Judge rescinds media gag order in Jefferson County trial

Published 11:26 am Friday, January 27, 2023

MADRAS — Before testimony began Friday morning in the manslaughter trial of Brandon Kern, Jefferson County Circuit Judge Daina Vitolins rescinded the gag order she had placed on the media two days earlier.

“Upon further consultation,” said Vitolins. “I rescind that order.” Vitolins said she issued the order because she thought it would help ensure a fair trial.

On Friday morning at the Jefferson County Courthouse, both the prosecution and the defense voiced support for the judge’s attempted bar on media coverage that she issued verbally Wednesday. Jefferson County Chief Deputy District Attorney Brentley Foster referenced a mistrial called in a previous case that she blamed on prior media coverage.

Defense attorney Timothy Gassner said while he appreciated the media’s right to report on what happens in a courtroom, he wanted to avoid “potentially salacious information that could endanger the rights of my client.”

The jury trial examines charges of manslaughter, assault and driving under the influence of intoxicants against Kern related to an accident that occurred on Nov. 6, 2020, and resulted in the permanent injury of Noelle Saunders, then 17, and the death of Alisa Miller, 19, both of Culver.

Journalists covering the trial learned of the order Thursday morning when the judge repeated the order verbally.

The court produced no written order.

“I have been involved in Oregon journalism for nearly 40 years and have never heard of such an order,” said Therese Bottomly, editor at The Oregonian and longtime advocate for open courts and open records. “It appears to me to be blatantly unconstitutional. Journalists certainly have the right to report on proceedings in open court.”

The Bulletin had reported on the opening day of the trial on Monday, including opening statements made by the prosecution and Kern’s defense attorney. The Madras Pioneer also covered the trial this week, but neither publication published articles about Kern’s case before the trial began.

“A gag order is striking at the basic reason we have freedom of expression and freedom of the press. Open courts and a free press are an essential part of the American governmental system,” said University of Oregon School of Journalism professor Kyo Ho Youm, who also serves as the Jonathan Marshall First Amendment Chair. “A public trial is open to everyone. The media, and more importantly the public, have a right to know what happens within the court system.”

Judges have the option to sequester, or isolate, a jury to prevent jurors from outside influence from such things as news coverage or social media. This court did not sequester the jury.

“When a judge makes a gag order such as this, they need to consider if there actually has been prejudicial coverage, and if other options are available,” said Youm. “A gag order or any order restricting the media should always be an absolute last resort, and will rarely stand.”