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Saturday, September 27, 1997

Judge withdraws proposed gag order

By JUAN B. ELIZONDO Jr. / Associated Press Writer

AUSTIN (AP) -- The federal judge presiding over Texas' $14 billion lawsuit against the tobacco industry on Friday withdrew a gag order he proposed earlier this week.

U.S. District Judge David Folsom had said he was concerned pre-trial publicity could affect potential jurors in the case.

But after hearing from Texas Attorney General Dan Morales, tobacco industry representative and numerous news media groups -- all opposed to the order -- Folsom said he will set aside the proposal.

"Any potential prejudice resulting from pre-trial publicity will be dealt with by questioning the jury panel ... and with appropriate instructions to the jury that is empaneled," Folsom said.

"Should any problems involving publicity arise during the course of trial, the court may again entertain, after reasonable notice to the parties, an appropriate order limiting communication with the media."

David Donaldson, an attorney for Dow Jones & Co., publisher of The Wall Street Journal, praised Folsom's decision. Don Jones was among the news media companies that formally objected to the gag order.

"The court has correctly realized that he can deal with pre-trial publicity through the jury voir dire process," Donaldson said.

Representatives for the tobacco industry and Morales' office also said they were pleased with Folsom's decision.

"It will allow the public to continue being informed about a major public health lawsuit," said Morales spokesman Ward Tisdale.

Still pending before Folsom are numerous other proposed orders, including a tobacco industry request for sanctions against Morales for public comments he has made comparing the industry to murderers. Tobacco industry attorneys have asked Folsom to punish Morales for those comments and to bar him from addressing the jury.

Folsom will consider that motion and several others at a hearing Tuesday.

A pool of 200 potential jurors is scheduled to report to the court Monday to complete initial paperwork before formal jury selection begins Oct. 6.

Donaldson said he hopes Morales' office and tobacco representatives will not allow Folsom's consideration of a gag order to prevent them from being helpful to the public during the trial.

"I would hope that we could expect cooperation from the parties in assisting us to understand the process and to keep us informed," he said.

Ward said Morales' office will work to keep the public informed.

"We understand the court's concerns, but we will appropriately communicate the case so people can remain informed about this very important lawsuit," he said.

Morales last year filed the lawsuit against several cigarette makers, industry trade groups and a public relations firm, claiming they had violated state and federal laws, including those prohibiting deceptive trade and fraud.

Morales is seeking to recoup state and federal money spent from 1980 through 1996 to treat Medicaid recipients suffering from tobacco-related illnesses