Few things have kept just about every aspect of America on the straight and narrow as has the media and the right to free speech.
From the Federalist Papers to Watergate and beyond, the United States is what it is due to the public’s right and need to know. Arapahoe County District Court Chief Judge William Sylvester overlooked that this week when he refused to back off a gag order in the James Holmes case.
In the last few weeks, officials from the city, police, the University of Colorado and others have insisted that Sylvester end his far-reaching gag order in the case against Holmes. Holmes is accused of killing 12 people and critically wounding dozens of others during the July 20 Aurora theater shootings. Days after the massacre, Sylvester created a court order forbidding just about any government, hospital or school official anywhere from saying anything about the shootings, Holmes or the victims.
Ever since the farcical O.J. Simpson murder trial in 1995, judges routinely tell police and investigators to keep their mouths shut about high-profile cases in the interest of ensuring that defendants, as well as victims, get a fair trial. Now “fair” is an interesting word in the case of Holmes. Just minutes after the shooting it became indisputable that Holmes was the gunman responsible for the slaughter. The only unanswered questions are: How did he amass such an arsenal, and what made him do such a vile thing?
Prosecutors answered those questions last month when they made their case against Holmes in open court. The Aurora Sentinel and hundreds of newspapers and TV stations across the planet revealed to everyone a mountain of evidence against Holmes, evidence that makes it seem likely that an insanity defense for Holmes will be a reach.
There’s very little reason to continue a gag order against school and police officials who revealed all during Holmes’ preliminary hearing. In fact, there is no reason to keep police and others muzzled at a time when the public has a real need to know how it was that Holmes amassed his arsenal, tipped his hand and stayed out of jail or a mental hospital.
Sylvester’s priority isn’t public safety or the First Amendment. It appears he’s interested in a fair trial above all else. Now in Sylvester’s case, “fair” means finding a pool of jurors that have open minds about the details of the case against Holmes. It’s TV-courtroom fiction that has lawyers looking for 12 people living under rocks that haven’t heard anything about the melee at the Aurora cinema.
Holmes’ lawyers see “fair” as a pool of people willing to agree that Holmes was too crazy to know what he was really doing. That’s going to be a hard job since he obviously kept it together for a long time to amass his arsenal, set up an extensive array of booby traps in his apartment, and pull off a well-orchestrated rampage. Rest assured, an insanity hearing is in the making, and this is going to drag out for a long, long time.
In the meantime, outside of Sylvester’s courtroom, the world still turns. Residents of Aurora have a compelling need to explore the police and fire response to the massacre, and the entire country is trying to sort out issues of gun control based on the particulars of this case.
Sylvester’s response to arguments about the gag order was: Figure it out for yourselves. In his order, Sylvester said that gag order stands, but that government officials, affected by the order, can determine what they can and can’t say.
That’s nothing but shoddy ruling by the bench, and it’s not going to cut it. Aurora police and legal officials have made it repeatedly clear they’re struggling with how to proceed under Sylvester’s comprehensive and unwieldy gag order. Telling officials they can release what they want until Simon says, “wrong move,” is a much greater threat to a fair trial than is a few well-worded orders that let government officials talk about already made-public evidence.
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