Lawyer Can Talk to Press About Sex-Abuse Claims
by Purna Nemani, Courthouse News
HONOLULU (CN) - A federal judge refused to place a gag order in a highly publicized case alleging mass sexual abuse at a school for the deaf and blind.
On Aug. 10, hotshot Honolulu attorney Michael Green filed a class action on behalf of a mother of a minor who attended the Hawaii Center for the Deaf and Blind. The mother claims her deaf son was one of 35 students abused at the hands of classmate who belonged to a gang alleged called "the Ringleaders." She's suing the state of Hawaii, which runs the school, as well as the school's administrator and a counselor who allegedly knew of and may have participated in the abuse but failed to report it.
The original filing rapidly attracted local and national interest, in part because of the nature of the case, but also because of statements Green made to the media at the time.
Green told Honolulu's ABC affiliate KITV: "There's no question that people in the highest places of DOE knew about this. They knew about it at the very latest in 2009 and probably before. ... You're talking about some people that can't see, so they can't be witnesses. We have people that can't hear, so they can't hear outcries, and somebody has to be held accountable for it. I have a concern that the police investigation was frustrated."
Scott O'Neal, the counselor named in the lawsuit, and his lawyer, Randall K. Schmidt, fired back with a request to enjoin Green from making further media statements to ensure a fair trial. O'Neal allegedly "engaged in inappropriate and questionable activities with students at the school, including having them stay with him overnight."
He claims "Green's media blitz is having the desired effect on the public."
U.S. District Judge David Allen Ezra rejected the motion on Oct. 14 after weighing the "danger of prejudice from pre-trial publicity," the "rights to a fair and impartial jury" against "the competing First Amendment rights of the competing attorneys publicizing the case."
The 15-page decision cites other sensationalized murder and espionage proceedings, in which the courts issued a protective order prohibiting either party's attorneys from speaking to the press. In those cases, the 9th Circuit concurred that, under those circumstances "the record support[ed] the district court's conclusion that the activity restrained [posed] a serious and imminent threat to the administration of justice."
Ezra disagreed, however, that publicity in the deaf-blind school case is comparable.
"To be certain, O'Neal may be entitled to relief in another context," Ezra wrote. "For instance, O'Neal might be entitled to a preliminary injunction or a temporary restraining order in a defamation suit against Green, but that is not the issue here." "The court cannot conclude that Green's statements, which, by and large, are contained in the complaint and already a part of the public record, are so inflammatory that the court should restrain Green's speech [...] [and] simply do not rise to the high level necessary to justify issuing a protective order," he added.
"The court does, however, caution Mr. Green to exercise restraint in his dealings with the media [...] [and] 'maintain an atmosphere in which a fair trial could be conducted,'" Ezra wrote
"This court will not allow this trial to devolve into a circus-like environment."