Up and Vanished - Case Evidence 03.20.17

Episode Date: March 21, 2017

Take a deeper look at the evidence as experts discuss new developments in the case.  To learn more about listener data and our privacy practices visit: https://www.audacyinc.com/privacy-policy Learn more about your ad choices. Visit https://podcastchoices.com/adchoices

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play responsibly. If you have any questions or concerns about your gambling or someone else close to you, please contact Connex Ontario at 1-866-531-2600 to speak to an advisor free of charge. Hey guys, it's Rob here. Unfortunately, pain is a little under the weather, so I'll be hosting today's episode. Today we're going to discuss all of the latest developments in reference to the gag order and Tara Grinstead's case. If you recall a few weeks ago, the judge issued a gag order preventing any friends, family, law enforcement, or any potential experts or witnesses from speaking about this case.

or any potential experts or witnesses from speaking about this case. Since the judge's ruling, several prominent media outlets joined forces and filed a motion opposing this gag order. Last Thursday, March 16th, Judge Melanie Cross held a hearing at the courthouse in Osceola to address the motions that were filed to lift the gag order. Today we'll be hearing the audio from the courtroom. to lift the gag order. Today we'll be hearing the audio from the courtroom as both sides plead their cases to the judge in favor of and against the gag order.

This is Case Evidence. The first thing we'll do today is listen to the courtroom audio from last Thursday, March 16th. Just a fair warning, it's pretty long. We've trimmed out as much of the dead time as possible, but it's otherwise completely unaltered. If you want to jump straight to Philip Holloway's discussion, you can forward to around the 51-minute mark. After listening to the courtroom audio, Philip will be discussing his thoughts on the outcome of this proceeding. Court, come to us. Afternoon, everybody. Please have a seat. Let's go ahead and get started.

I believe everybody knows why we're here this afternoon. But I do need to make sure I know Mr. Hudson was going to be participating by phone. Is that correct? Does somebody have him online? Okay. You can hear me, Mr. Hudson? Okay. hear me, Mr. Hudson?

No. Okay, yeah, I'll be able to hear you. I'll be able to hear you. I'll be able to hear you. I think he's more worried about hearing what you have to say rather than what I have to say. All right, and for the record, and for me, of course,

I know everybody over here at this table, but over here at this table, if you would introduce yourselves. Leslie Gaker, Your Honor, for the Journal Constitution, the Associated Press, and WSB. Your Honor, Derek Bauer for the WXIAT. Okay. All right. Very good. Mr. Mobley, first question for you this afternoon is I know your client is not present.

All right. Very well, Mr. Bowden. Here with regard to the motions to intervene and the motions to lift or modify the gag order that the court has placed in this particular case. So what I would like to do is, of course, have the attorneys who filed the motions present their arguments. And then Mr. Mauvey, Mr. Bowden, if you have anything in response, we'd be happy to hear from you all as well. So I don't know if y'all have drawn straws to see who goes first or what? WFP filed a motion first, Your Honor. Okay. All right, Ms. Gaither, you may begin then. Thank you, Your Honor. I'll bring Mr. Hudson. Okay.

We appreciate the court's time and consideration this afternoon. I will admit at the outset it's procedurally a little bit odd because of the gag order. I have not seen the motion upon which the order was granted, so I may say things that are incorrect. I apologize to the court, but we're working with what we've got here. That's perfectly okay. This case involves defendant Ryan Duke, arrested on February 24th and charged in connection with the death of Karen Grinstead who disappeared in October of 2005.

On February 28th, the court on defendant's motion entered a gag order basically covering prosecution, law enforcement, the defendant, the counsel for defendant, unidentified potential witnesses, unidentified expert and other court

personnel, and family members of the victim and the defendant. The order related to all matters relating to the case. This has been read not only as a gag order, but also effectively as a sealing order under Superior Court Rule 21 because the clerk's office is, because they are subject to the gag order, they have taken the position that they cannot release records or docket information in this case. We are here today because we would ask the court to reconsider the gag order on two bases. One, there is no evidentiary record or finding of prejudice which could support the order, and two, because it is overbroad

on its base. It has been long recognized by the Supreme Court of the United States and of Georgia that public access to the judicial system is an indispensable attribute of our judicial system. This is also true with respect to speech about the judicial system and the court system. And it is with this backdrop that gag orders are evaluated. As we set forth fully in our brief in Nebraska Press Association for Stewart, the United States Supreme Court effectively held that an order that restrains the news media directly,

which is not exactly what we have here, is a form of prior restraint which carries a heavy presumption against constitutional validity. Even when an order does not directly restrain the press, however, but only restrains trial participants, it nonetheless faces substantial constitutional barriers. In this state, the leading gag order case in this state is Atlanta Constitutional, Atlanta Constitutional versus state, the 2004 Court of Appeals case, where the court reversed a gag order in a very high-profile case in which the pastor at the House of Prayer Church

was charged with molestation and various acts related to members of the church. And in that court, the court said, a conclusory representation that publicity might hamper a defendant's right to a fair trial is its effect to overcome the protections of the First Amendment. Accordingly, the court held, in order to have a back order on trial participants, there must be a finding that extrajudicial extrajudicial statements will have a substantial likelihood that materially prejudices the trial and there would need to be one specific specific findings of fact based on evidence of the record regarding the impact of

the statements the order would have to permit the type of non-presidential statements of the type that are allowed in the georgia rules of special, specifically Rules 3.6 and 3.8, and any restrictions on non-lawyers should be entered with particular care because there is a significant risk that in those instances such an order could be overbroad. This requires a finding not of volume of publicity, but of actual prejudice, and also of finding that there are no alternatives other than a gas order. Shepard v. Maxwell, the United States Supreme Court case, which is cited in the court's order, is a bit instructive as what may or may not be enough.

In Shepard, where they did actually have a bad order, the court found, among other extraordinary facts, the media was permitted to sit above the bar during trial, they were permitted to publish the names and addresses of potential jurors prior to Borgdier, they were allowed to touch evidence, and they were stationed next to the jury room.

Even then, the court refused to find that pretrial publicity alone was sufficiently enough for reversal, relying heavily on the fact that the trial judge had refused to change a vending motion, had refused to request for jury sequestration, and that other alternate requests to closure were denied. As I said, we contend that the court's order here does not comply with the law and should be vacated for two reasons one there is no evidentiary record or finding of prejudice ajc versus state is clear there must be specific findings of fact based on evidence of records regarding the possible impact of extrajudicial statements and as i said that is a finding of prejudice not just volume

the order contains no factual findings there is no basis to believe that evidence was provided to the court when the order was sought. Georgia law is clear again and again. Even in cases of widespread pretrial publicity, this is Miller versus State, situations where such publicity has rendered

a trial setting inherently questionable are extremely rare. Rockdale Citizen versus state free trial publicity, even pervasive adverse publicity, does not inevitably lead to a fair trial. There must be something more. Otherwise, you can see where a gag order could be requested in every case.

And for the second reason we contend the order should be vacated is it is overly broad and subject to misinterpretation. Because of the implications on First Amendment rights, these orders must be narrowly tailored. They must be no greater than necessary. Courts have repeatedly struck down overbroad orders, including some we've provided to the court in the Ross Harris case, in a Victor Hill case in Clayton County, in the House of Prayer case in an agency versus state.

Here, the order cannot be any broader. And I don't know that, since there was no evidentiary record upon which the order was based, I don't even know where you would begin to narrowly tailor the order because there's no record to do it with. Indeed, at one point it covers others, it relates to all matters, it has no real expiration date until, it does not even expire at guard hour when the jury is in panel, it does not expire until at least the end of sentencing. And it is arguably in violation of Superior Court Rule 21, which, as we set forth fully in our brief, sets forth very specific procedures that have to be followed before a court file can be sealed.

And because it is being read as sealing the court file, we would contend that it's in violation of Rule 21. And for those reasons, we would ask the court to reconsider the order. Thank you, Ms. Gayton. Think of the last time you bought something to wear, something to decorate your house, something for your family or friends. What if each time you made a purchase, you got a little something back? With Rakuten, you can. You can earn cash back on just about anything you buy from over 750 stores. If you've ever bought electronics, home decor, fashion and beauty, or booked a trip, well, you could have got cash back. But don't worry, it's not too late.

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Thank you. Sure. On behalf of WXIA, which is Channel 1111 Live in Atlanta, Georgia and WMAZ, which is channel 13 in Macon. We are honored to be here arguing for your honor, and thank you for giving us the time. We know you've got a very busy schedule. My clients agree with everything that Ms. Gaither just argued.

I think she correctly identified the legal problems with the order that the court entered a couple of weeks ago. But let me just start out by saying that our media clients recognize that you have a duty to protect the defendant's rights to a fair trial. Even in civil cases, you've got to protect the party's rights to fair justice and report. Even in civil cases, you've got to protect the party's rights to fair justice and reform. That is a competing duty with the personal rights that are implicated in a gag order. But gag orders, orders restricting speech of trial participants, or as your order does in this case, those who aren't even trial participants, even the most narrowly tailored gag orders waters are judicial remedies of last resort. They can only pass constitutional muster in the rarest and most extreme circumstances,

and only where there is no other alternative mechanism that the court can employ to mitigate against truly prejudicial pretrial publicity. We certainly recognize that this case is being brought in a small community. The jury pool is by definition smaller and more limited than in larger communities. But the existence of publicity alone, even, as Ms. Gaither pointed out, pervasive publicity, that's not enough to justify an order from the court restricting speech under settled constitutional and Georgia law. And just because there is publicity, and just because the community in which the publicity is relevant is small, those are not constitutionally permissible grounds to enter a gag war of any sort. I think it's important in this case to point out that, just as a matter of fact,

not all publicity is bad publicity. The media, sometimes rightly, sometimes wrongly, gets bad rap, I think. But not all pretrial publicity, even in high-profile cases like this one, is bad. And I think this case is a very good example of that notion, Your Honor. This was a cold case. This was a frozen case. It had exhausted law enforcement resources for a decade. If it were not for media interest in continuing investigation into this case, it's likely there would not have been, and almost certainly would not have been, the important breaks in this case that now have this case pending in this court. So if anything, I think the record before the court shows that this particular case is built on a record that emphasizes the important and valuable role that news media can play in the administration of justice.

It's not all bad just because it exists. It doesn't mean there's prejudice. It doesn't mean there's injury. This case shows the exact opposite, at least on the record currently before the court. So there's not only been no evidence of record that the press coverage has posed a risk, much less a substantial and certain risk that the law requires, that risk, of course, being to the administration of justice, that the law requires before any kind of restrictive gag order can be entered. The record here, I think, demonstrates quite the opposite.

But even if that were not the case, Your Honor, none of the pretrial publicity in this case can fairly be said to have risen to a level of irresponsibility or danger to warrant an order-restricting speech. And as a point of reference, Ms. Gaither talked about the Justin Ross Harris case. We all know this case. This is the hot car death case from Cobb County from last year. This is the Hopcar death case from Cobb County from last year. This case has not generated, and I don't think anyone can fairly say it's likely to generate, anything close to the level of statewide and national scrutiny that that case posed and brought.

And in that case, although it was requested, Judge Staley rejected a guidebook. In that case, although it was requested by the parties, no closure of any court proceedings was granted. And that was notwithstanding serious and pervasive dissections of challenged and disputed evidence in the media, national and local, on an almost daily basis. And that is not the record here, and it can't be, because it just hasn't happened here. Judge Staley had, in that case, the very same duty that you had the record here, and it can't be, because it just hasn't happened here. Judge Staley had, in that case, the very same duty that you had, Your Honor, to protect the integrity of the judicial process in your courtroom for the litigants to come before you. And when and only when Judge Staley was confronted in that case with actual record evidence of potential prejudice, did she consider employing judicial remedies in what they were?

And that's how the law is supposed to work. Only when something is presented to you on an evidentiary basis that rises to a level of almost certainty substantial risk of prejudice to a party should the court look at any type of judicial remedy that might close either proceedings, access, or speech to the public. And as you likely know, the remedy that Judge Staley selected in that case was to move the case when it turned out during jury selection that Voirier, searching Voirier, and strong instructions to the jury were not going to be sufficient in the judge's discretion to ensure an impartial jury, she moved it. She changed it in.

The trial got moved to South Georgia, and the conviction was had. What Judge Staley did in that Justin Moss Harris case is a textbook case of how the courts are supposed to balance the competing First Amendment and Sixth Amendment rights that are implicated in criminal trials like this, trials that are of substantial public interest not just to the community, the immediate community, but beyond. The process should be no different in your courtroom, Your Honor. The court should not consider any restrictions on speech of non-lawyers until a reason to do so is manifest in the evidence.

And candidly, Your Honor, we are just not there yet in this case. And frankly, we have no legitimate basis at this point to believe that threshold will ever be met in this case. So for those reasons, on behalf of Channel 11 and Channel 13 in Macon, we do not believe that the order was considered by the court is valid and sustainable. We would ask the court that it be vacated. Ms. Gaither referenced an ancillary issue that I would like to raise as well.

And that is that we understand that although there has not been an order sealing court records in this case, which of course, as the court knows, are presumptively open to the public, nevertheless, the clerk appears to be denying access based on the category order that wasn't. Although the standards and process that would apply to reviewing a gag order and access or closure order when it comes to records access or courtroom access are not identical, as Ms. Gager

pointed out, Rule 21 would apply to sealing the court records. It requires a hearing. It requires evidence. It requires the ability of the public to be heard before closure of the order can be entered. We would ask the court to clarify with the clerk that until such time as such an order has been entered, presumptive public access to the court's records in this case remains. Your Honor, I would like to save a little bit of time to respond to the district attorney and the Public Attorney if a rebuttal is warranted and if it pleases the Court. All right. Thank you, Mr. Baum. Burnside, are you going to add anything today? No, I'm going to stick with what Mr. Bauer said.

All right. And Mr. Hudson, Mr. Hudson, is there anything that you'd like to add? Okay, sir. Thank you. Your Honor, I thank you. I was stressed briefly that this matter of free trial publicity is to tell the fact that it's overstepped. And really there's no basis for concern about free trial publicity in the court. We've had a conference before. We're on to the next meeting. And the law is corrupt in the state, and it doesn't get any. And it's not a reason to forget what I'm writing about the concern for publicity.

But at the outline, I'll provide it to the court and to the other counsel. I just want to point out to the other counsel, the Supreme Court, Supreme Court of the United States, to make clear that you're not entitled if you're a defendant to a jury. Because that will vary anyway. You're not entitled to a jury that has a lot of opinions in the U.S. Supreme Court's head of the Senate. The U.S. Supreme Court keeps whoever person's eye. is This is a vocation to encourage, to purify the case, to purify the facts of the case. The reason that he stole the one-year-old Supreme Court said is a blackmail. It's probation.

It's an act of rest. Now, that's not enough to deprive the president of his second, Washington-Penn trial. And it's not a sentence. If you have a room of the president, then that's a development. Try all the cities by law you can try. Almost any medical law you can try. In my opinion, you can try the order of the Indian House of Chalmers cases. Now, they're always going to be not-for-file cases, and they, of course, have mechanisms to deal with it.

But that's what they get for. The second point I want to make, and it's on the outside, is cases where they have been the first to face a three-thousandth of a mistake. There was always something to be flashed by the trial judge on seriousness not done by the law enforcement case. And in the final analysis to change the venue can be your even more counter perspective. On the first page, you have the tie-in to the 410 against 3-4 cases, those you decided by being able to shut down communication about a criminal case, and then it's a

reasonable that you have certain sub-rhymes with the skinner. The most awful cases were the travel atmosphere was suddenly corrupted by the West Coast. In one case, it was a service-like atmosphere. I came to that position before we talked. Now, a lot of times, if I said, that's what the country's law is, it would allow the media to be a part of the program,

or the boardroom, or the handling documents. uh ... uh And that doesn't mean you have to drive in the county of the burn. The county of the burn section in Georgia now is going to allow you to go to the smaller size county, some distance away, some extra roads there, and right into the old summer for the drivers that's necessary. Also, the base two, a lot of times the defense lawyers will say, well, I hope it's cold in person again. Imagine an old, underlying fact that the murders of the all-day family down in the south of this Georgia, uh I'm sure I'm sure I'm sure

I'm sure I'm sure I'm sure So that's not really what's going to happen in this case. The point 3 of that is the court has acceptable civil procedures rather than a gag order. I'm searching for that. Procurator instructions, jury sequestration, an employee hearing, I'm going to play a hearing on the district out of the field of time on the national trial itself. The lead officer will be there.

And they're saying that the court is speaking for a case in May, which is the first month. And then the last one is not really, I mentioned it earlier. If the court will never contest, we can try this national jury. I have the court there. I have the jury here. Yes. So, your line of light on the constitutional standards and standards that de-emphasize the ability and readiness for publicity. We would submit a ban on record in this case, justified in the restriction of people. Well, not always in the case. All right, it's under the law.

It's a violation of conduct in Georgia. It's what they can and cannot Mr. Moble Thank you, Mr. Hudson. All right. Mr. Mobley? Response? I would agree with Mr. Fowler that the court certainly has a duty to protect the right to extract trial.

That is certainly one of the basic rights that we have in this country. Basically, the courts have said that if a court does not protect a defendant from prejudicial pretrial publicity, that might as well. And under Georgia law, gag orders are justified if there is a substantial likelihood

that extrajudicial statements by trial participants will prejudice a fair trial, and that's from the AJC versus state case that was cited earlier by Ms. Gaither. These standards have also been adopted in the Georgia Bar Rules, and if the gag order is not directed in this case, I feel like Mr. Newt's right to the trial will certainly be honorable. And I want to remind the court that this is not a gag order that's against all members of the media. So it's not subject to the heavy presumption against constitutionality.

This is a much less stringent standard. In addressing some of the concerns that was raised by Ms. Gaither, I first want to say that I have submitted a proposal to your honor and provided a copy to the opposing counsel. In this proposal order that would amend the original order, I have included that the gatherer would include the parties of the defense and prosecution, Mr. Bo Dukes, as well as all Mr. Bo Dukes, as well as all current and past members of law enforcement who have been involved in the investigation of this case. I think that certainly addresses any argument that she also made was to the issue of prejudice. And I certainly agree that we would have to show that prejudice by any extrajudicial statements

is made by any of the metropolis. And to that end, I have submitted to the court and also provided a copy to the Republican Council, Exhibits 1 through 79. This is just an example of the media coverage that we've been able to locate over just the past 21 days. It is not the coverage going back the past 11 and a half years. It is not in coverage going back the past 11 and a half years. It includes various newspaper articles, internet articles. And I would ask the court, before you make a decision in the rule on whether prejudice exists, that you also review these. There are also links to quite a number of web pages.

There have been podcasts. There has been international, national, local coverage. And all of this, some of this should be included in the materials that I provide a copy to everyone of the press conference that was held by the GBI on February the 23rd. This is, as the court knows, one of the biggest cases in South Georgia, certainly the biggest case inwin County. The media coverage has been constant, it's been pervasive, and while that is not the standard for a gag order, that is certainly a good place to start. There's helicopters, there's drones, websites dedicated to this, discussion boards, there's photographs. boards, there's photographs, you name it, it's on the tape. Irwin County has a little over 9,000 people. And I'm afraid that the horse is probably already out of the barn as it relates to the trial here in Irwin County, or even the one in the county of Deerview.

I would just ask, again, as you review these, to see that there's certainly harm and there's some prejudice, especially as it relates to law enforcement statements that they've made thus far. They've discussed the guilt of my client, specifics as it relates to the evidence, as to the experts the states have employed, criminal histories of both Mr. Duke and Mr. Dukes, and that's just to name a few.

I certainly feel like the Indian Gag to be effective and useful in this environment has to include law enforcement. Of course, the parties in the prosecution are already bound by the bar rules, so things that they can and cannot say. In the order that I presented this for, it is my opposed order. I present the report as an opposed order. It certainly limits what all parties can and cannot say as it's related to the rules set out by the bar. They're also modeling on the AJC case

that was referenced earlier. I've also tried to use an example of an order that's previously been used. It was submitted, I believe, by counsel for the AJC and the AP. So I would ask certainly that you consider the order that I have submitted. And we would ask that you certainly sign that order and include all the parties that I've asked.

Thank you, sir. This episode is brought to you by Taco Bell. Hey, Canada, want to do something fun? Want to go to Taco Bell? Oh, yeah. All or your closest store. See yourself buying a home one day? Do future you a favor. Open a Questrade first home savings account and help that future come faster. The FHSA is a tax-free account where all your investment gains are yours to keep

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that case doesn't stand for the proposition that you cannot issue an ad gag order. You just have to follow the standard of doing that. If you listen simply to the attorneys arguing on behalf of the various media outlets represented here today, you would believe that there's no way in the world that every issue of GATT will or that's simply not the case. And we know, while this is not my motion, it's Mr. Dupre's motion, the state not object to it. And we feel that certainly the state has a compelling interest

and that the defendant also received a fair trial and that he received a fair sentence. And that's our interest in it. In that regard, I do have some information. I will state my place. I relayed this to counsel last night on a conference call. But I have spoken to Mr. John Fox yesterday and the day before yesterday regarding him. He represents his attorney at Lapp and Macon and he represents Bo Hughes. I've spoken

to him twice about this proceeding today and he has authorized me to state before that he would agree for the gag order to be entered. He has no objection to that. He has no objection for the inclusion of his client introduced in that gag order. Yesterday afternoon, he called me. He had received a copy of a proposed order that had been forwarded to him by Mr. Bennett. Mr. Bennett represents his guests and he had called me about that and he was concerned that the version of the order sent to him by Mr. Bennett did not include Bo Doos and he was questioning about that and so he again reiterated that he did not go to

Gag order did not pose including his client in Gag order and in fact said he chose to the court and video can also be like other than that I think I would allow for Mr. Robinson. All right thank you Mr. Bowden. Mr. Bauer, Ms. Gaither, any response? Briefly, Your Honor. First, the exhibits that Mr. Bowden is submitting

now, I think they highlight the fact that the order that was entered about a quarter of three weeks ago lacked an evidentiary basis with respect to press coverage. And effectively you're being handed now

a volume of press coverage and being told this is the evidentiary basis that was supported in order. But it clearly demonstrates that there wasn't one as the law requires at the time the court was entered a couple of weeks ago. But more coordinates gave them a properly representative law.

Volume of publicity does not equal credits. But even if it did, the law requires that the party seeking a restricted speech order must show why alternatives to a gag order would not cure the prejudice. We have nothing to suggest that the stack of press coverage that was handed to you presents a clear present danger of prejudice. All we know is that there has been press coverage, and as we know, that's not enough to cross the threshold

to justify a prior restraint for a court in the United States. Again, even if it did, before you even consider during that prejudice by silencing speech, the court's obligated to consider every other on-prem. An order restricting speech is an order of last resort, and we haven't explored any other results. Let me ask you one question. You said an order prior restraint. Yes, ma'am. But this order is not directed to the media, so it would not be considered an order of prior restraint, correct? It is not a prior restraint on the

media, but it is a prior restraint on other individuals, many of whom are unknown and unknowable to themselves and to the media. And there is a body of law in the United States that we've cited in our race to you, in which the courts, including the U.S. Supreme Court, the Brantford case, have said that the media has a First Amendment right to gather the news, and even a gatherer of the silence of speech of witnesses or other individuals with information is a prior restraint on the media's ability to gag them, which is obviously an essential component of the media's ability to report the news.

So it's not quite as clean as suggesting that just because the media is not a line item subject of a gag order that there's no prior restraint. There's still a prior restraint of other individuals, and there's still a constitutional affirmative on the news media's protected rights under the First Amendment to gather news, which they also avoid constitutional protections. Do you agree with his statement that because it's not directed at the media that there's a less strict or less stringent standard? I think that's unsettled in our constitutional jurisprudence,

but I would say it makes no difference under the Georgia law if it's applicable to the entry of restricted speech orders in cases like this. That's what the AJC versus state case says. Now, the DA is absolutely right. That case doesn't say you can't ever have a death order, and no court would ever say that. But what it says is the bar is very high, and it doesn't matter whether the gag order is

limited to trial participants, family members, and exclusive media, you'll have to meet the same constitutional restrictions in order to be able to enter. That means there has to be actual, substantial likelihood that prejudice exists. Not a probability, or

a concern, or in the words of the public defender, I feel like there is prejudice. The court actually has to have tangible proof of a substantial likelihood that there will, in fact, be prejudice to the right of care trial. And even if that exists, and I don't think anybody can fairly say that exists on the record in this case at this point, but even if it did, the court needs to tick off all of those other remedies that Mr. Hudson so beautifully articulated in his presentation. You have to consider whether Wadir will cure the problem. If Wadir doesn't cure the problem, perhaps strict, clear instructions to the jury can cure the problem.

If that can't cure the problem, then we have to have reasons and evidence, reasons why those things would not cure these problems, then we can move the trial. We can go get a jury approval from another jurisdiction and bring them over here. But all those things have to be done, analyzed, vetted, and evidence on why they would or would not be effective before the court can go the next step and say, OK, I'm restricting somebody's state. And that's what the AJC v. State said. That's consistent with the constitutional principles

enunciated by the US Supreme Court over and over again. In those cases, I think recited in all of the interviewer's papers at the moment. So the only other comment I would like to make before I close is that there was a reference by the public defender to a proposed order. And at the request of

counsel and the DA and public defender, the interveners did get on a conference call asking to try to see if we couldn't come to an order, not that the interveners at least from my client's perspective, could consent to, but perhaps one that they would no longer object to. And I raise this just because I want the court to understand that the media cannot consent

or assent to a gag order, an order that restricts speech, that lacks an evidentiary basis, no matter how narrowly they were made. speech that lacks an evidentiary basis, no matter how narrowly they were viewed. While we very much appreciate and respect the, I would say, concession by the parties to the case that the letter of its ender is overbroad and needs to be narrowed, even if it had an evidentiary basis that justified its entry, the lack of any evidence in this case that there actually exists today, a clear present danger that the defendant's right to a fair trial precludes the media from conceding that any gag were as appropriate in the case.

And therefore, we cannot consent for a sentencing. Thank you. All right. Ms. Gaitham? Thank you, Your Honor. I would just agree with Mr. Bauer. I will not repeat what he said. The only thing that I would note agree with Mr. Bauer. I will not repeat what he said. The only thing that I would note on the law enforcement

restriction in the defense counsel's proposal is it does say active and inactive. I think they are talking about retired law enforcement and other individuals as well. And that's another reason we would submit that it's overbroad and a little bit unknowable as to who they mean, especially in this case where i think you've got you know ben hill law enforcement involved in the other in another related case

gbi involved in local law enforcement and actively retired but other than that we would agree with mr power and thank you all right thank you anything else i would just like to add a couple things I don't want to go back and forth but I think first and standard is not whether there's a clear present danger or there's a substantial likelihood of harm and wreckage I think it's certainly clear when you leave these records and I don't know what experience the counsel for the TV station has with criminal cases.

But talking about more dire jury instructions and questioning the jury is great if we're a week from trial. We're talking at least a year or possibly more from the trial case. There's no other way to limit this type of information, to limit the jury from being detained by information that could be released by law enforcement and others. It's just not possible. And I certainly didn't mean to imply in court that any opposing counsel had to send it anyway to this order. It was just one that I thought was certainly fixing the problems that we have, and obviously we were not able to reach agreement. And again, they discussed constitutional rights, the First Amendment rights to media, and while

it's true to a certain point, the substantial likelihood of material prejudice standard is a constitutionally permissible balance between the First Amendment and the right to have effectual autonomy, and that's what we can still go over again by the U.S. Supreme Court. We're also, just also, one more thing to address the AJC case. In that case, it discussed the non-lawyers, the trial participants.

Apparently, the court in that case did not use the correct standard. And they, as we said, tried to use the substantial likelihood of material crisis standard. So there was no issue in that case. And again, I think once you have reviewed the media coverage, and having mentioned the fact that some of the information out there may or may not be admissible in a trial,

would be further tainted during now, or what information may come out between now and the end of the trial, if we're unfortunately for underprivileged or allowed to speak on the stage. That's just another fact to be said. But again, we just ask that you delete the document that I provided. And I've asked you to admit to the records that I've marked exhibits 1 through 79. Okay. Let me handle that first. Any legal objection as to why exhibits 1 through 79 should not be admitted? I don't know if you've had a chance to really look at them yet, but they're up here with me. I haven't looked at them yet.

Yeah. I'm not trying to try to offer the truth of their contents, but there's multiple layers of hearsay in the documents. I'm not sure how much weight the court can put on them without a whole lot of robust authentication process. Okay. Mr. Malday, are you... I'm certainly not offering them the truth. These are most material from my public health clients. I'd be glad to call my prayer leader, Ms. Robbins. She testified to HEC that she did research, copied them,

and they're true and authentic copies of what you saw on the screen. It was a trend that I would rather present to the court about making that. Okay. I'm going to admit them. I don't think they're being offered for the truth of the matter, so I believe it was just for volume and the extent of coverage that has been present. It is your motion. I'll give you the last chance to make a comment before we close. Very briefly,

I do think it's important in light of what Mr. O'Brien has said to just highlight what Mr. Hudson said. Supreme Court law, Georgia law, is very clear that with all respect to a defendant's Sixth Amendment right, which are, of course, of the utmost importance, a defendant is not entitled to a jury that has no knowledge of anything

in the case of the matter. And that alternatives have to be considered. And that is why the law is very clear that we are not talking about volume of coverage and fact of coverage and the fact that some people may come into a jury pool and know some things about the case. That is just insufficient to inf infringe on the first amendment

constitutional rights and that is again why we would say that the record is not established here for any category alright thank you Mr. Hudson you're not present so I forget to ask you if there's anything else that you'd like to add All right. Thank you, Mr. Hudson. I appreciate everybody being here today.

Of course, I'm on review. I've read your motions. I guess I should have told you that before, so you'd have to reiterate anything that you didn't want to. But I've read all the motions, the briefs, and I have not had a chance to look at all the exhibits. I will take some time to do that, of course, and then I will do my own independent research,

but hopefully within the next week you'll have an order. I've got a trial week next week. I've got some time this weekend, so I'm hoping to get all that done. Ms. Gay? May I ask one question, Your Honor? I don't believe that the prosecution and defense will disagree with this, and of course they'll say if they do, but could Your Honor clarify, don't believe that the prosecution and defense will disagree with this, but of course they'll say if they do. But could Your Honor clarify, Mr. Brower, ask whether the records will be open in the meantime, the court files?

Oh, the court files? Yes. I know there's one thing. If I'm not mistaken, there was an order that sealed the record, okay? And somehow it got sealed, okay? So I will issue an order for the clerk to release that. I don't think there's a whole lot else there, to be honest with you. I think the warrants have been filed.

There's not an indictment yet. So I'm not sure of a whole lot else other than what we'll hear about today. But I will ask her to release that, so at least you'll have that. I just don't want to say yes to opening all up because I don't know exactly what's there. Okay, all right. If anybody has anything else, I believe y'all all have my email address. We've been corresponding back and forth, so contact me if you need me. All right? All right, we're adjourned then. Thank you. Now that we've heard the entire courtroom proceedings,

let's get some input from defense attorney and legal analyst Philip Holloway. Okay, wow. I thought we were here for a gag order modification hearing, but at the end what we saw was the judge revealing that she'd done something much more remarkable. She signed an order basically shutting the public out of the complete process, directing that all hearings be held in camera. That means in her office until further order of this court. That means that any pretrial motions, perhaps even a trial or even a guilty plea,

could be done behind closed doors. So in theory, Ryan could go in the judge's office and stipulate to a factual basis, enter a guilty plea, go off to prison, and we would never know what exactly happened to Tara Grinstead. This is absolutely astonishing because in America, we don't have closed criminal courts. In 2010, the U.S. Supreme Court slapped down a DeKalb County judge for doing essentially the same thing and said in no uncertain terms that courts must make every reasonable accommodation to let the public have access to criminal trials. We don't do secret trials or secret courts in America. It's just not how things are done. The other thing about this order sealing the record that's remarkable is that it was done without any kind of evidentiary hearing. We don't even know

who asked for it. It just simply says it was filed February 28th at 3 p.m. It doesn't say which party asked for it. Was it both parties? Was it neither party? Was it the court on its own? Was it everybody acting together? If so, why? We need to know the answers to all of those things. I'm absolutely shocked by what was revealed almost by accident at the end of the hearing today. If it had not been for one of these media attorneys simply saying, you know, look, Judge, while you're thinking on this, will you just instruct your court staff to release the records in the case, the court records? And the judge says, oh, you probably didn't notice this, but I signed an order basically sealing it. In addition, I signed an order that said everything is going to be done privately, in secret.

The wording used in the order, it says, in camera, and in lawyer talk, that means in the judge's office. That's not how it's supposed to work. I have never seen anything like this before in my entire life. I have seen limited court closures for very specific reasons when you have very sensitive witnesses like small children, but not in a case like this. The worst case scenario would be that as if this order is not overturned or vacated, that the defendant could simply go into the judge's office, close the door, enter a plea of guilty, stipulate to a factual basis without giving any details whatsoever, and go off and spend the rest of his life in prison without the public ever knowing what happened to Tara Grinstead.

The public does, in fact, have a right to access the courts. It's grounded in the First Amendment. The U.S. Supreme Court has underscored that fact. And this order simply cannot stand. I certainly hope the judge does the right thing and lifts it. If not, I would expect the appellate courts to do it for her. does the right thing and lifts it. If not, I would expect the appellate courts to do it for her. What I have confirmed as of today, Monday, March the 20th, is that the judge will include in her ruling on the gag order some ruling about whether or not the order to close the court will remain

in place. She could decide to reverse herself. She could decide to double down on it and let it stand. And if that happens, I'm sure it will be appealed by the media. But she did indicate that she's going to address it without the need for further motion hearings involving evidence like what we saw last week. One thing I would tell everybody is that if they want to keep up with the most recent news and developments is to make sure that they check out Up and Vanished on Twitter, because that's where any breaking news will probably come first. I'm personally going to keep a very close eye on this. And just as soon as there's any new information about the court process,

we're going to get it out right away. new information about the court process, we're going to get it out right away. Thanks for listening, guys. Don't forget to tune in on Monday, March 27th for episode 15. See you soon.