Gag Order preserved, Safe Harbor provision reserved

Pre-Trial Evidentiary Hearings

February 11, 2004

JUDGE: Just a couple of bookkeeping matters this morning. I reviewed the minute orders of Judge Girolami, and I think for the record I should explain that the court will continue in full force and effect for the duration of the trial the minute protective order that was signed by Judge Girolami on July the 1st. So that there's no issue about that. And before we get into the,

GERAGOS: Could I be heard just briefly on that?

JUDGE: Yeah. Go ahead.

GERAGOS: The, the protective order as Judge Girolami has fashioned it, and has been utilized, actually, by other courts in this state and otherwise, the one thing that it does not have is a safe harbor provision. And what I refer to as a safe harbor provision is something that mirrors Rule 5 dash 120 of the Rules of Professional Conduct that the lawyer has the ability to respond to either reports, whether false or otherwise, that are out there. And I believe and I think the only way that that order can stand constitutional muster, both from the standpoint, not only from the First Amendment standpoint but, more importantly, from my duty as a lawyer to provide effective assistance, that there be some safe harbor provisions. So all I would ask for is that the court leave his protective order in effect as it is and graft onto it the language from Rule 5 dash 120 that allows either side to respond to anything that is out there that is false, or is perceived to be false, so that you don't have these rumors that kind of jump from speculation to mainstream and automatically become fact by day three, and I would ask that the court allow us to propose that and submit it.

JUDGE: Okay. Are you interested in doing the same thing, Mr. Distaso?

DISTASO: Mr. Harris will address that.

D. HARRIS: Your Honor, as to that, we've argued the safe harbor provision. It was the People's original argument that the safe harbor might be required, but ultimately it's worked out to be better that it's not there. We have lots of experience in this particular case with the media doing things that are upsetting to both sides, or either side. And what we do is we would spend most of our time outside responding to what the media is doing and not really getting down to trying this case. Since it's believed that we're going to be having jurors coming in in a very short period of time, I don't think it's a good idea for either side to be out there preaching to the potential jury pool what may or may not be perceived by them to be false at this point in time, so we would ask the Court to leave it in play.

JUDGE: Well, I'll reserve a ruling on it. First of all, there will be, I want to make it very clear to the potential jurors in this case about taking into account any media reports of this trial. And, and under the law, the assumption is they're going to follow the court's instructions in that regard. And the people should be concerned about our potential jurors. We can't, we can't cover every issue that going to come up and try to respond to every innuendo or any, every rumor because then we would spend all our time trying this case in the press, and that would not be a very good idea. So I'll reserve a ruling on it for now and we'll see how things develop. One other thing before we start with the GPS this morning. In reviewing some of these motions that are still pending, and I want to see if they're still viable motions. There's one here that I've been laboring over. There's the application, this has to do with the motion to conduct a Franks hearing, and then there is a motion to suppress the wiretap evidence, which I know has still not been resolved. And then there is another motion regarding release of audio recordings from the Stanislaus County wiretap number two and three records, and then there's a motion for sanctions regarding eavesdropping. And I think that's just about it. Now, are all these motions still pending before the court? Or have they been resolved or ruled on by Judge Girolami?