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|NMU||UTAH||Confidentiality/Privilege||Oct 16, 2000|
ABC ordered to hand over unedited head-drilling tapes
A trial court in Cedar City, Utah ruled on Oct. 13 that ABC News must provide local prosecutors with unedited videotapes purportedly showing two men drilling holes in a person's skull, a procedure believed by some to relieve pressure and help achieve a higher consciousness. Judge J. Philip Eves also ruled "20/20" reporter Chris Cuomo must testify in the case against the men.
Two Beryl, Utah men, Peter Evan Halvorson and William Eugene Lyons, are accused of practicing medicine without a license after they allegedly performed the ancient technique for brain surgery. The patient apparently consented to the procedure, known as trepanation, where holes are drilled into the skull to relieve intra-cranial pressure. Proponents claim the procedure helps prevent reduced brain blood volume and decreased blood metabolism caused by normal aging.
During the Feb. 10 episode of "20/20," Cuomo is shown watching the trepanation procedure. Intentionally blurred segments of the videotape conceal the identities of the participants to viewers. In a preliminary hearing, lawyers for the network, ABC, called the incident a dramatization, and not an actual trepanation.
Iron County prosecutor Scott Burns requested the court compel Cuomo, a New Yorker, to attend the trial and declare his testimony and footage from the program material, necessary and relevant. Kenneth Yeates, a Salt Lake City attorney appearing on behalf of the network, opposed the motion.
Burns argued Cuomo was necessary to the case because he was the only witness to the procedure. According to court records, ABC had refused to provide the names of the crew who taped the event. The court found that the only persons in the room were the two defendants, the patient, who has left the county, Cuomo and a cameraman.
The court did not embrace the position that the reporter's privilege prevented Cuomo's testimony. In Utah to overcome the privilege, a person seeking the information must show the information's relevance and lack of availability from other sources.
The judge blamed ABC for a "lack of cooperation" in providing information about other witnesses to the alleged trepanation and ruled the information was not available elsewhere. The court also said the material sought by the state went to the heart of the legal matter -- whether the men actually drilled the holes in the patient's skull.
The court also pointed out the seriousness of the charge; practicing medicine without a license is a felony in Utah and carries a potential penalty of five years in prison and a $9,250 fine. The court also discussed the potential harm that could be inflicted by performing the head-drilling procedure.
The court held the news magazine program could not invoke the reporter's privilege for "confidential and unpublished" information because the show was not confidential. While ABC argued it used the blurring technique to protect the confidentiality of witnesses, the court rejected this position, holding that ABC used the technique only to lessen the shocking nature of the procedure.
The Utah judge will send a certificate to a New York court to enforce the subpoenas on Cuomo and ABC.
(State v. Halvorson and Lyons; Media Counsel: Henry Hoberman, Betsy Schorr, ABC, New York) -- DB