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Sioux Falls Argus Leader v. Miller5/10/2000
onducted inside the courtroom at any time.
9. This Court takes judicial notice of the pre-trial publicity which has already occurred in this cause, which includes extensive newspaper coverage, radio news broadcast coverage, and television news coverage. This Court further finds that there is a reasonable likelihood of prejudicial pretrial publicity which would make it difficult to impanel an impartial jury which would tend to prevent a fair trial. Therefore, no party to this action nor any attorney connected with this case as defense counsel or prosecutor, nor their employees or agents, nor any judicial officer or employee, nor any public official including but not limited to any law enforcement officer or any agent, deputy or employee of such persons, nor any juror, nor any witness having testified in this trial or summoned by request or subpoena to testify in this trial, shall release or authorize the release for public dissemination of any matters relating to this case, without prior permission of the Court. This Court recognizes the separation of powers inherent in our system of government and as such, nothing in this order shall be interpreted to restrict either the legislative branch or the executive branch of the State of South Dakota from conducting any interviews or investigations relating to this matter in the normal course of their duties.
Said persons also shall not express, outside of the Court, an opinion or make any comment for public dissemination as to the weight, value, or effect of any evidence as tending to establish guilt or innocence. Said persons also shall not make any statements outside of Court as to the nature, substance or effect of any testimony that has been given. Said persons also shall not make any out-of-court statement as to nature, source, or effect of any purported evidence alleged to have been accumulated as a result of this matter.
These provisions of the order will be addressed individually. It is appropriate to note at the outset of this discussion that the Supreme Court has held that:
'Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. ... Of course, there is nothing that proscribes the press from reporting events that transpire in the courtroom. But where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. In addition, sequestration of the jury was something the judge should have raised sua sponte with counsel. If publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered. But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. The courts must take such steps by rule and regulation that will protect their processes from outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures.' Nebraska Press Ass'n v. Stuart, 427 US 539, 553-554, 96 SCt 2791, 2800, 49 LEd2d 683 (1976) (quoting Sheppard v. M
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