Judge amends his warning to witnesses

Kim Smith

Wednesday, Feb. 14, 2001 | 11:46 a.m.

Since the start of the Jessica Williams trial, District Judge Mark Gibbons has been telling each of the witnesses not to talk to "third parties" about their testimony.

On Tuesday Gibbons altered the admonishment because of concerns about possible First Amendment violations.

Gibbons told the last few witnesses in the case not to talk to any other witnesses after learning from the Sun that at least two attorneys believe the earlier admonishment violated the witnesses' right of free speech.

Dominic Gentile and David Schieck, both prominent defense attorneys, said the earlier warning amounted to a gag order.

Gag orders can only be applied after a hearing -- a hearing in which the state would have to show it has a "compelling interest" that would be affected by the speech, Gentile said. For example, the prosecutors would have to prove that the witnesses who spoke out would have an improper influence on the jury.

However, the jury in the Williams case is sequestered and can't be influenced, Gentile said.

The standard that must be met before a gag order is imposed is incredibly high, which is why gag orders are relatively rare, Gentile said.

Gibbons' earlier admonishment, Gentile said, was "a prior restraint on the witnesses' speech and and not so compelling that the state's interest trumps the witnesses' freedom of speech."

Speaking hypothetically, Gentile said that if a witness had some information that was crucial to the case and yet neither side asked the right questions during the trial, that witness would be prevented from speaking to the media about it. As a result, justice would suffer.

Gibbons said he began admonishing the witnesses at the request of the attorneys in the case, who saw witnesses speaking with each other in the hallways of the Clark County Courthouse.

He began warning the witnesses for the same reason witnesses aren't allowed in the courtroom during the proceedings -- so they don't influence another witness' testimony intentionally or otherwise, Gibbons said.

However, after reviewing various statutes on the subject on Tuesday, Gibbons opted to alter the admonishment to avoid any problems.

The statutes he researched after learning of the potential problem, Gibbons said, were vague as to how the admonishment should be worded.

Gibbons also said he was unaware that witnesses had been going on Las VegasONE, on Cox Cable channels 1 and 39, to discuss the case.

In an informal poll, more than a half dozen criminal attorneys, including Clark County District Attorney Stewart Bell, said they thought the original admonishment was routine.

"The idea is that you don't want witnesses to go out and talk to other witnesses so they can't color what those other witnesses might say," Bell said. "It's very common for a judge to say they don't want witnesses to talk to other people."

Bell said he is confident that Gibbons never intended to prohibit witnesses from speaking with the media.