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Appellate court hears arguments in reporter's contempt case

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  1. Protecting Sources and Materials

    NMU         FIFTH CIRCUIT         Confidentiality/Privilege         Aug 16, 2001    

Appellate court hears arguments in reporter’s contempt case

  • The three-judge panel appeared unconvinced that a reporter’s privilege should protect journalists from being compelled to testify before grand juries, according to observers.

An attorney for jailed journalist Vanessa Leggett asked a three-judge panel of the U.S. Court of Appeals in Houston (5th Cir.) on Aug. 15 to acknowledge a constitutional reporter’s privilege.

Mike DeGeurin, Leggett’s attorney, argued to the court both that the court should recognize a privilege and that Leggett was denied due process rights at the contempt hearing where she was ordered to jail.

The appellate court seemed unsympathetic to the reporter’s privilege argument, according to media attorneys who attended the argument. Robert Latham and John Edwards, attorneys with Jackson Walker in Houston who represented media coalitions that filed a brief in the case and that fought the closure orders, said Fifth Circuit Judges Grady Jolly, Edith Jones and Emilio Garza were visibly unimpressed with DeGeurin’s argument in favor of the privilege.

“You’re swimming upstream here,” Jolly told DeGeurin as he began his argument. Jolly asserted that the rights of the press were the same as any other person and that journalists did not enjoy a special right to be free from a subpoena in a grand jury proceeding.

Vanessa Leggett, a book author who is researching a high-profile Houston murder case, has spent almost a month in jail. She was jailed on July 20 for refusing to testify about her sources and disclose her research materials before a federal grand jury. A federal district court judge in Houston denied Leggett’s assertion of a constitutional privilege on July 6 and ordered her to disclose to federal prosecutors her research.

The federal grand jury is reportedly investigating Robert Angleton, who was acquitted in state court on charges of hiring his brother to kill his wife. Doris Angleton was found shot to death in April 1997. Roger, the brother accused of carrying out the killing, committed suicide in the Harris County, Texas, jail in February 1998. Leggett has interviewed dozens of people surrounding the case, including Roger. Federal prosecutors will not disclose any details of the grand jury investigation.

The Reporters Committee filed a friend-of-the-court brief with the appellate court on July 30, arguing that the Fifth Circuit should recognize a constitutional reporter’s privilege. Although Leggett’s attorney, Mike DeGeurin, was willing to give up some time at oral argument to allow Latham to present arguments on behalf of the media groups, the court refused on Aug. 9. The brief was joined by the Society of Professional Journalists, the Radio-Television News Directors Association, and the American Society of Newspaper Editors. Another 20 media organizations, including the major television networks, The New York Times, The Washington Post and the Associated Press, filed a motion to join the amicus brief after it was filed, but the court rejected the petition.

But there may be some silver lining in the arguments before the Fifth Circuit, Edwards said. DeGeurin pointed out to the court that the record below was not fully developed. DeGeurin told the court that he was hired at 11:00 on the night before the contempt hearing in front of the district court. DeGeurin also argued that the subpoena was overly broad and not specific.

Edwards said DeGeurin was trying to satisfy a U.S. Supreme Court case requirement to show that the subpoena on Leggett was harassing. The subpoena asked not only for Leggett’s originals, but also all copies, which would essentially rob her of her archives and prevent her from writing her book. Offenhauser was peppered with several questions about the due process arguments that DeGeurin made.

The appellate court had originally planned to have oral arguments take place behind closed doors, but the day before the hearing it granted a motion filed by media organizations to open the courtroom. The open proceeding produced a full courtroom, packed with numerous news reporters, court clerks and a sketch artist.

One person sitting in the court was U.S. Rep. Sheila Jackson Lee (D-Texas). The congresswoman has met individually with Leggett, and has written to U.S. Attorney General John Ashcroft about the subpoena and jailing of Leggett.

“I believe the Justice Department has not followed its own internal guidelines,” Jackson Lee told Reuters on Aug. 14. “I believe their internal regulations require an attorney general’s review.”

According to Justice Department guidelines, the attorney general must personally sign off on any subpoenas issued to journalists. The U.S. Department of Justice has refused to confirm or deny whether Attorney General John Ashcroft personally approved the subpoena of Leggett.

Judge Jolly asked Offenhauser about the Justice Department guidelines during the argument, but Offenhauser said only that the record below did not cover the issue.

The length of incarceration makes Leggett one of the longest-jailed journalists in 30 years. Myron Farber, a reporter for The New York Times, served 40 days in jail in 1978 when he refused to reveal sources in a criminal trial. William Farr, then with the Los Angeles Herald Examiner, was jailed for 46 days in 1972 for refusing to reveal the source of leaked documents in the Charles Manson trial. In 1993, Rik Scarce, a researcher who claimed a researcher’s privilege analogous to the reporter’s privilege, was jailed in Spokane, Wash., for refusing to testify before a grand jury about animal rights’ activists. He spent five months in jail and then was released when the trial judge became convinced he would never testify.

The Fifth Circuit substantially limited the reporter’s privilege in a 1998 case, finding that the First Amendment provides reporters with no protection from compelled testimony and disclosure of nonconfidential material in criminal cases. Media lawyers worry that while the facts of that case were limited to nonconfidential material, the court’s reasoning was much broader and could be extended in this case to cover even confidential sources and materials.

Because the matter was before a grand jury, the proceedings were in secret. The district judge’s July 6 order refusing to quash the subpoena remains under seal, as do the briefs filed by the parties with the appellate court.

Edwards said that by rule the court must decide the case within 30 days of the filing of the appeals notice, which would be Monday, August 20.

(In re: Grand Jury Subpoena; Journalist’s Counsel: Mike DeGeurin, Houston; Media Amici’s Counsel: Charles Babcock, Robert Latham, John Edwards; Jackson Walker LLP, Houston) DB

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