Information from reporter's phone records excluded from trial

COLORADO–A public defender who obtained a reporter’s telephone records directly from a phone company without a subpoena will not be able to use those phone records to establish that the reporter spoke with a certain police officer. A state trial court judge in Denver ruled in early February that the records were improperly obtained and would not be admissible at trial.

The cellular phone records were obtained from the phone company by the lawyer for Nathan Thill, a defendant in a murder case, in an effort to uncover the identity of a confidential police source that KMGH-TV reporter Julie Hayden spoke to about the murder of which Thill stands accused.

Thill, a self-described white supremacist charged with the 1997 murder of an African immigrant, had previously subpoenaed KMGH and Hayden for testimony and documents that might establish whether Hayden had spoken with a particular Denver police officer, who denies talking to Hayden about the case. In August 1998, the judge presiding over Thill’s case in state court in Denver quashed that subpoena based on the qualified reporter’s privilege under Colorado’s shield law.

Thill’s attorney then asked the telephone company for the records of Hayden’s cellular telephone calls. KMGH and Hayden learned that Thill had obtained the records only after the phone company already had released them.

In objecting to Thill’s plan to use Hayden’s phone records in his defense at trial, KMGH and Hayden argued that Thill made an “end-run” around the court’s August order quashing Thill’s subpoena. The station and Hayden asserted that the federal and state constitutional protections for a free press, along with the qualified privilege under Colorado’s shield law, prevented a third party from disclosing the phone records.

“A subpoena of third-party records for the purpose of obtaining news information poses an even greater threat to freedom of the press than do attempts to obtain the information directly from the reporter. As this case handily illustrates, the third party may not understand the significance of the information subpoenaed, and it may have little incentive to protect the information — or even alert the news organization of the subpoena,” KMGH and Hayden argued to the court in briefs.

They added that “there is a substantial risk [with third-party records] that the protections imposed by the First Amendment and the Colorado Press Shield Statute will be overlooked or totally disregarded.” (Colorado v. Thill; Media Counsel: Alan Stern, Denver)