Gag order vacated by Georgia Supreme Court in Tara Grinstead case

OCILLA — The Supreme Court of Georgia has thrown out the gag order imposed by the Irwin County Superior Court in the 2005 murder case of teacher Tara Grinstead, which had a breakthrough after an arrest was made last year that drew significant media attention.

“A gag order like this one may be constitutionally permissible in exceptional circumstances, but the record here does not reveal circumstances sufficiently exceptional to warrant such a restraint,” Justice Keith R. Blackwell wrote in a unanimous opinion issued Monday. “For that reason, we vacate the gag order.”

More than 12 years ago, in October of 2005, Grinstead, an Irwin County High School teacher and former Miss Tifton, disappeared from her home in Ocilla. In the ensuing years, the Georgia Bureau of Investigation conducted an investigation, interviewing more than 200 people and conducting searches of waterways and other properties — and eventually the case went cold.

On Feb. 23, 2017, the GBI arrested Ryan Alexander Duke and charged him with Grinstead’s murder. Duke, who had graduated from Irwin County High a few years before Grinstead vanished, pleaded not guilty. At a news conference that day in the Irwin County Courthouse, authorities announced the arrest. Following the news conference, the magistrate conducted a first appearance hearing at which Duke appeared in a green and white jail jumpsuit, shackles and handcuffs.

The media were permitted to film Duke in the courtroom. Within a week, the trial judge entered a gag order after Duke’s attorney asked the court to bar trial participants from commenting on the case. Specifically, the order restrained “the prosecution, all law enforcement, the defendant, counsel for the defendant, potential witnesses, expert or other, court personnel and family members for both the defendant and alleged victim” from making any statements outside court “for dissemination by any means of public communication relating to any matters having to do with this case.”

The judge explained that, “The defendant’s Sixth Amendment right to a fair trial may be prejudiced by extra-judicial statements” because “this case is high-profile and has generated extensive media coverage.”

On March 2, 2017, WXIA-TV and 13 WMAZ-TV filed an “emergency motion to intervene and to vacate the gag order.” Other news organizations promptly filed motions to intervene, as did Grinstead’s sister. At a hearing on the motions, attorneys for the media outlets argued that the gag order impaired news gathering, was a constitutionally impermissible prior restraint, swept too broadly and was improperly issued with no evidentiary record to support it.

Duke’s attorney introduced 78 exhibits containing various forms of media coverage about the Grinstead case and Duke’s arrest. The attorney argued the gag order was warranted and necessary, and the state’s prosecuting attorney said the state did not object to a gag order.

On March 27, 2017, the trial court rescinded its “first order” and issued a “modified order of court.” The “revised order,” as the state calls it, said that until final disposition of the case, the district attorney, his staff, Duke’s attorney and staff, Duke’s co-defendant — whom the state alleges helped conceal Grinstead’s body — the co-defendant’s attorney and staff, and all law enforcement who participated in the investigation, “shall not release, make or authorize the release of any extra-judicial statement by any means of public communication and news media.”

The order states that, “Any violations of this order may be punished by contempt of court.”

The modified order is narrower than the original order, but the news organizations asked the trial court to reconsider, arguing that it remains an improper prior restraint on their freedom of speech, and the evidence and findings of fact in the case do not establish a sufficiently high likelihood of prejudice to warrant any restraint. They also argued that the trial court failed to consider other less restrictive alternatives.

The trial court took no action on the motion, and WXIA and WMAZ then appealed to the state Supreme Court.

In Monday’s 25-page opinion, Georgia’s high court pointed out that the standard of review to which courts should apply in determining whether a gag order is proper “is a difficult question,” and “the United States Supreme Court has never decided a case exactly like this one.” Officials said courts have applied different ranges of standards to determine whether a gag order is necessary to protect a defendant’s right to an impartial jury and fair trial.

“In the end, we conclude that it is unnecessary today to decide definitively which standard applies in cases like this one,” the opinion said. “Even under the most deferential standard, the evidence of record and findings of the Superior Court cannot sustain the modified gag order.

“Here, although the record shows significant media interest in the case, it does not demonstrate any likelihood that persons to whom the modified gag order is directed would make prejudicial statements. We have reviewed the exhibits offered by Duke at the hearing to illustrate the nature and extent of media coverage, and we find no reports attributing inflammatory statements or prejudicial information to sources covered by the modified gag order.”

Many of the reports share information from arrest warrants and other public records. Images of Duke in shackles and an inmate uniform were not obtained from people covered by the gag order but instead “were captured by media photographers in open court.”

“Duke and the state fail to identify a single statement attributed to any person to whom the modified gag order applies that would be likely to prejudice Duke’s right to a trial by an impartial jury, and we cannot say that the record shows even a reasonable likelihood of prejudice sufficient to sustain a gag order,” the opinion concluded. “For that reason, the modified gag order is vacated.”