Attorneys in Tianna Arata, SLO protesters’ cases argue against DA’s gag order request
A group of San Luis Obispo activists charged with crimes allegedly committed during a 2020 protest that blocked traffic on Highway 101 were in court Friday to argue against a gag order requested by prosecutors.
The San Luis Obispo County District Attorney’s Office has asked a judge to issue the order against Black Lives Matter organizer Tianna Arata and three other local racial justice protesters, as well as their attorneys. Arata has appeared on national television after her case attracted widespread notoriety on social media.
Following nearly a full day of arguments on the gag order and several other legal challenges that were argued by a dozen attorneys involved in the two cases, Superior Court Judge Roger Picquet took the gag order issue under submission and is expected to issue a ruling at a hearing on May 21.
Picquet, however, did put to rest the issue of who will preside over the cases after the previous judge rotated to a different judicial assignment.
Picquet will remain the judge in both criminal cases directly related to the July 21, 2020, march on Highway 101.
The motion for a gag order, filed March 26 by District Attorney Dan Dow and Deputy District Attorney Kenneth Jorgensen, 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 seeks to block Arata and fellow defendants Marcus Lee Montgomery, Amman Asfaw and Joshua Powell, as well as each of their attorneys, from making public comments about the case outside the courtroom, according to the document shared with The Tribune.
In all, seven people have been charged in San Luis Obispo County with crimes in connection with the July 21 march onto Highway 101.
The request for a gag order also applies in the case against Robert Lastra — the sole defendant facing a felony in either case — and co-defendants Jerad Hill and Sam Grocott.
The DA’s Office currently is disqualified from both cases due to a ruling by Superior Court Judge Matthew Guerrero, who has since transferred to family court.
Guerrero disqualified Dow and his entire office from the prosecution due to “a clear conflict” presented by a political fundraising email sent by Dow’s re-election campaign days after charges were publicly announced by the DA’s Office. Guerrero found that the email sought “political and professional benefit and campaign contributions.”
That ruling has been appealed by the DA’s Office as well as the California Attorney General’s Office, and the decision is pending before the Second District Court of Appeal.
But in the meantime, the parties have continued to argue in court filings over the requested gag order, which the defense says violates the First Amendment and the defendants’ right to a fair trial.
Also on Friday, Picquet heard arguments over a defense request to hold Deputy District Attorney Delaney Henretty and Deputy Attorney General William Frank in contempt of court over what the defense says is a failure to turn over records as ordered by Guerrero.
Picquet also heard arguments and ultimately denied a motion to dismiss the false imprisonment charge against Grocott. Grocott had challenged the case against him because he is the only defendant who didn’t waive his right to a speedy trial. Picquet ruled that the case was stalled by the DA’s appeal, and would not dismiss the charge.
“I appreciate the (appeal) compromises your client’s right to a speedy trial, but I’m not sure I can offer a remedy,” Picquet said in denying Grocott’s motion.
DA’s Office says it’s released all records to the defense
In arguing to impose sanctions on Henretty and Frank for an alleged failure to hand over all relevant records in the case Friday, Briggs conceded that “things have changed a little bit” since the request was filed, said that the DA’s Office has handed over “sparse documents.”
Guerrero had previously ordered the prosecution to turn over records that show the office’s communications related to Black Lives Matter protests and the decision-making behind prosecutors’ charges, as well as records of protesters that weren’t charged over the same event.
But the defense believes, based on several factors, that there are more records the DA is not disclosing, and Briggs said he would “be suspicious” of whether Henretty understands the scope of the records supposed to be released.
“We had (Henretty and the DA’s Office) disqualified for a reason. We do not trust what comes out of his office,” Briggs said.
“I don’t know what counsel is asking for that they didn’t receive,” Henretty said.
Picquet said he would take the issue under submission and return with a ruling at the May 21 hearing.
DA’s Office argues for gag order against protesters
In their request for a gag order, Dow and Deputy District Attorney Ken Jorgensen cited 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, adding that “the media still has unfettered access to all stages of the proceedings.”
The DA’s Office’s motion states that last fall, the defense unsuccessfully sought a gag order against the San Luis Obispo Police Department and California Highway Patrol from issuing media statements, which Guerrero denied.
The DA’s Office’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.”
The motion cites Arata’s social media statements as well as a podcast featuring three of the attorneys discussing the case.
The DA’s Office also contends defense attorney Vincent Barrientos released potential evidence of drone footage of an encounter between racial justice protesters and a driver on Highway 101 on July 21, stating in a news release that “SLOPD drone footage shows CHP Captain Klingenberg lied to the press and public” while calling for Klingenberg’s resignation.
The DA’s Office’s motion contends Barrientos, who represents 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 says the video evidence contradicts that version of events.
“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 DA’s Office motion states. “The unfounded, false, and prejudicial claims have one goal: Provide soundbites for media attention and to correspondingly influence the jury pool.”
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, as well as case against convicted Bay Area racketeer Raymond “Shrimp Boy” Chow.
Briggs argues that the gag order he received in the “Shrimp Boy” case was only temporary and the DA’s Office’s motion mischaracterizes the Ghost Ship order, which was more focused than the blanket order proposed in the Arata case.
In an opposition filed Wednesday, Briggs wrote that the DA’s Office argues the order is necessary to protect “the Sixth Amendment and society’s right to a fair trial.”
“In reality, the district attorney is concerned about what they perceive will be a fair trial for the prosecution, and they believe that the proposed gag order is necessary to protect that right by shielding government misconduct from the public eye,” the defense opposition reads.
“This argument is fundamentally flawed because the prosecution and community do not have right to a fair trial under the Sixth Amendment,” Briggs wrote. “At best, the prosecution and the public have a judicially created interest in ensuring the integrity of the judicial process, something that can only be maintained if the public is made aware of unjust prosecutions.”
Parties argue before new judge
Friday’s hearing featured hours of argument on the various motions, many of which crossed over in substance, in what Briggs described as “a confusing procedural situation.”
But the afternoon session focused mainly on the gag order, which Deputy District Attorney Jorgensen told Picquet would stop the defendants and their attorneys from “placing in the media” information that is “prejudicial, inflammatory and false.”
“The defense wants to sway the jury pool,” Jorgensen told Picquet. “And it’s crossed over into a realm where it is now overzealous.”
He said that “no other (less restrictive) tools are going to work in this instance.”
“This judicial process has been compromised,” Jorgensen said.
Briggs, in response, argued that the defense did not start the public outreach; CHP and San Luis Obispo police had issued several news releases and made public statements about the protesters’ alleged guilt long before the attorneys got involved.
In his argument, Jorgensen inaccurately claimed that the District Attorney’s Office has not issued any news releases about the case, and the only agencies to do so were the SLOPD and the CHP before the DA’s Office filed charges.
In fact, the agency issued a news release featuring mugshots of Arata and another protester with “Charged” in a bold red font when the two were charged in September. Dan Dow also issued a news release in response to criticism from San Luis Obispo Mayor Heidi Harmon over the charges.
The DA’s Office also released a news release to all media in response to a Tribune public records request for internal records and emails related to the case and the Black Lives Matter movement.
And in December, Dow issued a news release criticizing Guerrero’s ruling to disqualify him from the cases, and again after Barrientos released the drone footage.
“They fired the first shot, and we’ve been trying to balance the damage that’s been done to my client,” Briggs said, adding that the prosecution is making the sweeping request now that the cases aren’t going their way. “They’re not looking for a fair trial — they’re looking at damage control.”
“This is actually from their playbook,” attorney Barrientos said of the DA’s Office. “They’re just filing this now because they’re losing.”
Briggs said that prosecutors are looking to “shut up” a young Black activist speaking truth to power, and are doing so to shield from the public “a mountain of misconduct.”
He added that as defense counsel, it’s his obligation to not only defend Arata against the criminal charges, but to “restore her reputation in the community.”
In comments before adjourning for the day, Picquet told the parties that he has one duty: to ensure a fair trial.
He said that he is concerned about things that could pre-judge the cases in the eyes of the public, but said that he’s been involved in higher-profile cases in smaller counties than SLO in which fair trials were achieved.
Picquet said that he’s not concerned “about the district attorney’s political career,” and warned that he won’t entertain the accuracy of defense allegations of bias against Dow.
Calling a request for a gag order something that “doesn’t come up often,” Picquet says he’s read more about the legal issues of such orders in the last few days than he had in his long career.
“This is something I’m going to have to sit down and consider,” Picquet said.
Just before concluding the hearing, Picquet added that Briggs’ words about ethical obligations of counsel to restore a client’s reputation was “an interesting statement” that he would give consideration to.
This story was originally published April 23, 2021 at 9:30 AM.
