In re Benton
| Citation | 238 S.W.3d 587 |
| Decision Date | 16 November 2007 |
| Docket Number | No. 14-07-00804-CV.,14-07-00804-CV. |
| Parties | In re Ashley Paige BENTON, Relator. |
| Court | Court of Appeals of Texas |
Brian W. Wice, Houston, TX, for relator.
Mia Magness, Houston, TX, for respondent.
Panel consists of Justices FOWLER, GUZMAN, and HUDSON*.
In this original proceeding, relator, Ashley Paige Benton, seeks a writ of mandamus ordering respondent, the Honorable Devon Anderson, to vacate the gag order entered against relator, the trial attorneys, and the attorneys' agents and employees in the underlying criminal case. We conditionally grant the writ.
On June 6, 2006, members of two gangs known as MS-13 and Crazy Crew clashed in a Houston Park. During the ensuing fight, relator, who was then sixteen, stabbed fifteen-year-old Gabriel Granillo. Granillo died at the scene; relator was indicted for murder and certified to be tried as an adult.
On June 13, 2007, the State filed a motion for entry of a gag order. The State asked the respondent to take judicial notice of "(1) the unusually emotional nature of the issues involved in this case; (2) the extensive local media coverage this case has already generated; and (3) the various and numerous media interviews with the defendant and counsel for the defendant that have been published and broadcast by local media." Respondent did not grant the motion at that time. The case went to trial, and on June 29, 2007, respondent declared a mistrial after the jury was unable to reach a verdict.
Relator and the State then entered plea bargain negotiations. On Thursday, July 12, 2007, the following article about these negotiations appeared in the Houston Chronicle:
Ashley Benton's attorneys will try again to negotiate a plea bargain today for the stabbing death of gang leader Gabriel Granillo.
Attorney Rick DeToto said prosecutors made an offer Wednesday, which was rejected. He said he will make a counteroffer today but doesn't expect to reach an agreement. If negotiations break down, Benton will get a date for a retrial.
"We could go to trial tomorrow if we had to," DeToto said.
Benton, 17, who is charged with murder, was tried last month for stabbing the 15-year-old boy in the heart during a midafternoon gang fight in Ervan Chew Park in June 2006. The week-and-a-half-long trial ended in a mistrial after the jury deadlocked after almost 18 hours of deliberations.
DeToto refused to say what the offer was, except to say that Benton did not want to plead guilty to murder.
The following day, another story elaborating on the proposed plea bargain appeared in the Houston Chronicle:
Ashley Benton's lawyers rejected an offer from prosecutors that called for a murder plea with no prison time in the stabbing death of a gang member, one of her defense attorneys said Thursday.
Prosecutors presented a second offer Thursday morning, but defense lawyer Kent Schaffer said he would not discuss details of that deal.
. . .
Schaffer said the first offer from prosecutors included 10 years of deferred adjudication for the 17-year-old, a form of probation where defendants avoid conviction if they complete the terms.
He said Benton's camp is hoping for a lesser charge, such as aggravated assault, and a shorter probationary term.
At a hearing on Friday, July 13, 2007, relator informed respondent that she was rejecting the State's plea bargain. At that time, respondent set the case for retrial on January 4, 2008. Respondent also informed the parties that she would reconsider the State's motion for a gag order and instructed the attorneys not to discuss the particulars of the plea bargain negotiations.
On Saturday, July 14, 2007, the Houston Chronicle again reported on the plea bargain:
Ashley Benton will face a second trial Jan. 4 for last year's stabbing death of a gang member after she rejected a second plea agreement offer from prosecutors Friday.
Attorneys would not discuss details of the second offer.
The first offer, rejected in court Thursday, called for a murder conviction, no prison time and 10 years of deferred adjudication, one of her defense attorneys confirmed in interviews later that afternoon.
More than six weeks later, the trial court held a hearing on the State's motion for entry of a gag order. The State presented videotapes of television news reports and newspaper articles concerning Granillo's death, the charges against relator, relator's first trial, and the plea bargain negotiations. Relator presented five affidavits from attorneys who had represented defendants in other highly-publicized criminal trials. These included affidavits from (a) Allen Tanner, lead counsel for Angel Maturino Resendiz, "dubbed the `Railcar Killer' by the local and national media";1 (b) Stanley Schneider, co-counsel in the capital murder trial of Robert Angleton;2 (c) Wendell Odom, Jr., co-counsel in both capital murder trials of Andrea Yates;3 (d) Chip Lewis, co-counsel for Kenneth Lay in one of the "Enron trials"4 and co-counsel in the murder trial of Robert Durst;5 and (e) Dan Cogdell, who was involved as counsel in cases commonly referred to as the "Slave Ranch" case, the "Cadet Murders,"6 the "Houston City Hall Bribery Trial," and another of the Enron trials. In essence, each affiant stated, 7 In his affidavit, attorney Chip Lewis further attested that when he acted as co-counsel in the Galveston murder trial of Robert Durst, "we seated a jury . . ., even though Galveston County's jury pool is far smaller than the jury pool in Harris County, and there was no gag order entered . . . ." Respondent excluded six additional affidavits that originally had been offered by the Harris County District Attorney's Office in an unrelated criminal trial as evidence in opposition to the accused's request for a change of venue. Among the items excluded was the affidavit of Karen Richards, Program Administrator for Voter Registration, who stated that in 2005, the list of potential jurors in Harris County included the names of 2,807,640 people.
Respondent granted the State's request for a gag order and entered the following Order Restricting Extrajudicial Statements, which provides, in relevant part:
1. On August 8, 2006, the State charged the Defendant with murder. The State accused the Defendant of stabbing Gabriel Granillo to death in an ostensible gang fight. The Defendant's case generated substantial publicity from the date of the stabbing.
2. The Defendant pled not guilty to the State's allegations, and the case was tried before a jury. On June 29, 2007, the Court declared a mistrial and discharged the jury, because the jury was unable to reach a verdict.
3. The Defendant's case, before, during and after trial, generated extensive media coverage and publicity. The Court set the Defendant's case for a second trial in January 2008, with the hope that publicity surrounding the case would decline by that time and interfere less with the Defendant's right to a fair trial and impartial jury.
4. On more than one occasion, the Court has admonished trial counsel to try the case in court and not in the media. The Court made clear its expectations that counsel adhere to the letter and spirit of Texas Code of Professional Responsibility provisions governing extrajudicial statements to the media. The Court's expectations were not met.
5. Before, during and after the Defendant's trial, counsel for the Defendant exhibited an extraordinary willingness to grant interviews to the media. Various media outlets published numerous interviews with trial counsel and many stories about the Defendant's case.
6. Despite the Court's admonishments, before, during and after the Defendant's trial, counsel for the Defendant continued to make extrajudicial statements to the media that violated TEX. DISCIPLINARY R. PROF'L CONDUCT 3.07, reprinted in TEX. GOV'T CODE, tit. 2 subtit[.] G app[.] A (Tex. State Bar R. art. 10, § 9).
7. For instance, after the Defendant's trial, counsel for the Defendant discussed the parties['] attempts to reach a plea-bargain agreement with the media in detail. Counsel's extrajudicial statements included the explicit terms of the State's offer.
8. Counsel's continued, numerous, extrajudicial statements to the media increase the publicity surrounding the case, thereby potentially jeopardizing the Court's ability to seat an impartial jury in this case.
9. Counsel's apparent willingness to continue to make inappropriate and unethical extrajudicial statements to the media poses an obvious and specific, serious threat to the judicial process that is likely to interfere with the Defendant's fair trial rights and prejudice potential jurors.
10. There is a substantial probability that the Defendant's fair trial rights will be prejudiced by publicity that an order restricting extrajudicial commentary by trial counsel for the Defendant and the State would prevent. Further less restrictive alternatives to such an order cannot adequately protect the Defendant's fair trial rights.
11. The Court has a duty to preserve the Defendant's fair trial rights and a duty to ensure as much as possible that pretrial publicity does not impermissibly influence the jury.
12. An order restricting extrajudicial commentary by trial counsel for the Defendant and the State is necessary to protect the Defendant's rights and deal with this obvious[,] imminent and severe threat to the judicial process.
13. While the Court is mindful of the great contributions the media has made to our society and that the First Amendment is an important right afforded by our Constitution, freedom of expression must, under these circumstances, yield to the Defendant's right to a fair trial.
In light of the...
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