Post-Dispatch Wants to Appeal Prior Restraint in Cop Killer Case

But the daily can't, unless St. Louis Judge Elizabeth Hogan makes her order permanent

Sep 28, 2023 at 10:43 am

Courtesy Kara Wilson

Last week, a judge barred the Post-Dispatch from publishing information from a report that had been accidentally made public.

Attorneys for the St. Louis Post-Dispatch want to appeal a judge's ruling that bars them from publishing information based on an alleged cop killer's mental health evaluation until the trial is complete — but they face a procedural hurdle before they can even do that.

That’s because St. Louis Judge Elizabeth Hogan failed to make her order barring the paper from publishing permanent, and temporary orders, no longer how long they’re extended, cannot be appealed.

In a motion filed late last week, the Post-Dispatch's attorney Joseph Martineau asked Judge Hogan to convert the preliminary injunction into a permanent one so he could appeal it.

"I don't make the law, but there's no appeal for a temporary restraining order or preliminary injunction," Martineau tells the RFT.

The two parties met again in court yesterday to make their cases.

At issue is the ruling Judge Hogan made last week, but the case began in May, when a mental health evaluation of Thomas Kinworthy was accidentally made public. Kinworthy is accused of killing St. Louis police officer Tamarris Bohannon in the Tower Grove South neighborhood in August 2020, and the mental health evaluation was conducted as part of a defense of not guilty by reason of mental disease or defect.

Post-Dispatch reporter Katie Kull noticed the report was publicly available and called the public defender's office to inquire. The public defender's office asked Judge Hogan to issue a temporary restraining order barring publication of any material from the report, which she did in May. Last week, Judge Hogan officially extended that order until the conclusion of Kinworthy's trial.

Hogan's order is an unusual one. As lawyers for the newspaper have pointed out in their filings, courts usually only practice “prior restraint” — the legal term for a court blocking what would otherwise be free speech before it even takes place — when the speech involves "issues of grave national security or significant threats to public safety." Last week, the Foundation for Individual Rights and Expression (FIRE) issued a statement saying they were "extremely concerned" about the judge's injunction.

Martineau wrote in his motion that "given the First Amendment principles at stake," the newspaper should be able to have the previous ruling reviewed "as expeditiously as possible."

Lawyers for the public defender's office opposed the newspaper's efforts to set up their appeal, writing in court filings that had they known at the previous hearing that a permanent injunction was at stake, they would have introduced additional evidence and witnesses.

The two sides met in court yesterday afternoon and made their cases. Judge Hogan indicated she would rule on the matter no later than next Wednesday.

When told by a reporter that it sounded like the paper was putting up a fight, Martineau responded, "I think it's a principle worth fighting for."