Twohig v. Blackmer

• Decision Date: 20 May 1996
• Docket Number: No. 22704,22704
• Citation: 1996 NMSC 23,121 N.M. 746,918 P.2d 332
• Parties: Ray TWOHIG, Attorney for Gordon House, Gordon House, and Carolyn House, Petitioners, v. The Hon. James F. BLACKMER, Judge, Division II, District Court of the Second Judicial District, Bernalillo County, State of New Mexico, Respondent, and State of New Mexico, Real Party in Interest.
• Court: New Mexico Supreme Court

Page 332

918 P.2d 332

121 N.M. 746

Ray TWOHIG, Attorney for Gordon House, Gordon House, and Carolyn House, Petitioners, v. The Hon. James F. BLACKMER, Judge, Division II, District

Court of the Second Judicial District, Bernalillo

County, State of New Mexico, Respondent,

and

State of New Mexico, Real Party in Interest.

No. 22704.

Supreme Court of New Mexico.

May 20, 1996.

[121 N.M. 747] Adam G. Kurtz, Ray Twohig, P.C., Ray Twohig, Albuquerque, for Petitioners.

Tom Udall, Attorney General, Donna L. Dagnall, Assistant Attorney General, Santa Fe, for Respondent.

Robert M. Schwartz, District Attorney, Steven S. Suttle, Assistant Chief Deputy District Attorney, Albuquerque, for Real Party in Interest.

OPINION

RANSOM, Justice.

1. Attorney Ray Twohig petitioned this Court for a writ of superintending control vacating a trial court order prohibiting all trial participants from communicating with the media about the third trial of Twohig's client, Gordon House. As grounds for his petition, Twohig claimed that this "gag order" impermissibly restricted his rights of free speech in violation of Article II, Section 17 of the New Mexico Constitution and our recently amended rule governing trial publicity, SCRA 1986, 16-306 (Repl.Pamp.1995). We assumed jurisdiction over Twohig's petition under the New Mexico Constitution, Article VI, Section 3 (providing that Supreme Court shall have power of superintending control over all inferior courts). See SCRA1986, 12-504 (Cum.Supp.1995) (establishing procedure for issuance of extraordinary writs). At a hearing held before us on March 22, 1995, we issued our writ vacating the order in question. In this opinion we explain the reasons for our earlier ruling and hold, in the absence of certain requisite findings of fact supporting a conclusion that a universal restriction of speech was necessary to meet a clear and present danger of infringing House's and the State's right to a fair trial, the gag order issued here violated Article II, Section 17 and Rule 16-306.

2. Facts and Proceedings. The amount of publicity surrounding a fatal 1992 Christmas Eve accident and the three trials of House on vehicular-homicide charges well may be unprecedented in New Mexico. From the beginning it was made generally known that House had been involved in a wreck that claimed the lives of Melanie Cravens and her three daughters. It was also made known that when the accident occurred, House was driving at nighttime at a high rate of speed in the wrong direction on Interstate 40. See Steve Shoup, Police Suspect Alcohol in Christmas Eve Wreck, Albuquerque J., Dec. 26, 1992, at A1, A8. It was speculated that House had been drinking, see id., and test results made public by the Albuquerque Police Department (APD) soon after the accident indicated that five hours after the fatal crash House had a blood alcohol level of 0.1 percent, see Robert Rodriguez, Test Says House Legally Drunk, Albuquerque J., Dec. 30, 1992, at A1.

3. Long before the first trial, prosecution and defense attorneys commented extensively in the media about the case and the issues presented by it. The strategies and opinions of the lawyers received early press coverage. An article appearing in the Albuquerque Journal quoted Twohig as saying " 'experts will be used' to determine whether the signs on the Volcan offramp were confusing or insufficient." Patricia Gabbett Snow, Officer: Pickup Sped Wrong Way 10 Miles, Albuquerque J., Jan. 9, 1993, at A1, A3. In this same article, Chief Deputy District Attorney Alan Rackstraw was quoted to the effect that, although he would not release results of a blood sample taken from House by University Hospital staff members on the evening of the crash, "I don't deny that they are consistent with the tests from APD." Id.

4. Twohig attacked the blood-test results almost immediately. In an article appearing in the Navajo Times--a paper published in Window Rock, Arizona--Twohig hinted that "some important facts" in House's case had not been made public. Valerie Taliman, Family Seeks Fair Justice, Navajo Times, Jan. 14, 1993, at 1. He also stated that the blood-alcohol test taken by APD may not have been accurate because testing equipment at the APD lab was broken within a two-day period prior to testing and there was no proof that the instruments had been fixed. Id. at 3.

5. Another theme that surfaced early on was Twohig's contention that charges against his client were racially motivated. Prior to House's first trial, Twohig said, "I can tell you this, if Gordon House was not Native American and if the victims were not Anglos, despite tragedy, [this case] would not have received any where near the kind of media attention it has generated." Id. at 1. Further, commenting on the fact that a police report still had not been filed nearly three weeks after the accident, Twohig said, "It appears to me that the only reason the police department has not filed a report is that they are attempting to leak information selectively to press people in order to get their story before the public as effectively as possible." Id. at 3. He concluded that "[t]he public and press have already convicted Gordon House and they've got the noose ready for him." Id.

6. Allegations of racial bias reached their zenith when District Attorney Robert Schwartz announced his intention to pursue first-degree depraved-mind murder charges against House. See Leslie Linthicum, House May Face Murder Charges, The Sunday J., Mar. 21, 1993, at A1. Explaining why the State had decided to pursue these charges, Schwartz stated that "the case [had] turned up 'information that takes us way beyond vehicular homicide.' " Id. He elaborated further, stating, "The big difference is we now have a report with all kinds of information we didn't have then.... It's not simply the raw fact of being in the wrong lane of the freeway and going the wrong way. There's more." Id. at A5. Twohig disagreed, accusing the District Attorney of "prosecutorial overreaching." Id. at A1. In a separate article reporting the District Attorney's decision to add first-degree murder charges to charges of vehicular homicide and driving while intoxicated, Schwartz stated that "there is evidence that House had the opportunity to avoid the accident." Laura Bendix, DWI Defense Denounces Murder Charges, Albuquerque Trib., Mar. 22, 1993, at A1.

7. Following the jury's verdict in House's first trial--guilty of driving while intoxicated, hung jury on charges of reckless driving, vehicular homicide, and causing great bodily harm--there was extensive comment by the attorneys in the case and by relatives of the victims and of the defendant. Bob Milford, Melanie Cravens' father, said: "The system is flawed. A child could have figured it out. If they believed he was drunk and he was on the wrong side of the road, why doesn't the rest fall into place?" Leslie Linthicum, DWI Only Guilty Count, Albuquerque J., June 19, 1994, at A1, A14.

8. On November 23, 1994, after a second trial on charges of vehicular homicide had resulted in a hung jury, District Attorney Robert Schwartz announced his intention to try House for a third time. Ed Asher, House Trial Ends in Hung Jury, Albuquerque Trib., Nov. 23, 1994, at A1. When he made this announcement, Schwartz, echoing sentiments he had expressed following the first trial, stated that those members of the House jury who had voted to acquit could have done so only out of sympathy for House. Schwartz also stated that House should take responsibility for his actions.

9. In response to Schwartz's comments, Twohig wrote an article that was published in the Albuquerque Journal. Ray Twohig, Justice Would Not Be Served by Third Trial for Gordon House, Albuquerque J., Dec. 2, 1994, at A15. In that article Twohig wrote: "by trying to force the case to go to trial a third time, the district attorney continues to ignore his responsibility to seek justice in this case. Instead, he has adopted the lust for vengeance of some who speak for the Cravens, Woodard, and Milford families." Id. Twohig also appeared as a guest on several radio talk shows. During these talk shows he responded to questions about issues of evidence and law presented at the first two trials and also responded to questions from citizen callers.

10. Soon after Twohig's newspaper article and radio talk-show appearances, the State filed a motion for an injunction prohibiting all attorneys, parties, and related persons "from making any comment in the media ... regarding any substantive issue dealing with [the House] case." The ostensible purpose of this motion was to preserve the parties' right to a fair trial. Twohig filed a response in which he argued:

The statements of the District Attorney have created a strong sentiment against the Defendant in the public arena.

....

The attorney for the Defendant has a First Amendment right to speak about this case, which is unquestionably a matter of great public interest in New Mexico. Counsel for Defendant insists upon his right to speak in response to the misleading and inaccurate statements of the District Attorney and his assistants concerning this case.

....

The Code of Professional Responsibility only restricts comment which is false or creates a clear and present danger of prejudicing the proceeding. SCRA1986, 16-306 (Cum.Supp.1994).

On December 16, 1994, the Honorable James F. Blackmer conducted a hearing on the State's motion. At this hearing Twohig introduced several newspaper articles and videotaped news broadcasts. Relying upon its inherent authority and citing the strictures in Rule 16-306 of the Rules of Professional Conduct, the court granted the State's motion. The resulting gag order prohibited counsel for both parties "from making any extrajudicial oral or written statement, comment, opinion, press release, letter or other communication to or through any media or public fora, ... on any substantive matters or substantive issues of...