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Appeals court says reporters must testify at disciplinary hearing

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  1. Protecting Sources and Materials

    NMU         MARYLAND         Confidentiality/Privilege    

Appeals court says reporters must testify at disciplinary hearing

  • The court’s decision reversed a trial court ruling in the reporters’ favor.

May 7, 2003 — The Maryland Court of Special Appeals ruled May 2 that three reporters who overheard a police officer’s offensive comment may be forced to testify at a disciplinary hearing against the officer.

The decision by the state’s second highest court reversed a ruling by the Prince George’s County Circuit Court, which had excused the reporters from having to testify.

On August 13, 2001, three reporters — Ruben Castaneda from The Washington Post, Gregory Johnson from the Gazette Newspapers and Eric Hartley of The Prince George’s Journal — attended the federal trial of two Prince George’s County police officers accused of misconduct.

All three papers reported that during a lunch break in the trial, in a courtroom vestibule, Officer Brian Lott said: “I wish I would have been there in ’95. I would have shot the bastards, and we wouldn’t have all this crap.”

As a result of the newspaper articles, the county investigated Lott and filed an administrative charge of “unbecoming conduct” against him.

The county subpoenaed the reporters to testify about the circumstances of Lott’s statement at the hearing.

An attorney for Lott told the court that if the reporters testified, he would want to examine their notes and conduct an extensive cross-examination of the reporters.

The reporters resisted the subpoenas and obtained a favorable ruling from the trial court, which held that “Prince George’s County has not established a compelling and overriding interest in the disclosure that would be sought by allowance of the subpoenas.”

On appeal, the Special Court of Appeals examined both the Maryland Shield Law — the statute that protects journalists from unnecessary subpoenas — and the reporter’s privilege that Maryland courts have established in accordance with the First Amendment, and held that the reporters could be compelled to testify.

“Appellant [the County] is not unnecessarily harassing [the reporters], and is not seeking information remotely or tenuously related to the case. The testimony sought goes straight to the heart of the matter: whether Officer Lott made the statements in question,” the court said in its opinion.

Because the reporters overheard Lott’s statement, and were therefore not protecting any source other than themselves, they could not claim protection under the reporter’s privilege, the court held.

Simply providing the administrative board the articles containing the statement would not be enough, said the court, because the newspaper articles are “hearsay evidence.”

Moreover, the court said, the county has “no other reasonable alternative” to putting the reporters on the stand.

The county “is not obligated to depose every person present within earshot on the day in question to determine if someone has not been forthcoming,” the court said.

The court said that although the reporters may be forced to take the stand, they may not be compelled to answer every question posed to them. The reporters may refuse to answer individual questions posed by the attorneys on the grounds that responding would result in disclosure of privileged information.

Hartley’s attorney, Alice Neff Lucan, said she was disappointed that the court did not push the county to try to locate alternative sources of the information it sought. She said the court’s decision may have weakened the shield law’s requirement that litigants exhaust all sources before subpoenaing the media.

Nevertheless, Lucan was happy that the ruling appeared to be very narrow and required no more than an appearance by the reporters at the administrative hearing.

No decision has been made about whether the reporters will appeal to the Maryland Court of Appeals, the state’s highest court, Lucan said.

(Prince George’s County v. Hartley; Counsel for Eric Hartley of The Prince George’s Journal: Alice Neff Lucan, Washington, D.C.; Counsel for Ruben Castaneda from The Washington Post and Gregory Johnson from the Gazette Newspapers: Kevin Hardy, Williams & Connolly LLP, Washington, D.C.) WT

© 2003 The Reporters Committee for Freedom of the Press

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