Source: ArkTimes Archive:Archive.PH
The Arkansas Supreme Court on Thursday vacated a gag order in the case of Aaron Spencer, a Lonoke County man charged with second-degree murder in the death of Michael Fosler in October. Fosler, 67 at the time of his death, had previously been arrested and charged with several sexual offenses against Spencer’s teenage daughter.
Calling the Lonoke County Circuit Court’s gag order in the case a “gross abuse of discretion,” the Supreme Court struck the order in its entirety.
The facts of the case, which quickly drew attention inside and outside of Arkansas, are straightforward. Fosler was arrested in July and charged with 43 counts including sexual assault of a minor, internet stalking of a child, and possession of child pornography, some or all of which related to a relationship between Fosler and Spencer’s then-13-year-old daughter. Circuit Judge Barbara Elmore released Fosler on bond.
Late one night in October, Spencer told police, he heard his dogs barking and went to his daughter’s room to check on her. She was not there. Spencer called 911 to report her missing, then went looking for her.
A short time later, he found his daughter and Fosler in Fosler’s truck, and Spencer forced the truck off the road. This led to an altercation between the men, after which Spencer called 911 again to report that he’d shot Fosler. Fosler died at the scene.
The state charged Spencer with second-degree murder plus a firearm enhancement in November. Spencer’s case, like Fosler’s, was assigned to Judge Elmore.
In December, citing media coverage throughout the state and beyond, as well as statements from Spencer’s attorneys calling him a “heroic father,” the state requested a gag order. They asked Elmore to prohibit Spencer, his attorneys, any state or local agencies connected with the case, any judicial employees, any public officials and any subpoenaed witnesses from discussing any facts of the case in public.
Spencer objected to the gag order. He argued that it would violate both his due process rights to a fair and public trial and his First Amendment right to speak. He requested a hearing, in open court, on the state’s motion.
Thirty minutes after Spencer filed his response, Judge Elmore granted the state’s request for a gag order without holding a hearing.
“t appears to the Court,” Elmore wrote, “that the dissemination by any means of public communication of any out-of-court statements relating to this case may interfere with the rights of the Defendant and the State of Arkansas to receive a fair and impartial trial.”
Elmore then went a step further and, without being asked by either side in the case, ordered that the entire matter be sealed.
The state Supreme Court was having none of it.
The justices said the order “was on its face a plain, manifest, clear, and gross abuse of discretion and in excess of its authority” and “decline[d] to uphold any part of the order in light of the order’s clear lack of an evidentiary basis as a whole.”
The court looked at three categories of people Elmore’s gag order sought to restrain: attorneys in the case, non-attorneys in the case, and the public at large. Regarding attorneys, the court said Arkansas’s ethics rules allow prior restraint of their extrajudicial speech only where that speech “poses a substantial likelihood of material prejudice to an ongoing criminal proceeding.” Non-attorney participants, however, could be restrained from speaking about a case “only to the extent that [their speech] poses a serious and imminent threat of material prejudice to an ongoing criminal proceeding.”
The court was especially critical of Elmore’s attempts to restrain the speech of other individuals who are not participating in the case:
The justices also said a lower court should take other findings into account when considering a proposed gag order, such as whether the order is narrowly tailored to prohibit only what is necessary to protect the integrity of the proceedings. Judge Elmore made no such findings, the court said.
The court also addressed Elmore’s decision to seal the entire case. The justices pointedly called out Elmore for shielding all the case filings from the public as well as preventing the public from watching the proceedings:
Associate Justice Nicholas Bronni wrote a scathing concurrence, joined by Associate Justices Shawn Womack and Cody Hiland, that went even further in its rebuke of Elmore’s actions.
Bronni said the gag order “is only one part of a troubling pattern of attempts to shield this case from public view — beginning with a nonpublic arraignment and ending with a handwritten note sealing the entire case from public view.”
“We cannot allow that pattern to continue unchecked,” Bronni wrote, adding that he would have invoked the court’s superintending authority and reassigned the case to a new judge. “Anything less suggests that what’s happened so far is within the acceptable range of disagreement or administration — and it isn’t.”
The case now returns to Lonoke County Circuit Court. No trial date has been scheduled at this time.
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