Duffy Carolan, pro bono attorney for the Chauncey Bailey Project, partner, San Francisco office, Davis Wright Tremaine

Duffy Carolan, pro bono attorney for the Chauncey Bailey Project, partner, San Francisco office, Davis Wright Tremaine

By Thomas Peele, The Chauncey Bailey Project

OAKLAND — A judge on Thursday ordered the release of transcripts of grand jury proceedings that culminated in three murder charges against former Your Black Muslim Bakery leader Yusuf Bey IV, who is accused of ordering the 2007 killings of journalist Chauncey Bailey and two other men.

But Alameda County Superior Court Judge Morris Jacobson delayed the unsealing of the documents, which the Chauncey Bailey Project sought, until Bey IV’s arraignment July 16 to give Bey IV and co-defendant Antoine Mackey a chance to appeal. The decision came after a long closed door session to consider the position of Mackey’s lawyer, Gary Sirbu, that the transcript be censored before release.

But Jacobson ruled that transcripts containing the testimony of 15 witnesses are to be “unsealed in their entirety” pending possible appeals.

Bey IV and Mackey had been scheduled for arraignment Thursday, a proceeding that did not occur. Lawyers would not say why.

In a related decision, Jacobson also appeared to be leaning away from imposing a permanent gag order in the case, repeatedly asking the lawyers involved why they couldn’t simply agree among themselves not to discuss the case outside of court.

Jacobson said he would rule on the gag order next month. He kept in place a temporary order issued last month by another judge banning those involved from talking about the charges and extended it to LeRue Grim, the lawyer for the confessed killer of Bailey, Devaughndre Broussard, who has agreed to testify against the others.

Sirbu insisted the gag order apply to Grim. Under questioning from Jacobson on Thursday, Grim said he supplied reporters in the case with information and documents because he “wanted full disclosure.”

Jacobson called Grim’s releases “deplorable behavior” and suggested they may have violated the law and ethical standards. He did not discuss sanctions.

The judge also criticized Bailey Projects pro-bono lawyer, Duffy Carolan. Carolan told a project reporter last month that the prosecutor in the case said during a hearing in Jacobson’s chambers that he would not seek the death penalty against Bey IV and Mackey. The project then reported on that decision and was followed by other news organizations.

Jacobson called Carolan “sleazy and unethical” and extended the gag order to her. In court, she called that “an unconstitutional violation of my First Amendment Rights.” Jacobson barked at her not “to have any more press conferences.”

Carolan never discussed the death penalty decision at a press conference. The same day she learned of that decision, she gave television interviews that were limited to the Bailey Project’s position that the grand jury transcript be unsealed.

Citing the order, Carolan declined to discuss Jacobson’s remarks.

But Bailey Project and Oakland Tribune editor Martin G. Reynolds, who attended Thursday’s proceedings, said Carolan, a noted media lawyer, did nothing wrong in passing on newsworthy information to a reporter who was also her client.

“I was very disappointed with how Judge Jacobson treated our attorney,” Reynolds said in a statement.

“Carolan has shown nothing but professionalism and integrity in her handling of the Chauncey Bailey Project’s legal affairs — specifically ensuring our stories were fair, balanced and free of libel. Her firm has done this work pro bono, so in many ways, she has been working in service to the public since the inception of the project and should be commended for her work, not lambasted in open court.”

Bey IV sat through the hearing, smiling occasionally. Mackey sat 20 feet away, looking uninterested.

Lorna Brown, Bey IV’s lawyer, said she was “begging for a gag order” to be made permanent. In court papers, she said that journalists writing stories about her client are “vigilantes” endangering his right to a fair trial.

“Insofar as members of the project are private citizens gathering together to deter crime and seek retribution for wrongdoing, without regard to the right of the accused to a fair trial, they are vigilantes who threaten the very system of justice they claim to defend,” Brown wrote, advocating that the gag order in the case be continued.

Brown wrote that because of the media coverage, even a change of venue might not ensure a fair trial.

Thomas Peele is an investigative reporter for the Bay Area News Group—East Bay. Reach him at tpeele@bayareanewsgroup.com.