Derek Bauer Baker Hostetler Atlanta. Derek Bauer, Baker Hostetler, Atlanta (Photo: John Disney/ ALM)

A First Amendment lawyer and a public defender argued before the Georgia Supreme Court Tuesday over restrictions on statements by lawyers and police surrounding the trial of a man accused of murdering a beauty queen in the one-stoplight farm town of Ocilla 200 miles south of Atlanta. “We’re here today because of that rarest of judicial remedies—a gag order,” said S. Derek Bauer of Baker & Hostetler, representing WXIA 11 Alive TV in Atlanta and WXIA TV in Macon.

While the U.S. Supreme Court has always “left open the possibility” of the need to restrict communications to protect the right to a fair trial, it was always meant as a “remedy of last resort,” Bauer said.

Bauer told the court that Irwin County Superior Court Judge Melanie Cross did not show on the record any consideration of other options for ensuring a fair trial for Ryan Duke, accused of killing high school history teacher, Miss Tifton and Miss Georgia contestant Tara Grinstead 12 years ago.

One Saturday in 2005, after helping out at the Miss Georgia Sweet Potato Pageant and attending a cookout at the family home of a former school superintendent, she went back to her neat, white wood frame house and was never seen again. Police came looking when she didn’t show up at the Irwin County High School the following Monday. They found the clothes she wore to the cookout, but not her—despite searching the woods, draining a pond and calling into question every one of her suitors.

When police finally made an arrest this year, Bauer noted they thanked “the media,” noting that news coverage led to the tip that pointed to the defendant, accused of killing her during a burglary and hiding her body. Reporters, bloggers and cameras descended on the courthouse in what the judge called a “feeding frenzy.” She issued an order in February restricting all communication about the case. After a hearing, the judge modified the gag order to affect lawyers and law enforcement professionals, including those who have retired from duty.

“Protection from prior restraint is a primary guarantee of the Constitution,” Bauer told the court during a special session at the University of Georgia law school in Athens. “Our way of life doesn’t allow the government to say you cannot speak on these topics.”

Several justices asked Bauer what they can tell the judge to do to ensure a fair trial short of a gag order. “There are lots of arrows in the quiver,” Bauer said. “Strong voir dire. Change of venue. The passage of time.”

Public defender Michael Gowen told the court that he and his boss, Circuit Public Defender John Mobley, asked the judge for the gag order as a precaution to ensure their client a fair trial.

“You normally need at least some evidence of bad stuff happening before you can restrain people,” Justice David Nahmias told Gowen. “A lot of the pieces of evidence you cite are examples of law enforcement refusing to comment.”

“That’s right,” Gowen replied.

“What authority do you have for stopping it before it happens?” Namias asked.

“The court is not all-knowing,” Gowen answered. Then he went on to talk about the nationally televised O.J. Simpson murder trial in Los Angeles, but agreed with Nahmias that that it was very different than the proceedings in Ocilla.

On further questioning, Gowen said he objected to published photographs of his client in shackles and a prison jump suit. And he was disturbed by hateful social media posts.

“You can’t stop that,” said Nahmias. “Maybe you need to sift it out in voir dire or a change of venue.”

The case is WXIA-TV v. State of Georgia, No. S17A1804.