Copyright 2005, Sacramento Bee

Gag order legal, but is it fair?

(Sacramento Bee 4/12/05) -- Two weeks ago, an attorney for Golden West Nuts, Inc. of Ripon asked a judge to impose a gag order to keep prosecutors from discussing criminal charges against the company president and a labor foreman.

Two days later, a company publicist released a statement to reassure the public that Golden West almonds are not tainted by methyl bromide, a toxic chemical used to sterilize soil prior to planting.

The move may not violate the court order, which bars the attorneys and their agents from discussing the case that is scheduled to return to Stanislaus County Superior Court on Wednesday.

But it points out the difficulties that such gag orders present: The defendants can talk, and the prosecutors cannot respond.

Although the situation is legal, Peter Scheer, general counsel for the California First Amendment Coalition, said it seemed hypocritical.

"If you're going to take the position that the other side can't talk, you have to be prepared to abide by those principles yourself," he said.

Cindy Broughton, an advertising executive from Merced, said she issued a statement regarding the methyl bromide case at the request of the company.

Company President Jon Hoff and labor foreman John Becerra are accused of exposing an employee to a hazardous dose of methyl bromide.

Hoff is charged with five felony and misdemeanor counts, and Becerra with six felony and misdemeanor counts. Both men have pleaded not guilty. They face up to three years in prison and fines of $250,000 or more if convicted.

"They just want to make sure that people aren't confused and think that (the case) has anything to do with their products," Broughton said.

Ruth Jones, a professor at the University of the Paci-fic's McGeorge School of Law in Sacramento, said prosecutors could ask the court to modify the order if they believe it unfairly favors the defense.

"They might go back and say, 'Hey, the defendant should be included,'" she said.

Jones noted that gag orders usually come up in high-profile cases, such as Michael Jackson's child molestation trial. She said such protections are not needed unless the media has shown extraordinary interest in a case.

Defense attorney Kirk McAllister originally asked for a gag order that also banned the defendants, witnesses and court employees from discussing the case.

Judge Terry K. Cole deleted those provisions, crossing them out of a proposed order.

The judge imposed the order after defense attorney Stephen Foley, who represents Becerra, joined in the motion. Prosecutor Gloria Mas did not oppose the gag order.

In court papers, McAllister said the order was needed because the Environmental Circuit Prosecutor Project of the California District Attorneys Association has a history of "trying its cases in the press." McAllister attached a copy of a Bee article about the pending arraignment of Hoff and Becerra.

In that article, Mas declined to discuss the details of the case, including what happened to an unnamed employee who lacked the training and safety equipment needed to handle the chemical.

McAllister also attached a copy of a Pulitzer Prize-winning story by The New York Times about one of the circuit prosecutors, Roy J. Hubert Jr., and two farmworkers who drowned in a pit of wastewater and manure on a dairy in Gustine.

McAllister faced Hubert and other circuit prosecutors in the dairy case, and in the end won acquittals for a general manager and a herdsman who had been charged with involuntary manslaughter.

In court papers filed in the Golden West case, McAllister said the prosecutors freely discussed the Gustine case with the media, because they wanted to taint the jury pool and deprive his clients of a fair trial.

Scheer, who directs a foundation that promotes the public's right to know the basis for government decisions, said worries about tainted jury pools are greatly exaggerated.

He said jurors are expected to base their decisions on the evidence presented at trial, but they need not be ignorant of publicity a case has generated.

He said the courts have concluded that jurors were fair in the most high-profile cases - those stemming from the Watergate investigation and the resignation of President Richard Nixon.

"We think gag orders are a bad idea, even in the most extreme circumstances," Scheer said.

By Susan Herendeen