Judge in SLO Case Takes Motion for Gag Order Under Advisement

By David M. Greenwald

San Luis Obispo, CA – Retired Judge Roger Picquet heard arguments on motions all day on Friday in San Luis Obispo Superior Court in the case against Tianna Arata and a number of other protesters accused of blocking a highway during Black Lives Matter protests last summer.  The judge made some comments but ultimately deferred ruling on a motion that would restrict comments by both the prosecution and defense.

The prosecution, argued by Ken Jorgenson, a Deputy DA in San Luis Obispo, made the argument for the need for a protective or gag order against comments both in the press and social media.  

“Last fall defense had sought a gag order based on comments that were made by law enforcement agents,” he said, noting that “the context of the motion was that there were inflammatory prejudicial statements being made by law enforcement agents and they should not be allowed to make any other types of statements.”

He noted that the hearing was denied on December 11.  

For this motion, Jorgenson said they pulled up dozens of media events, articles, highlighting positions on the case.

He said, “We’re asking the court to exercise its rights to protect the judicial process.”

Jorgenson cited several prime examples.  One of them was in February—defense counsel Vincent Barrientos captured in a press release with statements made about drone video footage and released into the media. 

“By publishing protected evidence that could be heard in this case, it caused potentially great prejudice,” he said.  “In the press release… he makes very prejudicial statements.

“The public instead of being allowed to make their own judgments about the driver and (one of the defendants) have been spoonfed a hot pile of lies by DA Dow and law enforcement,” Jorgenson read from the press release written by Vincent Barrientos.  “That context of placing out into the street for media consumption is very prejudicial, it’s inflammatory and a lot of it is false.”

Jorgenson continued to highlight on March 1, that defense attorneys Curtis Briggs, Brian Ford and Barrientos went onto a podcast—the Vanguard’s Everyday Injustice podcast—(and) “in that podcast they talked about this particular case.”

Briggs, he said, wrote on social media, “Listen to several attorneys as we correct the record after a steady stream of lies by authorities against these heroic men and women.”

He quotes Briggs on the podcast saying, “The SLO DA’s office and SLO PD are a criminal enterprise.  The DA’s office is pushing an extreme racist agenda.  The Attorney General is showing an element of cowardice.”

Jorgenson argued, “That published speech is clearly inflammatory, prejudicial, false and it’s just not limited to a single event.”

On the other hand, he argued the last time that a law enforcement agency put out anything was last summer.  “The DA’s office has not responded to any of this evidence,” he said.  “It’s our position that we want to have this case litigated in the confines of this courtroom and not before the media.”

He charged that Barrientos and Briggs both said “they were trying to sway the jury pool.”

He pointed out one of the recordings, where he cited Briggs speaking to his clients on social media saying, “None of the attorneys is as important as any of you.  Your role is still very important to us because the police and DA’s office lied and tainted the jury pool.  So what you’re doing—continuing to help get the truth out there—you’re helping us balance out the jury pool so we can prepare for trial.”

He argued that Briggs has a history of this—and noted a gag order in the Ghost Ship case in Alameda County, a gag order that’s similar to the one they are proposing here.

Briggs immediately dismissed that as factually being untrue.

Curtis Briggs in response noted that, while he has represented clients in a number of high profile cases, this one was unique.  He recalled walking up to court with about 300 citizens of the San Luis Obispo Community “cheering us on and celebrating.”  He said, “I remember walking out of court, the entire crowd was chanting, ‘Dan Dow is a felon.’”

He said he was gratified to see the community so engaged in the case, “but I didn’t start that.”

Briggs explained that as a “young” attorney he was told, “You will never understand how much prejudice those initial releases from the government will do to your client and you won’t know that until you get to trial.  Take my word for it, it always hurts.”

“Nothing I did here was reckless or unintentional,” he said.  “I did what I believe I had to for Ms. Arata.  I don’t believe that Ms. Arata can get a fair trial in the context of such a false narrative that was put out.”

Briggs noted that nothing he has said can be construed as a lie.  He said the issue comes down to what is prejudicial: “Is it prejudice when the truth hurts the government?  Because it did not appear to me… that Dan Dow was concerned about a fair trial when they arrested and charged Ms. Arata.”

He noted, “I am investigating Dan Dow’s role in misconduct.  It’s not just in this case, but this case is how I came about it.”  He said, “I have to be able to speak with people about this.”

Briggs also argued that Tiana Arata is an activist who would be stifled by this gag order.  

“They want to shut her up with a broad gag order on every document and every form of communication and every statement—you can’t do that to her.  She was an activist when this started—what precedent would that set in the United States of America if all it took was misdemeanor charges to shut up an activist who just happened to have the opposing political ideology of a district attorney in a small town?” Briggs asked.

Briggs disputed the gag order characterized about the Ghost Ship case.  He noted that, in that case, “We had two years of unrestricted discussions with the public.”  That case, he said, had worldwide coverage, and his client was featured in the New York Times magazine.  “No one requested a gag order against us until we were in pretrial motions selecting in a jury,” he explained.  The judge said that “we’re selecting a jury and this is the wrong time for press.”

But as soon as jury selection was over, he lifted the gag order.

Briggs said he didn’t like it even then: “I would have appealed it but I didn’t have time.”

He warned the judge, “This will absolutely be appealed.  This is the most inappropriate request I’ve ever seen.”

Vicent Barrientos pointed out, “Prosecution has cited no actual or anticipated prejudice here.”

He noted that, contrary to the claims by the DA’s office, “(t)hey have made public claims since that ruling including a press release disputing the factual findings of Judge Guerrero.”  Moreover, the DA posted a comment accusing some of the attorneys of “unprofessional conduct citing the judicial professional rules of conduct.”

Barrientos noted that, even before he came on this case, the SLO PD, Sheriff, Highway Patrol and even the DA’s office made numerous social media posts where “(t)hey make false accusations against my client.  Those accusations are demonstrably false.”  

Barrientos defended his press release with the release of the drone video, arguing, “It speaks for itself.”  He noted that the vehicle had accelerated through the protesters, hitting his client, and nearly hitting some others.  He said, “It’s the truth.  It’s what’s available.  It’s in the record.  It’s out there.”

He pointed out, “This whole case is an attempt to turn that incident into some sort of conduct against defendants that should be viewed as victims.”

Barrientos added, “We have a duty to do more than just represent our clients and defend them against the charges.  We have a duty to reestablish their reputations.”

He argued they made multiple statements about his client that were false and that, while eventually they will get to trial, “that’s going to be a long long time away.”

Judge Pacquiot said, “I have one duty as judge in this matter and that is to make as appropriate and correct legal rulings as I can on motions such as this.  With the ultimate duty of having a fair trial and that means having jurors that have not prejudged the case.”

He noted this is a small county and he is concerned “when we see things that could potentially affect the prejudgment factor with the jury panel.

“There is a distinction between what is I think your well articulated right to be involved in matters that concern the political health of this community.  That also has to be balanced, however, with the right of this court to maintain an unprejudiced jury—and that tension is what I’m going to have to think about,” the judge stated at the end of the hearing.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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