United States v. McGregor, Criminal Action No. 2:10cr186–MHT.

• Decision Date: 14 March 2012
• Docket Number: Criminal Action No. 2:10cr186–MHT.
• Parties: UNITED STATES of America v. Milton E. McGREGOR, Thomas E. Coker, Larry P. Means, James E. Preuitt, Harri Anne H. Smith, and Jarrell W. Walker, Jr.
• Court: U.S. District Court — Middle District of Alabama

838 F.Supp.2d 1256

UNITED STATES of America

v.Milton E. McGREGOR, Thomas E. Coker, Larry P. Means, James E. Preuitt, Harri Anne H. Smith, and Jarrell W. Walker, Jr.

Criminal Action No. 2:10cr186–MHT.

United States District Court,

M.D. Alabama,

Northern Division.

March 14, 2012.

Joseph Cleodus Espy, III, Benjamin Joseph Espy, William Martin Espy, Melton Espy & Williams, PC, James David Martin, Robert David Segall, Shannon Lynn Holliday, Ashley Nicole Penhale, Clayton Rushing Tartt Copeland, Franco, Screws & Gill, P.A. Montgomery, AL, Fred Sr. D. Gray, Walter Edgar McGowan, Gray Langford Sapp McGowan Gray Gray & Nathanson PC, Tuskegee, AL, Ruth H. Whitney, InVeritas, Little Rock, AR, Samuel H. Heldman, The Gardner Firm, Washington, DC, for Milton E. McGregor.

Stewart Davidson McKnight, III, Joel Evan Dillard, William Joseph Baxley, Baxley, Dillard, McKnight & James, Birmingham, AL, for Thomas E. Coker.

Glory R. McLaughlin, Stephen Wesley Shaw, William Hayes Mills, William N. Clark, Redden, Mills & Clark, Birmingham, AL, for Larry P. Means.

Ronald Wayne Wise, Law Office of Ronald W. Wise, Montgomery, AL, for James E. Preuitt.

James Woodfin Parkman, III, Joshua Logan McKeown, Richard Martin Adams, William Calvin White, II, Parkman, Adams & White, LLC, Birmingham, AL, for Harri Anne H. Smith.

Michael Kendall Day, Peter J. Ainsworth, Barak Cohen, Brenda K. Morris, Marquest J. Meeks, Edward T. Kang, Emily Rae Woods, Eric Olshan, John Luman Smith, U.S. Department of Justice, Public Integrity Section, Washington, DC, Louis V. Franklin, Sr., Stephen P. Feaga, U.S. Attorney's Office, Montgomery, AL, for United States of America.

OPINION

MYRON H. THOMPSON, District Judge.

On the eve of the retrial in this public-corruption case, the government moved for a gag order limiting what the parties' trial teams could state to the media. Rather than adopting the government's proposed gag order, the court required all attorneys to comply with Alabama Rule of Professional Conduct 3.6, which provides guidelines for how lawyers should interact with the press during criminal trials. This case attracted substantial media attention and the issue of a gag order was often mentioned by attorneys and journalists. This opinion explains the court's ruling.

I. BACKGROUND

Gambling has been a controversial political issue in Alabama for years. After a series of well-publicized raids against casinos in 2008, the public debate became particularly heated. In early 2010, the Alabama State Senate took up Senate Bill 380 (SB380), which would have authorized a constitutional referendum on whether to legalize electronic bingo.¹

The government alleged that the defendants participated in a bribery conspiracy to enact SB380.² Although SB380 passed the Senate, the proposed referendum stalled in the Alabama House of Representatives after the government announced its corruption investigation.

Several months later, in October 2010, the government unsealed its indictment against eleven defendants. Given the political atmosphere, the indictment of two prominent casino owners (Milton E. McGregor and Ronald E. Gilley) and four state senators (Larry P. Means, James E. Preuitt, Harri Anne H. Smith, and Quinton T. Ross, Jr.) was widely covered throughout the State. Notwithstanding the inherent newsworthiness of this case, both sides helped amplify the coverage.

The bulk of the government's interactions with the press came during the pretrial phase of this proceeding. Assistant Attorney General Lanny Breuer held a press conference at the Department of Justice in Washington, D.C., to announce the indictment. When McGregor was arrested at his home, someone tipped off the news media about the event. The government also issued press releases when defendants Jarrod D. Massey and Gilley pled guilty in December 2010 and April 2011, respectively. During and since the first trial, the government has taken a more stoic approach.³

Attorneys for McGregor, Smith, and Jarrell W. Walker, Jr. were particularly vocal during the first trial.⁴ On a nearly daily basis, attorneys Joe Espy (McGregor), Jim Parkman (Smith), and Susan James (Walker) would talk to the press as they left the courthouse. During these news conferences, the attorneys would comment on the credibility of the witnesses, discuss trial strategy, and speculate as to the cooperating witnesses' motives in testifying.

During the first trial, the story featured prominently in local newspapers and newscasts. Local media developed a live blog and a Twitter account dedicated to the trial. Updates concerning the trial were posted on an almost minute-by-minute basis.

One particular revelation at the first trial garnered national media attention. In conducting its investigation, the FBI gave State Senator Scott Beason a wire to wear during his meetings with the defendants. Beason, however, kept the recording device running while talking to members of the Alabama Republican Party. During Beason's cross-examination at the first trial, it was revealed that Beason and other Republican politicians were recorded making racist statements directed at Africa–American voters. See McGregor's Brief (Doc. No. 2168) at 9 n. 5; United States v. McGregor, 824 F.Supp.2d 1339, 1344–48 (M.D.Ala.2011).

Because of this media presence, the court took special care to minimize jurors' exposure to the media. A designated area outside the courthouse was established for the media. The jurors were instructed to enter and exit the courthouse through an entrance on the other side of the building. The court also set up an over-flow room where journalists could watch the court proceedings via closed-circuit video; no televised images of the trial aired publicly. Once the jury panel was selected, the court issued preliminary jury instructions ordering jurors scrupulously to avoid media coverage of the trial.

At the conclusion of the first trial, the jury found two defendants not guilty on all counts. For the other seven defendants, the jury found them not guilty on some counts, but was unable to reach a verdict on the remaining counts.

In the six months between the first trial and the retrial, the case remained a prominent feature of Alabama politics. McGregor points out that State Senator Beason has cited his participation in the case in his primary campaign to unseat an incumbent member of the United States House of Representatives. McGregor also submitted mass-mailings sent out by religious organizations; while the general thrust of these fliers is anti-gambling, the trial is referenced as evidence of gambling's corruptive nature. For its part, the government was concerned about defense counsel's comments to the media regarding whether Beason and other government witnesses would testify at the retrial.⁵

For the retrial, voir dire focused extensively on potential jurors' knowledge of the first trial. The court also adopted the first trial's practices regarding the media and jury sequestration. The retrial ended with the jury acquitting the six remaining defendants.

II. GOVERNMENT'S PROPOSED GAG ORDER

Shortly before the retrial, the government moved for a gag order, which proposed that “apart from court hearings or filings, no participating attorney or any member of their trial team shall make any extrajudicial comments about this case which a reasonable person would believe could be publicly disseminated.” Proposed Gag Order (Doc. No. 2145–1) at 3. By its terms, the order placed no limits on the defendants themselves. The order would also have not limited the media's reporting on the trial.

The government's proposal did have exceptions, however. The gag order did not “apply to statements that disseminate information regarding scheduling matters or other materials that are a part of the public record, so long as those statements are limited to bare facts as opposed to opinions, questions, or commentary.” Id. Thus, the attorneys could inform the press that a specific witness would be testifying the next day or direct the press to examine a recent filing.

III. STANDARD FOR A GAG ORDER

A gag order is a prior restraint on speech and, as such, is “the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). With the specter of an “immediate and irreversible sanction,” a prior restraint not only “chills” speech, it “ ‘freezes' it at least for the time.” Id. Accordingly, “[a]ny system of prior restraints of expression ... bear[s] a heavy presumption against its constitutional validity.” New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (per curiam).

“The exercise of First Amendment rights, however, can sometimes imperil the administration of fair criminal trials.” United States v. Carmichael, 326 F.Supp.2d 1267, 1291 (M.D.Ala.2004) (Thompson, J.). As such, “[a]lthough litigants do not surrender their First Amendment rights at the courthouse door, those rights may be subordinated to other interests that arise” during a criminal trial. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32 n. 18, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984) (internal quotation marks and citation omitted).

The paradigmatic example of a clash between the First and Sixth Amendments occurs when trial publicity prejudices a defendant. See Stuart, 427 U.S. at 547–48, 96 S.Ct. 2791 (noting that this tension first arose in American history during the trial of the British soldiers involved in the Boston Massacre). As the Supreme Court has explained: “Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighted against the accused.” Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 16...