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Seeking to mitigate the negative publicity swirling around his client ahead of a murder trial, defense attorney Charles Grose asked a judge to expand a gag order to include the victim’s mother, other members of her family and all their online supporters.

Little did Grose know that his request would stir up vitriol far beyond the borders of Laurens, a county of about 66,000 in the northwest corner of South Carolina. This is where 30-year-old Michael Beaty Jr. is being tried in the strangling death of 19-year-old Emily-Anna Asbill.

The killing had already generated plenty of talk locally – Asbill happened to be the daughter of a S.C. Law Enforcement Division agent – but it went viral in the wake of Grose’s attempt to stop a murdered girl’s family members from discussing the case.

“We certainly did not want to generate any extra publicity. The publicity locally was already pretty high anyway. Now it’s gone national,” Grose said.

“I think the reporting on this kind of spun out of control and is maybe not entirely reflective of what we were asking,” he added. “What we were wanting is simply for the people who are connected to the case and might have inside knowledge about it to not make public comments.”

After the Associated Press reported on his motion, the story spread online from the ABA Journal to AOL.com.  At least one attorney, Philip Hilder, a former federal prosecutor who practices criminal defense at Hilder & Associates in Houston, believes Grose’s motion to be the first of its kind. In the unlikely event that it were to be approved, he said, it would set a “bad precedent.”

“You have a defense attorney taking the position that this could influence the jury pool, but that’s why you have voir dire,” he said.  “For him to come in at this point and try to censor free speech, I think that’s going too far.”

First v. Sixth

Grose made the motion during a bond hearing, asking Circuit Court Judge Eugene Griffith Jr. to expand an earlier gag order that applied only to the attorneys in the case to Asbill’s mother, Emily Joy, her family and her supporters.  Both sides had agreed on the first gag order.

“This motion is based on public statements made by [Joy] and others that have a substantial likelihood of prejudicing the adjudication of this case,” Grose, who practices in Greenwood, wrote in the motion.

He cited statements on Facebook calling Beaty a murderer and also took issue with Joy advocating for domestic violence victims on a Facebook memorial page for her slain daughter and at a rally.

Grose added in an interview that he had learned about an upcoming “happening” in the case while monitoring Joy’s Facebook activity – before he received notification from the court or prosecutors.

“I feel like my hands are tied when I’m obligated to follow the rules in the protective order and someone who has information is able to get a one-sided version of the case out there,” he said.

Grose’s co-counsel, Rauch Wise, who also practices in Greenwood and, happens to be the only member of the national First Amendment Lawyers Association in the Carolinas, contended that Joy’s public statements were “tainting the jury pool.”

“You frequently have the First Amendment running up against the Sixth Amendment right to a fair trial,” he said. “The question is which takes precedent?”

‘That’s going too far’

While they were still waiting for a ruling on the gag order expansion motion, Grose, Wise and 8^th Circuit Solicitor David Stumbo, whose office is prosecuting the case, all said Griffith had indicated that he would deny the request.

Stumbo characterized the motion as a red herring meant to distract the court from the matter of Beaty’s bond request, which has been denied. He also called the motion “a waste of time.”

“I don’t think the (gag order) ever had the ability to extend to people outside of the court’s reach, which to me would include friends and family members of the victim,” he added. “The defense was attempting to silence the victim’s mother and others. I really don’t know how the court could do that even if it wanted to.”

Jay Bender, a First Amendment lawyer at Baker, Ravenel & Bender in Columbia who represents the S.C. Press Association, argued in court against the initial gag order and the defense’s motion for an expanded version.

What happened in Laurens, he said, “is part of a fundamental misunderstanding of how the First Amendment operates. …  Asking the court to tell a person they can’t comment on a pending case in a public forum strikes me as being entirely contrary to the notion of democracy.”

Mike Tadych, a free speech lawyer at Stevens Martin Vaughn & Tadych in Raleigh, saw the attempt to quell comments about a criminal defendant as being part of a larger push to close off judicial proceedings from the public.

“To the extent that this is the next stage in sealing the judicial process, I think it is highly problematic,” he said. “The reason we have access to the courts is so we can see what is going on in there. We’re all entitled to have our freedom of speech and comment on what our government does.”

Andy Savage, a prominent criminal defense lawyer in Charleston, agreed.

“If I were the judge I would deny the motion,” he said. “In theory, at least, voir dire will eliminate people who have already been subjected to prejudice and publicity and have already formed an opinion.”

Always a silver lining

Because of all the publicity, Grose, Wise and Stumbo all believed that Griffith would allow for extensive voir dire, including individual voir dire, before a trial that is slated for this summer.

In the Palmetto State, where voir dire is limited to begin with, individual voir dire is typically only permitted in capital cases. And Beaty is not facing the death penalty.

So while it seems that the effort to expand the gag order will fail, all the attention it garnered – an unintended consequence, according to Grose and Wise – could ultimately prove beneficial.

“As a result of all of this,” Wise said, “we might have decent voir dire.”

– Follow Phillip Bantz on Twitter @SCLWBantz