Gag orders should be court’s last resort in a free society

Judges have to make tough decisions when two constitutional rights are in conflict, and the developing criminal cases involving Robert Seman place the defendant’s Sixth Amendment right to a fair trial on one side of the scale against the press and public’s First Amendment rights on the other.

Seman’s lawyer filed a motion last week in Mahoning County Common Pleas Court seeking a gag order that would bar attorneys and law enforcement personnel from publicly commenting on cases pending against Seman.

At the time, Seman faced four counts of rape involving Corinne Gump, the 10-year-old daughter of his former girlfriend, and one count of bribery for allegedly offering the girl’s mother money to say Corinne lied about the sexual assaults.

The challenges facing Seman’s attorney took a dramatic turn Thursday when the Mahoning County grand jury indicted his client on 10 counts of aggravated murder, including six specifications carrying the death penalty. Those charges arise from a suspected arson that killed Corinne and her grandparents, William and Judith Schmidt, in Youngstown in the early morning hours on the day Seman’s rape trial was to begin.

This is a case that is going to attract national attention, but its strongest sphere of interest will be here in the Mahoning Valley, where people can more closely identify with the victims. These are crimes against the state -- against the people -- and the people who feel the pain of these crimes are the neighbors of the Schmidts, the classmates of Corinne, local people who are asking themselves how this could happen.

A gag order absolutely deprives the public of information in a case that is of obvious interest to people in the community where the crimes occurred. And the order requested cuts off the flow of information at the source that could be expected to be the most reliable -- from the investigators and attorneys working on both sides of the case. A gag order also infringes on the First Amendment right of free speech for the lawyers and law enforcement personnel involved in the case.

On the other hand, there are a variety of remedies available to defense lawyers if they believe pre-trial publicity has come between their client and his right to a fair trial. Judges can intensify screening of prospective jurors to examine whether publicity has compromised their ability to function as impartial jurors. They can stress the duty of jurors to deliberate only on evidence presented in court. Once the trial has begun, they can sequester the jury. And if all else fails, they can move the trial outside the area where news coverage has been the most intense.

In short, if a gag order is issued, the press has no options in its attempt to provide information of interest to the community about a case involving the most serious crimes imaginable against, in this case, a young girl and the grandparents who were trying to protect her. Absent a gag order, defense attorneys still have remedies available to them to protect their client’s right to a fair trial.

The very term gag order has a pejorative connotation, and in a free society it should. Prohibiting speech is a totalitarian act that should be employed in only the most drastic circumstances. The court should consider its options and avail itself of those that properly balance Seman’s right to a fair trial with the public’s right to know what law enforcement has been doing in the pursuit of justice for all.