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8/20/2019 Judge James F. Bass Jr. order denies gag order in the Ajibade case
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IN
THE
SUPERIOR
COURT
OF
CHATHAM COUNTY
-
TATE OF GEORGIA
STATE OF GEORGIA,
AT
Wi ' ,
: :
1 :., ., .. .
, ' . J
: I I .
I r t
; :J
vs.
MAXINE EV ANS,
CR 15-1396-J5
Defendant.
ORDER
ON MOTION FOR GAG ORDER
Before the Court is a Motion for a Gag Order filed by the District Attorney
of
the Eastern
Judicial Circuit as
to
counsel for Defendant Maxine Evans. Having read and considered said
motion, Defendant's response, all argument and evidence of record and the applicable law,
including that presented at the hearing on August
122015
, the Court finds as follows :
FINDINGS OF
FACT
Defendant in the above styled case was indicted on June 24, 2015 for the offense of
involuntary manslaughter and public record fraud. The indictment arose out
of
the death
of
Matthew Ajibade, an inmate at the Chatham County Jail which occurred between January 1
2015 and January 2, 2015.
The State has filed this motion asking that the Court extend its previous gag order to
counsel for Defendant Maxine Evans. The State argues that counsel for Maxine Evans spoke to
reporters after a court proceeding on August
6
2015 wherein he commented
on
certain
evidentiary matters . The evidence indicates that counsel for Defendant addressed the fact that
the State intended
to present new charges
of
perjury against the Defendant as "bogus". He
further stated that his client should not even be facing charges and that he had filed a motion to
8/20/2019 Judge James F. Bass Jr. order denies gag order in the Ajibade case
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dismiss which is expected to be argued
on
August 17. He further stated that his client did not
tase (sp) anyone and did
not
inflict injury. He stated that while a coroner said that the victim
died of blunt force trauma inflicted during a fight, the exact time of death is still in question. He
stated that Georgia law indicates that involuntary manslaughter must be due to an unlawful act of
a defendant, not to an intervening act or negligence. He said failure to monitor is not a direct
act.
In an article on
myAlC
the following statement is attributable to defense counsel: [s)he
didn't touch him, she didn't (shock) him, she didn't assault him. I'm ready to try this case
tomorrow.
Based
on
these comments, the State seeks a gag order against counsel for Defendant
Maxine Evans.
CONCLUSIONS OF
LAW
Georgia Bar Rule 3.6 provides
(a) 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
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.
Comment [5B) provides as follows:
In addition, there are certain subjects which are more likely than not to have no material
prejudicial effect
on
a proceeding. Thus a lawyer may usually state:
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(a) the claim,
offense or
defense involved and,
except when
prohibited by law, the
identity
of
the
persons
involved;
(b) information contained in a public record;
( c) investigation
of
a matter is in progress;
(d) the scheduling or result
of
any step in litigation;
(e) a request for assistance in obtaining evidence and information necessary thereto;
(f) a warning of
danger
concerning the behavior of a person involved,
when
there is
reason to believe that there exis ts the likelihood
of
substantial ha rm to an individual or to the
public interest; and
(g) in a criminal case, in addition to subparagraph
l)
through (6):
I)
the identity, residence, occupation and family status of the accused;
(ii)
if
the accused has not been apprehended, information necessary to aid in apprehension
of
that person;
(iii) the fact,
time
and
place
of arrest; and
(iv) the identity
of
investigating and arresting officers
or
agencies and the length
of
the
investigation.
In
the case
of Atlanta
Journal -Constitution et.a!.
v.
State, 266 Ga. App. 168,
596 S.E.2d 694 (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. ld. 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 State argues that the statements
made
by defense counsel are misleading factually, in
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8/20/2019 Judge James F. Bass Jr. order denies gag order in the Ajibade case
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particular with regard to the cause
of
death. Defense counsel argues that his client has been
indicted
ot
involuntary manslaughter and he has a right to state his defense. He further argues
that his comments do not have a substantial likelihood
of
materially prejudicing an adjudicative
proceeding. The Court finds that the comments attributed to defense counsel by the AlC that
she didn't touch him, she didn't (shock) him, she didn't assault him as well as the statement
that she did not tase anyone and did not inflict an injury, goes to Ms. Evans' defense.
Additionally, trial counsel's
comment
that the cause
of
death was blunt force trauma is consistent
with the death certificate which was previously admitted as evidence in this case and is a public
record. The Court
cannot
find that the
comments
made by trial counsel which occurred on
August 6, 2015 after a court proceeding will have a substantial likelihood
of
materially
prejudicing a trial.
The
comments made went to Ms. Evans' defense that she did not do this and
the reference to the cause
of
death was information contained in a public record.
The comments made by defense counsel are vastly different than the plethora of
extrajudicial comments made by counsel for the victim's family which spanned approximately
six months. Whereas the comments made by counsel for Defendant Evans are basically directed
at her defense, those made by counsel for the victim's family were made to create sympathy and
in anticipation of the civil suit they indicated they intended to file. The numerous comments
made by counsel for the
victim's
family clearly had a substantial likelihood
of
materially
prejudicing this matter, in particular the selection of an impartial jury. Both television and print
media were inundated with comments made by counsel for the family. Here,
comments
were
made on one occasion and fell within those allowed
n
Comment 5[B]
of
the Georgia Bar Rule
of
Professional Conduct 3.6. Therefore, the Court finds that the comments made by defense
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8/20/2019 Judge James F. Bass Jr. order denies gag order in the Ajibade case
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counsel are covered by those allowed in Comment 5[B]
of
Rule 3.6 and since the comments
made by defense counsel on August 6, 2015 will not have a substantial likelihood
of
materially
prejudicing an adjudicative proceeding in this matter, the Court DENIES the State s
request to
extend the gag order.
The Court does further remind counsel for all parties of their obligations under Georgia
Rule
of
Professional Conduct 3.6 and should govern themselves accordingly.
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-Consti tution et.a!' supra at 168.
WHEREFORE, IT
S
HEREBY
ORDERED,
ADJUDGED
AND
DECREED
that the
State's Motion for Gag Order is DENIED.
SO ORDERED this __ ~ 2 1 L . . _ d a y
of 7 -
uperior Court
of
State
of
Georgia
cc: All parties
5