IN THE CIRCUIT COURT OF THE 16TH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA IN AND FOR MONROE COUNTY STATE OF FLORIDA, CASE NO: Plaintiff, v. JOHN JOHNSON RORY WILSON FRANKLIN TUCKER, Defendant(s). STATE OF MOTION FOR PROTECTIVE ORDER TO PREVENT EXTRAIUDICIAL COMMENT THIS CAUSE, having come before the Court on February 6, 2020 upon the State of Florida?s Motion for Protective Order to Prevent Extrajudicial Comments and the Court, having considered said motion, Defendant, Franklin Tucker?s response in opposition, the evidence presented, pertinent legal authority, argument of counsel, the Court file, and being otherwise fully advised in the premises, hereby ?nds as follows: 1. The Defendant, along with his 2 Co-Defendants, has been charged with First Degree Felony Murder as well as several other serious crimes. 2. The case has received considerable media coverage, both locally and nationally, and has been dubbed the ?tree house murder.? This case has attracted public interest not only because of the charges and surrounding factual circumstances but also because of the suspension from the Florida Bar of the assistant state attorney initially assigned to prosecute the case due to ethical problems in an unrelated case and the termination of a Captain with the Monroe County Sheriff?s Of?ce due to her use of racially charged language while working on this case. 3. The State now moves this Court ?to issue a Protective Order requiring all counsel and parties to exercise reasonable care to prevent investigators, employees, or other person(sic) assisting in or associated with this case from making prohibited extrajudicial statements until this cause has been tried to a verdict." Co-Defendant, Rory Wilson, supports the State's Motion whereas Co-Defendants, John Johnson and Franklin Tucker, oppose the motion. . The Court finds that contrary to Defendant, Tucker?s, assertion, the State's motion has been brought in good faith and that there exists a factual basis for the State and Co-Defendant, Wilson, to be legitimately concerned about the ability to find a fair and impartial jury, untainted by pretrial publicity, to hear and decide this case in the 16th Judicial Circuit, a small circuit with a relatively small number of potential jurors. Ms. Lauren Jenai, Franklin Tucker?s signi?cant other, has created, with the knowledge and approval of Defendant, Tucker, a webpage and a YouTube Channel titled ?Free Franklin Tucker." Both of these media platforms contain discovery materials provided to the Defendant during the course of this case, including both photographs and videos of the Co-Defendants. Moreover, one of Franklin Tucker?s attorneys has spoken to the press about this case. In a December 2019 news article, that attorney was quoted as saying, ?The state?s case is horrible." The attorney's concerns about missing videotapes, a ?planted? jail house informant, and the lack of physical evidence also appeared in the article. . In defense of her public statements, Tucker?s attorney argues that the public has a right to know about, ?prosecutors who lie and hide evidence,? ?cops who direct their subordinates to act like neo Nazi white supremist," ?the conduct of law enforcement of?cers," and ?what goes on in a criminal proceeding." Counsel is correct, the public does have a right to know. But the public?s right to access to information is not absolute. A Defendant?s right to a fair trial is one of the most fundamental of all freedoms and one which muSt be preserved at an cost. Estes v. Texas, 381 US. 532 (1965). Moreover, when a Defendant?s right to a fair trial conflicts with the public?s right of access, it is the right of access which must yield. Gannet Co., Inc. v. DePasguale, 443 US. 368 (1979); Bundy v. State, 455 So. 2d 330, 338, Florida 1984. . A trial judge has an af?rmative duty to minimize the effects of pretrial publicity. Sheppard v. Maxwell, 384 US. 333 (1966). A court must determine whether a restriction on extrajudicial statements is needed on a case by case basis." Rodriguez ex rel. Posso-Rodriguez v. Feinstein, 734 So. 2d at 1164 (Fla. 3d DCA 1999). In making its determination, a Court should consider the three prong test set forth in Miami Herald Publishing Company v. Lewis. 426 So.2d 1 (Fla 1982) which balances the right of an accused to a fair trial and the public?s right of access to information. . With respect to the ?rst prong of the ?Lewis Test", the Court ?nds that a protective order is necessary to prevent a serious and imminent threat to the administration of justice. The Court rejects Defendant, Tucker's, argument that there is no evidence to support such a ?nding. State?s Exhibit 1 which was introduced into evidence during the hearing on this motion, consists of about 200 pages which thoroughly document the concerted media campaign engaged in on behalf of Franklin Tucker in order to sway public opinion in his favor. It is certainly a fair and reasonable conclusion to draw from that evidence that in the small Keys community, where murder cases are relatively rare, that such a publicity campaign poses a serious threat to the administration of justice. . With respect to the second prong of the ?Lewis test,? the Court can identify no viable alternatives to a protective order in order to ensure a fair trial. The Court has already granted a severance as to each of the Defendants. The Court will also give appropriate instructions during jury selection and allow for individual sequestered voir dire regarding pretrial publicity. But those measures do not obviate the need for a protective order. . In terms of the third prong of the ?Lewis test," the protective order will be drawn as narrowly as possible to ensure a fair trial but also to respect the public?s right to know as well as the ?rst amendment free speech rights of those impacted by the order. Wherefore it is hereby: Ordered and Adjudged: . That from the date of this Order going forward, any discovery materials produced by the State to the Defendants or reciprocal discovery materials produced by any of the Defendants to the State, shall be closed from public inspection or disclosure for a period of ninety(90) days from the date of production. Any discovery materials ?led with the Clerk, shall be immediately sealed. Disclosure of any discovery materials received by the attorneys from the date of this Order forward shall be limited to the attorneys, staff, investigators working on the case, and the Defendants. . That during the ninety(90) day period, either the State or one or more of the Defendants may file a written motion requesting that certain materials or information remain sealed. The Court will conduct a hearing on any such motion, review the materials in-camera, and rule thereafter. . That upon the expiration of the ninety(90) day period, the Clerk of Court shall unseal any discovery materials that have been sealed in accordance with this Order provided that no motion to restrict release of said discovery materials has been ?led. The parties may also release and disclose such materials if no motion to restrict release has been ?led. . That the procedure outlined herein does not apply to discovery materials which have already been produced. . That all counsel for the State and the Defense, and their investigators and assistants strictly abide by the provisions of Florida Rule of Professional Conduct 4?3.6 (Trial Publicity) quoted as follows: Prejudicial Extrajudicial Statements Prohibited. A lawyer shall not make an extrajudicial statement that a reasonable person would expect 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 due to its creation of an imminent and substantial detrimental effect on that proceeding. Statements of Third Parties. A lawyer shall not counsel or assist another person to make such a statement. Counsel shall exercise reasonable care to prevent investigators, employees, or other persons assisting in or associated with a case from making extrajudicial statements that are prohibited under this rule. 6. That the prohibition against making prejudicial pretrial comments which are intended for publication also applies to all of the Defendants as well as Ms. Lauren Jenai. There is no constitutional impediment to a Court prohibiting prosecutors, defense counsel, witnesses, and other interested parties involved in the case before the Court from making prejudicial pretrial comments which are intended for publication. Florida Freedom Newspapers. Inc. v. McCrary. 520 So.2d 32 (1968) at 36. ?x DONE and ORDERED at Key West, Monroe County, Florida, this 8 day of May, 2020. 2 g; A H. JONES CI CUIT JUDGE cc: Chirstine M. Poist, Esq.- cpoist@keyssao.org Cara Higgins, Esq.- cara@carahigginslaw.com Seth LaVey, Esq.- avevs@bellsouth.net Ana Gomez-Mallada, Esq.- AGM62756@qmail.com