IN THE SUPERIOR COURT OF IRWIN COUNTY, STATE OF GEORGIA STATE OF GEORGIA, Warrant Nos.: 17-38FW, 17-39FW, 17-40FW, and 17-41FW ve RYAN ALEXANDER DUKE, Defendant. MODIFIED ORDER OF COURT WHEREAS, this Court, upon Motion by Defendant, entered an Order in the above referenced matter on February 28, 2017, pertaining to extra-judicial statements; and WHEREAS, certain news media outlets filed Motions to Intervene in said matter for the limited purpose of challenging said Order; and WHEREAS, a hearing was held March 16, 2017, with regard to the motions filed by Movants, namely the Telegraph, Valdosta Daily News, The Tifton Gazette, The Moultrie Observer, The Herald Leader, The Atlanta Journal Constitution, The Associated Press, WSB-TV, WXIA-TV, WMAZ-TV, and Anita Gattis, whereby the Court heard arguments of counsel and considered evidence with regard to the initial order that was entered; and WHEREAS, at the conclusion of said hearing, Movants were allowed to obtain certain copies of documents from the file in the Office of the Clerk of Court, and additional motions were filed with regard to other orders that had been entered; and WHEREAS, this Court, as indicated at the conclusion of the hearing on March 16, 2017, will consider all motions filed and heard, and will also consider additional motions filed subsequently without the necessity of a hearing; and WHEREAS, in connection with said hearing, and after due consideration by the Court of the arguments made and the evidence presented, the Court makes the following Findings of Fact and takes judicial notice of certain facts as it relates to this matter: 1. This case involves the prosecution of Defendant Ryan Alexander Duke, arrested and charged in connection with the 2005 death of Tara Grinstead. 2. Defendant is charged in the arrest warrants for occurrences that happened on or about 10/23/2005. Since that point in time, a search for Ms. Grinstead hasbeen on-going. This search has included law enforcement and a great number of members of the community at large. 3. Irwin County is a small county, and Ocilla is a small rural community. Irwin County has a population of less than 10,000 residents countywide. 4. For the past eleven years, the intensity of the media’s coverage of her disappearance, and the mystery surrounding same, has gamered the attention of a national audience. Local, state, and national media outlets have provided coverage from the initial time of Ms. Grinstead’s disappearance until the present date. 5. Counsel for Defendant provided the Court with a sampling of 79 exhibits. These exhibits contain media articles that have appeared in print just since February 23, 2017, the date of the press conference initiated by the Georgia Bureau of Investigation (hereinafter the “GBI”). Exhibit 79 is a DVD of the GBI press conferences. The initial press conference was held in the courtroom of the Irwin County Courthouse. The purpose of the press conference was to announce the arrest of Defendant in this matter. 6. The GBI called and arranged the press conference. Subsequent to the press conference to announce the arrest of the Defendant, and after some members of the public had left the courtroom and the courthouse, members of the GBI informed members of the press that remained that the Defendant would be brought out momentarily for his first appearance. 7. Unbeknownst to the Defendant, and without prior notice to him or his counsel, cameras were allowed in the courtroom to film his presence and his first appearance before the magistrate of Irwin County. 8. The Defendant was filmed in his green and white jail jumpsuit, with his hands and feet in shackles. 9. The image of Defendant at his first appearance has been circulated, aired, and printed in the news media hundreds of times since that date. 10. Contained in the 79 exhibits tendered by the Defendant and admitted, the following quotes were obtained. The Court does not consider the truthfulness of the information, but the information was contained in articles published to the general public. a. “The GBI said that someone walked into a sheriff's office last month with information that led to several new interviews and Ryan Duke's arrest. ‘Through these interviews, enough probable cause was discovered so we could swear out an arrest warrant charging Ryan Alexander Duke with the murder of Tara Grinstead,’ Ricketsonsaid....For the past four days, dozens of GBI agents have been digging for Grinstead’s remains on the pecan farm in Ben Hill County where the suspects allegedly dumped her body. ‘This is a possible site where she may have been disposed of,’ Ricketson said. ‘We are finding some things and we are collecting some evidence. We are hopeful that we can find her remains and that's why we're there.” b. “"We're finding evidence that we are collecting that will be analyzed by the anthropologists and by our crime lab,’ he said. A reporter for WSB- TV said that two anthropologists were also on the scene to examine the findings. ‘As long as we're finding evidence, we're staying there,’ Ricketson said....He called it ‘a possible site that she may have been disposed of’... He said Duke would have to be asked how the murder was kept secret for so long. ‘He has not shared that," Ricketson said. ©. “Shackled hand and foot, Ryan Alexander Duke shuffled into the Irwin County courtroom Thursday afternoon mere minutes after the Georgia Bureau of Investigation publicly linked him to the mysterious 2005 disappearance of Ocilla teacher Tara Grinstead. A large cluster of cameras captured his every move, his unruly hair and beard, his downcast eyes and somber face. His striped green-and-white jumper would have been comical were his reason for being there not so grave: a charge of murder....For more than a decade, the case remained unsolved, and her disappearance has become the largest case file in GBI history....In the wake of the arrest, many questions regarding Grinstead’s disappearance remain unanswered, But GBI hasn't yet commented on the new evidence leading to Duke's arrest or many other pressing details of the case, saying the investigation is still active. However, Ricketson hinted further arrests could be made and more questions answered in the coming days.” d. “Volunteers helped to search on foot, while a Tara Command Center was set up with a telephone line and a website, http:/Awww.findtara.com. Rewards of $100,000 were offered for Grinstead’s safe return or for information leading to an arrest and conviction if she was harmed.” “Agent J.T. Ricketson with the Georgia Bureau of Investigation said ‘Tuesday afternoon that through interviews during their investigation they have identified a property in Fitzgerald where they believe Grinstead's remains may be located. Ricketson said that they have collected some items and other evidence on the property and another location that they believe will help to further their investigation into Grinstead’s disappearance. He said that Tuesday the GBI and other agencies are on the property with 41 officials searching the property. This includes a body recovery team. Ricketson said that authoritieshave performed a shoulder-to-shoulder search that led them to specify a certain area on the property where they believe evidence may be located. He said teams have begun digging at these locations with small instruments and that they will be there as long as they keep ‘finding evidence.’ Ricketson said that Duke has not shared what, happened to Grinstead with authorities,” “Payne Lindsey, the host of the 'Up and Vanished’ podcast, devoted 12 episodes to Grinstead’s disappearance. According to Lindsey, more than 15 million listeners heard his series, and he believes it helped spark renewed interest in the case...Podcasts and documentaries that take an in-depth look at criminal cases have become commonplace, with Serial and Making a Murderer gaining popularity in recent years. But they come with questions about both legitimacy and whether they help or hinder investigations. The original GBI investigator of Grinstead’s case, Gary Rothwell, has spoken strongly recently about the names of innocent people that have been dragged through the mud by ‘opportunists’. Lindsey did not express regret for naming others in his podcast in conversations about potential suspects.” “But the arrest has led to more questions than answers. Who is Ryan Alexander Duke, the man charged with killing the popular Irwin County High School Teacher? Why would he do it? Did he conspire with anyone? It's unclear now when any of questions will be answered thanks to a sweeping ‘gag order’ that has stopped the flow of even routine information in the case even as investigators search a South Georgia pecan farm for Grinstead’s remains. ‘I'm not allowed to say anything,’ GBI Special Agent in Charge J.T. Ricketson said Tuesday.” “I'm sorry, but you want to protect the rights of the person who has been arrested over the rights of my sister,’ said Gratis.” “Ricketson would not describe the tips or the evidence that was found at that time, as it needed further review and analysis. ‘I's an old case, but it's not a cold case,’ Ricketson said about the file that is now the largest file in the GBI’s 80-year history.” “L hadn't anticipated that every media outlet east of the Mississippi would descend on Ocilla. The array of video cameras slammed together in the front of the courthouse seats reminded me of an invasion of spidery robots...it must have been something even more traumatizing for people like Marcus Harper, Heath Dykes, and some others, people who also cared about Tara, but who were unfairly judged and condemned by so many, especially in public forums...| was told to wait at the courthouse until 4:30 p.m. because Duke would be presented for a bond hearing, More than haif of the news crews eitherdidn't know or just didn’t stay for the event, but that still left more than 10 cameras in the courtroom.” . “Now imagine the anxiety suffered by those who were condemned in the court of public opinion, and imagine these negative emotions amplified because all of those people were people who knew and loved Tara. Imagine 11 years of suspicion and whispers, of hometowns spoiled and trust eroded,” “What we, the public, know is very little now, because Ryan Duke was not someone picked apart by the media and public opinion.” “I don't always agree with the secrecy of law enforcement, but | want to see this case solved and don't want to do anything to jeopardize it.” On some articles, readers may post comments and join in chats regarding the article. The Court found some of those comments very interesting in light of the Court's efforts to protect the Defendant's right to a fair trial: 1) “The problem with publicity is without a shred of proof or evidence the media will publish false unsubstantiated information about a case that forces defense to ask to move the trial to an area that didn’t hear anything about the case via the media. It does interfere with the defendant's ability to get a fair trial and the cop was obviously speaking his opinion rather than clear cut evidence. Sorry the media isn't going to profiteer off of this story like they do other stories. All the murder cases need a law to gag all parties no matter what.” 2) “Amen. Don't give the corrupt slime bag defense attorneys any ammo to get this sub human off on some BS technicality.” 3) “Seeing as how the case is old, the judge doesn’t want people flooding the media and putting out views and opinions that may sway potential jurors. Doesn't seem like a bad idea.” 4) ‘Why? So the sleaze bags can walk??” 5) “Leave it alone so the case that is being built is not compromised and if this person did this crime will get charged.” 6) “The gag order is because they have 0 evidence to justify charging the 2 individuals... and only have the testimony of a ticked off ex girlfriend.” 7) “Time to waterboard these low life for the truth.”8) "Hang him.” 9) “A very bright, nice young man’...hahahaha SOCIOPATH.” 10)"He should be shot rite between the eyes.” 11)"If guilty he should hang by the neck until dead.” 12)“Better yet... if guilty, drown him!” 13)"I remember seeing this, at the time, unsolved case on ‘Unsolved Mysteries’ years ago. So glad they finally caught him, all thanks to a tipster!” 11. On February 28, 2017, this Court entered an order restricting extrajudicial statements in an attempt to stop the feeding frenzy that was occurring with regard to the Defendant's arrest and to attempt to preserve his right to a fair trial. 12.As indicated above, the Defendant was filmed and photographed while he was being led up the stairs to the courtroom and while he was being led into the courtroom. He was wearing his jail attire and both his hands and feet were shackled. 13. The District Attorney and the GBI met with members of Ms. Grinstead’s family with whom they have had a relationship throughout the years and kept them apprised 14. Publicity in this case is not just local, but state and national as well, as can be shown by the media movants in this case, News coverage of this case is being televised, covered in print, and also being covered by the internet. Coverage on all the local and state stations has been running morning, noon and evening throughout the state, and national coverage was occurring on a daily basis as well 15. There have been limitations on the Intervenors ability to obtain information on which to report due to the initial gag order entered. 16 Pre-trial publicity has a powerful impact on prospective jurors, as evidenced by the feeding frenzy that took place upon the arrest of Defendant. 17. Coverage on this case has continued, even in light of this Court's initial order.OPINION 18. The authorities cited by all parties do not hold that a restraint on extrajudicial comments cannot be allowed. However, it must be narrowly drawn, and this Court must make findings of fact, as it has above, that show a substantial likelihood that the statements or pre-trial publicity will materially prejudice the trial and the Defendant's right to a fair trial. 19. According to counsel for the Intervenors, the leading gag order case in this state is Atlanta Journal-Constitution v. State, 266 Ga. App. 168 (2004). In this particular case, the superior court, citing potential prejudice to the defendants’ Tight to a fair trial from pretrial publicity, ordered the prosecution and the defense, including the parties, counsel, experts, witnesses, and investigators, to respond to media inquiry by saying either "no comment’ or ‘whatever we have to say will be [or has been] said in court.” Atlanta Journal-Constitution, 266 Ga. App. at 168. The Atlanta Journal-Constitution and WSB-TV (‘the media’), who had opposed the motion, appealed. Id. The Supreme Court held that insofar as the order in the case restricted extrajudicial comments by trial participants, the order had to be evaluated under the less stringent standard enunciated by the United States Supreme Court in Gentile v. State Bar of Nevada. The United States Supreme Court held that the “substantial likelihood of material prejudice’ standard constitutes a constitutionally permissible balance between the First Amendment rights of attorneys in pending cases and the State's interest in fair trials.” Id. at 169. “To guarantee a defendant's Sixth Amendment right to a fair trial, the Supreme Court has placed ‘an affirmative duty on trial courts to guard against prejudicial pretrial publicity.” Id. In AJC case, the Supreme Court held that the trial court failed to make the required finding that extrajudicial statements to the media would have a substantial likelihood of materially prejudicing the trial. Id. at 170. In addition the Supreme Court held that a “conclusory representation that publicity might hamper a defendant's right to a fair trial is insufficient to overcome the protections of the First Amendment." Id. Although the trial court cited the proper standard, the trial court did not apply it, and it failed to make the specific findings of fact based on evidence. Id. 20.A review of the information that has come thus far, or that has been given, would be given in light of statements made, or could be given, appears to come from the only source with new information, and that source is law enforcement. 21.As a result of all of the foregoing, this unusually high profile case dictates that this Court exercise its duty and use its power to protect the due process rights and right to a fair trial of the Defendant in the face of such pervasive pretrial publicity. The Court wishes to do achieve this with the least restrictive order possible.22. “responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field. Its function in this regard is documented by an impressive record of service over several centuries. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and the judicial processes to extensive public scrutiny and criticism.” Sheppard v. Maxwell, 384 U.S. 333, 350 (1966). As a result, the U.S. Supreme Court has been “unwilling to place any direct limitations on the freedom traditionally exercised by the news media for ‘what transpires in the court room is public property.” Sheppard, 384 U.S. at 350. 23."Legal trials are not like elections, to be won through the use of the meeting hall, the radio (or television), and the newspaper.” Sheppard, 384 U.S. at 350 (citing Bridges v. California, 314 U.S. 252, 265 (1941) 24.However, freedom of discussion and the First Amendment 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.’... Among these ‘legal procedures’ is the requirement that the jury's verdict be based on the evidence received in open court, not from outside sources.” Sheppard, 384 U.S. at 351-52 (emphasis added). 25. The longstanding guide or rule for the American judicial system was expressed by Mr. Justice Holmes over a century ago in Patterson v. Colorado ex rel., Attorney General, 205 U.S. 454, 462 (1907). Justice Holmes stated: “The 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.” Sheppard, 384 U.S. at 351 (quoting Patterson v. Colorado ex re/., Attorney General, 205 U.S. 454, 462 (1907)). This principle still stands strong today. 26. A jury's verdict is to be based upon the evidence received in the courtroom in ‘open court, not from outside sources. 27. This Court finds of special interest a statement made by the Court in Sheppard, which was decided in 1966. This was well before the time of computers, the internet, and instant access to news and information. In 1966, the Court stated: “Given the pervasiveness of modem communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused.” Sheppard, 384 U.S. at 362. 28.What is the cure? The “cure lies in those remedial measures that will prevent the prejudice at its inception... Neither prosecutors, counsel for defense, theaccused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function.” Sheppard, 384 U.S. at 363. 29. Movants have cited and argued Nebraska Press Ass'n. v. Stuart, 427 U.S. 539 (1976), and this Court understands why that is so to a certain extent, in light of this Court's previous order. However, Nebraska Press dealt with an order entered by a state trial judge that prohibited everyone in attendance at a public hearing from releasing or authorizing the release for public dissemination in any form or manner whatsoever any testimony given or evidence adduced...” Nebraska Press, 427 U.S. at 542 30.Neither Movants, nor any other media, were addressed in this Court’s prior order, and they were not prevented from reporting anything that has occurred in open court until this point in time in this matter. In fact, cameras were allowed in the courtroom during the hearing on Movants’ motions, and interviews by counsel for some Movants were given after the conclusion of the hearing. Movants, in this modified order, will not be prevented from reporting anything that occurs in open court or that is public record. 31.Potential jurors are not required to be free from any knowledge about the case, and there is very little hope of that occurring in this case. 32. Due to the unusual circumstances in which we find ourselves in this case, and due to the size and scope of the case (again, itis the largest case file in the history of the GBI), an order restricting extrajudicial statements is required, but the Court understands that it is appropriate to modify its initial order to comply with the requirements as outlined by the case law of this State. 33. This Court has not found any case, in this state or in any other state, that holds that by virtue of the First Amendment and the rights protected therein, the press, media, Intervenors, or anyone else is entitled to information in an on-going investigation that is not readily available to the public at large. 34.“It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the pubic generally... for ‘the right to speak and publish does not carry with it the unrestrained right to gather information.” Branzburg v. Hayes, 408 U.S. 665, 684 (1972) CONCLUSIONS OF LAW The Court has considered, as directed by the case law, the use of various altematives to a restraint on extrajudicial statements of certain persons as to certain matters. The Court has considered possible change of venue, sequestration of the jury, possible instructions to the jury when selected, and a searching voir dire examinationHowever, if “publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered. But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception.” Sheppard, 384 US. at 363, However, as counsel for Defendant stated, at that point in time, the horse is out of the bam. Use of those alternatives may still have to be used, even in light of an order restraining extrajudicial statements, due to the pervasive pre-trial publicity involved with this case over the past 11 years. This Court's Order is an attempt to protect the Defendant's due process rights and right to a fair trial by restricting the release of prejudicial matters, as mandated by the cases cited by all of the parties. The Court considered these alternative safeguards, but concludes that they are not adequate to protect Defendant's due process rights and right to a fair trial in light of the public's right to know the status of the matter. ACCORDINGLY, IT IS THEREFORE ORDERED AS FOLLOWS: 1. During the pendency of the above cases, and until its final determination in this Court (including sentencing, if applicable), or until further order of this Court to the contrary, the District Attorney (and all persons associated with his office), counsel for the Defendant (and all persons associated with his office), Bo Dukes, counsel for Bo Dukes (and all persons associated with his office), the Court staff, current and past members or employees of law enforcement who participated in the investigation or who have knowledge of facts uncovered by the investigation, shall not release, make or authorize the release of any extrajudicial statement by any means of public communication and news media relating to: a. the character, credibility, reputation or criminal record of the accused or the identity of a witness or the expected testimony of a party or witness; b. the possibility of a plea of guilty to the offense charged; c. the existence or contents of any confession, admission or statement given by the accused or his refusal or failure to make a statement; d. the performance or results of any examination or test or the refusal or failure of the accused to submit to examinations or tests or the identity or nature of physical evidence expected to be presented; . any opinion as to the guilt or innocence of the accused; andf._ information that the lawyers know or reasonably should know is likely to be inadmissible as evidence at trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial. The parties identified in paragraph 1 above, are allowed to communicate, among other things: a. the identity, age, residence, occupation, and family status of the accused; b. a request for assistance in obtaining evidence; ¢. information contained in a public record or that is subject to an Open Records Demand pursuant to Georgia law; d. the claim, offense or defense involved; e. the fact, time, and place of arrest; f. the identity of investigating and arresting officers or agencies and the length of the investigation; g. the scheduling or result of any step in the judicial proceedings; and h. information as permitted by Georgia Rule of Professional Conduct 3.8(g) . This Order does not apply to members of the media or other members of the public, and it does not place any restrictions on the records filed in this case. In the event counsel for either party wishes for any document filed with the Court to be sealed, then counsel shall file a petition with this Court to address same on a case by case basis. This Order shall not preclude the press media from reporting events as they transpire in open court or any matters of public record in this Court. No proceedings in this matter shall be held in camera unless and until a motion requesting said action has been filed with the Court, a hearing held, and an order with findings of fact to sustain said action entered. This Order does not prevent the parties identified hereinabove from maintaining contact with members of the victim's family, with whom they have maintained a relationship and keeping them apprised of the case. Counsel for the State and for the Defense shall use reasonable care to ensure that their employees and associates, including all experts and investigators, comply with the mandates of this Order.8. Violations of this Order may be punished by contempt of court. Violations may additionally be punishable by disciplinary action of the State Bar of Georgia. 9. The Court reserves the right to impose additional restrictions or modifications, upon notice to affected parties and a hearing on the matter, should the constitutional rights of the Defendant or the needs or interests of the State or Movants warrant a rehearing on the matter. SO ORDERED, this 24" day of March, 2017. mB Oop MELANIE B. CROSS Judge of Superior Court Irwin County, Georgia