A South Carolina judge has lifted a gag order he filed in the sexual molestation case against Fayetteville car dealer Mike Lallier, allowing public access to documents filed with the Darlington County Clerk of Court.
The biggest revelation contained in those documents is an arrest warrant affidavit that says “the defendant Michael Lallier did engage in sexual battery by using his hands to fondle the victim (a 15-year-old) under his clothes to sexually arouse himself and the victim.”
Those details had been blacked out in a copy of the affidavit obtained by The Fayetteville Observer before Roger E. Henderson, chief administrative judge for South Carolina’s 4th Judicial Circuit, issued the gag order on Sept. 19.
Lallier, former chairman of the Fayetteville Public Works Commission, is accused of molesting the boy over the Labor Day weekend at Darlington Raceway, where he and others had gathered for a NASCAR race. Lallier, co-owner of Reed-Lallier Chevrolet, is charged with third-degree criminal sexual conduct, a felony punishable in South Carolina by up to 15 years in prison if convicted.
In his original order, Henderson said the gag order was necessary to protect the pending investigation of Lallier’s case and to ensure that he gets a fair trial. The order prohibited anyone from discussing the case or sharing documents pertaining to it outside of the courtroom.
The Fayetteville Observer filed a lawsuit in January arguing that the gag order was a violation of the constitutional rights to freedom of speech and freedom of the press. Henderson heard the case on May 9.
During that hearing, prosecutor Sherrie Baugh said she had requested the gag order because the media had been aggressively pressuring the Darlington County Sheriff’s Office for a search warrant affidavit since shortly after Lallier’s arrest. She told Henderson that the gag order was no longer needed and that she had no objection to it being lifted.
Lallier’s lawyer in South Carolina, Paul Cannarella, then agreed to file a motion to modify the order, and lawyers for the Observer said they would file an amended motion seeking to lift all prior restraints on free speech and freedom of the press as provided by state and federal laws.
Henderson accepted the Observer’s motion to lift the gag order in its entirety. He signed the decision May 23, and it was filed with the Darlington County Clerk of Court on Monday. Henderson did not tell the Observer’s lawyers that the gag order had been lifted.
Michael Adams, the Observer’s executive editor, said the decision is a victory for freedom of the press.
“The Observer contested the gag order in court because we believe that secret proceedings cause real harm to the people in our community, who have a legitimate interest in seeing the Lallier case play out in public,” Adams said. “We're pleased that the judge correctly decided to remove this unusual block to access."
In the Observer’s motion, lawyers Jon Buchan of Charlotte and Jay Bender of Columbia, South Carolina, dismissed Cannarella’s argument that pretrial publicity could jeopardize Lallier’s right to a fair trial. They said that argument “ignores the observation of the United States Supreme Court that pretrial publicity, even if pervasive and concentrated, cannot be regarded as leading automatically and in every kind of criminal case to an unfair trial.”
The Observer’s lawyers also maintained that concealing court documents “is depriving the public and the press of any meaningful opportunity to be informed of significant issues in the prosecution.”
“The court’s assertion that its order passes constitutional muster because it only restrains the speech of trial participants overlooks its severe restrictions on the speech of the victims, the parents, the parents of a victim and the family of a victim, each of whom has a guaranteed right to speak out about the performance of the Solicitor, law enforcement and the court system relative to this prosecution,” the Observer’s motion says.
Unlike North Carolina, affidavits attached to search warrants are not typically filed with clerks of court in South Carolina.
Lallier’s arrest report, dated Sept. 3, shows that a Darlington County deputy obtained a warrant to search Lallier’s motor home, which was parked on the infield at the race track for the Bojangles Southern 500 NASCAR race.
The arrest report doesn’t say what may have been seized from the motor home. But it says the deputy was “able to locate evidence that was found in the trash can that was found to be the suspect’s.”
Former Sheriff Wayne Byrd said at the time that the trash can was in a public area outside of the motor home. He declined to reveal what evidence was found but said he was confident investigators could link it to Lallier.
The Observer made a request Thursday under the South Carolina Freedom of Information Act for search warrants, affidavits for those warrants and other documents that pertain to the case. It was not immediately clear what the prosecution's next steps are in the case against Lallier, or when he will be back in court.
Staff writer Greg Barnes can be reached at firstname.lastname@example.org or 486-3525.