By David M. Greenwald
San Luis Obispo, CA – The decision took two months. But retired Judge Roger Picquet finally denied a motion for a protective (gag) order.
“(T)he Court is unable to find at the present time and under the current circumstances that there is a clear and present danger or serious and imminent threat to the right of a fair trial, or any other legitimate interest sought to be protected by the issuance of a Protective Order,” the judge wrote.
The judge noted that the motion is “denied without prejudice” and said, “The Court will consider such a request in the future should a party feel that circumstances have changed.”
The motion was filed by the office of San Luis Obispo DA Dan Dow which sought to bar the defendants, their attorneys, witnesses, and anyone acting on their behalf from “commenting publicly about the facts in this ease.”
Ken Jorgenson, a Deputy DA in San Luis Obispo, in April argued, “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.”
He also argued that Attorney Curtis 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.
Overall, he argued against the motion.
“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.
Judge Picquet noted that the legal standard is whether the speech “sought to be restrained poses a clear and present danger or serious and imminent threat to a protected competing interest” as well as whether there are less restrictive alternatives available.”
He explained, “The protected competing issue in this matter is, of course, the right of the parties to have a fair trial, to be able to select a jury that has not been unduly biased, or prejudiced by statements published in the press, social media or other forums and to ensure that the testimony of witnesses to the events underlying the charges is not compromised or tainted by such statements. Both the prosecution and the defense have an equal stake in these interests.”
He also noted that there is an appeal pending on a motion to recuse the DA’s office which is likely to occur several months from now, and that the court has yet to set a trial date on these cases.
—David M. Greenwald reporting
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