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Judge Issues Gag Order In Videotaped Teen Beating Case; Polk Sheriff To Appeal

News Channel 8 photo by CHRIS TAYLOR

Judge J. Michael McCarthy ruled that certain people involved in the case are forbidden from discussing it with the media.

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By BILLY TOWNSEND | The Tampa Tribune

Published: April 9, 2008

Updated: 04/09/2008 06:15 pm

BARTOW -- A Polk County judge issued a gag order Wednesday in the case of eight juveniles accused of beating up another teen and videotaping it. The video was released by the sheriff's office this week and has made national news.

The notoriety surrounding a videotaped beating of a Mulberry teenager has "extended well beyond what needs to be done to educate the public," Polk Circuit Judge J. Michael McCarthy said Wednesday.

At the heart of the hearing was Polk Sheriff Grady Judd, whose television appearances, decision to release the attack video publicly and aggressive language in describing the suspects drew protests from defense lawyers.

Just more than hour after the gag order was issued, Judd announced his intention to appeal McCarthy's ruling. Describing himself as an independent Constitutional Officer, Judd said in a statement that he has the right "to speak freely and inform the public regarding this case or any case."

"Our public safety mission at the Sheriff's Office is to proactively educate citizens to prevent future crime," Judd added. "I have a responsibility to advocate on behalf of victims, the public's safety, and the public's right to be informed about crime in our community. This case offered a unique opportunity to discuss important public safety issues regarding the safety of and the future welfare of our children."

However, Judd said he would comply with the order unless the appeal is granted.

There was some confusion about who is subject to the order, which was issued verbally by McCarthy, with expectation that a formal written order would follow soon after. The order appears to apply to the eight defendants, the victim, law enforcement officers and attorneys, including prosecutors, and anyone formally involved in the case.

Media lawyer Gregg Thomas objected to the petition and sought to clarify that it does not apply to relatives of the witnesses and victim. He said he wants to see the written document to be certain.

Media representatives are not subject to the order.

Thomas later called the order the broadest he's ever encountered as a media lawyer and described the thought process behind it as a sort of judicial Internet panic.

"There's this overarching concern that the Internet diminishes the capability to have a fair trial," Thomas said. "It's ridiculous." Thomas said an appeal is certainly possible, depending on the instructions of his media clients.

In his petition for the gag order, James R. Franklin, the attorney for Zachary Ashley, one of two boys accused of acting as lookouts while several girls attacked a Mulberry High School classmate, argued that massive media coverage of the case has "created a substantial likelihood that the child cannot receive a fair trial."

Franklin included as an exhibit a photocopied Google search showing 50,800 matches for "polk county video beating."

Most of Franklin's attention was on the actions of Judd and the sheriff's office.

"PCSO has released a barrage of inflammatory, prejudicial information about this case, conducting press conferences and issuing written press releases," Franklin wrote.

He particularly objected to Judd's use of words such as "animalistic behavior" and "pack mentality" to describe the defendants' behavior. Judd has appeared on news shows on most major networks to discuss the beating case. A number of parents of the teens involved in the case also have been quoted in news stories and appeared on television.

The sheriff's office, through spokesmen and through Judd, routinely issues media releases and conducts news conferences on high-profile cases. Judd generally is considered accessible to reporters and is known for giving good interviews.

Franklin argued that Judd was "inflaming" the coverage of the incident on television, the Internet and in newspapers and encouraging the public to convict and sentence the accused without consideration for the law.

"Let's just forget about the presumption of innocence," Franklin said. "Let's just lynch these children."

Franklin was particularly critical of the decision to release a video of the beating.

"PCSO has released a videotape of the alleged offense to the media, which has been shown on television and the internet millions of times," he wrote in the petition for the gag order.

Thomas argued that a gag order was unnecessary so early in the case. He pointed out the prosecution and trial of Danny Rolling, the notorious Gainesville serial killer of 1990, was never subject to a gag order.

Thomas noted that only a handful of newspaper articles have been written about the attack at this point. McCarthy countered, "The public does not read newspapers as much as it watches television."

He said the wide coverage of the beating and the constant replay of the video had gotten out of hand.

Stay with TBO.com for developments.

Reporter Billy Townsend can be reached at (863) 284-1409 or wtownsend@tampatrib.com.

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