By Aubrey Wieber • The Bulletin

High-profile murder cases at the Deschutes County courthouse

The five gag orders in Deschutes County have been ordered in four cases, one involving a married couple, since December 2015:

Mario Morataya

Morataya was charged with aggravated murder for fatally shooting his girlfriend, Rebekah Gomes, on Dec. 11, 2015. Morataya pleaded guilty to the murder in March 2016 after finding out Gomes’ 5-year-old son witnessed the shooting. Morataya received life in prison with the possibility of parole after a 30-year minimum sentence.

Angela Judd

Judd was arrested after confessing to a social worker that she had killed her mother by smothering her with a pillow. She pleaded guilty to second-degree manslaughter in July, and weeks later was sentenced by Deschutes County Circuit Judge Alta Brady to 75 months in prison.

Edwin Lara

Lara is charged with four counts of aggravated murder in connection with the July 24 death of Kaylee Sawyer. Lara has entered a not guilty plea for allegedly killing Sawyer, as well as kidnapping and attempting to sexually assault her. An Oct. 10 trial date has been canceled, and a new date has not been set.

Estevan Garcia, Sacora Horn-Garcia

Garcia and Horn-Garcia are charged with murder in connection with the Dec. 21 death of their 5-year-old adopted daughter. They were arrested April 6. According to court documents, the couple is accused of withholding food from the young girl. The cause of death was ruled emaciation. Both have plea hearings scheduled June 12.

A recent spate of gag orders placed on murder cases by Deschutes County judges appears to have created a pattern that prosecutors around the state call incredibly rare and legal experts say is troubling and possibly unconstitutional.

Five gag orders have been imposed on criminal cases in Deschutes County since Dec. 15, 2015. In some cases, the orders forbid attorneys and law enforcement officials to say anything about a case, no matter how mundane the detail. Others are less limiting. However, those to whom the order applies have responded to both the same way, which is to stay tight-lipped.

The press has a First Amendment right to publish, whether it is about celebrity gossip or government scandal. Tung Yin, a criminal law professor at Lewis & Clark College, said if a gag order limits celebrity gossip, nothing about the way democracy operates is challenged. However, limiting coverage on the inner workings of a government agency is far more chilling, he said.

“That directly affects the citizens,” Yin said. “Trials are not about government scandal, but it is still about the functioning of a government duty.”

When information is dispersed through the media, the public has the ability to scrutinize court proceedings and ensure a fair trial, as the U.S. Constitution mandates.

“Why should the press and the public have the right to know about this stuff? Because it’s being brought in their name,” said Josh Marquis, the Clatsop County district attorney. He’s been a prosecutor in various Oregon counties, including Deschutes, since 1981.

“I think that is concerning because there is a legitimate public interest in knowing what is going on with a case,” he said.

The liberal use in Deschutes

The gag orders in Deschutes County have been ordered in cases against Mario Morataya, Angela Judd, Edwin Lara, Estevan Garcia and Sacora Horn-Garcia. Although implicated in the same came case, Garcia and Horn-Garcia, who are married, have separate gag orders.

Kyu Ho Youm, a First Amendment law professor at the University of Oregon, called the gag orders a likely abuse of judicial authority.

“This is very unusual, maybe unprecedented,” he said. “Simply because the gag orders are more or less pre-emptive, without thinking through why the gag orders are necessary.”

The Morataya, Garcia and Horn-Garcia orders use exact language found in Oregon State Bar regulations regarding what are known as extrajudicial statements. These are statements made outside of a court hearing, and are allowed by the state and national bar associations. However, both associations ban statements made outside of court that would have a “substantial likelihood” tainting a defendant’s right to a fair trial.

Gag orders placed on the Lara and Judd cases ban all statements that aren’t made in court.

Four judges in Deschutes’ district — the 11th — have imposed gag orders since late 2015: Presiding Judge Alta Brady, Beth Bagley, A. Michael Adler and Wells Ashby. Brady is the only judge who responded to a request for comment.

Brady said gag orders are “not uncommon” on high-profile cases in Deschutes County.

“I don’t know anything about what the practice is in other places,” she said.

Brady said she has issued a gag order on every murder case she’s had in her 23 years on the bench — about six cases, she thinks, although Brady couldn’t remember the names of any of the defendants.

But the pervasive use in Des­chutes County is an anomaly. Prosecutors throughout the state reported not knowing of a gag order ever being used in their districts.

Multnomah County Chief Deputy District Attorney Jeffrey Howes said there has been no gag order placed on a case that his office has prosecuted in the past five years. Jefferson County District Attorney Steve Leriche said there have been none in Jefferson County during his 19 years with the office.

The danger of a closed court

Although rare, gag orders are sometimes used.

A recent example is the case in Michigan against Larry Nassar, former chief medical officer for USA Gymnastics. Nassar is accused of sexually abusing patients while providing them medical treatment.

But even on cases where the public interest is high on a national level, as with the Nassar case, gag orders are controversial. In March, a gag order was placed on the case. A federal judge then put a temporary halt to the order, prompting the local judge to impose an amended order. Last week, a motion was filed challenging the amended order.

The reason gag orders are seen as extreme is because they limit the public’s Sixth Amendment right to an open trial and the First Amendment right granting freedom of the press. When proceedings are open, and court documents unsealed, the public has the opportunity to scrutinize the judicial system to ensure things are being done correctly.

Yin said when a judge imposes a gag order, neither the prosecution nor the defense has much incentive to challenge it. For the prosecution, it doesn’t make it harder to try the case. For the defense, it likely would keep unflattering details about a client out of the media.

Even if they pursued a challenge, attorneys would risk the judge holding a grudge against them, Yin said. It leaves the public unrepresented in court, he said.

Oregon law professor Youm went further, saying the secrecy can give birth to corruption.

“Gag orders are more likely to be abused and misused than not,” Youm said. “So that is why gag orders are presumptively unconstitutional; coming to the court with a heavy presumption of their unconstitutionality.”

Youm called it a “freezing effect,” going beyond chilling, because the public and the press don’t know what information is being concealed.

Deschutes County District Attorney John Hummel said he feels a duty to let the public see how his office operates.

“It’s not my district attorney’s office, it’s not my justice system. It’s the public’s justice system,” Hummel said. “And to the extent that is allowable under the law, I am going to make sure the public is aware of what’s happening in my office while also respecting a suspect’s right to a fair trial.”

Hummel vs. 11th District

Hummel contested the gag order in the Lara case last fall but turned to Craig Johnson, an assistant attorney general in the Oregon Department of Justice, to make his case in court on Nov. 3. But Adler, who was well aware of Hummel’s reputation as a talker, unleashed a candid opinion on the district attorney’s inclination to discuss cases.

Adler referenced an email the judges sent to Hummel when he took office, warning him against talking too much. At the Nov. 3 hearing, he threatened him with contempt of court.

“He should consider this a very stern warning,” Adler said in court.

Hummel said he respects Adler’s interpretation, and the separation of powers, but disagrees that he has said anything that crossed the line.

“Whenever I speak, I am cognizant of the state bar rules on public comment,” Hummel said. “I have never said anything that has run afoul of those state rules. Every word I say, I am cognizant of those rules.”

The Oregon Department of Justice declined to comment on its representation of Hummel. The Oregon State Bar also declined to comment on what statements are appropriate and what aren’t, but did refer The Bulletin to John Strait, an inactive member of the state bar and law ethics professor for Seattle University. Strait said many factors need to be considered when deciding what statements violate bar guidelines.

Trying a case in the media by asking for a conviction clearly crosses the line, Strait said. However, in general there is no abstract way to measure how appropriate a statement is, he said. Whether it could prejudice a jury depends on several factors, such as how the specific community interprets the statement, how it is portrayed in the media and how much attention is being paid to the crime itself.

Excessively cautious?

Brady, the presiding judge, said gag orders are not a shot at the media or the public.

“The intention is to put the attorneys on notice that the requirements that are imposed upon them by the ethical rules apply at all times,” she said.

Hummel said since the rules already apply without the gag order, it seems pointless.

“If the judges feel, in the cases they’ve imposed them, that they are appropriate, that’s their call to make,” he said. “I don’t understand what it adds to the case, but a judge has the right to do it.”

However, experts found the pre-emptive nature of the Deschutes County judges’ gag orders troubling.

“Obviously, this is definitely way off base, but the fundamental question is what is informing the judge’s propensity to use gag orders?” Youm said. “Maybe some judges are wanting to take a more cautious path … but just because they have the authority doesn’t mean they have to use the authority without first thinking through the balancing process, which is mandated by the Supreme Court of the United States.”

The fallout of a gag order

Furthermore, the impact of the gag orders seems to extend far beyond a gentle warning to the attorneys involved. Lawyers have routinely declined to discuss cases with gag orders banning extrajudicial statements, as well as ones just barring statements that would have a high likelihood of poisoning a jury pool.

Law enforcement has followed suit. When asked about the case of Garcia and Horn-Garcia, who are charged with murder for allegedly withholding food from their 5-year-old daughter, Redmond Police Lt. Curtis Chambers declined to comment, citing the orders. When asked of his understanding of the gag orders, Chambers said nothing could be said outside of court.

Similarly, The Bulletin’s public records request seeking information on Garcia and Horn-Garcia from the Department of Human Services was denied on the basis of the gag order — imposed by Judge Bagley — which specifically states information contained in a public record is allowed to be distributed.

Brady, the presiding judge, said she does not explain her gag orders to those affected by them, adding that it was the responsibility of those affected to understand any restrictions.

However, law professors Youm and Yin said a judge has a duty to do so.

“Legally, the burden is on the entity imposing the rule to be clear about the rule and not vague about the rule,” Yin said.

Youm said by not explaining the order, it is more likely to be abused. He said the lack of instruction is “not acceptable.”

“Anyone who is now being issued a gag order is simply not wanting to talk, because they are wanting to err, or they had no other choice but to err, on the side of overly cautious rather than pushing back on the gag order,” Youm said.

Brady admitted attorneys involved could be more likely to say nothing rather than test the bounds of the order. Hummel said when a judge imposes a gag order he is less likely to talk.

Valid censorship?

Brady said the gag order helps to ensure nothing inappropriate is said. If it is, a case could be moved to another county, which is expensive and makes things more difficult on the attorneys.

Recently, the defense in the Lara case attempted to move the trial location. Adler has previously said he used caution — such as the gag order — to avoid moving the trial, and emphatically denied the motion, saying it wasn’t even a close call.

Brady gave no indication that pre-emptive gag orders on murder cases in Deschutes County would cease. To the contrary, she said on cases like that, it’s important to “Cross your Ts and dot your Is.”

However, Yin said simply playing it safe is not a valid reason to limit free speech.

“The First Amendment is not about being cautious,” he said.

Data from the Oregon State Bar indicates that Brady’s caution is unnecessary. Spokeswoman Kateri Walsh said while the bar has received allegations of lawyers making extrajudicial statements that violated bar regulations, no one has ever been found guilty of doing so.