Sunday, Nov. 20, 2011 | 2 a.m.
How do you know when a judge is threatening you?
When he says it isn’t a threat. Just a “wish.” A “gentle wish,” even.
Stick around long enough and you think you might cease to be surprised by the behavior of elected officials. But what Judge Allan Earl did during a hearing on Nov. 7 stuns me — I have just obtained a transcript — and should disgust, terrify and outrage anyone who cares about freedom of speech and freedom of the press.
Let me distill: During a hearing on a retaliatory witch hunt disguised as a subpoena for information, Earl actually told a reporter he would be predisposed in her favor if she declined to continue covering a story involving a case before him.
I wrote about the case a couple of weeks ago: The case involves an attempt by lawyers for Jeff Guinn, the late governor’s son who is being sued by investors alleging financial shenanigans, to impugn the integrity of my “Face to Face” producer, Dana Gentry. They are doing so by abusing the so-called “litigation privilege,” which essentially keeps them immune from libel, to request documents to prove she has been plied with favors, a false charge that they insidiously raise without evidence by requesting documents that don’t exist or actually would negate their case.
Their tactics are obscene and should be condemned by all lawyers and journalists. But it gets worse because Earl, while he quashed the subpoena, acted as an enabler for the attorneys by all but threatening Gentry if she continued to cover the story. They wanted her sidelined; Earl tried to push her there.
You think I exaggerate? Let the judge’s words speak for themselves, via the transcript:
Earl asked Gentry to come stand by her lawyer (and mine), Don Campbell. Then, after announcing he would quash the outrageous subpoena, Earl said:
“Now I’m going to tell you because you’re a news person what my wish is. It is not my order, I would never, ever order such a thing. It is my wish — it’s not a threat; you understand that?”
How understated. How … non-threatening. But why, Your Honor, say anything at all?
It gets worse:
Earl: “It is my gentle wish that this case be tried in front of a jury and decided and not tried in television programs. Now, you may do what you wish, but that is my wish. We’re going to have to pick a jury out of this community that knows absolutely nothing about this case and to sit for days and days and days and ferret out all the testimony and give each party the benefit of the doubt until they have decided which way to rule. That is more important to me than anything, even your career.”
So the implication is he would be willing to destroy Gentry’s career to ensure an untainted jury pool? Really, judge?
Earl repeated that it’s “not an order,” but then he added, ominously: “You can go out today and report this any way you want; that’s your right under the Constitution, and it’s your right in your profession. But the less you are involved in this, the better it is for this decision.”
In shock, Gentry said: “I’m sorry. I didn’t hear you.”
Earl: “I said the less you are involved in this in the future, the better it is for this decision concerning the subpoena.”
Now there may be a different way to interpret that than: “If you stop covering this story, maybe I won’t let the lawyers for one side go on a witch hunt.” But if there is, I can’t fathom it.
(I tried to get a response from the judge, but to no avail.)
These chilling words from the judge came after a brief hearing in which Guinn’s lawyers — Brandon Kemble and John Bailey — tried to make the case that Gentry should produce documents to prove something for which they have no evidence (because it is untrue ).
Kemble actually claimed during the hearing, “We have a good idea of what is out there.” No, he doesn’t; he has no idea, or doesn’t care. I know what is out there and it does not back up his McCarthy-like tactics.
But, as I have said before, there is a greater principle here, as Campbell put it during the hearing. “If you do tell them something, then on another occasion don’t tell them something, then you’re clearly taking inconsistent positions with respect to how the news media responds to such subpoenas.”
Indeed. And as Campbell said so eloquently, the issue is “that you don’t drag reporters and news gatherers into a courtroom based upon this very, very scant and slender showing which is punctuated by nothing more than what would otherwise be defamatory material about this very, very well respected reporter and producer.”
Exactly. If they were not cowering behind the putative protection of the “litigation privilege,” these lawyers would be in court as defendants in a case they would have no chance to win because the defamation would be so easily proven.
I thought what these lawyers were doing was outrageous — and it is. But for a judge to hold a Damoclean subpoena over a reporter’s head is an unconscionable judicial overreach.