Judge to give ruling today on gag issue

By Sarah Stultz | Albert Lea Tribune

Published Tuesday, July 14, 2009

Freeborn County District Court Judge Steve Schwab said Monday he will issue an order by 4:30 p.m. Tuesday on two motions for restrictions in the alleged abuse case at Good Samaritan Society of Albert Lea.

One ruling will be based on three options: To order a press restriction on the use of victims’ names in and outside of the courtroom and in court files, to issue a qualified word of caution before testimony, or to let the motion drop altogether.

Another ruling will be on whether to allow copies of tapes, videos and transcripts of police and state Department of Health interviews with the defendants or to allow public access to view the items, which were entered as evidence May 29.

On June 25, after a motion from Assistant Freeborn County Attorney Erin O’Brien, Schwab issued a verbal order admonishing media and other parties from releasing any victims’ names outside of the courtroom that come up in court. It was unclear whether the admonishment was tantamount to a gag order.

O’Brien said in court Monday an order seemed to be more than she had intended and said her request was for a cautionary statement about use of formerly private information that becomes public once in court.

Minnesota Newspaper Association lawyer Mark Anfinson appeared Monday at the hearing via speakerphone. He said he hoped the court would avoid any order.

Anfinson said the court is not allowed to do this, as it would become a case of prior restraint. In U.S. law, the First Amendment severely protects against this.

“That just isn’t the trial judge’s role,” he said.

The right to use the information released in court should be left up to news organizations to do as they choose, he said. It is beyond the court’s power to grant this, he said, because of the First Amendment’s protection of free speech and free press.

He said even a word of warning from the bench would have “a chilling effect.”

O’Brien said she hopes news entities and other parties watching the proceedings would be respectful of the involved victims and their personal information, and what the media do with the information is up to them. She seeks to preserve the Sixth Amendment right to a fair trial.

She argued that the court restrict copies of transcripts, videos and audio recordings of interviews with defendants Brianna Broitzman and Ashton Larson, but she said she did not want to restrict access to inspect them.

“The attempt here is to preserve a jury pool, O’Brien said.

Anfinson said it was an odd distinction to make between copies and access, as a copy of a written transcript is allowed by law.

Broitzman’s lawyer, Larry Maus, said the issues are a balancing act with the access to information and the public right to know versus the interests in the court, part of which is to maintain a proper jury pool.

Maus argued, however, there should be no copies or even access to the evidence. If a news organization has access to a statement from his client, he said, then that statement could become available to the public through dissemination in the media.

He said he was concerned about the damaging effect that could have.

“How do we purge or expunge that from the minds of the jurors who have heard that?” he asked.

He was especially concerned of this happening if evidence from an early part in the case were to later be thrown out.

Anfinson said lawyers need to do a thorough job during jury selection. He said there have been many jurors in high-profile cases who have seen incriminating evidence but who were willing to set it aside when it came time for the trial. Some criminal defendants have even been acquitted of all charges by juries who had prior access to a case through press coverage.

Larson’s lawyer, Evan Larson, made little comment.

Look to AlbertLeaTribune.com for Schwab’s ruling Tuesday after 4:30 p.m.

Broitzman and Ashton Larson were charged in December with at least 10 counts each related to alleged abuse, after a Minnesota Department of Health report into the matter was released last August.

The report concluded four teenagers were involved in verbal, sexual and emotional abuse of 15 residents at the nursing home in Albert Lea. The residents suffered from mental degradation conditions such as Alzheimer’s disease and dementia.

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