toledoblade.com -- The Blade ~ Toledo Ohio

COLUMBUS - A Henry County judge cannot enforce his order preventing journalists from promptly reporting on an involuntary manslaughter trial - at least for now.

The Ohio Supreme Court yesterday sided with The Blade and temporarily placed on hold Common Pleas Court Judge Keith P. Muehlfeld's gag order until the state's highest court can fully review the matter.

The 6-1 decision, which did not come with a written opinion, says nothing about whether Judge Muehlfeld should proceed with Monday's scheduled retrial of Jayme Schwenkmeyer, 24. She faces charges of involuntary manslaughter and child endangerment in the 2007 drug overdose death of her 13-month-old daughter, Kamryn Gerken.

The Blade had characterized Judge Muehlfeld's gag order as "patently unconstitutional" prior restraint of the First Amendment rights of free speech and press.

"The Blade is pleased that the Supreme Court promptly suspended the trial court's prior restraint, so that The Blade and all other media can report freely on the trial and the public can learn about it. And The Blade looks forward to briefing the matter fully for the Supreme Court to demon-strate further the unconstitutionality of the order," Fritz Byers, the newspaper's attorney, said.

The high court has set up a schedule for both sides to file evidence and briefs in the case, a schedule that could delay a final ruling by up to 50 days.

Justice Maureen O'Connor cast the dissenting vote. She indicated that she would have made a final ruling for The Blade now.

Judge Muehlfeld issued the gag order in December and then reaffirmed it this week for Ms. Schwenkmeyer's retrial. Jury selection for the separate trial of a second defendant, David E. Knepley, 50, on similar charges is expected to begin a week later.

Judge Muehlfeld's order would not have prevented reporters from attending the first trial, but it would have prohibited them from publishing or broadcasting what they saw or heard until after a jury was seated in Mr. Knepley's case.

Mr. Knepley's attorney had argued that the order was necessary to prevent publicity associated with the first trial from tainting the jury pool in the second.

The decision was issued late yesterday afternoon. Judge Muehl-
feld could not be reached for comment after the ruling, but earlier in the day he declined to comment on the newspaper's action.

The American Civil Liberties Union of Ohio applauded the decision. The organization said there was a good chance it may seek to intervene in the case as it proceeds.

"We're all about civil liberties and constitutional rights, and we recognize that the press and the public have free speech rights under the First Amendment, but we also believe the defendants have rights under the Fourth, Fifth, and Sixth amendments to receive a fair trial," staff counsel Carrie Davis said.

"The reason it's important to have this freedom of the press in the courtroom is all about transparency," she said. "It's the public's right to know what's happening in their government, including the courts."

Ms. Davis said challenging the judge's unusual gag order is important, not just for journalists, but for members of the public who may attend court proceedings and blog about what they observe.

"If it was allowed to stand, it creates this horrible precedent that anytime anyone even raises a concern about a trial or whatever proceeding, they would prohibit the press or the public for that matter from reporting on it," she said. "It really affects a lot of us."

Contact Jim Provance at:
jprovance@theblade.com,
or 614-221-0496.

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