High court orders journalists to testify before grand jury

From the Winter 2000 issue of The News Media & The Law, page 18.

Belleville News-Democrat reporters George Pawlaczyk and Marilyn Vise must reveal their sources to a special grand jury convened to investigate perjury allegations regarding former Belleville Mayor Roger Cook and former Belleville City Commissioner James Brede, under a mid-January ruling by the state Supreme Court.

Cook and Brede allegedly committed perjury during their testimony in a libel suit against the newspaper brought by former Belleville Police Chief Robert Hurst.

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Belleville Police Chief Robert Hurst was named by sources for Belleville News-Democrat reporters George Pawlaczyk and Marilyn Vise as a suspect in a rape case in November 1995.

Hurst sued Mayor Roger Cook, City Commissioner James Brede, KMOV-TV (Channel 4), and the News-Democrat in February 1996 for libel. Cook, Brede and KMOV settled out of court with Hurst. The libel suit is pending against the newspaper.

In December 1996, a special prosecutor was appointed to investigate the alleged perjury of Cook and Brede during testimony given in the libel suit. Brede's grand jury testimony regarding when he first learned Hurst was a suspect differed from his deposition testimony in the Hurst libel case. Brede also repeated his contention that he was not a source for any reporter in the Hurst matter. Cook testified to the grand jury that Vise was not being truthful when she previously named him as a source for her story.

Vise and Pawlaczyk asserted their reporters' privilege when called before the grand jury and refused to reveal whether Cook and Brede were their sources regarding the alleged rape by Hurst. In December 1997, a trial court in St. Clair County ordered the reporters to testify to the grand jury as to whether Cook and Brede were their sources. The reporters appealed to an intermediate state appellate court, which affirmed the order. The rulings were appealed to the Illinois Supreme Court.

At the core of the appellate arguments was the interpretation of the Illinois reporter's privilege statute. Under the statute, the reporters argued, whether a court may divest a reporter of the privilege depends on a consideration of three factors: relevance of the information sought, availability of other sources for the information, and whether the information is "essential" to the public interest.

According to the reporters, the lower courts erred with regard to the relevance requirement and, particularly, the requirement that the information be essential to the public interest.

Moreover, the reporters emphasized that the lower court's rulings "significantly reduced" protections under the reporter's privilege statute. "The statute ensures the ability of the news media to obtain news and valuable information for reporting to the public by preserving the public perception that the news media is independent," they argued, and "it cannot, except in extraordinary circumstances, be co-opted by law enforcement authorities or litigants as a tool for discovery or as a vehicle for seeking retribution against those sharing information with the press."

The prosecution disagreed with the reporters' relevance argument, asking the court, "What could be more relevant to a libel action than whom a news company used as a source?"

Furthermore, the prosecution focused on the fact that the sources may want their identities disclosed by the reporters to the grand jury. Arguing that the "intent of the reporter's privilege of protecting sources" is not applicable in this case, the prosecution asserted, "It seems ironic that the reporters who have previously indicated who their sources were now seek the protection of the reporter's privilege. It is even more ironic that the alleged sources have requested the reporters testify in front of the Grand Jury."

Finally, the prosecution argued that "the need of the public to have the laws fairly and equitably enforced must override" the reporter's privilege in this case.

The state Supreme Court found in mid-January that the reporters' testimony before the grand jury was relevant and essential.

Although the court recognized that Illinois allows "a qualified privilege of confidentiality for any source of information obtained by a reporter," the court applied the U.S. Supreme Court's analysis in Branzburg v. Hayes, and held that a "compelling public interest" was present, and consequently, ordered the disclosure of the reporters' sources to the special grand jury. This compelling interest, according to the Illinois Supreme Court, was established by the U.S. Supreme Court in Branzburg -- that grand jury proceedings "constitute a 'compelling interest' that outweighs the public interest in the reporter-source privilege."

The state Supreme Court noted that the reporters "do not allege that the subpoenas were issued to harass Pawlaczyk or Vise, or that the special grand jury was unlawfully convened." (Illinois v. Pawlaczyk)