Copyright 2005, Bay City News Wire

Gag order in Araujo retrial follows trend by Alameda County judges

(ALAMEDA, May 10) -- Continuing a trend by Alameda County judges in high-profile cases, a judge has issued a gag order in the retrial of three men accused of murdering a Newark teenager who was biologically a boy but identified and lived as a girl.

The order by Alameda County Superior Court Judge Harry Sheppard in the second trial of Michael Magidson, Jose Merel and Jason Cazares for the Oct. 3, 2002, slaying of 17-year-old Gwen Araujo is the third gag order now in effect at a high-profile criminal case in Alameda County.

Judge Jeffrey Horner issued a gag order last June before pretrial motions began in the second trial of three former Oakland police officers known as the "Riders," who are accused of beating and framing suspected drug dealers in west Oakland in 2000. Following a lengthy trial, jurors have been deliberating since April 5 without reaching a verdict yet.

And on May 3 Judge Winifred Smith issued a gag order at the arraignment of Ignacio Rafael De La Fuente Jr., the son of Oakland City Council President Ignacio De La Fuente. The younger De La Fuente, 32, is charged with forcibly raping a 15-year-old girl and a 21-year-old woman.

The gag orders bar the attorneys, defendants and witnesses in the cases from commenting to the news media.

In all three cases, the judges didn't make any factual findings or state any reasons on the record for issuing their gag orders.

Horner issued his gag order on his own. Smith issued her gag order at the request of De La Fuente Jr.'s attorney, Jesse Garcia. Sheppard didn't say if his gag order was his own idea or was issued at the request of one of the attorneys in the case.

Peter Scheer, executive director of the California First Amendment Coalition, a San Rafael-based group that tries to protect the public's right to know, said today that judges "have wide latitude" to bar attorneys from talking to the news media because attorneys are officers of the court.

Judges have the responsibility of making sure that attorney comments don't influence the jury selection process or the outcome of a trial, he said.

But Scheer said judges "still should articulate their reasons for gagging the parties and explain themselves on the record."

He said that following O.J. Simpson's highly publicized murder trial, "Judges are particularly concerned about not losing control of their cases and having them tried on Court TV instead of the courtroom."

Scheer said he thinks the only legitimate reason for issuing a gag order is to prevent attorneys from disclosing information that wouldn't be allowed at a defendant's trial, such as a confession that was inadmissible for various legal reasons.

Attorneys and judges wouldn't want that information to taint potential jurors, he said.

But Scheer said he thinks even that concern is "exaggerated" because he believes juries are good at following judges' instructions to ignore inadmissible evidence and at being objective.

He said he thinks judges are "overly concerned" about attorneys commenting on their cases.

Scheer also said the rationale for gag orders in retrials such as the Riders and Araujo cases is weak because the public is already aware of the evidence in the cases due to extensive news coverage of the first trials.

Prosecutors in the Alameda County district attorney's office didn't object on the record to any of the three gag orders.

District Attorney Tom Orloff didn't return a phone call today seeking comment on his policy on gag orders.

Jury selection in the Araujo retrial is expected to take at least two weeks, although the attorneys in the case were unavailable for comment today because of Sheppard's gag order.