Councilor Turner Press Statement 3/18/09
March 19th, 2009 | Category: statementsCourt Approves Gag Order: Judge’s Ruling Followed by Turner’s Press Statement
Boston City Councilor Chuck Turner released to his constituents the
following statement today,
March 18, 2009 the following statement regarding Judge Hillman’s
granting of the protective order:
Dear Constituents,
Thanks for your support in our continuing campaign to secure Justice.
I appreciate the Court’s acknowledgment that the release of the
picture of my alleged wrong doing was designed to prejudice public
opinion against me and focus publicity on the case. However, in the
absence of any sanctions against the US Attorney for his unwarranted
behavior, the Court is denying me the opportunity to publicize
whatever information the government may have that relates to my
innocence.
I believe the Court’s ruling is denying me my constitutional rights
and have asked my lawyers to see if they can appeal this ruling. I
believe that I have a responsibility not only to myself but also to
all those who are being found guilty in the court of public opinion
through the collusion between the media and the “justice” system. Even
if I am not successful in my appeal efforts, I will not sign any order
requiring me to restrict my rights. As a member of a race that has had
to fight for every right we have in this country, I have a
responsibility to fight any Power that denies me any of those rights.
To sign US Attorney Sullivan’s gag order would be a betrayal of my
ancestors struggle for Justice.
Sincerely,
chuck
=========
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________________
UNITED STATES OF AMERICA v. CRIMINAL NO. 08-10345-DPW
DIANNE WILKERSON
and
CHARLES “CHUCK” TURNER
____________________________________
FINDINGS AND ORDER ON GOVERNMENT’S PARTIALLY ASSENTED MOTION
March 16, 2009
HILLMAN, M.J.
Proceedings
The defendants are variously charged with public corruption crimes.
The defendant Dianne Wilkerson (“Wilkerson”) is charged with
conspiracy to extort, attempted extortion, and theft of services under
18 U.SC. §§1951, 1343 and 1346. The defendant Charles “Chuck” Turner
(“Turner”) is charged with conspiracy to extort, attempted extortion
and making a false statement under 18 U.S.C. §§ 1951 and 1001(a)(2)
(1). Both defendants are on conditional pretrial release. Among the
conditions of their release is a detailed prohibition against
contacting prospective witnesses and destruction of documents.
On January 5, 2009, the government moved for a protective order
(Docket No. 38) to restrict the use and dissemination of materials
that are to be provided to the defendants pursuant to the government’s
criminal discovery obligations. The proposed protective order would
Case 1:08-cr-10345-DPW Document 61 Filed 03/16/2009 Page 1 of 6
1
On February 12, 2009, I allowed The Motion of the American Civil
Liberties Union of Massachusetts (“Amicus”) for Leave to File Amicus
Brief (Docket No. 52). That brief was helpful and considered carefully
in arriving at this decision.
2
In addition, the Amicus argues that Turner has a constitutional right
to publicly proclaim his innocence with the same means and specificity
employed by the government in publicly charging the defendant and that
there are no factual underpinnings which would necessitate the
imposition of such an order.
2
essentially prohibit the defendants from using the criminal discovery
for any purpose other than for the legal defense of the pending
criminal cases. The defendant, Wilkerson, assented to the imposition
of the protective order and agreed to be bound by the terms of the
government’s proposed order. The defendant, Turner, opposes the
motion. On February 25, 2009, I held a hearing on that motion.
1 For the reasons set forth below, I grant the motion.
Discussion
The government has moved for the sought after protective order under
Fed.R.Crim.P. 16, and this Court’s Local Rules 83.2B, and 116. Federal
Rule of Criminal Procedure 16(d)(1) provides in part that “[a]t any
time the court may, for good cause, deny, restrict, or defer discovery
or inspection, or grant other appropriate relief. . .” In addition,
Local Rule 83.2B allows the court in high profile cases to issue
special orders governing extrajudicial statements by the parties where
the rights of the accused, or of the litigants to a fair trial may be
implicated.
The government believes that Turner intends to try his case in the
court of public opinion by enlisting the media to bolster his
character and to attack the government’s motive for prosecuting him.
In support of its position, the government points to a series of press
conferences, interviews, and rallies in which Turner has participated.
Not surprisingly, Turner argues that the proposed protective order
denies him the right to defend himself in public against the
government’s accusations and is a gag order in contravention of the
protections afforded by the First Amendment
2. He alleges that the government’s release of photographs to the
media of both he and Wilkerson allegedly accepting bribe money was a
gratuitous public relations maneuver designed to influence jurors and
motivated by a political agenda — since it was the government that
brought the case to the media in the manner in which it did, that he
must respond in kind.
In Seattle Times v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199 (1984), the
Supreme Court held that discovery protective orders are not violative
of first amendment protections if three criteria are met: (1) there is
a showing of good cause as required by the rules; (2) the restriction
is limited to the discovery context; and (3) the order does not
restrict the dissemination of information obtained from other sources.
Id., at 37. See also Anderson v. Cryovac, 805 F.2d (1st Cir.1986). In
support of the ‘good cause’ requirement, the government proffers that:
(1) the case has garnered intense media scrutiny which has the
potential of prejudicing jurors and intimidating witnesses; (2) Turner
has engaged in a series of public events proclaiming his innocence;
(3) Turner’s prior conduct indicates that any discovery produced will
make its way into his publicity campaign; (4) the selective release of
discovery material could be used to directly or indirectly intimidate,
coerce, or embarrass witnesses; (5) the discovery material contains a
large amount of grand jury evidence and other sensitive material; (6)
the discovery material contains the identities and other information
regarding persons investigated but not charged; (7) the discovery
material contains personal privacy information of both defendants and
other not charged; (8) the discovery material contains images of
undercover agents whose exposure could place them at risk; (9) the
discovery material contains information about cooperating witnesses
which would subject them to coercion, intimidation, and embarrassment;
Turner tells Channel 7 that he never took money and in his Talk of the
Neighborhood interview he argues that any money he may have taken was
a campaign contribution. and (10) the discovery package contains a
great deal of inculpatory
information about Wilkerson, the release of which could inhibit her
right to a fair trial.
Addressing first Turner’s alleged attempts to publicly influence the
outcome of his case. The government directs the court to a series of
interviews between Turner and members of the local media. I have
reviewed the transcript of Turner’s interview by Jim Heisler for Talk
of the Neighborhood and the video of an interview with Channel 7.
While I am not sure that I understand the tactical value of some of
the statements that Turner makes in these interviews, I do not find them ‘over the top’ in the
sense that I cannot find that Turner has overtly attempted to
influence anyone, nor do I find that his statements would have such an
effect. Turner essentially asserts his innocence of the charged
offenses and tries to explain his conduct. He also mentions the
government’s cooperating witness by name, however, at the time of the
interviews the cooperating witness had publically identified himself
in the Boston Globe.
Furthermore, I agree with Turner, Wilkerson, and the Amicus that the
government’s inclusion of photographs in the applications for their
criminal complaints, while clearly permissible, added little to the
establishment of probable cause and may have served to ratchet up the
publicity.
That being said, I do not agree with Turner or the Amicus that they
have the right to respond in kind, nor do I agree that the
government’s inclusion of the photographs warrants such a response.
The government surely anticipated that the photographs would become
front page fodder and result in a maelstrom of publicity.
However, that does not mean that the defendants can engage in a ‘tit
for tat’ in the media. Such conduct would only result in a escalation
of charges and countercharges that would infect the fair trial rights
of all parties.
After receiving the discovery material, the defendants are invited to
petition the court for a relaxation of the protective order with
respect to any items they believe are not private or sensitive.
Of more significance to me is the government’s argument that much of
the discovery package is too sensitive to risk being released. The
government has filed an ex parte affidavit detailing references to
existing sensitive grand jury material, ongoing grand jury
investigations, personal privacy information of defendants and
witnesses, and witness security information.
Additionally, the government has argued persuasively that given the
sheer volume of materials, requiring it to redact all sensitive
information would not only be time consuming, but would render many
reports incomplete and, in all likelihood, would result in protracted
discovery disputes. The government also argues that there is
information not germane to the case which would generate media
interest and cause needless harm to the
defendants and innocent third parties.
The government has supported its arguments with concrete and
compelling examples of sensitive information which, if released to the
public at this stage of the proceedings, could impair ongoing
investigations, prejudice the parties’ right to a fair and impartial
trial, and cause irreparable harm to the defendants, witnesses and/or
third parties. Having reviewed the parties’ positions and weighed the
applicable interests, I find that the government has established good
cause for the issuance of its proposed protective order. I further
find that the proposed protective order is narrowly drawn to cover
only discovery and that it does not prevent the defendants from
discussing information learned from an independent source. Therefore,
I am granting the government’s motion. The protective order shall be
issued forthwith.
Conclusion
The Partially Assented-To Motion For Protective Order is granted.
