A local Criminal Court judge heard arguments Thursday for and against a gag order that's been in place for two weeks in a high-profile death-penalty case.
Prosecutor Neal Pinkston and District Attorney Bill Cox requested the gag order in an Aug. 15 hearing in response to Chattanooga Times Free Press columnist David Cook's attempts to interview murder defendant Jesse Mathews.
Mathews faces a Jan. 22, 2013, trial on charges that he killed Chattanooga police Sgt. Tim Chapin during a botched Brainerd Road robbery on April 2, 2011. The gag order, issued by Judge Barry Steelman, prevents police, court personnel and anyone involved in the trial, including Mathews, from speaking with the media about the case.
On Thursday, Pinkston argued that the order is to preserve a fair trial for the defendant and the prosecution.
Times Free Press attorneys Max Bahner and Anthony "Bud" Jackson argued that the gag order should be lifted because it was too broad and had no evidence to support the assumption that it might prejudice potential jurors.
Pinkston countered Jackson's arguments, which included a lengthy list of high-profile local and national trials in which no gag order was issued.
"We are not aware in other cases where the defendant wanted to give an interview to the local newspaper," Pinkston said.
Even though Mathews wishes to speak to Cook, Pinkston said, at times, the court must "protect defendants from themselves."
Jackson said "prior restraint" of a defendant's speech prevented legitimate news gathering and had to pass a high standard over the probability that the information would prejudice a juror or affect the fairness of a trial. He argued that the standard had not been met when the order was issued in the Mathews case.
"We don't do it for a very good reason, because it's not constitutionally allowed," Jackson said.
Jackson conceded that a more narrowly defined gag order closer to the trial date could be applicable, but he said it should be argued at that point.
Steelman said he would take the arguments under advisement and rule at a later date.
In the Aug. 15 hearing transcript, Mathews said, through his attorney Lee Davis, that he saw the heavy media coverage of his and his family's court hearings as one-sided because most of them included Mathews being led into court in handcuffs and a jail jumpsuit.
"He feels he has no choice or say-so in how that is portrayed, and that he doesn't see how there could be any prejudice to a statement he would choose to make or not make with a single reporter," Davis told Steelman during the hearing.
On Thursday, Steelman referred to the defendant's previous statement.
"Mr. Mathews may have a legitimate position and wants to say something about that himself," the judge said.
For the second half of Thursday's two-hour 20-minute hearing, Davis and fellow attorney Bryan Hoss also worked through motions they and the prosecutors had discussed previously.
Both sides agreed on the majority of the 53 motions filed since the previous hearing, many of which dealt with sharing evidence and witness information, known as the "discovery" process, before the trial.
A juror questionnaire is due to Steelman by Oct. 8 for his review before it is submitted to 600 potential jurors in Davidson County ahead of jury selection, scheduled in Nashville in the week before the trial. Jurors are being selected from Davidson County to ensure an unbiased panel.
Steelman scheduled the next hearing to check on the pretrial status of the case for Oct. 26.