Justice Nels Peterson (Photo: Ashley Stolar)

As the Georgia Supreme Court was preparing to hear its second case last week in a special session at the University of Georgia law school, Chief Justice P. Harris Hines announced without explanation that Justice Nels Peterson would not be participating.

The reason is revealed in a flurry of activity on the docket in the days leading up to the argument. This is the back story. But first, an explanation of the case.

The arguments have pitted a First Amendment lawyer against a public defender over restrictions on statements by lawyers and police surrounding the trial of a man accused of murdering a beauty queen in the small 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.

Public defender Michael Gowen told the court that he and his boss, Circuit Public Defender John Mobley, asked Irwin County Superior Court Judge Melanie Cross for the gag order as a precaution to ensure their client, Ryan Duke, a fair trial on charges of killing high school history teacher Miss Tifton and Miss Georgia contestant Tara Grinstead 12 years ago.

“We’ve got 11 years of news coverage, the largest case in GBI history and a small jurisdiction to draw from for a jury,” Gowen told the court. On Oct. 19 — the Thursday before oral arguments on Tuesday — Supreme Court Clerk Therese Barnes sent a letter to the public defenders disclosing that an attorney who filed an amicus brief in support of the television stations, Robert Highsmith Jr. of Holland & Knight, will be serving as chair of the election campaign committee for Peterson.

Highsmith’s brief was filed the same day on behalf of the Georgia Association of Broadcasters, the Reporters Committee for Freedom of the Press and six other news media organizations. Highsmith said the gag order amounts to unconstitutional prior restraint.

“The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and the judicial process to extensive public scrutiny and criticism,” Highsmith wrote.

Barnes sent a similar letter to counsel for the other case being argued the same day, Chrysler’s appeal of a $40 million judgement for the death of 4-year-old Remi Walden in a Jeep with a gas tank that exploded after impact. Barnes disclosed that William Jordan of Alston & Bird, who filed an amicus for the U.S. and Georgia Chamber of Commerce in support of Chrysler, was also chair of the campaign committee for Justice Keith Blackwell.

In the Chrysler appeal, lead plaintiffs’ attorney Jim Butler Jr. of Butler Wooten & Peak answered that he had no objection to Blackwell remaining on the case.

But the public defenders gave a different response.

“Please allow this to serve as an objection to Justice Peterson’s continued involvement in the above styled case,” Mobley and Gowen said in a letter dated Oct. 20. “Appellee Ryan Duke respectfully requests that Justice Peterson recuse himself from further participation in the resolution of this matter.”

Tift County District Attorney Paul Bowden made the same objection Oct. 23, the day before the oral arguments. “Justice Peterson’s relationship with Mr. Highsmith is one in which it appears that Justice Peterson’s impartiality might be reasonably questioned, and therefore, the State respectfully requests that Justice Peterson disqualify himself in this matter.”

Also on Oct. 23, Mobley filed a five-page motion to disqualify Peterson.

Those arguing for the gag order could have had another reason to worry about Peterson, although they did not mention it in their objections. Peterson is on the record in support of the constitutional guarantee of open access to courts.

In November 2016, while he was still on the Georgia Court of Appeals, Peterson wrote an opinion reversing a conviction for sex crimes against a child because the judge closed the courtroom for the testimony of the key witness.

“The Spanish Inquisition and the English Court of Star Chamber shared a common practice: secret trials,” Peterson wrote, joined by presiding Judge Herbert Phipps and Judge Stephen Dillard. “To prevent the recurrence of similarly abusive institutions, English common law developed a requirement that trials be public.” That mandate is “firmly established in both the U.S. Constitution and the Georgia Constitution.”

Peterson went on to say that the defendant, Randy Jackson, was “accused of heinous crimes against his own stepdaughter, and the evidence against him was overwhelming (and largely undisputed). Nevertheless, we must reverse his conviction because the trial court closed the courtroom for the testimony of the victim without following the procedures mandated by the Supreme Court of the United States to safeguard a defendant’s right to a public trial.”

Bauer made the connection between the two cases in his brief for the television stations.

“This court has repeatedly held that closure orders in criminal trials — which implicate similar constitutional concerns as gag orders — are measures of last resort that are subject to strict scrutiny,” Bauer wrote.

Bauer mentioned Peterson’s opinion in the Jackson case, saying that the constitution requires that closure orders be “narrowly drawn and strictly construed in favor of open hearings,” and entered only when “no means other than closure of the hearing will serve to protect the right of the movant.”

After citing Jackson v. State, 339 Ga. App. 313, 318-319 (2016), Bauer added, “For the same reasons, gag orders should also be strictly construed under Georgia law. Indeed, the standards articulated for gag orders and orders restricting public access to court proceedings are virtually identical.”