IN THE SUPERIOR COURT OF CHATHAM COUNTY

STATE OF GEORGIA

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STATE OF GEORGIA,

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vs.
CR 15-1396-J5

MAXINE EV ANS,
Defendant.

ORDER ON MOTION FOR GAG ORDER

Before the Court is a Motion for a Gag Order filed by the District Attorney of the Eastern
Judicial Circuit as to counsel for Defendant Maxine Evans. Having read and considered said
motion, Defendant's response, all argument and evidence of record and the applicable law,
including that presented at the hearing on August 122015, the Court finds as follows :
FINDINGS OF FACT
Defendant in the above styled case was indicted on June 24, 2015 for the offense of
involuntary manslaughter and public record fraud . The indictment arose out of the death of
Matthew Ajibade, an inmate at the Chatham County Jail which occurred between January 1,
2015 and January 2, 2015.
The State has filed this motion asking that the Court extend its previous gag order to
counsel for Defendant Maxine Evans. The State argues that counsel for Maxine Evans spoke to
reporters after a court proceeding on August 6, 2015 wherein he commented on certain
evidentiary matters . The evidence indicates that counsel for Defendant addressed the fact that
the State intended to present new charges of perjury against the Defendant as " bogus".

He

further stated that his client should not even be facing charges and that he had filed a motion to

dismiss which is expected to be argued on August 17. He further stated that his client did "not
tase" (sp) anyone and did "not inflict injury." He stated that while a coroner said that the victim
died of blunt force trauma inflicted during a fight, the exact time of death is still in question. He
stated that Georgia law indicates that involuntary manslaughter must be due to an unlawful act of
a defendant, not to an intervening act or negligence. He said "failure to monitor" is not a direct
act.
In an article on myAlC, the following statement is attributable to defense counsel: "[s)he
didn't touch him, she didn't (shock) him, she didn't assault him." "I'm ready to try this case
tomorrow. "
Based on these comments, the State seeks a gag order against counsel for Defendant
Maxine Evans.
CONCLUSIONS OF LAW
Georgia Bar Rule 3.6 provides
(a) A lawyer who is participating or has participated in the investigation or litigation of a
matter shall not make an extrajudicial statement that a person would reasonably believe 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 in the matter.
( c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable
lawyer would believe is required to protect a client from the substantial undue prejudicial
effect of recent pUblicity not initiated by the lawyer or the lawyer's client. A statement
made pursuant to this paragraph shall be limited to such information as is necessary to
mitigate the recent adverse publicity.
Comment [5B) provides as follows:
In addition, there are certain subjects which are more likely than not to have no material
prejudicial effect on a proceeding. Thus a lawyer may usually state:

(a) the claim, offense or defense involved and, except when prohibited by law, the
identity of the persons involved;
(b) information contained in a public record;
( c) investigation of a matter is in progress;
(d) the scheduling or result of any step in litigation;
(e) a request for assistance in obtaining evidence and information necessary thereto;
(f) a warning of danger concerning the behavior of a person involved, when there is
reason to believe that there exists the likelihood of substantial harm to an individual or to the
public interest; and
(g) in a criminal case, in addition to subparagraph (l) through (6):
(I) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension
of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the
investigation.
In the case of Atlanta Journal -Constitution et.a!. v. State, 266 Ga. App. 168,
596 S.E.2d 694 (2004) "the Court found that Rule 3.6 requires a finding that extrajudicial
statements to the media will have a substantial likelihood of materially prejUdicing a trial. ld. at
170. Additionally, the trial court must make specific findings of fact based on evidence of record
regarding the possible impact of extrajudicial statements upon the forthcoming trial.
The State argues that the statements made by defense counsel are misleading factually, in

particular with regard to the cause of death. Defense counsel argues that his client has been
indicted fot involuntary manslaughter and he has a right to state his defense. He further argues
that his comments do not have a substantial likelihood of materially prejudicing an adjudicative
proceeding. The Court finds that the comments attributed to defense counsel by the AlC, that
"she didn't touch him, she didn't (shock) him, she didn't assault him" as well as the statement
that she did not tase anyone and did not inflict an injury, goes to Ms. Evans' defense.
Additionally, trial counsel's comment that the cause of death was blunt force trauma is consistent
with the death certificate which was previously admitted as evidence in this case and is a public
record. The Court cannot find that the comments made by trial counsel which occurred on
August 6, 2015 after a court proceeding will have a substantial likelihood of materially
prejudicing a trial. The comments made went to Ms. Evans' defense that she did not do this and
the reference to the cause of death was information contained in a public record.
The comments made by defense counsel are vastly different than the plethora of
extrajudicial comments made by counsel for the victim's family which spanned approximately
six months. Whereas the comments made by counsel for Defendant Evans are basically directed
at her defense, those made by counsel for the victim's family were made to create sympathy and
in anticipation of the civil suit they indicated they intended to file. The numerous comments
made by counsel for the victim's family clearly had a substantial likelihood of materially
prejudicing this matter, in particular the selection of an impartial jury. Both television and print
media were inundated with comments made by counsel for the family. Here, comments were
made on one occasion and fell within those allowed in Comment 5[B] of the Georgia Bar Rule of
Professional Conduct 3.6. Therefore, the Court finds that the comments made by defense

counsel are covered by those allowed in Comment 5[B] of Rule 3.6 and since the comments
made by defense counsel on August 6, 2015 will not have a substantial likelihood of materially
prejudicing an adjudicative proceeding in this matter, the Court DENIES the State's request to
extend the gag order.
The Court does further remind counsel for all parties of their obligations under Georgia
Rule of Professional Conduct 3.6 and should govern themselves accordingly.
The Court further finds that nothing in this order is directed at the media and therefore, it
cannot be classified as a prior restraint. See Atlanta Journal-Constitution et.a!' supra at 168.
WHEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the
State's Motion for Gag Order is DENIED.

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SO ORDERED this _ _

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uperior Court of
State of Georgia
cc:

All parties