Abduction Case Gets Gag Order Judge Tompkins Fears Extensive Pre-Trial Coverage Could Prejudice Potential Jurors

A Spokane County judge has told police and attorneys involved in the Mukogawa abduction case to stop talking to the media, fearing potential jurors could be prejudiced by pre-trial coverage.

Superior Court Judge Linda Tompkins signed the temporary order late last week at the request of Doug Phelps, who is the attorney for David Dailey. Tompkins will decide at a hearing in early January whether to grant Phelps’ request, which also seeks to close court hearings and records in the case through the trial’s opening June 4.

The move is extraordinarily rare, said some attorneys who cited even more high-profile cases in which no judge issued a gag order to prevent pre-trial publicity.

“In some of the most notorious cases … Kevin Coe (a serial rapist), Robert Yates (serial killer) - gag orders weren’t imposed,” said defense attorney Richard Fasy, who defended Yates.

“I’m not saying that it’s never happened, but I’ve been doing this a long time, and I can’t recall seeing something like this,” Fasy said.

Fasy was skeptical of the move, which comes after weeks of news coverage about the crimes. Fasy, the chief assistant and felony supervisor for the Spokane County Public Defender’s Office, said he can’t recall such a broad restriction upon attorneys and police discussing a case.

“It’s kind of like closing the barn doors after the cows have gotten out,” Fasy said. “I’m not sure it would have much effect.”

A hearing about the order limiting pre-trial news and closed hearings is scheduled Jan. 11 at 9 a.m. Tompkins also plans to meet with media representatives on Jan. 9 to discuss the matter further.

Dailey, Edmund Ball and Lana Vickery are accused of kidnapping and raping female Japanese exchange students.

They allegedly kidnapped three students Nov. 11 from a bus stop near Mukogawa Fort Wright Institute. They released one woman and took the other two to a home in the Spokane Valley, where the women were sexually assaulted over seven hours, prosecutors say.

Ball pleaded innocent at his arraignment last month to three counts of first-degree kidnapping, two counts of first-degree rape and two counts of witness tampering at his arraignment.

Dailey and Vickery have pleaded innocent to the same charges as Ball, in addition to two counts of attempted first-degree kidnapping and two counts of second-degree assault by torture in the abductions of two Eastern Washington University students Oct. 28. Those students escaped.

Though the broad nature of the gag order is unusual, it’s the second time this year Tompkins has restricted attorneys and law enforcement from discussing details of a case.

In a pre-trial hearing involving Stanley Pietrzak, at the conclusion of testimony that included allegations Pietrzak may have cannibalized the remains of Kelly Conway, Tompkins told deputy prosecutor Jack Driscoll, Spokane police Detective Chet Gilmore and defense attorneys Al Rossi and Fasy not to discuss that day’s testimony after leaving the courtroom.

A jury had already been selected, but Tompkins said she wanted to eliminate the risk of contaminating the jury.

Tompkins later ruled the allegations of cannibalism were unsubstantiated and the jury never heard them during Pietrzak’s trial.

As for Dailey, Phelps said in court papers that it will be difficult for his client to receive a fair trial because of pre-trial publicity.

“Since the time of the defendant’s arrest, there have been at least nine articles published in The Spokesman-Review regarding the individuals accused, the facts of the crime, allegations of past activities, including the assertion that the defendant was involved in a bondage discipline and sado-masochistic club, as well as prior acts of alleged misconduct, and the court proceedings which have followed,” Phelps wrote.

Tompkins said she signed the temporary order until attorneys, police and media can gather to discuss pre-trial coverage.

“Good cause exists that there is a possibility of prejudice to the defendants,” Tompkins said.

Tompkins said her temporary order was not a gag order.

“This is an interim provision until the January hearing to address issues of confidentiality,” Tompkins said.

Nevertheless, attorneys and police have been barred from commenting to the media or releasing any information about the case at least until next month. No court hearings are scheduled between now and the Jan. 11 hearing.

Deputy prosecutor Larry Steinmetz declined to say anything about the case or the gag order on Wednesday. Steinmetz would say he was opposed to the order.

Attorney Duane Swinton, who represents The Spokesman-Review, said he was surprised Tompkins signed the order.

“It’s unfortunate for a gag order to be entered,” Swinton said. “I’m a little surprised by it. The public has a right to know.”

Swinton said he will argue in favor of lifting the gag order and keeping all future pre-trial hearings open to the public.