Reporters fight subpoenas for testimony, notes

From the Spring 2002 issue of The News Media & The Law, page 43.

Journalists across the country fought subpoenas from parties in civil cases, government prosecutors and criminal defendants, some with more success than others.

The subpoenas sought the reporters’ testimony or unpublished notes and sources. The journalists argued that the First Amendment or their state’s shield law protected the information from forced disclosure, but judges did not always agree.

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Federal magistrate in Virginia quashes subpoena against reporter

A reporter for a Mexican newspaper does not have to testify or produce all the documents she used in writing a story about a draft government report that linked a Texas bank and its owners to drug trafficking, a federal magistrate judge ruled March 19.

Laredo National Bank’s subpoena seeking records and testimony from El Financiero reporter Dolia Estevez “appears to be nothing more than a fishing expedition,” U.S. Magistrate Judge Welton Curtis Sewell ruled in Alexandria, Va.

The bank did not show that the information it sought from Estevez was relevant, that it could not obtain the information elsewhere or that it had a compelling need for the information, Sewell ruled.

Estevez, who lives in Virginia and is the Washington, D.C., correspondent for El Financiero, wrote in May 1999 about a federal drug investigation called Operation White Tiger and a draft government report that linked the bank and its Mexican owners to drug trafficking.

The bank and its officials argued they needed information from Estevez for a lawsuit they filed in federal district court in Ohio against Donald Schulz, chairman of the political science department at Cleveland State University. The bank is accusing Schulz of infiltrating Operation White Tiger, planting lies in the government’s draft report and distributing the tainted report to journalists, including Estevez. The lawsuit says government officials later disavowed the report.

The bank wanted 23 items of information from Estevez, including all documents, correspondence and e-mails she exchanged with her sources. The bank also wanted to know whether she and other reporters who wrote about the drug investigation provided documents to each other while they were writing their stories.

The bank has appealed the quashing of the subpoena to U.S. District Judge Gerald Bruce Lee in Alexandria, Va. In its appeal, the bank narrowed its subpoena request to one item — any copies of the White Tiger executive summary.

The bank said in court papers that it could renew its request for Estevez’s communications with sources and reporters if it adds Estevez as a defendant. The bank has accused Estevez of “deliberately and tortiously traffick(ing) in an unauthorized, unvetted, draft executive summary of a government report overflowing with rumor, innuendo and outright falsehoods.”

The bank also has subpoenaed other journalists: Jamie Dettmer, senior editor of Insight, the weekly magazine of The Washington Times; Tracy Eaton of The Dallas Morning News; and Christopher Whalen, an investment banker and freelance writer. Their objections to the subpoenas have not been resolved. (Laredo National Bancshares, Inc. v. Schulz)

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Nevada reporter allowed to cover trial

A reporter for a small Nevada newspaper won his battle to cover a criminal trial when a judge ruled that the reporter did not have to testify in the case.

Criminal defendants subpoenaed Doug McMurdo, a reporter for the Pahrump Valley Times, to testify for them. The defendants — former Nye County Public Administrator Robert Dyer and his chief deputy and wife, Jennette — were charged with theft and forgery in handling the estates of people who died without a will.

The Dyers argued that McMurdo’s testimony would bolster their claim that the charges against them were the product of a conspiracy of government officials and the press who wanted them out of office, McMurdo said.

McMurdo had written extensively about the case. He believes the real motive for the subpoena was to prevent him from covering the trial. Generally, witnesses cannot be present during other witnesses’ testimony.

Clark County District Judge Joseph Pavlikowski quashed the subpoena in December. McMurdo was allowed to cover the trial, which ended in a mistrial on Dec. 27. Before the second trial could begin in April, Jennette Dyer had fled the jurisdiction and her husband had pleaded guilty, so McMurdo was not needed as a witness.

The Times, which publishes twice weekly, has three news reporters and a sports writer. Forbidding McMurdo from covering the trial would create a hardship for the newsroom, he said.

“My managing editor would have covered the case, but it would have put a greater burden on all of us,” he said.(Nevada v. Dyer)

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California judge orders reporter to testify as witness in Georgia

A former writer for GQ magazine was ordered to appear in Georgia on Feb. 19 and testify as a material witness before a grand jury investigating the murder of a Georgia sheriff-elect.

Mary Fischer did not testify before the grand jury but is still considered a potential witness in the murder and racketeering trial of former DeKalb County Sheriff Sidney Dorsey.

Attorneys involved in the case could not say why Fischer did not testify. A judge has issued a gag order preventing attorneys and most witnesses from talking about the case and has fined the district attorney for violating the order.

Prosecutors in DeKalb County, Ga., believe Fischer has information that would link Dorsey to the killing of Sheriff-elect Derwin Brown, who defeated Dorsey in an election in August 2000. Brown was shot in his driveway four months later.

Prosecutors told Los Angeles County Superior Court Judge David Wesley that Fischer stepped out of her newsgathering role when she attended a dinner among suspects in the killing and passed a message from one suspect to another. She was preparing a story about the murder when she attended the dinner in March 2001 in Atlanta.

Former Deputy Sheriff Patrick Cuffy testified in a separate court appearance in Georgia that Fischer whispered in his ear during the dinner that “Sid is up in my room, and he wants to talk to you. Act casual,” Jeanne Canavan, senior assistant district attorney for DeKalb County, told the Reporters Committee for Freedom of the Press before the gag order was imposed.

Wesley agreed that Fischer, a California resident, was a material witness and ruled on Feb. 5 that the journalist must appear before the Georgia grand jury.

Prosecutors said they need Fischer’s testimony to corroborate Cuffy’s statement and to link Dorsey to the other suspects.

The grand jury indicted Dorsey in late February on charges of murder and racketeering. He has pleaded not guilty, and his trial is scheduled for June. Two men accused of participating in the killing were acquitted in March.

DeKalb County Superior Court Judge Cynthia J. Becker issued a gag order in March preventing attorneys, prosecutors, potential witnesses and others from discussing the Dorsey case outside of court. She released family members from the order after the Atlanta Journal-Constitution, WSB-TV and WSB Radio asked her to remove their gags all together. (In the matter of Mary Fischer)

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Judge orders two Arkansas reporters to testify

A judge ordered two Arkansas newspaper reporters to testify in the criminal trial of a former county prosecutor who claims his political enemies conspired to use the media against him.

U.S. District Judge James Moody in Little Rock ruled on March 4 that Sandy Davis, a reporter for the Arkansas Democrat-Gazette, would have to appear in court and testify or “suffer the consequences.” Moody also ordered Angelia Roberts, a reporter for the Batesville Daily Guard, to testify in the trial of T.J. Hively.

Both reporters had written stories about Hively’s activities while he was in office. Moody told the reporters that their testimony was relevant to Hively’s defense and that they would not be asked to reveal confidential sources.

Hively, who is accused of trying to defraud the state by overbilling for services his office did not perform, claims his political opponents used the media to wage a smear campaign against him, resulting in the charges against him.

Davis took the stand on March 7 and answered questions that Hively had presented to the judge, said Philip Anderson, her attorney. Hively’s attorney asked whether Davis was present at specific places on certain days and if other news media representatives were with her.

Roberts said she was never called to the stand. (United States v. Hively)

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Wisconsin reporters not required to testify in open-records suit

Statehouse reporters for three Wisconsin newspapers avoided having to testify about why they wanted access to legislative records.

Dane County Circuit Judge Sarah O’Brien ruled on Feb. 18 that the reporters — David Callender of The Capital Times, Phil Brinkman of the Wisconsin State Journal and Dennis Chaptman of the Milwaukee Journal Sentinel — did not have to comply with a subpoena.

The reporters sued when state legislative clerks would not release the names of legislators and state employees who are part of an investigation into illegal on-the-job political campaigning. Taxpayers are paying the legal expenses of those who are part of the investigation.

In response to the reporters’ requests, Senate Chief Clerk Donald Schneider and Assembly Chief Clerk John Scocos released only redacted copies of the legal bills, showing the amount paid but blacking out the names, said Robert Dreps, the reporters’ attorney.

The reporters sued to get the names. The clerks subpoenaed the reporters to testify at a deposition and to produce documents indicating what use the reporters would make of the names.

The Milwaukee Journal Sentinel reported that O’Brien said it was obvious what the journalists would do with the names: “They will be published.”

In January, the attorney for Scocos tried to get the judge to forbid the newspapers from writing editorials about the case. The attorney later withdrew the request, and the state Legislature voted not to pay for any legal fees the clerk incurred for the gag-order request, Dreps said. (Capital Times Co. v. Schneider) — MD