Reporters, researcher recall time spent behind bars

From the Fall 2001 issue of The News Media & The Law, page 28.

A select group of writers and news reporters can empathize with Texas author Vanessa Leggett’s decision to go to jail rather than comply with a subpoena.

They’ve been there, too.

Rik Scarce remembers the excruciatingly slow creep of time during his five months in jail in 1993. David Kidwell recalls the difficulty of sleeping in a barracks-style jail dormitory where the temperature was deliberately set to chill and wake-up time was 5:30 a.m. Lisa Abraham turned boredom into production: She wrote 15 news stories about life in jail during her 22 days behind bars in 1994.

All three remember their frustration with colleagues who didn’t understand why they were going to jail rather than testify against suspected criminals or give up confidential information. But they all said they’d do it again.

“In a heartbeat,” said Kidwell, a reporter for The Miami Herald.

At least 18 reporters have served time in jail since 1984 rather than testify about their sources or unpublished notes, according to the Reporters Committee for Freedom of the Press. While the incarceration of a reporter is rare, Leggett’s lengthening time in jail shows how a subpoena from a prosecutor can overpower a reporter’s privilege to withhold unpublished notes, keep confidential sources secret and refuse to testify against a source.

Learning that lesson firsthand came as a shock to some writers who have spent time behind bars.

“Something you wouldn’t wish on anybody”

David Kidwell spent 14 days in a Florida county jail in 1996 after he refused to testify against a murder suspect he had interviewed for an article in The Miami Herald. For him, the issue was one of trust: If he would testify against one source, why would any source in the future trust him enough to talk to him?

“It was just a surreal set of events that brought me to that day, and nobody was backing down,” Kidwell said. “I had this abiding hope that my willingness to go to jail would help, that somebody would just feel, ‘OK, this guy is serious.’ I hoped all along they were just playing tough guy and running a bluff. That wasn’t the way it was.”

Sentenced to 70 days in jail, Kidwell was put in a dorm that could hold 50 inmates, mostly nonviolent offenders charged with crimes such as driving drunk or failing to pay child support. He never felt in danger, but “it was something you wouldn’t wish on anybody,” he said. “It wasn’t necessarily being confined. It was being away from my family and work.”

On Kidwell’s 15th day in jail, a federal district judge released him until his appeal could be heard in state court. In 1998, two years after Kidwell was released, the Florida legislature passed a shield law granting reporters a qualified privilege protecting sources’ identities. Also that year, the Florida Supreme Court adopted a three-part test under which lower courts could allow a subpoena against a journalist: the party requesting the subpoena must show that the reporter possesses relevant information, the information isn’t available from other sources and there is a compelling need for the information.

Kidwell knows his time in jail made a difference. He has two file folders that prove his point. One folder contains a stack of a dozen subpoenas issued against him before he went to jail. The other folder, the one for subpoenas issued after he went to jail, is empty.

“Once you show judges and prosecutors that you believe in something that much, they respect it more,” he said.

Reporters as prosecutors

Circumstances similar to Kidwell’s sent Lisa Abraham to jail. She was a reporter for The Tribune Chronicle, a daily newspaper in Warren, Ohio, when she was jailed for refusing to testify before a grand jury against a county official she had interviewed.

She didn’t think she’d end up in jail.

The county prosecutor wanted her to testify only about information she had printed in the story; he wasn’t asking for unpublished notes. She hoped she could appease the prosecutor by agreeing to sign an affidavit swearing that the story was accurate, but he insisted that she take the stand.

She balked.

“To go to someone and say, ‘Give me your side of the story,’ and then to turn around and say, ‘I’m going to use this to help prosecute you as well,’ that’s not our function,” Abraham said. “Reporters are not police officers. Reporters are not prosecutors. It’s a corruption of, to me, the whole journalistic purpose.

“I’ve had reporters tell me they disagree. It’s disheartening to me. If in fact I had cooperated with (the prosecutor), who’d want to be interviewed by Lisa Abraham again?”

She was placed in an 8-foot-by-8-foot cell with four bunks and a toilet.

“What can I say? It was jail. Three hots and a cot, so to speak,” she said. “Waiting in line with a lot of other towel-wrapped women for a shower. It was dirty, grungy. I had more sleep than I had since I was probably 4 years old.”

She found camaraderie with her fellow inmates. They made her a good-luck bouquet of flowers fashioned from the foil liners of cigarette packs one day when she had to appear in court. Because she was a reporter, Abraham enjoyed a celebrity status among the other inmates, most of whom wanted her to write stories about their cases. She wrote about the inmates, and she also exposed odd prison practices, including the proclivity of male guards to enter the shower room without knocking.

The experience boosted her credibility with sources.

“After I went back to work, so many people would call and say, ‘You need to look into this. I’m calling you because you won’t rat me out,'” she said. “People are out there looking for someone they can trust to help them clean up corruptions in the system, which to me reinforced everything I believed in.”

Learning how to do time

Like Leggett, Rik Scarce wasn’t working as a mainstream reporter when he was subpoenaed to testify in 1992. He was a graduate student at Washington State University researching his doctoral dissertation about radical environmental groups when he was subpoenaed to testify before a federal grand jury against a source accused of freeing coyotes, mink and mice and destroying computers at the university.

Scarce fought the subpoena for a year, claiming a researcher’s privilege against divulging confidential information analogous to the reporter’s privilege.

“I was just deeply concerned that researchers, scholars and reporters would find their job far more difficult to do if I and others began violating the assurances of confidentiality that we have to make to our sources in order to do our work,” he said.

Jailed in May 1993, he wasn’t released until October.

“I was absolutely petrified. I was convinced horrible things would happen to me, that I would be physically assaulted,” Scarce said. But, “at no point did I ever consider cooperating with the government. I had to do this.”

Those 159 days passed slowly because every day Scarce woke expecting to be released. He concentrated on getting home to his wife and stepson. He focused on the fall semester, when he was supposed to teach a class.

By the fourth month, Scarce started listening to his fellow inmates. The key to survival, they told him, was to stop thinking about the outside world. Stop thinking about time.

“You do everything differently,” he said. “You do not focus on the outside world at all. You shut out the distractions. Don’t focus on your wife and son. Don’t think about getting out, about the judge coming to his senses.”

Scarce wrote a letter of encouragement to Leggett, warning her that she would be in jail for a long time.

“I told her what she was doing was a wonderful thing, that she should be firm,” he said.

His advice for other writers is cautionary.

“They have to think very, very hard about promising confidentiality,” Scarce said.

“It cannot be promised lightly. They must be up front with their sources and let them know, ‘Look, if the knock comes, I can’t go the distance.’ That’s the only ethical way to approach the issue of reporter-source confidentiality.” — MD