Marianne Greseth
Com Law
Case 2
Slife v. Montgomery
Definition Argument
I.
Mr. Slife violated a court ordered gag order and therefore violated the
Federal Contempt Act.
A. The gag order issued by Judge Montgomery banned the publishing of
all information presented by the District Attorney and related
information about Robertson’s relationship with Ms. Merkt.
1. According to Black’s Law Dictionary, a gag order is defined
as a judge’s order directing parties, attorneys, witnesses, or
journalists to refrain from publicly discussing facts of a
case.
2. Violating a gag order is punishable by law. This is shown in
many cases including U.S. v. Dickenson. In this case, the
court ruled how reporters should handle gag orders. The
judge ruled that even if a gag order was unconstitutional,
reporters are still expected to follow the judicial order until
they exhausted all court remedies. In this case, Mr. Slife did
not exhaust all court remedies before violating the judicial
order. This is a violation of contempt and is punishable
whether or not the judicial order was constitutional or not.
When Slife appealed the gag order a second judge also
upheld the gag order and specifically told Slife that
violating this gag order would lead to contempt of court.
a. Similarly, in Ponder v. Watson the court upheld a
judgment of contempt. In this case, an attorney
talked about possible punishments for her client
after the judge ruled not to cover that issue in the
media. The Supreme Court ruled that this caused a
“permanent prejudiced jury in favor of her client…
and that prejudice cannot be overcome.” This case
specifically violated judicial proceeding just like the
case we have today. Mr. Slife violated specific
judicial proceedings of the court and permanently
polluted the jury pool. If the information about
Robertson’s relationship with Ms. Merkt is ruled
inadmissible for court, but it’s heard outside of court
like the Ponder, it will cause a permanent prejudice.
II.
The violation of the gag order by Mr. Slife will cause imminent danger to
Mr. Robertson.
A. Black’s Law Dictionary defines imminent danger as an immediate, real
threat to one’s safety that justifies the use of force in self-defense.
Similarly, danger is defined as peril or exposure to harm. Mr.
Robertson will be in imminent danger if reporters are allowed to
report on Robertson’s relationship with or reaction to the actions of
Ms. Merkt involving Robertson. Judge Montgomery said this
information would inflame the community and an inflamed
community would put Robertson in an immediate danger and threat
to his safety.
B. In KPNX v. Arizona Superior Court the court upheld a gag order in a
case similar to this one. In KPNX the judge made a gag order to keep
all court personnel from speaking with reporters. It was a murder
trial just like this one and Judge Rehnquist ruled that communication
between court personnel and the press could cause a serious problem
for a fair trial. In this case, the judge balanced the fair trial rights of
defendants with the rights of reporters. This is what needs to happen
in the case today. Mr. Robertson’s right to a fair trial outweighs the
medias right to cover a relationship.
Slife v. Montgomery
Value Argument
I.
Violating the gag order has an adverse affect on Mr. Robertson.
A. Mr. Robertson will not receive a fair trial if the gag order is
overturned.
1. Biased jury members will pollute the jury pool
a. Black’s Law Dictionary defines objective as being
without bias or prejudice.
b. In Marshall v. United States the court overturned a
conviction because of pretrial publicity. In this case
the jurors said they wouldn’t be influenced by
information about the defendant published in a
newspaper, but the Supreme Court ruled that since
the jurors’ heard information that was too
prejudicial to be presented as evidence in news
accounts that it would be prejudicial for Marshall’s
case and a new trial should be granted. This is
similar to today’s case. If the news can publish
prejudicial information about Robertson then they
can’t be free of bias when hearing the case.
2. According to research done by the Department of
Psychology at Indiana University and Purdue University, juries
exposed to negative pre-trial publicity were more likely to
return a conviction than juries who weren’t exposed to
negative pre-trial publicity. They also found that most jurors
don’t make decisions in the manner the court expects.
Decisions are based on past experiences and other perceived
information that is seen as relevant to help make a decision.
So, even if a judge said disregard all other information you’ve
heard about Mr. Robertson in the media. The information they
heard would play a part in making their decision to convict or
not to convict. Research of human cognition concludes that
people can rarely make decisions based on evidence
presented; instead they use every relevant data they’ve heard.
II.
There needs to be a balance between the 6th amendment right to a fair trial
for Robertson and the 1st amendment right to free speech.
A. Pre judicial pretrial publicity causes an immediate and severe danger
for Robertson and his right to a fair trial.
1. In Sheppard v. Maxwell, Sheppard was massacred by media
coverage. All but one juror admitted to hearing news coverage
before the trial and they continued to hear anti-Sheppard
media throughout the trial. Sheppard was convicted of seconddegree murder, but the Supreme Court overturned the
conviction on the basis of prejudicial publicity. The court ruled
that the judge could have done more to protect Sheppard like
insulating witnesses, restricting press at trial, and controlling
the release of information. This is an example of what could
happen in the Robertson case. Judge Montgomery is being
proactive and taking the ruling from this case and applying it
to Robertson. He is restricting press and controlling the
release of information like the court ruled in the Sheppard
case. He is trying to protect Robertson and save the
community from having to re-try him at a later date.
Prejudicial publicity can have an overwhelming negative affect
on jurors.
Slife v. Montgomery
Objection Argument
I.
The gag order issued was constitutional
A. There was clear wording in the definition of the gag order.
1. There are clear definitions of the words used in the gag
order in Black’s Law Dictionary. Words like objective,
competent jury, related information, or inflame are all defined.
B. The reach of the gag order is narrow.
1. The gag order only involves the issues in this specific case.
2. Reporters can report on other things involved in the case
like the judges performance or other court proceedings other
than the information presented by the District Attorney and
any related information to those facts presented.
3. They can report on the gag ordered specific issues after the
case is presented and a verdict is reached.
II.
Mr. Slife should be convicted of violating the Federal Contempt Act.
A. The Federal Contempt Act allows the court to punish disobedience of
any judicial procedure in the presence of the court or “so near thereto”
as to obstruct the administration of justice.
B. In U.S. v. Dickenson the court ruled that all court remedies must be
used before violating a gag order. Slife did not do this and therefore
should be punished for contempt.
Refutation Argument
I. My opponent will use Murphy v. Florida, which states that jurors don’t have to be
totally ignorant of the background information of the defendant if they can put their
impressions aside and make an unbiased verdict. They will use this case to say the
reporters can publish background information about Robertson and his past
relationships. They will argue that jurors can still have an unbiased opinion even if
they know some background information.
Rebuttal: I will use the Department of Psychology at Indiana University and Purdue
University study that found jurors’ biases always play a role in their decisionmaking. I will also use the research that says jurors use all relevant information to
make decisions and therefore the more negative publicity juror’s have heard about
Robertson, the more that information will play into their decision. Also, if the media
publishes things about Robertson’s past relationships that are inadmissible in court,
but the jurors hear them this could cause a mistrial as in Marshall v. United States.
Likewise in Shepherd v. Florida the court rule that the press cannot deprive the
accused to the right to a fair trial. Robertson should be allowed a fair trial.
II. My opponent will use Nebraska Press Association v. Stuart, which says that a
judge must show an imminent threat to the administration of justice. They will say
that in this case there is no imminent threat to Robertson or the administration of
justice. They may say that if the gag order is upheld it could be considered prior
restraint, which is a violation of First Amendment rights.
Rebuttal: I will say that violating this gag order will be an imminent danger to
Robertson. Judge Montgomery said this case could inflame the community causing
danger to Robertson. Similarly, a violation will hurt the jury pool and ruin
Robertson’s chance at a fair trial. In this case a balance between the right to a fair
trial and the right to report need to be balanced. Does the public need to know
about Robertson’s relationship with Ms. Merkt to be considered informed? The
reporters could report on these details after the jury makes a decision and then still
be keeping the public informed of court proceedings?
III. My opponent might use the Bridges Principle established in Bridges v. California.
This principle uses “clear and present danger” instead of “bad tendency” to test
contempt cases. This case gives more power to the press to publish information
about court proceedings. They will say that in the Robertson case there isn’t “clear
and present danger.”
Rebuttal: I will say that the bridges principle applies more to judicial proceedings,
court actions, and the legal process not to details of a case. Judge Montgomery put a
gag order on the evidence presented by the District Attorney and other information
about Robertson’s relationship with Ms. Merkt, not information about himself, the
legal process, or other proceedings. The cases that applied the Bridges Principle,
Craig v. Harney, Wood v. Georgria, and Pennekamp v. Florida, all sided with the
press because the judges tried to ban negative information about themselves and
their policies. But, in Ponders v. Watson the court upheld a gag order because the
defense attorney published favorable information about her client that caused a
prejudiced jury. This is the same as the Robertson case, publishing information
about his past will cause a permanently prejudiced jury.
IV. They may use Times-Picayune Publishing Corporation v. Schulingkamp to
emphasize the point of needing “clear and present danger.”
Rebuttal: I will again say there is an imminent danger to Robertson’s right to a fair
trial and we need to balance those rights. The right of Robertson’s fair trial with an
unbiased jury pool outweighs a reporters right to publish information that could
wait until after a verdict is reached.