Arkansas S. Ct. Vacates Gag Order on Man Accused of Murdering His Teenage Daughter’s Alleged Sex Abuser

From Thursday’s decision in Spencer v. State, written by Justice Courtney Hudson and joined by Justices Rhonda Wood, Shawn Womack, Cody Hiland, and Nicholas Bronni:

On November 27, 2024, Spencer was charged by felony information with second-degree murder … for the shooting death of sixty-seven-year-old Michael Fosler…. The circumstances of the shooting were as follows. In July 2024, Fosler had been charged with numerous sexual offenses against Spencer’s teenage daughter, and he was released on bond. On the night of the shooting, Spencer awoke to his dog barking and realized that his daughter was gone. Spencer found a “hoodie” on a stuffed animal placed in her bed. As a result, he left in his truck to search for her. Spencer located Fosler’s truck—with his daughter inside—and he forced Fosler’s truck off the highway. After an altercation, Spencer called 911 to report that he had shot Fosler. Fosler died at the scene.

On December 4, 2024, the State filed a motion for gag order alleging that Spencer’s arrest had garnered media coverage throughout the state and the nation. Attached to the motion was a press release from Spencer’s attorneys, Erin Cassinelli and Michael Kaiser, criticizing the decision to charge Spencer criminally as “targeting [a] heroic father.” The State also pointed to a television interview in which defense counsel allegedly stated that they felt confident that the community would side with Spencer “because every one of them would have done the same thing for their child or their neighbor’s child or member of their family.” The State argued that a gag order was necessary to preserve the integrity of the jury pool and to ensure the right of a fair trial for both the State and the defendant.

The trial court ordered:

It is the Order of this Court that no party to this action, nor any attorney or agency connected with this case, directly or indirectly, nor any judicial employee or officer of this Court, nor any public official now holding office, including but not limited to law enforcement officials, nor any agent, deputy or employee of any such persons, nor any person subpoenaed to testify at the trial of the case[,] [n]either shall the defendant nor his family shall do any of the following:

1. [R]elease or authorize the release for public dissemination of any purported extrajudicial statement of the Defendant relating to this case;
2. Release or authorize the release of any documents or exhibits or any evidence, the admissibility of which may have to be determined by the Court;
3. Make any statement for public dissemination as to the existence or possible existence of any document, exhibit, or any other evidence;
4. Express outside of the Court an opinion or make any comment for public dissemination as to the weight, value, or effect of any evidence as tending to establish the guilt or innocence of the Defendant;
5. Make any statement outside of Court for public dissemination as to the weight, value, or effect of any testimony that has been given;
6. Issue any statement for public dissemination as to the identity of any prospective witnesses, or their probable testimony or the effect thereof;
7. Make any out of court statement for public dissemination as to the weight, value, source, or effect of purported evidence alleged to have been accumulated as a result of the investigation of this matter;
8. Make any statement for public dissemination as to the content, nature, substance, or effect of any testimony which may be given at any proceeding related to this matter with any attorney of record or any agent thereof.

The order expressly excluded:

1. Factual statements of the Defendant’s name, age, residence, occupation, or family status;
2. The circumstances of the arrest, namely the time and place of arrest, the identity of the arresting and investigating officers and agencies, and length of the investigation;
3. The nature, substance, and text of the charges, including a brief description of the offense(s) charged;
4. Quotations from, or any reference without comment to, public records of the Court in this case, or to other public records or communications heretofore disseminated to the public;
5. The scheduling and result of any stage of the judicial proceeding held in open court or in an open public session;
6. Any request for assistance in obtaining evidence;
7. Discussion by any witness or prospective witness of any matter in connection with the case with any of the attorneys representing the Defendant or the State.

The Arkansas Supreme Court unanimously vacated the order, reasoning:

Here, the circuit court’s order is extremely broad as to the persons restrained from speaking. It restrains the parties; the

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