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vs.

CRIS-139S-JS
CRIS-1396-JS
CRIS-1397-JS

JASON KENNY,
MAXINE EVANS,
GREGORY BROWN,
Defendants.

ORDER ON MOTION FOR GAG ORDER AND


MOTION TO DISMISS AND MOTION TO INTERVENE

Before the Court is a Motion for a Gag Order filed by the District Attorney of the Eastern
Judicial Circuit and a Motion to Intervene filed by WSAV' .

Having read and considered said

motions, Special Appearance Response in Opposition to State's Motion for Imposition of Gag
Order, all argument and evidence of record 2 and the applicable law, including that presented at
the hearings on July 8, 20 IS, the Court finds as follows:
FINDINGS OF FACT
Defendants in the above styled case were indicted on June 24, 20 IS. The indictments

'The Court considered the arguments in the Motion to Intervene filed by WSA V, as well
as the State's response to the motion.
2The Court has considered the newspaper articles submitted in exhibits one and two and
additionally considered the flash drive provided by WSA V as those documents were properly
authenticated. The Court did not consider the disks of the Claiborne interview which were
attached to Exhibit 2 nor did it consider the disk attached to the WTOC affidavit as those disks
were not properly authenticated.

arose out of the death of Matthew Ajibade, an inmate at the Chatham County Jail. Also pending
is CV15-0441 styled Al St. Lawrence, Sheriff a/Chatham County, Georgia and Meg Heap,

District Attorney vs. WSA V, Inc. and A den ike Hannah Ajibade and Solomon Oludamisi Ajibade
which concerns the disclosure of certain documents and records related to the investigation.
Formerly pending was CV15-0532 styled Adenike Hannah Ajidabe Solomon, Oludamisi Ajidabe

and Christopher Oladapo vs. Meg Heap in Her Capacity as Eastern Judicial Circuit District
Attorney, which was filed by attorney Will Claiborne on June 9, 2015 in an attempt to have the
district attorney disqualified from investigating or presenting criminal charges related to the
death of Matthew Ajibade.

This action was subsequently dismissed by order of the Court on

July 2, 2015.
The State filed the instant Motion for Gag Order in which it seeks a gag order against the
parties and counsel for and all agents of all parties, including attorneys for the victim's family
and the Defendants. They argue that counsel for the victim's family have made extrajudicial
comments addressing potential trial issues to various media outlets and they attach a number of
articles in support of their contentions.
Counsel for Defendant Maxine Evans argued that there is no evidence before the Court to
support any motion for gag order against any of the Defendants.
Counsel for Adenike Hannah Ajibade, Solomon Oludamisi Ajibade and Christopher
Oladapo filed a Special Appearance Response in Opposition to the State's Motion for Imposition
of a Gag Order in which he argues that the State's Motion should be denied for the following
three reasons: (1) the Court may restrain only those parties and lawyers involved in the above
captioned proceedings; (2) the State failed to allege any facts to support its assertion that counsel

for the victim's family are subject to the Court's exercise of its equitable power in these
proceedings; and (3) counsel for the victim's family has a constitutionally protected right to
speak critically of the government's handling of a case.
WSAV filed a Motion to Intervene in the action for the limited purpose of opposing the
State's Motion for Imposition of a Gag Order.
At the hearing on the motion for gag order, the State submi tted a number of newspaper
articles. William Claiborne and Mark O'Mara, both attorneys for the family of Matthew
Ajibade, are quoted in the various articles.
Some of the statements attributable to Claiborne, although not exhaustive, are as follows:
(1) "[t]he fact that nine people were fired tells us how terrible this incident was. But the family
still has no answers about what happened to Matthew. We again call on the sheriff and DA to be
transparent while we seek justice for Matthew." ; (2) Y ou have to be beyond incompetent to have
tried to get that charge and have failed." "We need a fair and impartial prosecutor." (3) The
family was very distressed to learn the cause and manner of death from their son's death
certificate.; (4) "Right now because the family has been given no info as to what happened they
can't do anything but grieve. They can't have an opinion about what this means that these people
were let go. Except that what happened to their son was truly horrific." ; (5) He said that the
sheriff s office has been too slow to release infonnation in the case. "I expect that all of the
people who have committed any criminal act should be charged, that if anyone took steps to
enact a policy tha (sic) this to occur, that that individual be charged."; (6) "The family is very
distressed to learn that their son was murdered at the jail, with the release, the leak of the death
certificate." "We have been asking since January for openness, we have been asking for

transparency. You saw here yet again the sheriff refusing to provide information." "They should
simply be humane and tell this family what happened to their son."; (7) "Every piece of
information this family has received about their son has been on the news media, or today, Face
book." "If he was in a holding cell with blunt force trauma for two hours, why wasn't he
checked in?" ; (8) "For at least two hours, Matthew was in a holding cell after apparently having
sustained significant blunt force trauma, after apparently having been tased while in full
restraints."; (9) "You don't just punish the infantry men who fired the fatal shot, you punish the
general who made the call." "If the sheriff had a cu( sic) of violence in his j ail, then he needs to
be the subject of an investigation and it appe(sic) me that due to personal relationship and
political relationships, the DA is choosing to engage in that type of investigation." ; (l0) "[i]fthe
district attorney is not willing to then we have no choice but to go to court and bring those
conflicts to light." "We're specifically concerned that the investigation needs to go from the top
down of the sheriff solely on the individuals who may have made bad decisions and engaged in
criminal conduct. ..."
Some of the statements attributable to Mark Q'Mara, although not exhaustive, are as
follows: (I) "There's no blame yet. There are just a lot of questions."; (2) "Matthew was going
places, and they were good places. And we need to know why he's never going to get there."; (3)
"If this guy is in boxing stance, getting some good jabs in, maybe that's not mental illness. If
he's swinging around crazy and his mental illness affected what was going on, that's what they're
supposed to be trained to deal with." "If you break a cop's nose, yes, it's a felony, you're going
to get charged, fine. What's not supposed to happen are injuries caused to a guy because he hit a
cop- and it ends up killing him. If that's what happened, that's first degree murder." "You don't

die from bipolar disorder in a restraining chair." "If he had bee white, would the cops have
listened to his girlfriend and taken him to the hospital? I don't know." "What I do know is his
family deserves to know what in God's name happened to their son."; (4) "A guy who was
bipolar dies in a restraining chair." "You don't die from bipolar disorder. They need to get a
cohesive explanation out as soon as possible. Not only does the family deserve it, the public
does. There area lot of Black males being killed in circumstances that don't make much sense."
"The fiance was calling for help, then you lose him." "We don't know the cause of Matthew's
death." "The Georgia Bureau ofInvestigation conducted an autopsy on January 6 lh and we
expect to get an answer as soon as possible. But even if we discover the cause of Matthew's
death, the autopsy won't necessarily tell us why Matthew died. Why wasn't he taken to the
hospital? Did officers take into account Matthew's mental illness? How was he allowed to die
while in officer's care? You are not supposed to die from bipolar disorder." "In the wake of
Michael Brown and Eric Garner, there is a crisis of confidence in our criminal justice system."
"There is an opportunity now for leaders in Savannah, Georgia to show the nation how to
properly deal with this type of tragedy. We and the rest of the nation is watching." ; (6) "The
Chatham County Sheriffs office has made an important first step in suspending two officers who
interacted with Matthew Ajibade the night of his death, but it is only a first step. A young man is
dead, and he shouldn't be. The family deserves to know why as soon as possible, and we expect
the Chatham County Sheriffs office will be forthcoming, transparent, and expedient in releasing
information about this case."; (7) "Let' s say that they had the autopsy results for three weeks,
four weeks, five weeks, which I think they have. Why are they not telling us? One reason why is
because they don't want us to know. That's not acceptable. We deserve to know. Even ifits

bad, and it may be bad, I think we may find out that Matthew did not just die of natural causes
coincidentally to be in the jail." "They're telling us they are working on it. They first said it
would take a few weeks for an autopsy. That's long done by now and we don' t know what it
said." "Police everywhere need to be trained on how to handle mentally ill individuals. They
have to. When you take someone who's in the throes of a mental event and then incarcerate
them, you're doing the exact opposite of what they need. They need help. They need immediate
care."; (8) The disciplinary action against the two deputies are "a good small step in holding
people responsible for their actions." "We still need questions answered how Matthew's life
was taken from him." " Ajibade was diagnosed with bipolar disorder three years ago and was
having a medical emergency at the time of his arrest and confinement.".; (9) "Metro Police had
an opportunity to use a certain amount of discretion and I don't know how they decided to use it.
I know that that discretion could have been- and it is in many cases- to take a person

the

hospital. They may have very good reasons for using their discretion- we just don't know yet." ;
(l0) O'Mara said he suspects Ajibade was having a manic episode at the jail when deputies "beat
the (expletive) out of him to get control of him." The indictment is "too little to late." "The fact
that the grand jury found that there was aggravated assault coupled with the fact that there was a
death should have led to a felony murder charge unless Heap wasn't really trying to secure that
charge." "That's been our concern all along that she was going to whitewash this case as a
benefit to the sheriff and in derogation to Matthew's death."

"It would be nice to say every one

of them should have been charged with murder, but that might be unrealistic. But here's my
frustration: We have been kept so in the dark about the facts in the case that we really don't
know." ; (11) "(The district attorney) failed to get a felony murder indictment, and that is her
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responsibility." "They are disappointed that nine out of 12 people involved in their son or cousin
or brother's death have gotten away without any criminal liability." (12) Op Ed piece written by
Mark O'Mara entitled "Response to Sheriff Al St. Lawrence's Press Release"; (13) "It demands
further, absolute transparency." "First of all, they knew (the cause of death) back in January, I'm
sure. This (death certificate) was signed May 8, and a month later we find out about it. .. I just
don't see how they can be so insensitive to the man, and insensitive to the family's grief. They
have hid this from us for five months. It makes no sense."
Also submitted into evidence was an affidavit and a flash drive from WSAV -TV which
contained interviews with family attorney William Claiborne after the press conference by
Sheriff Al St. Lawrence. In the interview given by Mr. Claiborne, he makes a number of
statements including that Matthew Ajibade was murdered, that apparently for at least two hours
he was in a holding cell after having apparently sustained blunt force trauma, and apparently had
been tased while in full restraint.
Called to testify at the hearing were the following four witnesses: Kristen Fulfort, J.J.
Haire, Dana Campbell and Ricky Becker. Kristen Fulfort, the public information officer for the
District Attorney's office, testified regarding email requests from various media outlets for a
comment from the district attorney regarding the instant case.

J.J. Haire, who is employed with

the victim witness office of the District Attorney's office, testified that she had been instructed by
an employee of Mark O'Mara's office, that all communication to the victim's family, should be
directed through his office.

Dana Campbell, with Sidney A. Jones and Campbell Funeral

Services, and Ricky Becker, an investigator with the Chatham County District Attorney's office,
testified regarding the release of the death certificate of Matthew Aj ibade.

CONCLUSIONS OF LAW

"Few, if any, interests under the Constitution are more fundamental than the right to a fair
trial by 'impartial' jurors, and an outcome affected by extrajudicial statements would violate that
fundamental right." [cit omitted]. To guarantee a defendant's Sixth Amendment right to a fair
trial, the Supreme Court has placed "an affirmative duty on trial court's to guard against
prejudicial pretrial publicity." [cit omitted]. Atlanta Journal-Constitution et.a!. V. State, 266
Ga. App. 168, 169, 596 S.E.2d694 (2004). "There can be no question that a criminal
defendant's right to a fair trial may not be compromised by commentary, from any lawyer or
party, offered up for media consumption on the courthouse steps." [cit omitted]. United States v.
Brown, 218 F. 3d 415, 424, (2000).
The U.S. Supreme Court said in Sheppard v. Maxwell, 384 U.S. 333, 350-351,86 S.Ct.
1507, 16 L.E.2d 600 (1966):
'(l)egal trials are not like elections, to be won through the use of the meeting-hall, the
radio and the newspaper' . [cit omitted]. ... 'freedom of discussion should be given the
widest range compatible with the essential requirement of the fair and orderly
administration of justice. , [cit omitted]. But it must not be allowed to divert the trial from
the 'very purpose of a court system ... to adjudicate controversies, both criminal and
civil, in the calmness and solemnity of the courtroom according to legal procedures.'
Mr. Justice Holmes stated in Patterson v. Colorado, ex reI., Attorney General, 205 U.S.
454,462,27 S.D. 556, 558, 51 L.Ed 879 (1907): "[t]he theory of our system is that the
conclusions to be reached in a case will be induced by evidence and argument in open court, and
not by any outside influences, whether private talk or public print."
Georgia Bar Rule 3.6 provides
[a] lawyer who is participating or has participated in the investigation or litigation of a
matter shall not make an extrajudicial statement that a person would reasonably believe to

be disseminated by means of public communication if the lawyer knows or reasonably


should know that it will have a substantial likelihood of materially prejudicing an
adjudicative proceeding in the matter.
( c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable
lawyer would believe is required to protect a client from the substantial undue prejudicial
effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement
made pursuant to this paragraph shall be limited to such information as is necessary to
mitigate the recent adverse pUblicity.
American Bar Association Disciplinary Rule DR 7-107 (A) provides:
[a] lawyer participating in or associated with the investigation of a criminal matter shall
not make or participate in making an extrajudicial statement that a reasonable person
would expect to be disseminated by means of public communication and that does more
than state without elaboration:
(1) Information contained in a public record.
(2) That the investigation is in progress
(3) The general scope of the investigation including a description of the offense and, if
permitted by law, the identity of the victim.
(4) A request for assistance in apprehending a suspect or assistance in other matters and
the information necessary thereto.
(5) A warning to the public of any dangers.

In the case of Atlanta Journal -Constitution et.a!. V. State, 266 Ga. App. 168,596
S.E.2d694 (2004) the Court found that Rule 3.6 requires a finding that extrajudicial statements to
the media will have a substantial likelihood of materially prejudicing a trial. Id. at 170.
Additionally, the trial court must make specific findings of fact based on evidence of record
regarding the possible impact of extrajudicial statements upon the forthcoming trial.
The District Attorney moves the Court for an order directed at "the parties and counsel
for all agents of all parties, including the attorneys for the victims family and the Defendants to
refrain from making any statements regarding or releasing information concerning, the abovereferenced case that they know or reasonably should know will have a substantial likelihood of
materially prejudicing an adjudicative proceeding ...."

The Court finds that the State has failed to present any evidence regarding any
extrajudicial statements made by the Defendants or their attorneys and therefore, the request for a
gag order as to these parties is DENIED.
On the other hand, the State has presented a plethora of evidence, including but not
limited to newspaper articles and interviews, evidencing extra judicial statements made by
William Claiborne and Mark O'Mara, both of whom have identified themselves as attorneys for
the Ajibade family.
With regard to attorney William Claiborne, he has made a number of extrajudicial
statements, including but not limited to, statements regarding lack of information provided to the
family of Matthew Ajibade, statements regarding facts surrounding the death of Matthew
Ajibade, and the investigation by the District Attorney. He has given interviews to the television
stations and made comments which have been posted in various newspaper articles regarding the
instant action. Because of his filing of an action for mandamus against the District Attorney's
office requesting her removal with regard to her prosecution of the instant matter, the Court finds
that he has "participated in the ...litigation of a matter. .. " as contemplated by Georgia Rule of
Professional Conduct 3.6 (a) by inserting himself into the litigation.
Therefore, the only question which remains is whether the extrajudicial comments made
by Mr. Claiborne "will have a substantial likelihood of materially prejudicing the trial." The
Court finds that they will. This Court has presided over a number of high profile cases, one of
which required that ajury be selected from citizens outside Chatham County and is well versed
in pretrial publicity affecting the selection of a fair and impartial jury. The Court finds that the
statements made by William Claiborne, which began after the death of Matthew Ajibade on

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January 1,2015, and has continued into June 2015, are an attempt by counsel to create sympathy
for the family of Matthew Ajibade. Mr. Claiborne indicated in his petition for mandamus that
the Ajibade family will be filing a civil suit against any and all patties responsible for the death
of Matthew Ajibade and has indicated that "there is a significant probability that Defendant Heap
will be named as a defendant in that action." The Court finds that the numerous statements made
by William Claiborne over the past six months will have a substantial likelihood of materially
prejudicing the trial because they will affect the ability to secure an unbiased jury panel and could
result in a change of venue.
The Court is not persuaded by the arguments of counsel that this Court does not have
jurisdiction to restrain him because he is not an attorney representing a party in the above
captioned proceedings. The Court has found that Mr. Claiborne has "participated in the ...
litigation" of this matter by insetting himself through the filing of a mandamus action to remove
the district attorney. He is clearly bound by Georgia Rule of Professional Conduct 3.6.
Additionally, while counsel for the victim's family has a constitutionally protected right to speak
critically of the State's handling of a case, this must be balanced with the trial court's affirmative
duty to ensure that the Defendants' receive a fair trial.
Therefore, based upon the foregoing, the COUlt GRANTS the State's request with regard
to a gag order as to attorney William Claiborne.
As to attorney Mark O'Mara, who also has indicated that he is an attorney representing
the Ajibade family, the Court finds that a number of extra judicial statements have been made,
including an op ed piece that was written in response to the press release issued by Chatham
County Sheriff Al St. Lawrence. Mr. O'Mara has not filed a motion to be admitted pro hac vice

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pursuant to Unifonn Superior Court Rule 4.4. 3 The COUlt finds that since Mr. O'Mara has not
filed a motion to be admitted pro hac vice, he is not subject to Georgia Rule of Professional
Conduct 3.6. He is subject to American Bar Association Disciplinary rule DR 7-1 07(A),
however, that rule only provides for a "lawyer participating in or associated with the
investigation of a criminal matter." The COUlt finds that no evidence has been presented to
indicate that Mr. O'Mara has participated in the investigation of the criminal matter, only that he
has participated in the litigation, for example, by advising the victim witness advocate that his
office is the contact for the Ajibade family. Although it is concerning to the COUlt that Mr.
O'Mara has made numerous extrajudicial statements regarding this matter and has participated in
the litigation of this matter, the COUlt finds that it has no jurisdiction over him in which to issue
a gag order.
The Court further finds that nothing in this order is directed at the media, and therefore,
it cannot be classified as a prior restraint. See Atlanta Journal-Constitution et.al. supra at 168.
WHEREFORE, pursuant to Georgia Bar Rule 3.6, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the State's Motion for Gag Order is GRANTED as to
William Claiborne, a Georgia licensed lawyer, who is governed by the Georgia bar rules. Mr.
Claiborne is prohibited from making any statement that he should know will have a substantial
likelihood of materially prejudicing an adjudicative proceeding in this matter. He is entitled to
comment on those subjects as outlined in Comment 5(B) under Rule 3.6 of the Georgia Rules of
Professional Conduct. This order shall be in effect until such time as there is a resolution is the

JThe Court notes however that Mr. Q'Mara appeared at a hearing on June 29, 2015 before
the Honorable Michael L. Karpf in CV 15-0532 and was allowed to sit at counsel table with
William Claiborne to assist.
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above styled cases.


SO ORDERED this

cc:

/fl

day of ___tL--r-----7---

All parties

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