Attorney: Prosecutor Boyce may have violated the gag order

JONESBORO, Ark. – By sending a copy of the gag order out to members of the press, including to NEA Report, Prosecutor Henry Boyce may have violated the gag order.

This is according to Jonesboro attorney R. Scott Troutt with the Troutt Law Firm. It pertains to the murder investigation of former State Senator Linda Collins.

Although we have previously referred to her under her name during her senate tenure, “Collins-Smith,” her obituary dropped reference to “-Smith.” Court documents obtained by NEA Report show she went through a brutal divorce with her ex-husband, former Circuit Judge Phil Smith. Smith worked regularly with Boyce and Circuit Judge Harold Erwin, who is retiring after his current term.

Boyce authored the request for the gag order and Erwin signed off on it.

The gag order has attracted statewide attention and it has all been negative. It included a Sunday editorial from The Jonesboro Sun editor Chris Wessel and John Brummett, columnist with Arkansas Democrat-Gazette.

its an outrage, a country county gagging basic crime information regarding a former state senator's murder on the basis of prejudicial pretrial publicity when no one is arrested yet to be vulnerable to that. what happened is basic before who done it.

— johnbrummett (@johnbrummett) June 7, 2019

It wasn’t just newspaper writers who were vocal about the order. In his statement, Troutt says the order is unfortunate because it has ignited conspiracy theories about why such an order would be issued. Troutt said it should be challenged in court except the order doesn’t apply to the press or anyone willing to make that challenge. He then points out that Boyce may have violated the order, itself, by sending a copy of it out to NEA Report and other media outlets.

“It is unfortunate that Prosecutor Henry Boyce chose to seek an order from the Court ‘sealing’ all records related to the investigation of the death of Linda Collins-Smith. I can appreciate the need to maintain the integrity of an ongoing investigation and avoid prejudicing a defendant (or defendants) before a trial, but there is no defendant at present, and records related to an ongoing investigation are already exempt from the Freedom of Information Act. If the intent was to curb speculation, a brief search of Twitter shows that the opposite has occurred.

Of course, it is not possible to know the motivation behind Mr. Boyce’s request, because he bypassed the adversarial system by requesting relief without any warning that I am aware of to the parties affected. A motion is referenced in the Order, but same has not been released to my knowledge.

Emergency, ex parte requests for (and grants of) relief are legal in Arkansas, but there are rules governing same. Notably, to extend the order beyond 14 days after the entry of an order, a hearing is necessary. I am not aware of any such hearing being set. Thus, even if all of the requirements were met for an emergency, ex parte temporary restraining order, it appears same will expire by operation of law in 14 days.

All of these issues, and many others, should be brought before the Court. However, there is no direct way to do so at present. The press is not covered by the order, so the most obvious parties from which a challenge would arise must do so collaterally.

The parties that are covered are, rightfully, unlikely to object to the order, as it is not typically a prudent career move to sue for the right to disseminate records that cannot be disseminated anyway. It could be directly challenged if the Court attempts to punish a covered party for violating its order, but I doubt any covered party will do so given the potential jail time.

With that said, there appears to be one person that may have violated the order, and thus could conceivably end up in a position of arguing against its application: Henry Boyce. The Order seals “all records filed or kept by the Randolph County Circuit Clerk’s office . . . and the Office of [the] Prosecuting attorney.” Mr. Boyce, an employee of the Office of the Prosecuting attorney, released the order, which was itself sealed. This is frankly a silly result that could have been avoided had there been an opposing party there to notice the possibility. The Judge, it should be noted, is not typically supposed to fill that role.

I am confident that Mr. Boyce will do the right thing in this case: withdraw his request and ask that the order be vacated. Any other solution runs the risk of tainting this investigation in the eyes of the public and adding controversy to a tragic event.”

R. Scott Troutt
Troutt Law Firm, Jonesboro