A judge in Ocilla, Georgia, says she expects to rule within a week on whether to change or lift her broad gag order in the case of a south Georgia beauty queen's murder.
Tara Grinstead disappeared from her home in October, 2005, and investigators had scant clues to find her. More than 11 years later, Ryan Duke, a former student at the high school where Grinstead taught history, was arrested and charged with her murder. A classmate, Bo Dukes, was also charged with helping him destroy and hide the body.
Thursday, Superior Court Judge Melanie Cross heard arguments from lawyers after several groups of media organizations filed motions appealing the gag order, which was requested by Duke's attorney.
"This matter of pretrial publicity is the tail wagging the dog. It's overstated," said lawyer David Hudson, arguing against the gag order for several newspapers.
WSB legal analyst Phil Holloway expects that Cross would narrow, clarify, or lift her order, which he says at least appears to be overbroad and restricting free speech.
"It's been interpreted by many people in the court system, for example, to believe that they cannot release public court documents," says Holloway. "In addition, it prevents any potential witness from saying anything about the case--and at this point, who knows who's a witness? Arguably, it could keep Tara Grinstead's best friend from saying something nice about her to WSB Radio."
Derek Bauer contends that press coverage can help lead to justice, and says even in a high-profile case like Grinstead's disappearance, media reports helped generate tips and information for law enforcement. None of the coverage thus far has risen to a level of harm, he argued.
"Not all publicity is bad publicity," said Bauer.
But public defender John Mobley argues "pervasive" media coverage harms Ryan Duke's right to a fair trial, especially in a community with about 9,000 residents.
"There's certainly harm," said Mobley. "There's certainly prejudice, especially as it relates to law enforcement and statements that they've made thus far. They've discussed the guilt of my client, and specifics as it relates to the evidence."
"With all respect to a defendant's Sixth Amendment right, which of course is of the utmost importance, a defendant is not entitled to a jury that has no knowledge of anything," said Attorney Lesli Gaither, arguing for Channel 2 Action News and the Atlanta Journal-Constitution.
Holloway agrees, saying that is well-established law upheld by several courts.
"This is such a small community--really small--that there's practically nobody that doesn't know something about the case. So you're not really going to find a jury in that county that knows nothing," says Holloway.
Lawyers pointed out that in the high-profile Ross Harris trial, which garnered nationwide coverage, a gag order was rejected in that case--which was ultimately moved because pretrial publicity made it impossible to pick a jury in Cobb County. Harris was later convicted by a jury in Glynn County. Holloway adds that in the Harris trial, only certain documents related to defense strategy were filed under seal--not the entire court record as is currently being done in the Duke case.
But Mobley said in court that the gag order is the best way to keep the jury pool from being spoiled.
"Talking about voir dire and sequestering a jury is great if we're a week from trial," said Mobley. "We're talking at least a year or possibly more from the trial in this case. There's no other way to limit this type of information, to limit the jury from being tainted by information that could be released by law enforcement and others. It's just not possible."
Looking at the judge's sealing order, Holloway says that the way it's written, the entire case can be done in secret--even a potential plea deal or a trial. That, he says, would prevent the public from ever knowing what happened to Tara Grinstead.
"We don't want cases tried in the media," says Holloway. "That's the reason for legitimate gag orders. But you can't just stop an entire community from talking about something of such great public interest."
Judge Cross says she expects to rule "within the week."