Scott Dyleski's Trial: The Chilling Effect of the Gag Order

What was Gagged - Computers

"Thanks to Judge Flinn’s gag order, the question from now on will be: What did he gag, who did he gag and when did he gag it?

And the most important question of all is: WHY did Judge David Flinn REALLY issue a gag order in the murder trial of Pamela Vitale?

Was it to insure a fair trial for Scott Dyleski or to assure that he would be the only one convicted? (Bruce Gerstman, The Contra Costa Times, November 18, 2005 )"

Gerstman also states...

California Penal Code section 1524 provides that if law enforcement desires to seize the computer of an attorney, it must obtain an order from a judge requesting a special master be appointed to take the computer and be in charge of examining it. There was no emergency situation at the time when Horowitz’s computer was taken. A large force of deputies and police cordoned off the Vitale trailer and environs to protect all items. The crime scene was in an isolated area and well protected. The situation allowed adequate time for law enforcement to obtain an order authorized by a Contra Costa Judge on duty to request a special master to take control of the Horowitz computers in accordance with the penal code.

A wiser alternative would have been to obtain a court order from the Contra Costa duty judge and turn over the Horowitz computers to the FBI-controlled Computer Forensic Laboratory located at the foot of the Dumbarton Bridge in Menlo Park. This facility is available to retrieve computers and analyze their contents upon request by local district attorneys and law enforcement.

Deputy DA Hal Jewett Letter Responding to Inquiry about Special Master to Examine Horowitz computers: Mr. Jewett explains that he let Daniel Horowitz decide what could be examined, no search warrant was issued.

Letter to Hal Jewett Contra Costa Deputy DA inquiring about computer special master

Deputy DA Hal Jewett Letter Responding to Inquiry about Special Master to Examine Horowitz computers:
Mr. Jewett explains that he let Daniel Horowitz decide what could be examined, no search warrant was issued.

Punishing Pundits: People v. Dyleski and the Gag Order as Prior Restraint in High-Profile Cases, LOYOLA OF LOS ANGELES LAW REVIEW 39 Loyota Law Rev. 1197 (2006).

Mr. Michael D. Seplow and Mr. Paul L. Hoffman authored the article titled "Punishing Pundits: People v. Dyleski and the Gag Order as Prior Restraint in High-Profile Cases". The article discusses the constitutionality of gag orders passed in People v. Dyleski, restraining Ms. Gloria Allred, a nationally known legal commentator from taking part in a public debate of the case. It argues that Courts cannot prevent commentators like Ms. Allred from expressing their views over pending cases, especially matters already in the public domain. It discusses leading cases that lay out how far a court can go when it regulates speech in the interest of promoting fair criminal trials. The authors opine that First Amendment protection should bar courts from issuing such gag orders that restrain public debate and media coverage (ref).

Side Note: Judge (Dyleski Gag Order) Flinn threw out a suit that involved unethical/criminal behavior by Sheriff Warren Rupf and Coroner Brian Peterson in a death case at Kaiser (Coroners and Corruption: MARK MILLER - 41 YEARS OLD DIED AFTER RECEIVING MORPHINE, 2001, Contra Costa County)

History

Unnamed sources in law enforcement and Horowitz' neighbors in-the-know immediately leaked a great deal of information about the young suspect, Scott Dyleski...

The media ate up and spit out every bit of information they could obtain about the sensational case. Newspapers and audio and video media captured witnesses’ observations and opinions. Day after day Nancy Grace interviewed the grief-stricken Daniel Horowitz as she trudged the obscure trails of the Lafayette hills reporting on the case. She conducted an exclusive tour of Pamela’s and Daniel's unfinished Italianate dream home, the trailer where Pamela died and the surrounding land ...

Leaks from law enforcement were allowed to continue until much of the reading and viewing public were convinced that the Contra Costa County Sheriff’s investigators and the District Attorney had the sole guilty party behind bars and that party was Scott Dyleski. The prosecution then announced that he would be tried as an adult thereby removing the specter of a case hidden behind juvenile law rules and regulations. It was announced that he would face a maximum term of 25 years to life in prison if he was found guilty.

On November 21, 2005 the other shoe fell. Contra Costa Superior Court Judge David B. Flinn issued a gag order in the case of People v. Scott Edgar Dyleski ...

Judge Flinn rejected the San Francisco Chronicle's argument that the standard of a “clear and present danger” to a fair trial was the First Amendment Constitutional test regarding any gag order. Instead, Judge Flinn used the less strict standard used to test change of venue in the Odle case -- “reasonable likelihood of a fair trial”.

Do Judge Flinn’s four findings stand up to legal scrutiny? That is a question for the court of appeals and Supreme Court. On January 11, 2006 Attorney Gloria Allred who represents a witness, Scott Dyleski's teenage girlfriend, filed an appeal to the First District, with an appearance by the San Francisco Chronicle. Her petition for writ of mandate, prohibition and request for stay were denied on January 12, 2006 (Case No. A112615). On January 23, 2006, Attorney Allred appealed this decision to the Supreme Court of California (Case No. S140816) and on February 15, 2006 her petition for review was denied. Justice Kennard was of the opinion the petition should be granted and Justice George, C. J., was absenta and did not participate. The San Francisco Chronicle did not appeal to the Supreme Court.

The question remains: Do Judge Flinn’s four findings and his protective order stand up to public scrutiny?

In fact, his order and findings do shed light on some of what’s really going on in the Scott Dyleski case and in the Susan Polk trial.

The gag order obviously makes it very difficult for the media – ranging from the New York Times to the local press and internet bloggers to obtain any accurate information from authorities such as the District Attorney, law enforcement, defense counsel or from witnesses. In other words, all those entities that so eagerly sought out the media to make certain that their leaks pointed to the guilt of suspect Scott Dyleski were now conveniently insulated by Judge Flinn's precedent setting gag order.

In his gag order, Judge Flinn defined “witnesses” as “those who have been advised that they might be material witnesses in the matter or who have appeared and testified at either a preliminary examination or a grand jury investigating the matter, and all agents, attorneys or other representatives of such witnesses”.

Apparently at any time, the trial judge, law enforcement or the District Attorney can just advise someone he or she is a witness and he or she is barred from speaking to the press and to others. A scenario which could test the parameters of the order is the following: A person named X has some information about the existence of another perpetrator besides Dyleski. X calls a TV commentator and gives a tip. X has not appeared at the preliminary hearing or before the grand jury and has not been advised he or she is a material witness. Is X now a witness, bound by the gag order? Can X now be held in contempt by Judge Flinn? The order may freeze X’s right to free speech and the right to freely speak of a reporter about what X knows.

This is exactly where murder defendant Susan Polk now finds herself as she awaits trial on February 27, 2006. She now represents herself.

On January 20, 2006, Susan Polk fired the defense team of Daniel Horowitz and Ivan Golde alleging that Daniel Horowitz revealed information to her in attorney/client discussions that implicate him in the murder of his wife Pamela Vitale.

On a Geraldo At Large broadcast on Monday, January 30, 2006, Susan Polk said that Horowitz made statements that could help Dyleski's defense. She is a potential defense witness in the Scott Dyleski/Pamela Vitale murder trial. Her disclosures and her demeanor make it apparent that she has not been made aware of Judge Flinn's gag order or she has chosen to ignore that order. In either case, why has not Judge Flinn moved to silence Susan Polk and make her comply with his gag order?

It was apparent that Daniel Horowitz was very aware of Judge Flinn's gag order when he said that he had no comment on the Dyleski case and he would not be allowed near the courtroom because he was a potential witness for either the prosecution and/or the defense. On Geraldo At Large, Ivan Golde, Horowitz’ co-counsel on the Polk case, vigorously proclaimed Horowitz’ innocence in regard to Polk’s allegation that he, by his own statements to her, implicated himself in the death of his wife. No witnesses appeared on television in defense of the deceased Felix Polk, who had in the past been strenuously defended in national media by Oakland lawyer Barry Morris. Did he feel inhibited by the Dyleski gag order too?

Speech appears to be frozen in the Dyleski case. Only Susan Polk is speaking out.

The San Francisco Chronicle’s attorney pointed out the danger that Judge Flinn’s gag order could freeze free speech in his November 8, 2005 memorandum:

The Supreme Court in Nebraska Press Association v. Stuart, 427 U.S. 539 set forth the proposition that because a gag order enjoins individuals from uttering words not yet spoken, it is a classic "prior restraint" on speech. As a prior restraint, a gag order bears a "heavy presumption against Constitutional validity." Prior restraints are the "the most serious and the least tolerable infringement on First Amendment rights." As Chief Justice Burger's opinion for the Court in Nebraska Press declared, "A prior restraint . . . has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication 'chills' speech, prior restraint 'freezes' it at least for the time.

It is clear that an agenda of Judge Flinn’s order is to preclude the press and others from gathering evidence from other witnesses, ranging from the admission of another perpetrator involved in the offense to some person who may not even realize they are a witness, yet who holds a piece of the puzzle. Judge Flinn let that cat out of the bag when he stated in the gag order that the parties and witnesses he names are to refrain from giving extrajudicial statements about (read more at link below):

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