judge james f. bass jr. order denies gag order in the ajibade case

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


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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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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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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

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judge james f. bass jr. order denies gag order in the ajibade case

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