The Dulos gag order fails to show a redeeming value. Courtesy photo

Jennifer Dulos disappeared on May 24. She has not been seen since. At the time, she and her husband, Fotis Dulos, were engaged in a bitter divorce and child custody battle. The state claims, among other things, that on May 24 Dulos was seen going to and from his estranged wife's home, that Jennifer Dulos's blood spatters were found in the house, and that Fotis Dulos and his girlfriend, Michelle Troconis, were videotaped discarding trash bags that turned out to contain scraps of Jennifer Dulos's bloody clothing.

Fotis Dulos and Troconis have been arrested and charged with evidence tampering. No one has been charged with killing Jennifer Dulos; her body has not been found. It appears, however, that the state believes Fotis Dulos murdered her and that Troconis assisted him in disposing of the murder evidence. The state's assertions are there for all to see in the allegations of the evidence-tampering arrest warrants issued against Dulos and Troconis.

What have Dulos and Troconis to say about it? Not much. They are not allowed to comment to the media about possible witnesses, the alleged victim, test results, physical evidence or any other information that would likely be admissible at trial. They and their counsel are subject to a court-imposed gag order. They may proclaim their innocence, but while the state's case is open to the public through the arrest warrants, and while the texts of those warrants feed the media, Dulos, Troconis and their lawyers are forbidden to make any substantive response.

The court's gag-order rationale is a need to balance "a trial participant's right to free speech under the First Amendment, and a criminal defendant's right to a fair trial under the Sixth Amendment." State v. Dulos, 2019 WL 4898712 *6 (Conn. Super., Sept. 12, 2019). The order has been appealed by Dulos.

The appeal raises two broad issues: (1) whether the order runs contrary to federal and state prior-restraint precedent; and (2) whether it threatens Dulos' right to a fair trial should murder charges be leveled against him by allowing only the state's side of the narrative to be heard in public today. As to the jurisprudential issue of prior restraint, the Dulos appellate papers point out the extraordinary nature of gag orders and the dim view of such prior speech restraints historically taken by both federal and Connecticut law. Those papers underscore the irony of the trial court's justifying its extraordinary gag order on the basis of protecting Dulos' own right to a fair trial.

The press has already declared Jennifer Dulos dead, and condemned Fotis Dulos as the probable killer. Michelle Troconis has been assigned the part of the murderer's accomplice; the femme fatale, in the press account, and even Wikipedia now trumpets the state's perspective on the case. The only story not coming out in public is Dulos's. He cannot respond. Arguing that the court is balancing Dulos's First Amendment free speech rights against his Sixth Amendment right to a fair trial is a breathtaking exercise in illogic. To paraphrase an old cliché, the publicity horse was out of the barn and gone long before the court decided to close the stall door by gagging the players in the Dulos drama.

The order should be lifted to allow Dulos and Troconis a fair opportunity to counter the factual assertions and implications already released by the state in its warrants. As the Dulos appeals brief notes, the gag order leaves him standing unable to respond to the state's assertions and implications. It transforms the courthouse steps into a public pillory, a place where an accused may be forced to endure scorn and calumny without any right to respond. This precedent is a disservice to the criminal justice system, as well as to Dulos and Traconis.