Case Evidence 03.20.17
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preventing any friends, family, law enforcement, or any potential experts or witnesses from speaking about this case. Since the judge's ruling, several prominent media outlets joined forces and filed a motion opposing this gag order. Last Thursday, March 16th, Judge Melanie Cross held a hearing at the courthouse in Osceola to address the motions that were filed to lift the gag order. Today we'll be hearing the audio from the courtroom as both sides plead their cases to the judge.

In favor of and against the gag order. This is Case Evidence.

The first thing we'll do today is listen to the courtroom audio from last Thursday, March 16th. Just a fair warning, it's pretty long. We've trimmed out as much of the dead time as possible, but it's otherwise completely unaltered. If you want to jump straight to Philip Holloway's discussion, you can forward to around the 51-minute mark. After listening to the courtroom audio, Philip will be discussing his thoughts on the outcome of this proceeding. Court, come to us. Afternoon, everybody. Please have a seat.

Let's go ahead and get started. I believe everybody knows why we're here this afternoon, but do you need to make sure? I know Mr. Hudson was going to be participating by phone. Is that correct? Does somebody have him online? Okay. You can hear me, Mr. Hudson? I think he's more worried about hearing what you have to say rather than what I have to say.

All right, and for the record, and for me, of course, I know everybody over here at this table, but over here at this table, if you would introduce yourselves. Leslie Gaker, Your Honor, for the Journal Constitution, the Associated Press, and WSB. All right. Your Honor, Derek Bauer for the U.S. Attorney General, WSIB. Okay.

All right, very good. Mr. Mobley, first question for you this afternoon is I know your client is not present. Okay, all right, very well, Mr. Bowden. Here with regard to the

motions to intervene and the motions to lift or modify the gag order that the court has placed in this particular case. So what I would like to do is, of course, have the attorneys who filed the motions present their arguments. And then Mr. Mauvey, Mr. Bowden, if you have anything in response, we'd be happy to hear from you all as well. So I don't know if you all have drawn straws to see who goes first or what?

WSP filed an motion first your honor. Okay. All right Ms. Gaither you may begin then. Thank you your honor. I'll bring Mr. Hudson with me. Okay. We appreciate the court's time and consideration this afternoon. I will admit at the outset it's procedurally a little bit odd because of the gag order. I have not seen the motion upon which the order was granted

So I may say things that are incorrect. I apologize to the court, but we're working with what we've got here. It's perfectly okay. This case involves defendant Ryan Duke, arrested on February 24th and charged in connection with the death of his friend's dead. He disappeared in October of 2005. On February 28th, the court, on defendant's motion, entered a gag order basically covering prosecution, law enforcement, and counsel for defendant Ryan Duke.

witnesses, unidentified expert and other, court personnel and family members of the victim and the defendant. The order related to all matters relating to this has been read not only in the gag order but also effectively as a sealing order under Superior Court Rule 29 because the clerk's office is, because they are subject to the gag order, they have taken the position that they cannot release records or docket information.

We are here today because we would ask the court to reconsider the gag order on two bases. One, there is no evidentiary record or finding of prejudice which could support the order. And two, because it is overbroad on its base. It has been long recognized by the Supreme Court of the United States and Georgia that public access to the judiciary is an indispensable attribute of our justice.

of our judicial system. This is also true with respect to speech about the judicial system and the court system. It is with this backdrop that gag orders are evaluated. As we set forth fully in our brief in Nebraska Press Association for Stewart, the United States Supreme Court effectively held that an order that restrains the news media, which is not exactly what we have here, is a form of prior restraint which carries a heavy presumption against constitutional validity.

order does not directly restrain the press, however, but only restrains participants. It nonetheless faces substantial constitutional barriers. In this state, gag order, the leading gag order case in this state is Atlanta Constitutional Constitution v. the 2004 Court of Appeals case, where the court reversed a gag order in a very high-profile case

in which the pastor at the House of Prayer church was charged with molestation and various acts related to members of the church. And in that court, the court said, "A conclusory representation that publicity might hamper a defendant's right to a fair trial is its offense to overcome the protections of the First Amendment."

Accordingly, the court held, in order to have a gag order on trial participants, there must be a finding that extrajudicial statements will have a substantial likelihood that materially prejudices the trial. And there would be one specific finding of fact based on evidence of the record regarding the impact of the statements. The order would have to permit the type of non-presidential statements that are allowed in the Georgia Rules of Professional Conduct, specifically Rules 3.6.

and any restrictions on non-lawyers should be entered with particular care because there is a significant risk that in those instances such an order could be overbroad. This requires a finding of publicity but of actual prejudice and also a finding that there are no alternatives other than the Gadd order. Sheppard v. Maxwell, the United States Supreme Court case which is cited in the court's order,

a bit instructive as you know what what may or may not be enough in Shepherd where they did actually have a bad order the court found among other very married facts the media was committed to sit above the bar during trial they were committed to publish the names and addresses of potential jurors prior to Borgdier they were allowed to touch evidence and they were stationed next to the jury even then the

refused to find that pretrial publicity alone was sufficiently enough for reversal. I'm heavily on the fact that the trial judge had refused to change a vending motion, had refused to request for jury sequestration, and that other alternate requests to closure were denied. We contend that the court's order here does not comply with the law and should be vacated for two reasons. There is no evidentiary record or finding of prejudice. AJC versus state is a

There must be specific findings of fact based on evidence of record regarding the possible impact of extrajudicial statements. And as I said, that is a finding of prejudice, not just volume. The order contains no factual findings. There is no basis to believe that evidence was provided to the court when the order was sought. Georgia law is clear again and again. Even in cases of widespread pretrial publicity, this is Miller versus State, situations where such publicity has rendered a trial set

extremely rare. Rockdale citizen versus state pretrial publicity, even pervasive adverse publicity, does not inevitably lead to a fair trial. There must be something more. Otherwise, you can see where a gag order could be requested in every case. And for the second reason we contend the order should be vacated is it is overly broad and subject to misinterpretation. Because of the implications on First Amendment rights, these orders must be narrowly tailored. They must be no greater than necessary.

Courts have repeatedly struck down overbroad orders, including some we've provided to the court in the Ross Harris case, in the Victor Hill case in Clayton County, in the House of Prayer case in the Native Persia state. Here, the order could not be any broader. And since there was no evidentiary record upon which the order was based, you know, where you would begin to narrowly tailor the order because there's no record to do it with.

In need at one point, it covers others. It relates to all matters. It has no real expiration date. It does not even expire at Guardar when the jury is in panel. It does not expire until at least the end of the sentence.

I mean it is arguably in violation of Superior Court Rule 21, which as we set forth fully in our brief, sets forth very specific procedures that have to be followed before a court file can be sealed. And because it is being read as sealing the court file, we would contend that it's in violation of Rule 21. And for those reasons, we would ask the court to reconsider the order.

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Your Honor, next. Sure. On behalf of WXIA, which is Channel 11, 119 in Atlanta, Georgia, and WMAZ, which is Channel 13 in Macon, we are honored to be here arguing for Your Honor, and thank you for giving us the time. We know you've got a very busy schedule. My clients agree with everything that Ms. Gaither just argued. I think she correctly identified the legal problems with the order that the court entered a couple of weeks ago.

But let me just start out by saying that our media clients recognize that you have a duty to protect the defendant's rights to a fair trial. Even in civil cases, you've got to protect the party's rights to fair justice and report. Now, it's a competing duty with the person's rights that are implicated in a gag order. Gag orders, orders restricting speech of trial participants or, as your order does in this case, those who aren't even trial participants.

Even the most narrowly tailored dad waters are judicial remedies of last resort. They can only pass constitutional muster in the rarest and most extreme circumstances, and only where there is no other alternative mechanism that the court can employ to mitigate against truly prejudicial pretrial policy. We certainly recognize that this case is being brought in a small community. The jury pool is by definition smaller and more limited than in larger communities.

But the existence of publicity alone, even as Ms. Gaither pointed out, pervasive publicity, that's not enough to justify an order from the court restricting speech under a settled constitutional and judicial law. And just because there's publicity, and just because the community in which the publicity is relevant is small, those are not constitutionally permissible grounds to enter a gag war of any scale. I think it's important in this case to point out that just as a matter of fact, not all publicity is bad publicity. The media...

Sometimes rightly, sometimes wrongly. It's a bad rap, I think. But not all precropelicity, even in high-profile cases like this one, is bad. And I think this case is a very good example of that notion, Your Honor. This was a cold case. This was a frozen case. It had exhausted law enforcement resources for a decade.

If it were not for media interest in continuing investigation into this case, it's likely there would not have been, and almost certainly would not have been, the important breaks in this case that now have this case pending in this court. So if anything, I think the record before the court shows that this particular case is built on a record that emphasizes the important and valuable role

that news media can play in the administration of justice. It's not all bad just because it exists. Doesn't mean there's prejudice, doesn't mean there's injury. This case shows the exact opposite, at least on the record currently before the court. So there's not only been no evidence of record that the press coverage has posed a risk, much less a substantial and certain risk that the law requires,

that risk of course being to the administration of justice that the law requires before any kind of restrictive gag order can be entered. The record here I think demonstrates quite the opposite. But even if that were not the case, Your Honor, none of the pretrial publicity in this case can fairly be said to have risen to a level of irresponsibility or danger to warrant an order restricting speech.

And as a point of reference, Ms. Gaither talked about the Justin Ross Harris case. We all know this case. This is the Hot Car Death case from Cobb County from last year. This case has not generated, and I don't think anyone can fairly say it's likely to generate, anything close to the level of statewide and national scrutiny that that case posed and brought. And in that case, although it was requested, Judge Staley rejected it. In that case, although it was requested,

the parties, no closure of any court proceedings was granted. And that was notwithstanding serious and pervasive dissections of challenge and disputed evidence in the media, national and local, on an almost daily basis. And that is not the record here, and it can't be, because it just hasn't happened here. Judge Staley had, in that case, the very same duty that you had, Your Honor, to protect the integrity of the judicial process in your courtroom for the litigants to come before you.

And when and only when Judge Staley was confronted in that case with actual record evidence of potential prejudice did she consider employing judicial remedies and what they were. And that's how the law is supposed to work. Only when something is presented to you on an evidentiary basis that rises to a level of almost certainty substantial risk of prejudice to a party should the court look at any type of judicial remedy

that might close either proceedings, access, or speech to the public. And as you likely know, the remedy that Judge Staley selected in that case was to move the case. When it turned out during jury selection that voir dire, searching voir dire, and strong instructions to the jury were not going to be sufficient in the judge's discretion to move

And sure, an impartial jury, she moved it. She changed it, and the trial got moved to South Georgia, and the conviction was had. What Judge Staley did in that Justin Moss Harris case is a textbook case of how the courts are supposed to balance the competing First Amendment and Sixth Amendment rights that are implicated in criminal trials like this. Trials that are of substantial public interest, not just to the community, the immediate community, but beyond. The process should be no different in your courtroom, Your Honor, if

the court should not consider any restrictions on speech of non-lawyers until a reason to do so is manifest in the evidence. Candidly, Your Honor, we are just not there yet in this case. And frankly, we have no legitimate basis at this point to believe that threshold will ever be met in this case. So for those reasons, on behalf of Channel 11 and Channel 13 in Macon, we do not believe the order that is issued by the court is valid and sustainable. We would ask the court that it be visible.

Ms. Gaither referenced an ancillary issue that I would like to raise as well, and that is that we understand that although there has not been an order sealing court records in this case, which of course, as the court knows, are presumptively open to the public, nevertheless, the clerk appears to be denying access based on a gag order that wasn't. Although the standards and process that would apply to reviewing a gag order in access or a closure order when it comes to records access or courtroom access are not identical,

As Ms. Gager pointed out, Rule 21 would apply to sealing the court records. It requires a hearing. It requires evidence. It requires the ability of the public to be heard before closure of the order can be entered. We would ask the court to clarify with the clerk that until such time as such an order has been entered, presumptive public access to the court's records in this case remains. Your Honor, I would like to save a little bit of time to respond to the District Attorney and the public attorney if a rebuttal is warranted and if it pleases them.

All right. Thank you, Mr. Baum. Burnside, are you going to add anything today? No, I'm going to stick with what Mr. Bauer said. All right. And Mr. Hudson, Mr. Hudson, is there anything that you'd like to add? Your Honor, I appreciate you. I appreciate the opportunity to participate in my case. I'm sure that I have a lot of people who are concerned about my policy. But I just want to say, I'm just a person who made a claim that you're a defendant to a jury. Is that a very personal?

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Thank you, Mr. Hudson. All right, Mr. Mobley.

I would agree with Mr. Fowler that the court certainly has a duty to protect the right to a fair trial. That is certainly one of the more basic fundamental rights that we have in this country. And basically, the courts have said that if the court does not protect a defendant from prejudicial free trial for publicity, that right is harmed.

and under georgia law gag orders are justified there is a substantial likelihood that extra judicial statements proper distance will prejudice a fair trial and that's from the ajc versus state case that was cited earlier um these standards have also been adopted in the georgia bar rules

and if the gag order is not directed in this case um i feel like that mr dude's flight to the trial will certainly be honorable um and i want to remind the court that this is not a gag order that's against

members of the media. So it's not subject to the heavy presumption against constitutionality. This is a much less stringent standard. In addressing some of the concerns that was raised by Ms. Gaither, I first want to say that I have submitted a proposal to your honor and provided a copy to the opposing counsel.

In this proposal, it would amend the original. I have included that the gatherer would include the parties of the defense, prosecution, Mr. Bo Dukes, as well as all current and past members of law enforcement who have been involved in the investigation of this case. So I think that certainly addresses any argument that would be overwrought.

Also, Judge, the main argument that you also made was to the issue of prejudice. And I certainly agree that we would have to show that we would prejudice by any extrajudicial statements made by any of the metropolis. And to that end, I have submitted to the court and also provided a copy to the opposing counsel. Exhibits 1 through 79, this is just an example of

media coverage that we've been able to locate over just the past 21 days. It is not in coverage going back the past 11 and a half years. It includes various newspaper articles, internet articles. And I would ask the court, before you make a decision in the rule on whether prejudice exists, also review these. There are also links to quite a number of web pages

There have been podcasts, there has been international, national, local coverage. All of this, some of this should be included in the materials that I've provided to the court. Also, I provide a copy to everyone of the press conference that was held by the GBI on February the 23rd.

This is, as the court knows, one of the biggest cases in South Georgia, certainly the biggest in urban Canada. The media coverage has been constant, it's been pervasive. And while that is not standard for a gag order, that is certainly a good place to start. There have been helicopters, there have been drones, websites dedicated to this, discussion boards, there's photographs. You name it, it is almost dated.

Judge Irwin County has a little over 9,000 people. And I'm afraid that the horses are probably already out of harm as it relates to the trial here in Irwin County, even the one in County Deerview. I would just ask, again, as you review these, to see that there's certainly harm and there's some prejudice.

especially if it relates to law enforcement statements that they've made thus far. They've discussed the guilt of my client, specifics as it relates to the evidence, as to the experts that the states have employed, criminal histories of both Mr. Duke and Mr. Dukes, and that's just to name a few. I certainly feel like that any gag order to be effective in this environment has to include law enforcement.

Of course, the party, the prosecution, are already bound by the bar rules, so things that they can and cannot say. In the order that I presented this for, it is not a closed order. It certainly limits what all the parties can and cannot say as it's related to the rules.

set out by the bar um also the model on the ajc case that was referenced earlier um i've also tried to use an example of an order that's previously been used that was submitted by counsel for the ajc and the ap um so i would i would ask certainly that you consider the order i have submitted and we would ask that you certainly assign another word and equipment all the parties

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the AAC versus the state, that doesn't stand for a proposition that you cannot issue an advocate award. You just have to follow the standard of doing that. If you listen simply to the attorneys arguing on behalf of the various media outlets represented here today, you would believe that there's no way in the world to ever issue an advocate award. That's simply not the case.

We know, while this is not my motion, the motion is not objective, and we feel that certainly the state has a compelling interest in the defendant also receiving fair trial and that he receives a fair sentence. And that's our interest in it. In that regard, I do have...

some information. I will state my place. I relayed this to council last night on a conference call. But I have spoken to Mr. John Fox yesterday and the day before yesterday regarding when he represents his attorney at Lack and Macon, and he represents Bo Hughes. I've spoken to him twice about this proceeding today, and he has authorized me to state before that he would agree for the gag order to be entered

He has no objection to that. He has no objection for the inclusion of his client, Mr. Dukes, in that gag order. Yesterday afternoon, he called. He had received a copy of a proposed order that had been forwarded to him by Mr. Bennett. Mr. Bennett represented his guests, and he had called me about that order, and he was concerned that the

Version of the order sent to him by Mr. Bennett, not included. So do this.

He was questioning me about that. And so he again reiterated that he did not pose a gag order, did not pose including his client a gag order. In fact, said he was charged with the court and video camera also his wife. Other than that, I think I would allow for Mr. Robertson. All right. Thank you, Mr. Bowden. Mr. Bauer, Ms. Gaither, any response? Briefly, Your Honor. First,

The exhibits that Mr. Bowman is submitting just now, I think they highlight that the order that was entered by the court three weeks ago lacked an evidentiary basis with respect to press coverage. Effectively, you're being handed now a volume of press coverage and being told this is the evidentiary basis that would support an order. But it clearly demonstrates that there wasn't one, as the law requires, at the time the order was entered a couple of weeks ago.

more coordinated misgavings of the properly representative law. Volume of publicity does not equal credits. But even if it did, the law requires that the party seeking a restricted speech order must show why alternatives to a gag order would not cure the credits. We have nothing to suggest that the stack of press covers that was handed to you

presents a clear present danger of prejudice. All we know is there has been trust coverage, and as we know, that's not enough to cross the threshold to justify a prior restraint for a court in the United States. Again, even if it did, before you even consider during that prejudice by silencing speech, the court's obligated to consider every other on-prem. In order of restricting speech, in order of last resort, we haven't explored

Any other results? Let me ask you one question. You said an order of prior restraint. But this order is not directed to the media, so it would not be considered an order of prior restraint, correct? It is not a prior restraint on the media, but it is a prior restraint on other individuals, many of whom are unknown and unknowable to themselves and to me. And there is a volume of law in the United States that we cite in our reviews.

which the courts including the u.s supreme court the brantford case have said that the media has a first amendment right to gather the news and even a gathered order that silences the speech of witnesses or other individuals with information is a prior restraint on the media's ability to gather news which is obviously an essential component of the usability to report things so it's not quite as clean

as suggesting that just because the media is not a line item subject of Gatwick, that there's no prior restraint. There's still a prior restraint, and there's still a constitutional infirmity on the news media's protected rights under the First Amendment to gather news, which they also avoid constitutional protection

Do you agree with his statement that because it's not directed at the media that there's a less strict or less stringent standard? I think that's unsettled in our constitutional jurisprudence, but I would say that it makes no difference under the Georgia law if it's applicable to the entry of restricted speech orders in cases like that. That's what the AJC versus state case says. Now, the DA is absolutely right on that.

that case doesn't say you can't ever have a gag order and no court would ever say that but what it says is the bar is very high and it doesn't matter whether the death order is limited to trial participants which is family members and exclusive media you'll have to meet the same constitutional restrictions in order to be able to enter that means there has to be actual substantial likelihood that prejudice exists not

a probability or a concern or in the words of the public defender, I feel like there is prejudice. The court actually has to have tangible proof of a substantial likelihood that there will in fact be prejudice to the right of care trial. And even if that exists, and I don't think anybody can fairly say that exists on the record in this case history,

But even if it did, the court needs to tick off all of those other remedies that Mr. Hudson so beautifully articulated in his presentation. You have to consider whether Wadir will cure the problem. If Wadir doesn't cure the problem, perhaps strict, clear instructions to the jury can cure the problem. If that can't cure the problem, and we have to have reasons and evidence reasons why those things would not cure these problems, then we can move the trial.

We can go get a jury approval from another jurisdiction and bring them over here. But all those things have to be done, analyzed, vetted, and evidence on why they would or would not be effective before the court can go the next step and say, OK, I'm restricting somebody's-- and that's what the AJC v. State said. That's consistent with the constitutional principles enunciated by the US Supreme Court over and over again. And those cases, I think, are cited in all of the interviewer's papers.

The only other comment I would like to make before I close is that there was a reference by the public defender to propose or at the request of the council and the DA and the public defender, the interveners did get on a conference call last week trying to see if we couldn't come to an order, not that the interveners, at least from my client's perspective, could consent to, but perhaps one that they would no longer object to.

And I raise this just because I want the court to understand that the media cannot consent or assent to a gag order, an order that restricts speech, that lacks an evidentiary basis, no matter how narrowly tailored it is. While we very much appreciate and respect the, I would say, concession by the parties to the case, that the letter of its ender is overwrought and needs to be narrowed, even if it had a evidentiary basis that justified its entry.

The lack of any evidence in this case that there actually exists today a clear present danger to the defendant's right to a fair trial precludes the media from conceding that any gag was appropriate in the case. And therefore, we cannot consent for a Senate discussion. All right. Ms. Gaitham? Thank you, Your Honor. I would agree with Mr. Bauer. I will not repeat what he said. The only thing that I will on the law and social restrictions in the defense counsel's proposal is it does say

Thank you. Anything else?

I would just like to add a couple things. I don't want to go back and forth, but I think first and standard is not whether there's a clear present danger, it's whether there's a substantial likelihood of armed recklessness. I think it's certainly clear when you use records. And I don't know what experience the counsel for the TV station has with criminal cases, but

Talking about more dire jury instructions and questioning the jury is great if we're, over the week of trial, we're talking at least a year of possible war from the trial. There's no other way to limit this type of information, to limit the jury from being detained by information that could be released by law enforcement and others. It's just not possible. And I certainly didn't mean to imply the court or any of the opposing counsel have sent any way to this.

to this order, it was one that I thought was so many fixing the problems that we have, obviously, we were not able to reach agreement. And again, they discussed constitutional rights, the personal rights to media, and while it's true to a certain point, the substantial likelihood of material prejudice is a constitutionally permissible balance between the right to have a fair trial, and that's what we can still talk about again,

That's sort of what's important. But also, just also one more thing to address the AJC case. In that case, it discussed the non-lawyers, the trial participants. Apparently, the court in that case did not use the correct standard. And they, as we said, got to use the standard likelihood of material presence. There was no issue in that case. Again, I think once you have reviewed the media coverage,

And having mentioned the fact that some of the information out there may or may not be admissible in a trial, would you further taint it with your account? Or what information may come out between now and the end of the trial, if we're on court, if we're under party, if we're allowed to speak on the stage? That's just another factor to be considered. But again, we just ask that you delete the document that I provide. And I've asked you to admit to the records that I've marked as admissible for taint.

Okay. Let me handle that first. Any legal objection as to why Exhibits 1 through 79 should not be admitted? I don't know if you've had a chance to really look at them yet, but they're up here with me. I haven't looked at them yet. Okay.

Mr. Mulberry, are you... I'm certainly not offering them for truth. These are compulsive material from my opposing clients. I'd be glad to call my prayer leader, Ms. Robbins. She testified to each exhibit that she did research, copied them, and they're true enough to say...

I'm going to admit them. I don't think they're being offered for the truth of the matter, so I believe it was just for volume and the extent of coverage that has been present. It is your motion. I'll give you the last chance to make a comment before we close. Very briefly, I do think it's important in light of our national relationship

to just highlight what Mr. Hudson said. The Supreme Court law, Georgia law, is very clear that with all respect to a defendant's Sixth Amendment right, which are, of course, of the utmost importance, a defendant is not entitled to a jury that has no knowledge of anything in the case of the matter. And that alternatives have to be considered.

And that is why the law is very clear that we are not talking about volume of coverage and fact of coverage and the fact that some people may come into a jury pool and know some things about the case. That is just insufficient to infringe on First Amendment constitutional rights. And that is, again, why we would say that the record is not established here for any case.

All right. Thank you. Mr. Hudson, you're not present, so I forget to ask you if there's anything else that you'd like to add. All right. Thank you, Mr. Hudson. I appreciate everybody being here today. Of course, I'm on review. I've read your motions. I guess I should have told you that before, so you'd have to reiterate anything that you didn't want to. But I've read all the motions, the briefs.

And I have not had a chance to look at all the exhibits. I will take some time to do that, of course. And then I will do my own independent research. But hopefully within the next week, you'll have an order. Okay. I've got a trial week next week. I've got some time this weekend. So I'm hoping to get all that done. Okay. Ms. Gayson. Okay.

question, Your Honor. I don't believe that the prosecution and defense will disagree with this, but of course they'll say if they do. But could Your Honor clarify, since you've already asked, whether or not the records will be open in the meantime? The court files? Oh, the court files? I know there's one thing. If I'm not mistaken, there was an order that sealed the record. And somehow it got sealed. So I will issue an order for the clerk to release that.

I don't think there's a whole lot else there, to be honest with you. I think the warrants have been filed. There's not an indictment yet. So I'm not sure of a whole lot else other than what we're here about today. But I will ask her to release that, so at least you'll have that. I just don't want to say yes to opening all up because I don't know exactly what's there. Okay. All right. If anybody has anything else, I believe you all have my email address. We've been corresponding back and forth.

So contact me if you need me. All right. All right. We're adjourned then. Thank you.

Now that we've heard the entire courtroom proceedings, let's get some input from defense attorney and legal analyst Philip Holloway. Okay, wow. I thought we were here for a gag order modification hearing, but at the end what we saw was the judge revealing that she'd done something much more remarkable. She signed an order basically shutting the public out of the complete process, directing that all hearings...

be held in camera, that means in her office, until further order of this court. That means that any pretrial motions, perhaps even a trial or even a guilty plea, could be done behind closed doors.

So in theory, Ryan could go in the judge's office and stipulate to a factual basis, enter a guilty plea, go off to prison, and we would never know what exactly happened to Tara Grinstead. This is absolutely astonishing because in America, we don't have closed criminal courts. In 2010, the U.S. Supreme Court slapped down a DeKalb County judge for doing essentially the same thing and said in no uncertain terms that

Courts must make every reasonable accommodation to let the public have access to criminal trials. We don't do secret trials or secret courts in America. It's just not how things are done. The other thing about this order sealing the record that's remarkable is that it was done without any kind of evidentiary hearing. We don't even know who asked for it. It just simply says it was filed February 28th at 3 p.m.,

It doesn't say which party asked for it. Was it both parties? Was it neither party? Was it the court on its own? Was it everybody acting together? If so, why? We need to know the answers to all of those things. I'm absolutely shocked by what was revealed almost by accident at the end of the hearing today. If it had not been for one of these media attorneys simply saying, you know, look, Judge,

While you're thinking on this, will you just instruct your court staff to release the records in the case, the court records? And the judge says, oh, you probably didn't notice this, but I signed an order basically sealing it. In addition, I signed an order that said everything's going to be done privately, in secret. The wording used in the order, it says in camera, and in lawyer talk, that means in the judge's office. That's not how it's supposed to work. I

I have never seen anything like this before in my entire life. I have seen limited court closures for very specific reasons when you have very sensitive witnesses like small children, but not in a case like this. The worst case scenario would be that as if this order is not overturned or vacated,

that the defendant could simply go into the judge's office, close the door, enter a plea of guilty, stipulate to a factual basis without giving any details whatsoever, and go off and spend the rest of his life in prison without the public ever knowing what happened to Tara Grinstead. The public does in fact have a right to access the courts. It's grounded in the First Amendment. The U.S. Supreme Court has underscored that fact.

And this order simply cannot stand. I certainly hope the judge does the right thing and lifts it. If not, I would expect the appellate courts to do it for her. What I have confirmed as of today, Monday, March the 20th, is that the judge will include in her ruling on the gag order some ruling about whether or not the order to close the court will remain in place. She could decide to reverse herself.

She could decide to double down on it and let it stand. And if that happens, I'm sure it will be appealed by the media.

But she did indicate that she's going to address it without the need for further motion hearings involving evidence like what we saw last week. One thing I would tell everybody is that if they want to keep up with the most recent news and developments is to make sure that they check out Up and Vanished on Twitter because that's where any breaking news will probably come first. I'm personally going to keep a very close eye on this

And just as soon as there's any new information about the court process, we're going to get it out right away. Thanks for listening, guys. Don't forget to tune in on Monday, March 27th for episode 15. See you soon.