judge bass gag order requests in ajibade case

8/20/2019 Judge Bass gag order requests in Ajibade case

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vs.

CRIS-139S-JS

CRIS-1396-JS

JASON KENNY,

CRIS-1397-JS

MAXINE EVANS,

GREGORY BROWN,

Defendants.

ORDER

ON MOTION FOR GAG

ORDER

AND

MOTION TO DISMISS AND MOTION TO INTERVENE

Before the Court is a Motion for a Gag Order filed by the District Attorney

of

the Eastern

Judicial Circuit and a Motion to Intervene filed by WSAV . Having read and considered said

motions, Special Appearance Response in Opposition to State s Motion for Imposition

of

Gag

Order, all argument and evidence

of

record 2and the applicable law, including that presented at

the hearings on July 8, 20 IS the Court finds as follows:

FINDINGS OF FACT

Defendants in the above styled case were indicted on June 24, 20 IS

The

indictments

The Court considered the arguments in the Motion to Intervene filed by

WSA

V, as well

as the State s response to the motion.

The

Court has considered the newspaper articles submitted in exhibits

one

and two and

additionally considered the flash drive provided by WSA V as those documents were properly

authenticated. The Court did not consider the disks

of

the Claiborne interview which were

attached to Exhibit 2 nor did it consider the disk attached to the

WTOC

affidavit as those disks

were not properly authenticated.


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arose out

of

the death

of Matthew

Ajibade, an inmate at the

Chatham County

Jail.

Also

pending

is CV15-0441 styled

l St

Lawrence

Sheriff

a/Chatham County Georgia

and

Meg Heap

District Attorney

vs WSA V Inc and

A den ike Hannah Ajibade

and

Solomon Oludamisi Ajibade

which concerns the disclosure

of

certain documents and records related to the investigation.

Formerly pending

was

CV15-0532 styled Adenike Hannah Ajidabe Solomon Oludamisi Ajidabe

and Christopher Oladapo

vs

Meg Heap

in

Her Capacity as Eastern Judicial Circuit District

Attorney which was filed by attorney Will Claiborne on June 9, 2015 in an

attempt

to have the

district attorney disqualified from investigating or presenting criminal charges related to the

death

of

Matthew Ajibade.

This

action was subsequently dismissed by

order

of

the Court on

July 2, 2015.

The State filed the instant Motion for Gag Order in which it seeks a gag order against the

parties and counsel for and all agents

of

all parties, including attorneys for the

victim s

family

and the Defendants.

They

argue that counsel for the victim s family have made extrajudicial

comments addressing potential trial issues to various media outlets and they attach a number

of

articles in support

of

their contentions.

Counsel for Defendant Maxine Evans argued that there is no evidence before the Court to

support any motion for gag order against any

of

the Defendants.

Counsel for Adenike Hannah Ajibade, Solomon Oludamisi Ajibade and Christopher

Oladapo filed a Special Appearance Response in Opposition to the State s Motion for Imposition

of

a Gag Order in which he argues that the

State s

Motion should be denied for the following

three reasons: (1) the Court may restrain only those parties and lawyers involved in the above

captioned proceedings; (2) the State failed to allege any facts to

support

its assertion that counsel

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for the victim's family are subject to the Court's exercise of its equitable power in these

proceedings; and (3) counsel for the

victim's

family has a constitutionally protected right to

speak critically of the government's handling of a case.

WSAV filed a Motion to Intervene in the action for the limi ted purpose of opposing the

State's Motion for Imposition of a Gag Order.

At the hearing on the motion for gag order, the State submi tted a

number

of newspaper

articles. William

Claiborne

and

Mark

O'Mara, both attorneys for the family of Matthew

Ajibade, are quoted in the various articles.

Some

of

the statements

attributable to Claiborne, although not

exhaustive,

are as follows:

(1) [t]he fact that nine people were fired tells us how terrible this incident was. But the family

still has no answers about

what

happened to Matthew.

We

again call on the sheriff and DA to be

transparent while

we

seek

justice

for Matthew. ; (2) You have to be beyond incompetent to have

tried to get that charge and have failed." We need a fair and impartial prosecutor. (3)

The

family was very distressed to learn the cause and manner of death from their

son's

death

certificate.; (4) Right now because the family has been given no info as to what happened they

can't do anything but grieve. They can't have an opinion about

what

this means that these people

were let go. Except that what happened to their son was truly horrific." ; (5) He said that the

sheriff

s office has been too

slow

to release infonnation in the case.

I expect

that all

of

the

people who have committed any criminal act should be charged, that if anyone took steps to

enact a policy tha (sic) this to occur, that that individual be charged. ; (6) The family is very

distressed to learn that their son was murdered at the jail, with the release, the leak of the death

certificate." We have been asking since January for openness, we have been asking for

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transparency. You saw here yet again the sheriff refusing to provide information." "They should

simply be humane and tell this family what happened

to

their son."; (7) "Every piece

of

information this family has received about their son has been on the news media, or today, Face

book." If he was in a holding cell with blunt force trauma for two hours, why wasn't h

checked in?" ; (8) For at least two hours, Matthew was in a holding cell after apparently having

sustained significant blunt force trauma, after apparently having been tased while in full

restraints."; (9) "You don't just punish the infantry men who fired the fatal shot, you punish the

general who made the call." If the sheriff had a cu( sic) of violence in his j ail, then he needs to

be the subject

of

an investigation and

it

appe(sic) me that due

to

personal relationship and

political relationships, the DA

is

choosing

to

engage in that type of investigation." ; (l0) [i]fthe

district attorney is not willing to then we have no choice but to go to court and bring those

conflicts

to

light."

We're

specifically concerned that the investigation needs

to

go from the top

down of the sheriff solely on the individuals who may have made bad decisions and engaged

in

criminal conduct.

...

"

Some

of

the statements attributable

to

Mark Q'Mara, although not exhaustive, are as

follows: (I) There's no blame yet. There are

just

a lot of questions."; (2)

Matthew

was going

places, and they were good places. And we need to know why he's never going to get there."; (3)

If this guy is in boxing stance, getting some good jabs in, maybe that's not mental illness. If

he's swinging around crazy and his mental illness affected what was going on, that's what they're

supposed

to

be trained to deal with." If you break a cop's nose, yes, it's a felony, you're going

to get charged, fine.

What's

not supposed

to

happen are injuries caused to a guy because he hit a

cop- and it ends up killing him. If that's what happened, that's first degree murder." "You don't

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die from bipolar disorder in a restraining chair." "

If

he had bee white, would the cops have

listened

to

his girlfriend and taken him

to

the hospital? I

don't

know." What I do know

is

his

family deserves to know what in God's name happened to their son."; (4) A guy who was

bipolar dies in a restraining chair." You don't die from bipolar disorder. They need to get a

cohesive explanation out as soon as possible. Not only does the family deserve it, the public

does. There area lot of Black males being killed

in

circumstances that

don't

make much sense."

"The fiance was calling for help, then you lose him." We

don't

know the cause of Matthew's

death." "The Georgia Bureau ofInvestigation conducted an autopsy on January 6

lh

and we

expect to get an answer as soon as possible. But even

if

we discover the cause

of

Matthew's

death, the autopsy

won't

necessarily tell us why Matthew died. Why wasn't he taken to the

hospital? Did officers take into account Matthew's mental illness? How was he allowed to die

while in officer 's care? You are not supposed to die from bipolar disorder." "In the wake of

Michael Brown and Eric Garner, there is a crisis of confidence in our criminal justice system."

"There is an opportunity now for leaders in Savannah, Georgia

to

show the nation how to

properly deal with this type of tragedy. We and the rest of the nation is watching." ; (6) "The

Chatham County Sheriffs office has made

n

important first step

in

suspending two officers who

interacted with Matthew Ajibade the night of his death, but it is only a first step. A young man

is

dead, and he shouldn 't be. The family deserves to know why as soon as possible, and we expect

the Chatham County Sheriffs office will be forthcoming, transparent, and expedient in releasing

information about this case."; (7) "Let' s say that they had the autopsy results for three weeks,

four weeks, five weeks, which I think they have. Why are they not telling us? One reason why is

because they don't want us to know. That's not acceptable. We deserve to know. Even ifits

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bad and it may be

bad, I think

we may

find out that Matthew did not just die

o

natural causes

coincidentally

to

be

in

the jail." "They're telling

us

they are working

on it.

They first said

it

would take a few weeks for an autopsy. That's long done

by

now and we don' t know what

it

said." "Police everywhere need to

be

trained

on

how

to

handle mentally ill individuals. They

have

to.

When you take someone who's

in the

throes

o

a mental event and then incarcerate

them, you're doing the exact opposite

o

what they need. They need help. They need immediate

care."; (8) The disciplinary action against

the two

deputies are "a good small step

in

holding

people responsible for their actions." "We still need questions answered how Matthew's life

was

taken from him." " Ajibade

was

diagnosed with bipolar disorder three years ago and

was

having a medical emergency

at

the time o

his

arrest

and

confinement.".; (9) "Metro Police had

an opportunity

to

use a certain amount

o

discretion and I don't know how they decided

to

use

it.

I know that that discretion could have been-

and it is in

many cases-

to

take a person

0 the

hospital. They may have very good reasons for using their discretion- we just don't know yet." ;

(l0) O'Mara said

he

suspects Ajibade

was

having a manic episode at the jail when deputies "beat

the (expletive) out o him to get control o him." The indictment is "too little to late." "The fact

that

the

grand jury found that there

was

aggravated assault coupled with the fact that there was a

death should have

led to

a felony murder charge unless Heap wasn't really trying

to

secure that

charge." "That's been our concern

all

along that she

was

going

to

whitewash this case

as

a

benefit

to the

sheriff and in derogation to Matthew's death." "It would be nice

to

say every one

o them should have been charged with murder, but that might be unrealistic. But here's my

frustration: We have been kept so in the dark about the facts in the case that we really don't

know." ; (11) "(The district attorney) failed

to

get a felony murder indictment, and that is her

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responsibility."

They

are disappointed that nine out of 12 people involved in their son or cousin

or brother's death have gotten

away without

any criminal liability."

(12) Op

Ed piece written by

Mark O'Mara entitled Response to Sheriff Al St. Lawrence's Press Release ; (13) It

demands

further, absolute

transparency.

First of all, they knew (the cause

of

death) back in January,

I'm

sure. This (death certificate) was signed May 8, and a month later we find out about it. I

just

don't see how

they can

be so insensitive to the

man,

and insensitive to

the family's

grief.

They

have hid this from us for five months. It makes no sense.

Also

submitted

into

evidence

was an affidavit and a flash drive

from WSA

V -TV which

contained interviews

with

family

attorney

William

Claiborne

after

the

press conference

by

Sheriff Al St.

Lawrence.

In the interview given by Mr.

Claiborne,

he makes a

number

of

statements including that Matthew Ajibade was murdered, that

apparently

for at least

two

hours

he was in a holding cell after having apparently sustained blunt force

trauma,

and apparently had

been tased while in full restraint.

Called to testify at the

hearing

were the following four

witnesses: Kristen

Fulfort, J.J.

Haire,

Dana Campbell and

Ricky Becker. Kristen Fulfort, the public information

officer

for the

District Attorney's office, testified regarding email requests from various

media

outlets for a

comment from the district attorney regarding the instant

case

. J.J. Haire, who is employed with

the victim

witness office

of the District Attorney's office, testified that

she

had been instructed by

an

employee of Mark O'Mara's office, that all

communication

to the

victim's

family, should be

directed through his office. Dana Campbell, with Sidney A. Jones and Campbell Funeral

Services, and Ricky Becker, an investigator with

the Chatham County

District Attorney's office,

testified regarding the release of the death certificate of Matthew j ibade.

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CONCLUSIONS OF LAW

"Few, if any, interests under the Constitution are more fundamental than the right to a fair

trial by 'impartial' jurors, and an outcome affected by extrajudicial statements would violate that

fundamental right." [cit omitted]. To guarantee a defendant's Sixth Amendment right to a fair

trial, the Supreme Court has placed

"an

affirmative duty on trial

court's

to guard against

prejudicial pretrial publicity." [cit omitted]. Atlanta

Journal-Constitution

et.a!. V. State, 266

Ga. App. 168, 169, 596 S.E.2d694 (2004). "There can be no question that a criminal

defendant's right to a fair trial may not be compromised by commentary, from any lawyer or

party, offered up for media consumption on the courthouse steps." [cit omitted]. United States

v

Brown, 218

F

3d 415, 424, (2000).

The U.S. Supreme Court said in Sheppard v Maxwell, 384 U.S. 333, 350-351,86 S.Ct.

1507,

16

L.E.2d 600 (1966):

'(l)egal trials are not like elections, to be won through the use of the meeting-hall, the

radio and the newspaper' . [cit omitted]. 'freedom of discussion should be given the

widest range compatible with the essential requirement of the fair and orderly

administration of justice. , [cit omitted]. But it must not be allowed to divert the trial from

the 'very purpose of a court system to adjudicate controversies, both criminal and

civil, in the calmness and solemnity of the courtroom according to legal procedures.'

Mr. Justice Holmes stated in Patterson v Colorado, ex reI., Attorney General, 205 U.S.

454,462,27

S.D. 556, 558,

51

L.Ed 879 (1907): "[t]he theory of our system is that the

conclusions to be reached in a case will be induced by evidence and argument in open

court, and

not

by

any outside influences, whether private talk or public print."

Georgia Bar Rule 3.6 provides

[a] lawyer who is participating or has participated in the investigation or litigation

of

a

matter shall not make an extrajudicial statement that a person would reasonably believe to

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be disseminated by means

of

public communication if the lawyer knows or reasonably

should know that it will have a substantial likelihood of materially prejudicing an

adjudicative proceeding in the matter.

( c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable

lawyer would believe is required to protect a client from the substantial undue prejudicial

effect of recent publicity not initiated by the lawyer or the

lawyer's

client. A statement

made pursuant to this paragraph shall be limited to such information as is necessary to

mitigate the recent adverse pUblicity.

American Bar Association Disciplinary Rule DR 7-107 (A) provides:

[a] lawyer participating in or associated with the investigation of a criminal matter shall

not make or participate in making an extrajudicial statement that a reasonable person

would expect to be disseminated by means of public communication and that does more

than state without elaboration:

(1)

Information contained in a public record.

(2) That the investigation is in progress

(3) The general scope of the investigation including a description of the offense and, if

permitted by law, the identity of the victim.

(4) A request for assistance in apprehending a suspect or assistance in other matters and

the information necessary thereto.

(5) A warning to the public

of

any dangers.

In the case

of

Atlanta Journal -Constitution et.a . V. State, 266 Ga. App.

168,596

S.E.2d694 (2004) the Court found that Rule 3.6 requires a finding that extrajudicial statements to

the media will have a substantial likelihood of materially prejudicing a trial. Id. at 170.

Additionally, the trial court must make specific findings

of

fact based

on

evidence

of

record

regarding the possible impact of extrajudicial statements upon the forthcoming trial.

The District Attorney moves the Court for an order directed at

the

parties and counsel

for all agents of all parties, including the attorneys for the victims family and the Defendants to

refrain from making any statements regarding or releasing information concerning, the above-

referenced case that they know or reasonably should know will have a substantial likelihood of

materially prejudicing an adjudicat ive proceeding "

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The Court finds that the State has failed to present any evidence regarding any

extrajudicial statements made by the Defendants or their attorneys and therefore, the request for a

gag order as to these parties is DENIED.

On the other hand, the State has presented a plethora of evidence, including but not

limited to newspaper articles and interviews, evidencing extra judicial statements made by

William Claiborne and Mark O Mara, both of whom have identified themselves as attorneys for

the Ajibade family.

With regard to attorney William Claiborne, he has made a number of

extrajudicial

statements, including but not limited to, statements regarding lack

of

information provided to the

family of Matthew Ajibade, statements regarding facts surrounding the death

of

Matthew

Ajibade, and the investigation by the District Attorney. He has given interviews to the television

stations and made comments which have been posted n various newspaper articles regarding the

instant action. Because of his filing

of

an action for mandamus against the District Attorney's

office requesting her removal with regard to her prosecution of the instant matter, the Court finds

that he has participated in the litigation of a matter. as contemplated by Georgia Rule of

Professional Conduct 3.6 (a) by inserting himself into the litigation.

Therefore, the only question which remains is whether the extrajudicial

comments

made

by Mr. Claiborne will have a substantial likelihood of materially prejudicing the trial. The

Court finds that they will. This Cour t has presided over a number of high profile cases, one

of

which required that ajury be selected from citizens outside Chatham County and is well versed

n pretrial publicity affecting the selection of a fair and impartial jury. The Court finds that the

statements made by William Claiborne, which began after the death of Matthew Ajibade on

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January 1,2015, and has continued into June 2015, are an attempt by counsel to create sympathy

for the family

of

Matthew Ajibade. Mr. Claiborne indicated

in

his petition for mandamus that

the Ajibade family will be filing a civil suit against any and all patties responsible for the death

of

Matthew Ajibade and has indicated that there is a significant probability that Defendant Heap

will be named as a defendant in that action. The Court finds that the numerous statements made

by William Claiborne

over

the past six months will have a substantial likelihood

of

materially

prejudicing the trial because they will affect the ability to secure an unbiased jury panel and could

result

in

a change

of

venue.

The Court

is

not persuaded by the arguments

of

counsel that this Court does not have

jurisdiction to restrain him because he is not an attorney representing a party in the above

captioned proceedings. The Court has found that Mr. Claiborne has participated in the

litigation

of

this matter by insetting himself through the filing

of

a mandamus action to remove

the district attorney. He

is

clearly bound by Georgia Rule

of

Professional Conduct 3.6.

Additionally, while counsel for the victim's family has a constitutionally protected right to speak

critically of the State s handling of a case, this must be balanced with the trial court s affirmative

duty to ensure that the Defendants' receive a fair trial.

Therefore, based upon the foregoing, the

COUlt

GRANTS the

State s

request with regard

to a gag order as to attorney William Claiborne.

As to attorney Mark O Mara, who also has indicated that he is an attorney representing

the Ajibade family, the Court finds that a number of extra judicial statements have been made,

including an op ed piece that was written in response to the press release issued by Chatham

County Sheriff Al St. Lawrence. Mr.

O Mara

has not filed a motion to be admitted pro hac vice

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pursuant to Unifonn Superior Court Rule 4.4.

3

The COUlt finds that since Mr. O'Mara has not

filed a motion

to

be admitted pro hac vice, he is not subject

to

Georgia Rule o Professional

Conduct 3.6.

He is

subject to American Bar Association Disciplinary rule DR 7 1 07(A),

however, that rule only provides for a lawyer participating in or associated with the

investigation

o

a criminal matter. The

COUlt

finds that

no

evidence has been presented

to

indicate that Mr. O'Mara has participated in the investigation o the criminal matter, only that he

has participated in the litigation, for example, by advising the victim witness advocate that his

office

is

the contact for the Ajibade family. Although

it is

concerning

to

the

COUlt

that

Mr.

O'Mara

has

made numerous extrajudicial statements regarding this matter and

has

participated

in

the litigation o this matter, the

COUlt

finds that it has

no

jurisdiction over him

in

which

to

issue

a gag order.

The Court further finds that nothing in this order is directed at the media, and therefore,

it cannot

be

classified

as

a prior restraint. See Atlanta Journal-Constitution et.al. supra at

168.

WHEREFORE, pursuant

to

Georgia Bar Rule 3.6, T

IS

HEREBY ORDERED,

ADJUDGED AND DECREED that the State's Motion for Gag Order is GRANTED as to

William Claiborne, a Georgia licensed lawyer, who is governed

by

the Georgia bar rules. Mr.

Claiborne

is

prohibited from making any statement that he should know will have a substantial

likelihood of materially prejudicing an adjudicative proceeding

in

this matter. He

is

entitled

to

comment on those subjects

as

outlined

in

Comment 5(B) under Rule 3.6 o the Georgia Rules o

Professional Conduct. This order shall be in effect until such time as there is a resolution

is

the

JThe Court notes however that Mr. Q'Mara appeared at a hearing on June 29, 2015 before

the Honorable Michael L. Karpf in CV 15-0532 and was allowed

to

sit at counsel table with

William Claiborne

to

assist.

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above styled cases

SO ORDERED this

cc: ll parties

fl day

o t L r -

13

judge bass gag order requests in ajibade case

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