based on the Hayes case, their dedication has to be questioned.