SLO County DA’s Office seeks gag order against Tianna Arata, other BLM defendants
The San Luis Obispo County District Attorney’s Office has issued a motion seeking a gag order against four local racial justice protesters and their attorneys — including Tianna Arata, who has appeared on national television and inspired widespread social media followings.
The motion, served Friday by District Attorney Dan Dow and Deputy DA Kenneth Jorgensen to the defense, argues that a media campaign led by the defendants’ attorneys has “significantly progressed to include conduct jeopardizing a fair trial by an impartial jury.”
The motion, shared with The Tribune by Arata’s attorney Curtis Briggs, seeks to block case-related public comments made by defendants Arata, Marcus Lee Montgomery, Amman Asfaw and Joshua Powell, according to the document shared with The Tribune.
In all, seven people have been charged in SLO County with crimes in connection with the case.
It’s unclear if the motion has been filed in court, and if the others charged were served as well. Dow didn’t respond to a request for comment on Saturday afternoon.
The DA’s Office currently is disqualified from the case due to a “conflict of interest,” according to a ruling by Judge Matthew Guerrero. That ruling has been appealed by the DA’s Office, and the appeal decision is pending.
The gag order request relates to criminal cases involving alleged violations during a high profile July 21 Black Lives Matter protest, resulting in allegations of false imprisonment, obstruction of a thoroughfare and disturbing the peace.
Dow and Jorgensen cite California Rules of Professional Conduct preventing a lawyer “from making an extrajudicial statement the lawyer knows will be disseminated to the public with a substantial likelihood of materially prejudicing a proceeding.”
“The (prosecutors) believe a protective order is now needed as the case draws closer to trial,” the motion notes. “The media still has unfettered access to all stages of the proceedings in this case.”
In response, Arata’s attorney told The Tribune “we will strongly oppose and appeal any granting of an order.”
Arata and her co-defendants have pleaded not guilty to a host of misdemeanor counts, each of which carries a maximum of six months in San Luis Obispo County Jail and a $1,000 fine, over a July 21, 2020, protest in San Luis Obispo in which demonstrators marched on Highway 101.
“Our primary argument will be that the DA’s Office has no jurisdiction in this case (because of the disqualification),” Briggs told The Tribune. “But additionally, we don’t agree with their claims. We’ve done nothing to jeopardize a jury’s ability to decide this case ... We will take this to trial and we have an excellent case.”
DA’s argument
The DA’s motion states that last fall, the defense unsuccessfully sought a gag order against the SLO Police and California Highway Patrol from issuing media statements, then denied by the judge, adding “neither agency had issued a public statement in months.”
“Ironically, in the intervening months several defense attorneys and defendants, have affirmatively engaged the media on issues specific to this prosecution,” the court motion claims.
The latest DA’s motion cited “inflammatory statements made by defense attorneys” involved with the cases, “calling the District Attorney a racist criminal; criticizing the ineptitude of then-California Attorney General Xavier Becerra; and criticizing this Court as weak-willed, alleging it is under the influential pressure of the District Attorney’s Office.”
Additionally, the DA’s office contends defense attorney Vincent Barrientos released potential evidence of drone footage of an encounter between racial justice protesters and a driver on the Highway 101 freeway on July 21, stating on a news release “SLOPD drone footage shows CHP Captain Klingenberg lied to the press and public” while calling for Klingenberg’s resignation.
The DA’s motion contends Barrientos, who represents defendant Sam Grocott, attempted to interpret the discovery evidence by saying “The video and driver’s statements prove that DA Dan Dow is not really about law and order.”
Grocott allegedly blocked the path of a vehicle on Highway 101, and is charged with false imprisonment, but his attorney has alleged the video evidence contradicts that version of events. The footage shows Grocott jumping onto the hood as the vehicle moves toward him.
“The press release then accuses the District Attorney for not releasing the drone footage to the public, implying he is abusing his prosecutorial authority” the motion states.
Dow and Jorgensen add: “But it is clear that the District Attorney is not permitted to release evidence to the public so to avoid tainting the jury pool by litigating the case to the public instead of at trial” and “The unfounded, false, and prejudicial claims have one goal: provide soundbites for media attention and to correspondingly influence the jury pool.”
Social media conversations cited
The motion also cites social media conversations involving defense attorneys on YouTube and Instagram, generating a combined 9,000 views. In the Instagram post, Briggs discusses some of the details of the case with Arata and two other defendants, the motion notes: “Defendants contend the DA’s Office is withholding evidence, they know they are ‘in the wrong’ with Defendant Arata contending the District Attorney’s office has a ‘personal hatred of women’ and a ‘personal hatred of Black people in general.’”
The motion quotes Briggs describing the contents of the podcast as the following: “Listen to several attorneys as we correct the record after a steady stream of lies by authorities against these heroic young men and women.”
The DA’s motion adds: “On March 3, Barrientos attempts to goad District Attorney Dan Dow, by tagging Mr. Dow in a social-media post, stating the following: ‘We’re fighting one of the only cases in the country involving a DA filing criminal charges against peaceful BLM protesters. Not a surprise though given that SLO Dan Dow has been exposed as a closet racist abusing his prosecutorial discretion to promote his white power agenda. We won’t stop until @ddowesq is removed from power.’”
Dow and Jorgensen wrote the approach is a public campaign to influence a jury trial, a strategy they claim was previously used in the past by Pier 5 Law Offices attorneys Curtis Briggs, Vincent Barrientos, and Brian Ford in the Bay Area case relating to the Ghost Ship Warehouse prosecution that received a gag order against defendants in that case.
“It is clear: the recent media onslaught was aimed at the press, armed with suggestive and titillating headlines, targeting this Court’s jury pool with the goal of eradicating all chance of impaneling a fair and impartial jury,” the DA’s Office motion notes.
But Briggs said that the gag order he received in the Bay Area case was only temporary and the DA’s reference mischaracterizes the order.
DA’s role
Proceedings against Arata and the others have stalled in the cases after Guerrero granted a defense motion in December removing the entire District Attorney’s Office from prosecuting the cases, due to a “clear conflict” presented by an email sent from the re-election campaign of District Attorney Dan Dow that appeared to reference the protesters’ cases in seeking financial contributions.
The District Attorney’s Office and the state Attorney General’s Office, which would take over as prosecuting agency, appealed Guerrero’s ruling in January.
A surprise ruling filed earlier this month by the three-judge Second Appellate District panel in Ventura says it declined to hear the appeal case largely on procedural grounds.
Moving forward, Powell, the SLO Superior Court CEO, said that appellate cases in the local Appellate Division are heard by a panel of three Superior Court judges, and hearings are heard the first Friday of every month with the next monthly hearing set for April 2.
A county prosecutor made a surprise announcement earlier this month during a court hearing for Arata and six other San Luis Obispo Black Lives Matter protesters, telling a judge that the District Attorney’s Office supports a diversion program in lieu of taking the cases to trial.
But the plea offer wasn’t extended to Arata — who faces 13 misdemeanors as the alleged leader of the July 21 protest that blocked Highway 101 for 40 minutes — or to another July 21 defendant, Robert Lastra, who is accused of breaking a car’s back window with a skateboard and is the only defendant among the seven facing a felony.
This story was originally published March 27, 2021 at 7:01 PM.
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