Commentary by Tracy McCue — Lindsey Nicole Blansett defense attorney Mike Brown has filed for a gag order in Sumner County District Court. The hearing is scheduled for Thursday at 1:30 p.m. at the courthouse.

Mike Brown

A Sumner County judge will determine whether or not to issue a gag order and to what extent those attorneys, police detectives and others working the case can communicate with the media and the public at large. Blansett is a Wellington mom accused of murdering her 10 year old son at her home on Dec. 14, 2014.

Kerwin Spencer

Sumner County Attorney Kerwin Spencer said at a press conference Friday he is against the gag order motion.

I, too, am against the gag order for obvious reasons.

At its heart, this a First Amendment rights issue, and a gag order is a prevention of free speech and a direct violation of the U.S. Constitution.

Is one to say that an attorney does not have a right to speak on a subject that is of great public interest?

But there are other reasons why this gag order should not be issued.

It doesn’t really serve a purpose. 

Why have gag orders?

When I heard that Brown had filed for a gag order, my first inclination was to see if such a gag order is common in a murder case such as this.

So I went to where all seasoned investigators start their searches. I googled it.

At the top of the “gag order” news list was a story written in the Daily Oklahoman concerning an Oklahoma judge who has issued a gag order on prosecutors, judges, police and investigators concerning a triple homicide case in Duncan, Okla.

Alan Hruby

Alan Hruby, a 19-year-old University of Oklahoma student, has been charged with murdering his parents and younger sister in October. He allegedly came home from school on a weekday when class was in session, and allegedly shot his family. Allegedly, Hruby was a self proclaimed shopaholic hoping to cash in on the family’s insurance claim in order to pay off a loan shark for whom he owed $3,000. He later confessed to the crime.

It’s an interesting story to say the least (see story here) and has generated plenty of national headlines.

In the Daily Oklahoman story, Stephens County Special Judge Jerry Herberger issued the so-called “gag” order in an effort to “assure a fair trial in this matter.”

“The court finds that there is a reasonable likelihood of prejudice to both the state’s and defendant’s right to a fair trial without a gag order in place,” the order states.

I decided to call Nolan Clay, a senior reporter of The Daily Oklahoman, who wrote the story. He has worked as a reporter for newspaper since 1985 and has covered the Oklahoma City bombing trail and witnessed bomber Tim McVeigh’s execution.

In his biography he states.

“His investigative reports have brought down public officials, exposed shysters and resulted in reforms in such areas as day care oversights and workers’ compensation court. He is a proud father and longtime fan of the University of Oklahoma football. His wedding in 2001 was on the 50-yard line of OU’s football field.”

How cool is that? Getting married on the 50-yard-line of a college football field.

Anyway, I asked Clay whether gag orders are common. He said not entirely. They usually are only associated with high profile cases and they all have one thing in common.

“They don’t work,” he said.

Clay said if attorneys wants to get around it and get out a message they want to the press, they can do so through legal briefings or other measures.

Ultimately, he said, gag orders come after the horse is out of the barn. Much of the details of a high-profile case have already been made public before a gag order is issued. If the jury selection is going to be tainted, it probably has already done so.

Effectiveness of a gag order

I’ve been thinking about the amount of information that has already been released with the Blansett case here. Since this awful tragedy occurred, the Sumner County court complaint was released with the significant detail of how this young boy was murdered.

A 911 tape has already been publicly released. The Wichita media, in a move I have publicly disagreed with, has released the number of times Blansett has visited with social workers through the Kansas Department of Children and Families.

The murder investigation’s affidavit was released, although redacted (amended), that contains more details.

While I understand there is information that is sensitive in nature and no court case should be tried in the court of public opinion, I wonder just how much more unreleased details can possibly  “taint” a potential jury anymore than it already has.

When the alleged murder took place, this site received over 35,000 hits on the day the arrest was made and the first degree murder charge took place. It more than doubled the number of hits of Sumner Newscow’s previous daily hit record. In a county with a 2013 census population of 23,591 people, it seems like a pretty good assumption that the likelihood of Sumner County people, who don’t know about this case is somewhere between extremely few to none at all.

Can we get a collection of jurors who aren’t “tainted” in someway by the news coverage surrounding this case in this county? I’m not so sure I can answer that.

Spencer was asked Friday whether there is a possibility of a change of venue because of the high profile nature of this case. Spencer said he would be against it because this case has received not only statewide but nationwide attention. Does something like this go unnoticed by even the most clueless, obtuse resident in Sumner County?

Even if the Sumner County judge issues the strictest of gag orders, and nothing is said about this case publicly through the media from now until jury selection — which could be years from now, can you still find an “untainted” jury?

Will there be a trial?

And then there is a very strong possibility that this will never reach jury trial in the first place, but will result in a plea bargain deal.

I asked a few longtime lawyers and reporters around the Sumner County courthouse when there has been a jury murder trial in Wellington. Many speculated that there hasn’t been one here since the Billy Reid case in which he was convicted of murdering Michelle Tate, a teenage girl in the mid 1990s. That was over 20 years ago.

About all other Sumner County murder case trials are decided before a jury is ever assembled – due to either the alleged murderer or the prosecutor eager to broker a deal in a no-win situation.

Spencer said Blansett is looking at the possibility of spending more than 25 years in prison. I don’t think it’s appropriate to speculate here how much time she may serve since she has yet to see her day in court. The only reason I bring this up is it raises the possibility of a plea bargain.

So I ask you. If this case could possibly be headed for a plea bargain, why issue a gag order for the prevention of tainting a jury, if such a jury may never be assembled?

Our conclusion…

A gag order not only prevents the freedom of speech, does little to prevent the dissemination of sensitive and relevant information, but may be inconsequential.

However, a gag order will do one thing. It halts the free flow of communication from the attorneys and those of us in the media, whose responsibility it is to convey accurate information to the public at large. In an age of social media and speculative disinformation, this can’t be overemphasized.

We plead, we beg, we implore to the judge presiding over this hearing. Please deny the gag order request of defense attorney Mr. Brown.

A gag order serves no purpose.

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