The right to cross-examine vs. the right to gather news

From the Fall 2010 issue of The News Media & The Law, page 16.

A case involving the U.S. government’s use of a The Wall Street Journal reporter’s testimony in its prosecution of a criminal defendant is pending before a federal appeals court, where a ruling in favor of the defense could jeopardize reporters’ ability to settle subpoena battles by agreeing to provide limited information.

The U.S. Court of Appeals in New York (2nd Cir.) heard oral arguments in September in United States v. Treacy, the appeal of a fraud conviction against former Monster Worldwide Inc. executive James Treacy.

Treacy’s attorneys argued that their client was deprived of his Sixth Amendment right to confront witnesses against him when the trial court limited the testimony and cross-examination of Charles Forelle, who invoked his First Amendment-based reporter’s privilege not to testify.

“The journalist’s privilege . . . does not trump a criminal defendant’s right to confront and cross-examine a government witness,” Treacy’s attorneys wrote in their brief.

Forelle is a member of the Journal’s investigative team that in 2006 published a Pulitzer Prize-winning series on corporate backdating of stock options at many companies, including Monster, one of the world’s largest online recruiting companies. During the investigation, Forelle interviewed Treacy, the former president and chief operating officer at Monster, and quoted him as denying any involvement in the backdating of employee stock options.

When the government called Forelle to testify in its conspiracy and securities fraud case against Treacy, Forelle refused to do so, arguing that his testimony was not essential to the case, as required by the Second Circuit’s prior rulings governing the reporter’s privilege.

The government disagreed, insisting that comments Treacy made to Forelle during the interview could prove that he had lied to government investigators about his role in backdating of employee stock options — the focus of the criminal charges against him.

The court, in an attempt to balance Treacy’s Sixth Amendment right to cross-examine witnesses against him with Forelle’s First Amendment right to protect his newsgathering materials, reached a compromise in which Forelle was forced to testify despite his claimed privilege. But attorneys for each side were only allowed to question him about three statements attributed to Treacy in the Journal story.

Slade Metcalf, a media attorney who represents the Journal’s publisher, Dow Jones & Co., which submitted a friend-of-the-court brief in Treacy’s appeal, explained that it is not unusual for reporters to be subpoenaed to confirm the accuracy of published information. In fact, some state shield laws do not consider this mere authentication of published material “privileged,” so as to shield its author from testifying. Thus, to avoid legal battles, reporters may opt to comply with subpoenas merely seeking verification of published information.

However, in this case, the trial judge recognized that Sixth Amendment rights are triggered when a government witness testifies.

In trying to preserve Treacy’s confrontation rights, as well as Forelle’s privilege to protect unpublished information, he allowed the government to ask Forelle about the statements attributed to Treacy, as well as the questions Forelle asked to elicit these statements.

The judge then allowed Treacy’s attorneys to cross-examine Forelle about questions he asked Treacy immediately preceding the ones that elicited the published statements, a compromise that required the reporter to do more than merely confirm the accuracy of published statements.

“Although this inquiry into the ‘context’ of the reported materials called for testimony regarding the unreported aspects of Forelle’s interview with Treacy, the court said that Forelle was being called ‘solely to confirm statements that were made in a published newspaper article,’” according to the Dow Jones brief, which argued that the subpoena was “nothing more than an attempt at unnecessary bolstering of a fact that had already been established” and, thus, should have been quashed because of its inability to produce material and relevant testimony.

This situation — where the government is seeking to compel a reporter to testify at a criminal trial where the defendant’s right of cross-examination may elicit information that is protected by the reporter’s privilege — is an uncommon one that, according to criminal defense lawyers, has established a “dangerous precedent.”

Although the trial judge ordered Forelle to testify beyond mere authentication of published information, Treacy’s lawyers argued that because they were limited to questioning Forelle about only the statements made in the Journal story, they were prevented from discussing outside communication between Forelle and Treacy that could have proven their case that Treacy was referring in the story only to his own options, rather than to Monster employee options.

“The court’s ‘tight limit’ on the scope of the reporter’s testimony . . . resulted in only one side of the conversation being admitted: the government got to admit the reported statements, and argue to the jury they were lies, while the defense was prevented from questioning the reporter about the context or details of the interview, which bore critically on whether the statements were true or false,” according to the defense brief.

Treacy’s lawyers also argued they were “further prevented from testing the credibility of the reporter’s answers,” a gross violation of the defendant’s right to confrontation.

The national and New York state associations of criminal defense lawyers also weighed in, filing a friend-of-the-court brief on behalf of Treacy, arguing that a criminal defendant has the right to conduct a “probing and rigorous adversarial cross-examination” of the witnesses against him, a procedure Treacy was denied.

The defense groups’ interest “in this case stems from the dangerous precedent set by the District Court . . . [Its] position that it can dictate a handful of questions that defense counsel may ask and preclude any follow-up questions to challenge testimony that damages the defense would, if accepted by this Court, move dangerously in the direction of converting our adversarial system into an inquisitorial one, thereby contradicting the plain intent of the Constitution’s Framers,” their brief argued.

The government prosecutors who called Treacy argued that the trial court was completely justified in balancing rights under the First Amendment against Treacy’s right to confrontation, and the resulting compromise did not violate the defendant’s Sixth Amendment rights. They also noted that the appellate court has a long history of defending the reporter’s privilege.

However, the appellate judges who heard oral arguments in the case were more concerned about the inadequacy of the cross-examination than with the rights of the press, David Glovin, a reporter who has been covering the case for Bloomberg News, said shortly after the arguments. One judge asked whether Forelle was “on some sort of pedestal,” while another noted that the cross-examination “was so limiting,” Glovin said.

Metcalf also expressed concern about the standard that the trial court established in this case, noting that, “if the journalist did confirm the accuracy, the defense counsel would have a right to cross-examine, which could invade the journalist’s non-public or confidential information,” he said.

In its brief, Dow Jones urged the court to adopt a heightened standard that would require a reporter’s testimony to be “highly material and relevant,” “necessary or critical to the government’s case,” and “not available from other non-media sources” in order for a court to override the reporter’s privilege.

“This standard will ensure that the [trial] court adequately scrutinizes the government’s claimed need for the information before subjecting the journalist to the defendant’s arguments over the breadth of its required cross-examination,” the brief stated.