The author of a controversial amicus brief arguing against a gag order in a sensitive criminal case, yielding objections that led to a Georgia Supreme Court justice’s recusal, is now warning of the possible “chilling effect” of such objections.
In WXIA-TV v. State of Georgia, Robert Highsmith Jr. of Holland & Knight wrote a brief for the Georgia Association of Broadcasters, the Reporters Committee for Freedom of the Press and six other news media organizations. The brief supported WXIA-TV 11 Alive in Atlanta and WXIA-TV in Macon in asking the high court to rescind a judge’s order restricting 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. “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. He argued that the gag order amounts to unconstitutional prior restraint.
“It was unfortunate and without precedent that a lawyer could find it objectionable that an amicus brief writer is chairing a judicial campaign,” Highsmith said in an interview Tuesday.
“It would be a shame if such an objection became the norm and had a chilling effect on lawyers’ willingness to write amicus briefs,” he said. “Given that the lawyer making the objection is defending a gag order, maybe chilling effects are the whole idea.”
On the day Highsmith filed the brief, Oct. 19, Supreme Court Clerk Therese Barnes sent a letter to the public defenders arguing in favor of the gag order. Barnes disclosed the amicus filing and the fact that Highsmith will be serving as chair of the election campaign committee for Justice Nels Peterson.
Barnes sent a similar letter to counsel for the other case to be argued that day: Chrysler’s appeal of a $40 million judgment in connection with 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 Chambers of Commerce in support of Chrysler, was also chair of the campaign committee for Justice Keith Blackwell.
In the Chrysler appeal, lead plaintiff attorney Jim Butler Jr. of Butler Wooten & Peak answered that he had no objection to Blackwell remaining on the case.
But in WXIA-TV, public defender Michael Gowen and his boss, Circuit Public Defender John Mobley, 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.
The district attorney said he objected because the rules seemed to call for disqualification in a situation where a lawyer involved in a case—even an amicus—was going to be “intimately involved” in a justice’s election campaign. “I didn’t have any indication of bias,” Bowden said in a phone call Wednesday. “But just the appearance didn’t look good. In today’s world, it’s all about appearance.”
Mobley and Gowen could not be reached. Gowen told the court that he was concerned about ensuring his client a fair trial facing more than a decade of publicity and a small town’s jury pool.
The court heard oral arguments in a special session at the University of Georgia School of Law on Oct. 24. As the court was preparing to hear the gag order case, the second matter of the day, Chief Justice P. Harris Hines announced without explanation that Peterson would not be participating.
During those arguments, Gowen told the court that he and 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.
“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.
Gowen brought up the O.J. Simpson trial, but soon acknowledged under questioning that it was entirely different. Then Gowen said 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.”
In the end, the public defenders’ objection to Peterson’s presence on the case seemed to call into question the justices’ ability to be impartial with lawyers whom they may know professionally or personally. “The suggestion that they can’t is without foundation and just unfortunate,” Highsmith said.
Highsmith added he found the objection particularly unusual because it was not over a party to the case but a friend of the court. He asked, “Should the court not have friends?”