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Gag denied in trooper's suit

Feb. 18, 2005

By Drew Volturo, Delaware State News

WILMINGTON - A federal judge denied Friday the state's request for a gag order against attorneys in a Delaware State Police captain's sexual harassment lawsuit against agency Superintendent Col. L. Aaron Chaffinch.

U.S. District Court Judge Gregory M. Sleet denied the state's motion, which asked the court to prohibit "prejudicial pre-trial publicity" in the suit.

"We're thrilled," Stephen J. Neuberger, one of two Wilmington attorneys representing Capt. Barbara L. Conley, said after the decision was announced.

"The decision is a ringing affirmation of the First Amendment. My client is very happy with the decision and looks forward to continuing with the case."

Capt. Conley filed her suit in October, claiming she was passed over twice for promotion to major because Col. Chaffinch has a bias against women.

Deputy Attorney General Ralph K. Durstein said he wanted to curb Stephen Neuberger and Thomas S. Neuberger's "enthusiasm for using the media to their utmost advantage."

The motion sought to bar both lawyers from talking to the media about the case to protect against prejudicing a potential jury pool.

Mr. Durstein referenced several news articles in which the Neubergers' comments about state government, the state police and Col. Chaffinch were "clearly over the line," he said.

In some of the articles, Capt. Conley's attorneys called Col. Chaffinch "a serial constitutional violator," made an analogous comment about the colonel's membership in the Square Lodge of Freemasonry and the Ku Klux Klan and called a state police disciplinary hearing a "kangaroo court."

Asked why the state didn't reply to the Neubergers' comments, Mr. Durstein said he doesn't "believe it's fruitful to engage in a back-and-forth exchange every time the Neuberger firm issues a statement in the news media."

"Our motion was to protect the integrity of the process," Mr. Durstein said. "Where there's a jury trial, there has to be a compromise between attorneys on what (we can say in public) about the case."

Mr. Durstein said the public allegations and references to an unrelated disciplinary hearing against Capt. Conley could seep into the public's consciousness and taint a jury pool.

Thomas Neuberger argued that Capt. Conley and other current and former state troopers he has represented are seeking to warn the legislature and public of problems within the state police, and the state's motion was an attempt to muzzle the criticism.

"The real purpose here is to stop any criticism of government, to stop the critics," Thomas Neuberger said.

He then began dissecting each media account in question.

"Two federal juries have returned three verdicts that Col. Chaffinch has violated (troopers') constitutional rights," he said.

Asked after the decision whether the state would appeal, Mr. Durstein would not comment.

"We saw an escalation of comments in the media and thought this step was appropriate to assure all parties a fair trial," Mr. Durstein said.

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