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	Editorial: Gag Order Reflects New Thinking The Monterey County Herald April 29, 2009 http://www.montereyherald.com/opinion/ci_12252268 No one should expect a newspaper to be enthusiastic when competing lawyers in a high-profile court case vow not to talk to reporters about the substance of the proceedings. But the virtual gag order that governs the flow of information in one important local case is better than what might have been, and we're hopeful that it reflects new thinking by the Monterey County courts. Among other things, the court broke with recent tradition and held a legally required hearing while pondering a request for a gag order. We have been critical of the local bench for its failure to hold such hearings in the past, so we feel obligated to applaud when the appropriate process is followed, no matter how we view the outcome. The case is the child molestation prosecution of the Rev. Antonio Cortes, the now-suspended pastor of St. Mary of the Nativity Catholic Church in East Salinas. The young priest is accused of seducing a 16-year-old boy, furnishing him with alcohol and possessing child pornography, charges that left his parishioners stunned and disheartened. A gag order was requested by normally talkative defense lawyers Miguel and J. Hernandez, who wanted to stem the flow of incriminating news articles. The articles, not so incidentally, have been based for the most part on public documents, not leaks or pronouncements. The defense request led to a hearing Friday before Judge Russell Scott, who provided opportunity for the media to file objections. Rather than rule on the spot, Scott opted to ponder the matter over the weekend. But before the weekend could start, the defense and prosecution returned to the judge to offer an out-of-court settlement of sorts. Rather than proceed with a formal gag order, they would agree to keep their outside-the-courtroom commentary to a minimum and not discuss facts of the case. After a weekend's worth of contemplation, Scott said he was comfortable with the arrangement, so there it rests. We would, of course, prefer no limits on the lawyers or anyone else involved, but we're not going to get all worked up about the way it turned out. It could have been worse. Among our concerns about gag orders is that they make it so difficult to cover judicial proceedings, and by that we're not just talking about losing access to juicy tidbits. When a case proceeds under a formal gag order, the lawyers, the court staff, bailiffs, the police and others can become so concerned about the potential for a contempt charge that they are sometimes unwilling to discuss the most routine matters, ranging from simple things, such as whether new public documents have been filed, to even simpler things, such as whether court will be in session the next day. Dealing with reporters can be challenging, and some officers of the court don't mind having a gag order to fall back on even when the information they possess is not the type covered by the order. Gag orders, and possibly even this informal one, can provide a barrier for clear and accurate coverage of the proceeding. Legal motions and responses, and even decisions by the court, are sometimes written in legalese. Mistakes are made. When question arise, a gag order may prevent those involved from even trying to clarify, which can compromise the public's ability to follow along in meaningful fashion. Gag orders are imposed as part of the effort to ensure a fair trial, for the defense and for the prosecution. Too often they are issued with little real thought to whether they will do any good or whether the parties involved actually would attempt to manipulate public sentiment through the media. Too often, they are issued without real consideration of whether other lesser measures—such as an agreement between the lawyers or even a stern look from the judge—might be just as useful. Ultimately, the outcome in the Cortes case is disappointing, but the fact that the needs of the press and public were even considered is a step in the right direction.
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