Reporter ordered to testify at court-martial

Jonathan Jones | Reporter's Privilege | Feature | June 16, 2009

A reporter for The San Diego Union-Tribune will have to testify as a defense witness in a court-martial, a military judge ruled Monday.

The issue arose in the case of U.S. Marine Pvt. Gary Maziarz , who was brought up on charges of willfully disobeying a direct order after he agreed to a November interview with reporter Rick Rogers. Prosecutors contend Maziarz, who in 2007 pleaded guilty to mishandling classified information and theft of government property, had been ordered not to speak with the media.

Maziarz, formerly a gunnery sergeant, was involved in a scheme with other Marines to pass classified documents to civilian law enforcement; he was released from the brig in July, the Union-Tribune reports.

Maziarz told the Union-Tribune that he had not been ordered to stay away from the media and that his court-appointed attorney approved of the interview. As part of his defense to the new charge, Maziarz is seeking Rogers' testimony about contacts the two had before the interview. He is trying  to establish that he did not willfully disobey an order.

In his 12-page ruling military judge Cmdr. Kevin O'Neill rejected Rogers's attempts to assert a First Amendment-based reporter's privilege and protection under the California shield law. O'Neill said he did not need to answer the question of whether a First Amendment-based privilege exists in military court or whether California's shield law applies because the privilege would be overcome anyway in this case.

"To the extent any shield or privilege applies, whether statutory or in common law, it is a qualified privilege or shield, and it can not serve to deprive a criminal defendant of his federal constitutional right to a fair trial," O'Neill wrote.

O'Neill used the framework set out by the California Supreme Court in Delaney v. Superior Court to analyze whether the shield law protection would hold up, if it was applicable. He found that the information sought was not confidential or sensitive; that no confidence would be breached; that the information was important to the defendant; and that the only alternative source for the information was the defendant.

Guylyn Cummins, the attorney for the newspaper, said the Union-Tribune has not yet decided whether to appeal the ruling.