Murder trial judge lifts gag order

Often using the Scott Peterson capital murder case in the adjoining courtroom as an example, Judge Carl Holm ruled that Rapoza's frequent contact with the media would not prevent him from having a fair trial this fall. The comparisons to Peterson's case have already been drawn and Holm said he expected them to increase once the sensational double-murder trial closes. However, as in Peterson, a jury willing to set aside publicity and opinions can be found, Holm said.

Holm commended defense attorneys Jeff Boyarksy and Connie O'Brien for having their client's best interests at heart. Yet after nearly an hour of arguments from prosecutor Al Giannini and media lawyers - including Daily Journal attorney David Woolfe of Ted Hanning Law Firm - Holm agreed there was not sufficient evidence to bar Rapoza and other witnesses from making public statements.

It is now time to "let it all hang out," Holm quipped at the end of his ruling. His decision did come with the caveat that if Rapoza insists on contacting the media himself he may have no reason to ask for a change of venue or to claim he was not given a fair and impartial jury.

Rapoza could be sent to prison for life without parole if convicted of purposely killing his pregnant wife and 4-year-old daughter. Raye Rapoza, the couple's daughter Tehani and the unborn female fetus died after a minivan driven by Eddie Rapoza plunged off a Moss Beach cliff Oct. 6, 2002. Rapoza claims it was an accident; prosecutors argue it was a jealousy-fueled murder-suicide attempt.

Rapoza nodded during the hearing but added nothing about his personal opinion of the gag order imposed last month. In interviews since, Rapoza said his attorneys called for it to stave off a pending television interview and prevent further contacts with the press.

In court yesterday, Boyarksy and O'Brien conceded their actions were not necessarily in line with their client's wishes.

"We did what we had to do to protect the defendant's Sixth Amendment rights," Boyarsky said, adding that it might be a "futile gesture" at this point.

Prosecutor Al Giannini said the order didn't make much of a difference to his office but that Rapoza's violation of it leaves other witnesses at a loss. The inability to speak out for fear of jail time "makes them feel victimized all over again," Giannini said.

After Giannini argued that a gag order would not be effective against Rapoza, Boyarksy countered that the District Attorney's Office would like nothing better than to have his client speak out. Any comments made by Rapoza to the press could theoretically be used by prosecutors. Boyarksy said Rapoza might not be sophisticated enough to speak to the press.

For prosecutors, "it would be wonderful to have him speak as much as possible," Boyarksy said.

Rapoza remains in custody on no-bail status. Pre-trial motions begin in his trial Oct. 25 with jury selection slated for Nov. 1. Giannini said he hopes the trial finishes by Christmas.

Michelle Durand can be reached by e-mail: michelle@smdailyjournal.com or by phone: (650) 344-5200 ext. 104. What do you think of this story? Send a letter to the editor: letters@smdailyjournal.com.