Journalists avoid contempt citations in Texas, Ireland

Reporters in Indiana learn of phone records subpoena after carrier has complied

From the Winter 2000 issue of The News Media & The Law, page 17.

Journalists in the United States and abroad who faced jail time for refusing to disclose confidential information obtained in highly controversial interviews were not forced to reveal such information in two recent cases.

In an unrelated case, a newspaper was notified of a subpoena for its phone records when it already was too late to challenge the subpoena.

*

CBS producer, anchor fight subpoenas in Texas trial

In exchange for release from liability under contempt charges leveled against a news producer, CBS agreed to turn over the complete transcript of an interview with one of the men charged in the June 1998 dragging death of a black man in Jasper, Texas.

In mid-November, prosecutors in the apparently racially motivated capital-murder case obtained a complete transcript of the interview between Shawn Allen Berry and CBS anchor Dan Rather, after an agreement was reached between the prosecutors and CBS to drop contempt charges against CBS producer Mary Mapes. Mapes had refused to turn over outtakes of the "60 Minutes II" interview and was subsequently held in contempt and sentenced to jail by a Texas court.

Mapes was subpoenaed and ordered to appear before a state trial court in Jasper and to bring with her outtakes and unedited portions of the interview between Rather and Berry. Berry faces a charge of murder for the death of James Byrd Jr. Mapes challenged the subpoena on the grounds that she never possessed or controlled the tapes.

Mapes avoided any jail time as a result of the agreement reached between the prosecutors and CBS.

Rather also was subpoenaed in late October to testify at Berry's murder trial. However, in early November, a New York City trial judge heard arguments from CBS objecting to the demand for Rather's testimony. Prosecutors subsequently dropped their request for Rather's presence at the trial.

Berry admitted in the September 1999 interview that he was present on the road where Byrd was chained to the bumper of a pickup truck, but said he could not stop John William King and Lawrence Russell Brewer from beating Byrd because he was threatened by King when he tried to help Byrd. (Texas v. Berry)

*

Irish court overturns contempt charge

An Irish appellate court dismissed contempt charges against a journalist who faced jail time if he refused to turn over notes from an interview with a man charged with the 1989 murder of a prominent attorney for the Irish Republican Army.

The High Court in Belfast in late October threw out contempt charges against Dublin Sunday Tribune editor Ed Moloney, who refused to surrender his notes from the interview.

"The Lord Chief Justice has made it quite clear that the police have got to establish a case for needing to see journalistic material," Moloney said in an article that appeared in the Irish Times the day after the ruling. "They can't just wade in there and automatically assume they can get it."

Moloney, who faced a jail term of up to five years and unlimited fines if convicted under the British Prevention of Terrorism Act, appealed the lower court's order to surrender his notes.

Moloney's court battle began in the summer of 1999 when William Stobie, a member of an "illegal loyalist paramilitary group," was charged with Irish Republican Army attorney Patrick Finucane's murder.

A week after Stobie's arrest, Moloney published a story based on a 1990 interview. At the time of the interview, Stobie agreed to talk only on the condition that the information not be published unless he was arrested for Finucane's murder or threatened by police, according to Moloney.

Claims made by the IRA triggered a special investigation by British detectives, who went to court to obtain Moloney's notes and additional information about Stobie. But police did not actually need the notes, Moloney said in the Irish Times story, noting that "I had five hours with him and ended up with 10 pages of typed notes. They have 122 pages of typed notes literally peppered with names."

*

Phone records turned over without notifying newspaper

An Indiana trial judge approved a subpoena for a Muncie newspaper's telephone records without notifying the newspaper, leaving it unable to object to a disclosure that apparently revealed the identity of an anonymous source.

In late October, The (Muncie) Star Press learned that a state trial judge approved a subpoena for its telephone records in April after concluding that the Muncie Police Department's need to find a missing homicide file was "paramount" to any interest the newspaper might have in keeping its phone records confidential.

Muncie trial Judge Steven R. Caldemeyer approved the grand jury subpoena issued to the telephone company, Ameritech, for the newspaper's records. The subpoena covered a span of nine hours on April 6 and 7, and was issued several months before the newspaper became aware of the subpoena. The newspaper had no opportunity to argue against, or appeal, Caldemeyer's ruling.

In early February, the Hoosier State Press Association submitted a letter to Chief Justice Randall Shepard of the Indiana Supreme Court urging the court to examine the method under which phone record subpoenas of media outlets are approved.

"We believe freedom of the press and invasion of privacy issues call for a process where the media outlet can argue the propriety of allowing a prosecutor to obtain these phone records," the group argued.

Additionally, the association suggested that the court add a rule of criminal procedure that would require courts to inform a person that "records held by a third party that could reveal a confidential source have been subpoenaed."

The Star Press on April 6 and 7 received anonymous telephone calls and a fax that described the disappearance of a Muncie Police Department file on an unsolved homicide. It was only when the Muncie Police-Fire Merit Commission held hearings in connection with the file's disappearance and determined that Officer Brian Fox made the telephone calls and sent the fax to the newspaper that the newspaper learned of the subpoena.