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Roane judge backs away from media gag order

CHARLESTON, W.Va. -- A Roane County judge on Friday repealed portions of a gag order he issued earlier this week that barred media outlets from reporting about the criminal background of a man accused of throwing his girlfriend off a bridge.

After questions from the Gazette-Mail, West Virginia Supreme Court officials discussed the constitutionality of the order with Circuit Judge David W. Nibert, said Supreme Court Administrator Steve Canterbury.

Nibert issued the order Thursday in the case of Michael J. Smith, 30. The order barred reporters from disclosing that Smith was on home confinement the day he allegedly attacked his girlfriend.

Canterbury said Friday that after officials brought the problem to Nibert's attention Thursday, the judge agreed that the order might have been overly broad and said he would issue an amended order that removed any restrictions for the media.

"Judge Nibert is a very reasonable, compassionate, very understanding judge," Canterbury said. "He very quickly saw that he had overreached."

Judicial gag orders that prohibit the media from reporting on a subject, known as prior restraint, have generally been found unconstitutional in American courts.

In April, Smith's girlfriend, Brandi Shaw, was visiting him in his home in Reedy when they got into an argument, according to a criminal complaint filed in Roane County Magistrate Court and signed by county Sheriff's Lt. Jeff Smith.

While the two argued, Smith struck Shaw several times in the face and head, knocking her to the ground at least once, the complaint states.

Smith allegedly followed Shaw to a bridge at the intersection of Middle Fork and Liverpool Road and grabbed a bag she was carrying on her shoulder.

"I advised you not to go to that bridge," Smith allegedly told Shaw. Still holding the bag, he then jerked Shaw over the bridge abutment, according to the complaint. Shaw fell more than 8 feet, rolled over a rock and came to rest in the water.

"She advised that she was in a great amount of pain and had to beg the defendant to help her out of the water," the complaint states. "The victim stated that she had to tell the defendant that she loved him before he would come to help her."

Eventually, Smith carried Shaw out of the water and set her on a sidewalk leading to the bridge. Smith's mother drove to the bridge, picked them up and took them back to Smith's house. Despite Shaw's begging, no one called an ambulance until the next day, the complaint states.

Shaw was heavily bruised on her face, arms, legs and back. Later medical records indicated that she had an injury to her spinal column.

Smith was on home confinement at the time of the incident. Investigating officers discovered from the county's contracted monitoring company that Smith was out of range for about an hour, the complaint states.

Smith's mother also confirmed that she had driven to the bridge to pick up her son and Shaw, the complaint states. Smith was charged with malicious assault and domestic battery.

During Smith's trial Tuesday, Nibert apparently barred people from disclosing to the jury any elements of Smith's criminal history.

According to David Hedges, publisher of the Roane County Reporter, Shaw said on the witness stand that her boyfriend was on home confinement, which signaled to the jury that he had been in trouble with the law before the April incident.

Nibert declared a mistrial and issued an order Wednesday banning the lawyers, witnesses, "and any media which might be possessed of such knowledge, from disclosing the specific evidence erroneously disclosed to the jury on October 16, 2012."

Nibert, after speaking with Supreme Court officials, released an amended order Friday morning that removed any language referencing the media.

"It can be very frustrating when you got something going and you have to start over," Canterbury said. "We brought it to his attention. After some conversation with counsel, he almost instantly understood he over reached."

Nibert's amended order is now similar to two other gag orders Kanawha County Circuit Judge Duke Bloom issued in criminal cases in past months.

In July, after a news station aired a jailhouse interview the weekend before trial, Bloom issued an order banning accused Kanawha County sniper Shawn Thomas Lester, lawyers, prosecutors and hundreds of witnesses associated with the case from speaking to the media.

A month later, Bloom issued a similar gag that banned media contact in the case of Charles Eugene March, who is accused of strangling a co-worker to death and burying her body in his backyard.

Bloom did not cite any legal authority for the gag in the Lester case, which drew criticism from some national experts that the order might have been overly broad. Bloom rescinded the order after Lester pleaded guilty to murder charges.

March's defense lawyer requested the gag order in his case to prevent investigators from releasing potentially prejudicial information about his client to the media.

Reach Zac Taylor at zachary.taylor@wvgazette.com or 304-348-5189.


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