Jailing of author raises concerns about reporter’s privilege
From the Fall 2001 issue of The News Media & The Law, page 25.
By Monica Dias
Texas writer Vanessa Leggett spends her time in a federal prison in Houston reading or writing in a cell she shares with another woman. While her fellow inmates are serving sentences for smuggling drugs or committing bank or mail fraud, Leggett has been jailed since July 20 for refusing to reveal confidential book research to a federal grand jury.
“I’m treated like the rest of the inmates: like a criminal and a potential escapee. Even though I haven’t been charged with a crime. Ever,” Leggett wrote in response to written questions from the Reporters Committee for Freedom of the Press.
Leggett, a crime writer and college lecturer, spent four years
researching a high-profile murder-for-hire case in Texas for a book she planned to write. Federal prosecutors investigating the murder subpoenaed her research. When she refused to comply, she was sent to jail.
Leggett could remain in jail until the grand jury term expires, but under federal law she cannot remain in jail longer than 18 months. The term of the grand jury originally expired Oct. 12 but was extended into January, a spokeswoman for the U.S. attorney’s office in Houston said.
Leggett’s case has raised important questions regarding the strength of a reporter’s privilege not to reveal confidential sources and information. How should “reporter” be defined? Should Department of Justice guidelines for issuing subpoenas to reporters also apply to freelance writers such as Leggett? Should federal prosecutors have to explain why a reporter’s confidential notes are crucial to their case before a reporter is sent to jail and confined there for months?
The Department of Justice has met those questions with silence and has rejected pleas to withdraw the subpoena, which would free Leggett.
Both the Reporters Committee for Freedom of the Press and Rep. Sheila Jackson Lee (D-Texas) asked Attorney General John Ashcroft to intervene in Leggett’s case. Written responses from Justice Department officials deferred to court rulings that require Leggett to comply with the subpoena.
Unhappy with that answer, Jackson Lee plans to draft legislation that she says would provide a better balance between the needs of federal prosecutors to pursue criminal investigations and the needs of a free press to keep sources confidential. She hopes to introduce the legislation in Congress this year.
“I don’t think it’s balanced to keep someone with no criminal record, who cooperated with law enforcement, incarcerated for 70-plus days,” Jackson Lee said.
A society murder
Leggett was researching the killing of Doris Angleton, who was found shot to death in April 1997. Angleton’s millionaire bookie husband, Robert Angleton, was accused of paying his brother, Roger, to kill her. The brothers were charged in the case. In 1998, Roger committed suicide in jail, and Robert was acquitted in state court.
While the case was before a state grand jury, Leggett complied with a subpoena and gave copies of her taped interviews with Roger Angleton to the grand jury, said her attorney, Mike DeGeurin. Leggett had not promised confidentiality to Roger Angleton, and state prosecutors showed that since Roger Angleton was dead, they couldn’t get the information any other way, DeGeurin said.
After the acquittal in state court, a federal investigation began. Leggett complied with one federal subpoena in December 2000 when the FBI promised that she wouldn’t have to reveal confidential sources, according to court documents. Then in June, a federal grand jury subpoenaed all her tape-recorded conversations with 34 people, including originals, copies and transcripts.
Leggett claimed a reporter’s privilege and argued that federal prosecutors couldn’t have her research unless they proved that the information was highly material and relevant, necessary to their case and unavailable from other sources.
Federal District Judge Melinda Harmon disagreed, ruling on July 6 that there is no reporter’s privilege from divulging confidential or non-confidential information in a criminal case.
Leggett was jailed for civil contempt. A three-judge panel of the U.S. Court of Appeals in Houston (5th Cir.) upheld the contempt citation on Aug. 17, ruling that no reporter’s privilege exists against a grand jury subpoena. Since the court found that the reporter’s privilege didn’t apply in the case, the court didn’t decide whether Leggett is a journalist.
While noting that Leggett is “a virtually unpublished freelance writer operating without an employer or a contract for publication,” the panel also said that if it had to decide whether she was a journalist, the standard would have been whether she was engaged in investigative reporting, whether she was gathering news, and whether she had an intent at the time she gathered the material to disseminate it to the public.
DeGeurin has petitioned the full U.S. Court of Appeals to rehear the case.
A different outcome
DeGeurin believes Leggett’s case would have turned out differently if she had been viewed as a journalist. Department of Justice regulations require federal prosecutors to show, before they subpoena a reporter, that they couldn’t obtain the information from non-media sources and that their subpoena request was limited in scope, non-speculative and concerned essential information. The guidelines require the attorney general to authorize the subpoena.
Prosecutors didn’t follow those guidelines in Leggett’s case because the Justice Department did not consider her a reporter.
“She was not handled as a member of the media, so (the department) would not have followed the procedure that we have laid out for subpoenas of members of the media,” said Mindy Tucker, spokeswoman for the Justice Department.
DeGeurin believes Leggett fits the definition of “journalist” articulated by the Fifth Circuit because she intended to disseminate her research to the public. If the department had applied its subpoena guidelines to her, a sweeping order to produce all copies of four years of research would not have been issued and Leggett would not be in jail, her attorney argues.
The Justice Department should re-evaluate Leggett’s case, Jackson Lee said.
“Why won’t the Justice Department look at their lawyers and find out whether they’re actually being prohibited from getting information to pursue their case?” she said.
Tucker said the Justice Department cannot comment on Leggett’s subpoena because it concerns a grand jury, whose operations are secret.
Despite her lengthening time behind bars, Leggett says she has not wavered in her belief that doing jail time was preferable to disclosing confidential information.
“The position I’ve taken is important now more than ever,” she wrote to the Reporters Committee.
“The door has slowly been closing on the free flow of information to the public through the press. . . . What is clear to me at least is that I could not comply with the subpoena and watch the door to the public’s right to a free press close another inch.”