The Santa Barbara County District Attorney's Office is asking Santa Barbara Superior Court Judge Brian Hill to order the purging of all postings about a particular criminal case. Defendent Lances Attorney calls this move a violation of the First Amendment.

This story appeared in the Santa Barbara News Press Saturday October 15th 2011
DA: D.U.I. Defendant Lance should purge Internet of all case comments 'in any form'. Attorneys call move violation of the First Amendment.
By SCOTT STEEPLETON NEWS-PRESS CITY EDITOR.

The Santa Barbara County District Attorney's Office is asking a judge to order something that on its face appears unprecedented in the history o fthe Internet: the purging of all postings about a particular criminal case. In a motion for a gag order filed Thursday with Santa Barbara County Superior Court Judge Brian Hill, Deputy District Attorney Michael Carrozzo states that attorney Darryl Genis, who is representing investigative journalist Peter Lance in a misdemeanor DUI case, "has engaged in improper pretrial publicity that threatens to prejudice the upcoming trial." One of his proposed remedies: Mr. Lance and his attorney should be "prohibited from commenting on this case in any manner." Judge Hill is not averse to issuing gag orders in the Lance case: in July, he told the News-Press not to publish information that had been legally obtained from the city. The paper defied the order on the grounds the judge lacked the authority and jurisdiction to make such an order. This is not the first time the prosecution has asked the judge to gag the defense, but each time the judge has said no. Mr. Carrozzo's motion states a gag order is necessary at this time because defense comments endanger the likelihood of the state to receive a fair trial against Mr. Lance. This despite the fact that Judge Hill has yet to decide whether the case, which involves allegations of misconduct on the part of arresting Officer Kasi Beutel
of the Santa Barbara Police Department and others, should even go to trial. A hearing on a variety of pretrial issues will be taken up Oct. 25. Prosecutors hope the judge will rule on the latest gag order motion on Tuesday. The motion includes 11 examples of statements made by the defense — all in the News-Press — that the prosecution claims are inflammatory. In one instance, according to Mr. Carrozzo, Mr. Genis made a statement that is "incorrect and not supported by the record." This involves an Oct. 13 News-Press story on yet another DMV hearing in the Lance matter that Officer Beutel was declared unavailable because of medical leave. Two weeks earlier, a seemingly healthy and happy Kasi Beutel showed up at the County Courthouse prepared to testify in the case. At that time, she walked in. The Prosecution willing to call Beutel as first witness under her own steam, walked out the same way and was able to dodge some photographers hoping to get a shot of the elusive officer. And this came after she got over another on-the-job-injury-related period of unavailability. It's not clear what caused the suffering over which she missed last week's DMV hearing, but on the eve of that hearing, a colleague submitted a declaration of unavailability on Officer Beutel's behalf. (As a side note, a DMV supervisor in Oxnard on Friday gave the OK for Mr. Genis to certify the record in the DMV aspect of the case, in spite of the no-shows by Officer Beutel, so he can move for a contempt order against the officer.) In the Oct. 13 News-Press story, Mr. Genis said the DA knew it had no intention of calling the officer to the stand two weeks earlier, "but they wanted to create the illusion that they would for the benefit of the media.

We'll be deceived no longer." Mr. Carrozzo responded, telling Judge Hill by way of the motion that prosecutors were ready to call the officer as their first witness. (Indeed, lead prosecutor Sanford Horowitz made several attempts to get Officer Beutel to the stand, only to be rebuffed by judge Hill, who insisted handwriting experts testify first.) "The issues were framed in a manner that expert testimony was required to be provide first," Mr. Carrozzo writes in his motion.The defense knew this, he adds, because it was discussed in chambers."The defense knows that Officer Beutel will be called as a witness during the hearing and any allegations to the contrary are intended to cast dispersions(sic) on the People in the media." Gag the defense, Mr. Carrozzo says in a declaration supporting the motion, before inaccurate statements contaminate the jury pool. But a declaration is not what ultimately is signed by a judge. That would be the accompanying order and in this case, besides advocating a violation of the First Amendment, Mr. Carrozzo's proposal includes a move that is impossible utterly. Besides barring the defense from commenting on the case, Mr. Carrozzo asks the judge to sign off on this: "Defense counsel and defendant are ordered to remove any comments or information regarding this case that is currently posted on the Internet in any form."Michael Zinser, an attorney representing the News-Press, said of the proposed order, "I can't imagine it's possible." If, for example, the proposed order seeks Mr. Lance to remove from the News-Press website everything he has written about the case and there has been a lot—as a freelance writer with no ownership interest, he would have no standing to do so. In addition, Mr. Genis and Mr. Lance both have made comments in News-Press stories written by others, including this reporter. Does District Attorney Joyce Dudley expect these stories to be wiped clean of "any comments or information" provided by the defense? "If it's interpreted to apply to the News-Press, it violates its First Amendment rights," said Mr. Zinser. "It's a unique story to chronicle hisgoing through this preceding."Then there's Mr. Lance's own website, which includes numerous stories about the case by Mr. Lance and others, photos of Kasi Beutel and copies of evidence submitted by the defense. Can the government force him to take it all down? Said Dugan Kelley, another News Press attorney, who, like Mr. Zinser, was provided a copy of the proposed order: "This is unfortunately another example where the Santa Barbara County District Attorney's Office has attempted to overreach by asking Judge Hill to order the removal of content on the Internet 'in any form.' This request is anathema to the First Amendment and strains common sense."By crafting an order in such a way, the District Attorney's Office is creating a toehold of content control, where any press can be muzzled regardless of whether the press appears in front of Judge Hill or not. Such an order runs contrary to the Founders' intent to create a free press and ensure free¬ dom of speech for everyone." In response to a News-Press inquiry about whether her office indeed seeks to have these two men remove content from other people's websites, Ms.Dudley said: "As always, my concern is that everyone's First Amendment rights be upheld, the defendant be presumed innocent, that this case be decided in a court of law, that a local jury pool not be contaminated and that no attorney violate any (California Rules) of Professional Conduct. Later, Senior Deputy District Attorney Gordon Auchincloss told the News-Press by phone, "The intent of the motion is not to force the parties to remove any comments that have been previously published. Obviously we can't remove from the Internet things that are circulating in that medium." "It's about future statements to the press," said Mr. Auchincloss. "I am sure the judge would place the same orders on us." But because of its overly broad language, perhaps the proposed order will be reworded before the judge considers it. "Indeed, the judge has no has jurisdiction over anyone but the involved parties," said Mr. Auchincloss. Mr. Lance on Friday responded to the proposed order this way: "What does it say about how worried the D.A.'s office is about (Officer Beutel's) culpability that they have made multiple motions with Judge Hill to gag the media from covering the story? "And now they've taken the unprecedented step of trying to remove any material on the Internet they find critical to their position? This is not the Eastern Bloc at the height of the USSR or Nazi Germany. This is Santa Barbara, California, in the year 2011. And the issues I've raised go to the heart of just how safe our citizens are from a police officer who may be bent on framing them for DUI crimes they did not commit. Added Mr. Genis: "There's no way a judge is going to order anyone to take down information about his life from his own website." "It's a burn-the-books motion," he said. "The Internet is the 21st century center of books and information, and they're saying. 'We don't like the truth, burn the books.' "
email: ssteepleton@newspress.com

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