Columbus Parks & Rec update: Judge refuses gag order on investigation, sets new hearing for Oct. 1

chwilliams@ledger-enquirer.comSeptember 17, 2010 

Saying he found a defense motion for a gag order in Columbus’ Parks and Recreation investigation “woefully insufficient,” Muscogee Superior Court Judge John Allen today refused to shut down the release of government information in the case.

But Allen also left the possibility open, saying he would consider the defense motion again in two weeks after reviewing all the news reports on the investigation that led to the arrest of Parks and Rec Director Tony Adams and a subordinate.

That next hearing will be noon Oct. 1.

The motion filed Thursday sought to restrict attorneys, potential witnesses and law enforcement officials from talking to the media.

Shevon Sutcliffe Thomas, the third attorney to represent Adams since the police investigation began in May, said he is seeking the gag order because “information has been leaking out left and right.”

Ledger-Enquirer Executive Editor Joe Kieta said the newspaper will continue to fight the gag order.

“The law clearly limits gag orders except under very narrow circumstances, and we feel those circumstances have not been met,” Kieta said. “Any court-ordered muzzle on what could be a very large number of potential witnesses would set a dangerous precedent that we cannot let stand.”

The ongoing police investigation has produced three arrests. Last month, Adams and subordinate Herman Porter were arrested and charged with two felonies in connection of the misuse of more than $200,000 in money for a Nike-sponsored youth basketball team operated by the city. East Marietta Basketball Inc. Director of Basketball Operations William Fox was arrested Monday and charged with one felony.

During Tuesday’s council meeting, Mayor Jim Wetherington, who called for an internal audit of the Parks and Recreation Department and, later, the police investigation, offered to share evidence in the case with members of the Interdenominational Ministerial Alliance, which has asked the mayor to shift the investigation to the Georgia Bureau of Investigation.

“When the central figure is offering to give up evidence, that is something for alarm,” Thomas said.

Columbus criminal defense attorney Bill Mason, who taught constitutional law at Columbus State University, said Wetherington’s actions are problematic. As the city’s public safety director, the mayor would likely fall under the gag order as part of law enforcement, Mason said.

“One of the major problems is the mayor has said he has evidence of their guilt and offered to share it with the public,” he said. “In my opinion, that is a good reason for the gag order right there.”

One of the problems with a gag order would be restricting potential witnesses from talking.

“Whether a judge can order a potential witness not to discuss the knowledge of the case would be on the outer limits of a judge’s authority,” Mason said.

The gag order specifically seeks to restrict those involved from discussing the case with reporters. The intention is not to silence the media, Thomas said.

“My concern is due process,” Thomas said. “At the rate everybody is going, the jury pool is going to be poisoned.”

The Ledger-Enquirer has been reporting on the Parks and Recreation issues since May 17 when the newspaper obtained a copy of an internal audit that raised questions about the department’s operations and money-handling procedures.

The newspaper has used the Georgia Open Records Act to gather information about the department and the Georgia Blazers basketball program, which was operated by the city.

Muscogee County District Attorney Julia Slater said she will not oppose the motion.

“I don’t want to try this in the media,” she said. “I want to try it in a courtroom, where it belongs.

“The discussion of evidence in a criminal case in the media prior to trial is always dangerous.”

The rule for gag orders is that there needs to be a showing of the likely prejudicial impact of pretrial publicity, said David Hudson, an Augusta, Ga., attorney who represents the Georgia Press Association.

“Factual reporting of comments about a case has been held by the Georgia Supreme Court not to be prejudicial,” Hudson said.

Extensive reporting does not automatically taint a jury pool, Hudson said.

“The proper remedy is for the Court to use careful voir dire at the time of trial to eliminate any jurors who have made up their minds already,” said Hudson, referring to the process by which potential jurors are questioned about their backgrounds and potential biases. “The constitution does not require jurors who are ignorant of the general facts of the case; it only requires jurors who are committed to deciding the case based on the evidence actually admitted at trial.”

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