Judge wrong to discourage jurors from talking in aftermath of Gage trial

U.S. District Judge Justin Quackenbush apparently doesn’t want the public to know how the federal jury split when it couldn’t agree on the guilt or innocence of Las Vegas attorney Noel Gage.

Quackenbush advised jurors not to talk to the news media, and they followed what appeared to be his order.

Of course, once home and free to chatter, they probably told a lot of people what happened in that jury room. In many ways, this is still a small town. Things get out, directly or indirectly.

That’s how I picked up that the split was 8-4 in favor of convicting Gage on conspiracy and fraud.

Now that’s good news … for Gage. It’s not like it was one lone holdout, the sort of split that encourages idle speculation about jury-tampering, speculation that I heard but didn’t believe as the deliberations stretched out over six days.

I invite any juror who wants to talk, now that the trial is over, to call me at the number listed at the end of this column, and if I’m not in, to leave a message. Or e-mail me.

I want to know who they found believable and who they didn’t in this complex conspiracy-fraud case.

The prosecution alleged that Gage belonged to a team of lawyers and doctors who worked hand in hand to run up insurance settlement costs for personal injury cases. The specific allegation against Gage is that he backed off suing two doctors under the protection of medical consultant Howard Awand in exchange for client referrals.

After Awand referred Carlos Pachas to him, Gage backed off suing Drs. John Thalgott and Mark Kabins. Was it a deal or a smart legal maneuver to squeeze money from the anesthesiologist Gage did sue? Did this cheat Gage’s client Melodie Simon out of millions? Apparently some jurors couldn’t agree.

Did they not believe Thalgott and Dr. Ben Venger? The latter said he lied in depositions and at trial because Awand told him to, and it prevented him from being sued by “Awand’s boys.”

This is a case with strong public interest, so I asked for the basis of Quackenbush’s courtroom comment that his rule and the 9th U.S. Circuit Court of Appeals rule is to discourage jurors from talking about deliberations.

Through a spokesperson, the judge said his instruction was intended for attorneys, prohibiting them from contacting jurors without prior permission from the court. He said he did not seek to prohibit the media from contacting jurors, but he did discourage jurors from discussing the case publicly because of possible influence on a future retrial.

When a federal judge suggests jurors not talk to the media, they tend to believe they need to do what he says. Attorneys aren’t going to violate a direct order.

A prior Quackenbush case proves my point.

In 1998, Quackenbush advised jurors not to talk when Las Vegas brothers Ed and Fred Doumani were acquitted in a complex bankruptcy fraud case. That time, he said in open court: “I have a strong feeling that what goes on in that jury room should stay in that jury room.”

It left jurors with the impression they had been ordered not to talk with reporters. One juror said he feared he would get into trouble if he discussed the case. “We were instructed not to,” he said.

Quackenbush insisted he hadn’t ordered them to be silent. “That’s a decision for them to make,” he said then.

Usually after a trial, the instruction given by federal judges in Las Vegas is that jurors may talk to the news media, but they don’t have to. There’s no ban on attorneys talking to willing jurors.

A post-trial gag order, even one that is merely disingenuously suggested by Quackenbush, is wrong.

I’m told that Quackenbush told Gage’s defense attorney, Tom Pitaro, and Chief Assistant U.S. Attorney Steve Myhre what the breakdown was, but didn’t want Pitaro to tell Gage because he was afraid Gage would use it in his aggressive television advertising campaign. If that’s the judge’s true concern, he should deal directly with that.

But the jurors should be free to speak to attorneys and the news media, and Quackenbush shouldn’t play word games and mind games with jurors to discourage them from their First Amendment rights.

Jane Ann Morrison’s column appears Monday, Thursday and Saturday. E-mail her at Jane@reviewjournal.com or call (702) 383-0275.

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