UPDATE April 15 — Calling prosecutors’ motion to limit the distribution of public court documents a request for a “gag order,” Carbon County Circuit Court Judge Susan Stipe on Friday denied that motion.
During a two-and-a-half-hour motions hearing, which was live-streamed, Stipe also denied motions to dismiss the charges against four Missouri men accused of criminal trespass. She then addressed prosecutors’ request for an order “to limit prejudicial pretrial communications with the media and release of information.”
That request is for “what I’m going to call a gag order,” Stipe said. “I’m concerned about that issue,” she said. “I’m guessing the media is also concerned.”
She listened to Carbon County Prosecutor Ashley Mayfield Davis argue that press coverage would taint the jury pool that’s being assembled for a two-day trial scheduled to begin April 27. But the judge wasn’t convinced.
“Any motion for a gag order is hereby denied,” Stipe said from the bench.
The deputy county attorney prosecuting four hunters for criminal trespass for corner crossing to access public land in Carbon County wants a judge to “limit prejudicial pretrial communication” after WyoFile published a video contained in court files.
Carbon County Circuit Court Judge Susan Stipe should issue an order “to limit prejudicial pretrial communications with the media and release of information,” according to a motion filed by Prosecuting Attorney Mark Nugent on April 13. The court has scheduled a hearing on motions for April 14 but it is uncertain which motions will be addressed during that time.
The motion was filed in a criminal trespass and potential trespassing-to-hunt case against four Missouri men who have pleaded not guilty in the 2021 incident. The men contend they stepped from one piece of public land to another — at the intersection of two public and two private sections — without setting foot on private property belonging to the Elk Mountain Ranch.
The case involves the checkerboard pattern of land ownership in parts of Carbon County where private and public land are interspersed. The case has implications regarding access to millions of public-land acres across the West.
“There has been a large amount of information that has been published in the media on this case,” Nugent’s motion states. The motion did not say how the public documents were distributed, but Nugent wrote none came from his office and much of the information “has not been released by the Court.”
“A criminal case should not be tried through the media,” Nugent wrote. He said Stipe should issue an order limiting the release of information by those involved in the case or set a hearing on the issue.
Access to public records
The prosecutor focused on a body cam video from a Carbon County sheriff’s deputy — a public record in the court — in his motion. The unredacted video contains the birthday of an eyewitness in the case, the filing states.
“Specifically, the State was contacted by a reporter requesting a copy of Attachment 3 to Defendants’ Motion to Dismiss which is a video,” the filing states. “The reporter told staff at the County Attorney’s Office that the Court would not provide a copy of the disc as the Court does not copy discs for disclosure.
“The State declined to make a copy of this disc as it relates to an open criminal case,” the motion states. “However, it is obvious that the media not only obtained a copy of the video but also released it on the internet.”
The motion does not state how the media obtained the video.
The video “contains the name and date of birth of an eyewitness to the case which has not been shared publicly,” Nugent wrote.
“It would be in the interest of justice to prevent further taint of the Jury pool and for the Court to limit the release of information to the media by any party to this incident,” his motion reads.
The motion does not indicate how knowledge of an eyewitness’s birthday might prejudice a jury. Nevertheless, the media spotlight appears to be a worry to prosecutors.
“Throughout this case, it has been clear that the media was aware of filings simultaneously with their filing with the Court and has run corresponding stories to many filings,” the motion states. “The state has very serious concerns that it will be very difficult to seat a jury due to the ongoing media attention given to this case.”
WyoFile published the body cam video in a story on March 1, 2022. It was the first media outlet to do so.
Although Nugent states that the circuit court “would not provide a copy of the disc,” WyoFile obtained the video after paying $5 — the court’s record production fee — to the clerk of the Carbon County Circuit Court via a check dated Feb. 22.
The circuit court cashed the check on Feb. 25, according to bank records.
Deputy Clerk Jennette Hagan sent the video disc to WyoFile in a prepaid FedEx envelope on Feb. 22, according to a FedEx shipping label. A FedEx envelope from a “Jannette Hagen,” “Carbon County Circuit” in Rawlins arrived at a WyoFile office on Feb. 25, according to FedEx tracking information.
It contained the video disc.
A court order limiting the distribution of public information in court files would be “in the interests of justice,” because a tainted jury pool could cause a change of venue, Nugent’s motion states.
“[A] potential change in venue from a tainted jury pool would place an unfair and undue financial burden upon Carbon County,” Nugent wrote. Those costs include hotel expenses, staff, travel and office equipment, the motion states.
“This cost will be astronomical,” the motion states.
“[T]hese costs shall have a serious, if not deleterious impact on the State’s ability and right to present its case,” the motion reads. “The impairment of the State to present its case is a violation of its duty to the citizenry of the State and the county to prosecute criminal cases…”
Carbon County has a $33.9 million budget for FY 2021-22, according to records. The county attorney’s budget is $838,967, county records show.