There are some stories that involve too many interesting elements to ignore, but have too many loose ends to make sense of.  Like Savannah Dietrich’s story, a real oddball scenario in that the very reason for the story having arisen is why not enough is known to make sense of it. Yet, it’s too compelling to ignore.

From the Louisville Courier-Journal.

Dietrich said she was sexually assaulted by two teen boys she knew in August 2011. She had been drinking at a gathering, she said, and became unconscious. Months later she learned that pictures of the incident had been taken and shared with others.

“For months, I cried myself to sleep. I couldn’t go out in public places,” she told the newspaper, as her father, Michael, and attorneys sat nearby. “You just sit there and wonder, who saw (the pictures), who knows?”

The boys were identified and prosecuted as juveniles in Kentucky, which maintains the confidentiality of juvenile defendants.  Eventually, a plea was cut, which angered Dietrich, who felt it was a “slap on the wrist.” There is no information on the deal.  Apparently, she learned of the deal at the last minute, perhaps in court as it was taken. 

Again, the information is sketchy, but suggests that Dietrich was in the courtroom, even though it was closed, and admonished by Judge Dee McDonald, whether specifically or merely as one of those present in the room, not to speak of the proceedings or the crime.  Was it an order? A direction? Was there a written order?  What exactly was the order? Was it at the request of any party or an off-hand comment by the judge? The questions are unanswered, largely because those involved were told not to speak of it.

Regardless, it appears that Dietrich understood the judge to have ordered her not to speak of the crime against her.  Dietrich, an angry 17-year-old with an itchy twitter finger, decided to have none of it.

Frustrated by what she felt was a lenient plea bargain for two teens who pleaded guilty to sexually assaulting her and circulating pictures of the incident, a Louisville 17-year-old lashed out on Twitter.

“There you go, lock me up,” Savannah Dietrich tweeted, as she named the boys who she said sexually assaulted her. “I’m not protecting anyone that made my life a living Hell.”

And so the stage is set.

Attorneys for the two defendants have moved for contempt against Dietrich for having violated the court’s gag order, if that’s what it was.  While the deal has been cut, the boys have no yet been sentenced and it’s still within the court’s power to reject the deal, which Dietrich believes to be too lenient.  The maximum penalty for contempt is 180 days in jail and a $500 fine, but then there’s no mandatory minimum penalty.

In an interview with the newspaper, Dietrich argues that this impairs her right to free speech.

So many of my rights have been taken away by these boys,” said Dietrich,…

“I’m at the point, that if I have to go to jail for my rights, I will do it,” she said. “If they really feel it’s necessary to throw me in jail for talking about what happened to me … as opposed to throwing these boys in jail for what they did to me, then I don’t understand justice.”

Of course, her framing of the issue ignores that the “appropriate” means of asserting her right to speak about what she knew from the commission of the offense, rather than the court proceeding, was to move to lift the gag order rather than plow forward in defiance of it.  Then again, angry 17-year-olds with twitter accounts don’t always concern themselves with the legally preferred method.

At Volokh Conspiracy, Eugene Volokh opines that the gag order is overbroad, extending beyond information obtained through the proceedings to knowledge Dietrich possessed from the crime.  He notes, however, that even if the order was unconstitutional, it does not forgive a violation.  The solution is to challenge the order, not ignore it.

What strikes me as problematic is how Judge McDonald has jurisdiction over Savannah Dietrich.  If she was there by subpoena, she would be subject to the court’s jurisdiction by process. If she was called as a witness, she would submit to the court’s jurisdiction. But as far as can be told from the story, she was just there. 

Perhaps there is a statutory right for the victim to be present in the otherwise closed proceedings, and by availing herself of that right, she submits to the jurisdiction of the court. Or perhaps it’s just the way they do things down there. It’s not clear.

Does Dietrich’s being in the courtroom, or within earshot of the judge, subject her to the order?  While a judge has an inherent power to maintain decorum in the room, the power doesn’t extend to mere observers outside the courtroom.  Judge McDonald could direct those in the courtroom to remain silent during proceedings, but could she order them to remain silent after they left. Or the following day. Or a week from Tuesday.

That the court issued a gag order in juvenile proceedings, even when the underlying offense is of the sort that gets most people’s blood boiling, is sound policy.  The protection of the identities of underage defendants is a critical aspect of the scheme of juvenile prosecution, so that children aren’t saddled into adulthood with the consequences of their crimes. 

At the same time, it’s hard to imagine that a 17-year-old, who may not have shown the discretion one would expect of a lawyer, should be subject to punishment on top of having been subject to the offense.  It’s quite the conundrum, which may ultimately be best ended by a judge who offers Dietrich some sound advice not to do it again, and then sends her on her way.

But the final question is whether the raising of this issue impairs the judge’s ability to oversee the plea deal for the two defendants. Now the Dietrich has made the case public, and inflamed passions about the underlying offense and her being stifled when many people support her vigilante twits, the court is placed in a very awkward position in determining whether to accept the plea deal Dietrich says is a “slap on the wrist.”

The good news is that this scenario is, at least for now, a huge outlier. The bad news is that if Dietrich’s actions turn out impacting the court’s decision to reject the plea, it could become commonplace in juvenile cases and undermine the sound policy of confidentiality.  Then again, what about Dietrich’s right as a victim to speak out about the deal cut?  Must she suffer in silence?  What a mess.

H/T  Radley Balko and  Gideon Strumpet, whose twitting about the story helped to frame the problems and raise the conflicting concerns.

Update:  It seems that Kentucky is somewhat renown for its  strict confidentiality of juvenile proceedings:

Kentucky shrouds its juvenile courts behind some of the strictest secrecy laws in the nation, requiring the public to accept on faith that it is being protected from dangerous children — and that innocent children are being protected from dangerous adults.

It is one of only 15 states that bar the public and press from all delinquency proceedings.

The cloak of confidentiality is designed to protect juvenile offenders from being stigmatized, and to ease their transition into the community.

Again, sound policy, but how this brings a victim within the court’s jurisdiction remains unclear.

Update 2:  And it appears that the attorneys for the defendants have withdrawn their contempt motion.

David Mejia, an attorney for one of the teens, said now that the Louisville teen’s story has gone global because of a Courier-Journal article on Saturday there was no reason to continue the contempt motion.

“What could contempt do now?” Mejia said in an interview, adding that the boys names have already been circulated far beyond the original tweet. “Seems like a rather useless exercise doesn’t it?

Given that the article didn’t name the defendants, this excuse appears rather lame. Might it have more to do with the viral reaction to the story?  Certainly, that isn’t going to do much to restore respect for court orders or the confidentiality of juvenile defendants.