Separation orders can keep reporters from covering trials

From the Summer 2000 issue of The News Media & The Law, page 16.

Reporters covering trials often obtain information through research and interviews that then becomes part of the trial, such as when a reporter’s jailhouse interview results in an admission that hadn’t been made to prosecutors. These situations often lead to subpoenas for the journalist’s notes, testimony or other information. And while fighting a subpoena is troublesome enough, there is often another hurdle placed in front of the reporter: because she is now on the witness list, she may be subject to a separation order, which bars witnesses from observing the trial.

Separation orders keep the reporters who know the details of a trial and who have dedicated a great deal of time to a story from reporting on it. But recent examples might provide help in understanding how they work, and how they might be opposed and overcome.

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Mark Arax, a reporter for the Los Angeles Times, was barred earlier this year from covering a trial at which he was subpoenaed to testify as a witness.

On April 18, the defense, representing eight guards who were accused of forcing prisoners at Corcoran state prison in California to take part in gladiator-style matches, subpoenaed Arax to testify. Arax was subpoenaed to “authenticate” articles he had written about the prison “sport.” U.S. District Judge Anthony Ishii barred Arax from covering the trial after Arax’s name had been added to the defense’s witness list.

Arax was the Times‘ sole reporter for the Fresno area. In challenging the court’s separation of witnesses order, Arax’s attorney, Bruce Owdom, argued that “Mark was the only reporter for the Los Angeles Times. If he was excluded, the Times would have no coverage” of the trial.

A separation of witnesses order is “one of the first things done in a trial,” said Jan Carroll, who represented Jennifer Labalme, a reporter for The Indianapolis Star and The Indianapolis News.

In late 1996, Labalme, who had been covering a criminal case in which two parents were charged with neglect arising from their son’s death from pneumococcal meningitis, was subpoenaed to testify by prosecutors. Over several months, Labalme had written numerous stories containing direct quotations from the defendants.

Before the trial in February 1997, the judge entered separation of witness orders. Deputy Prosecutor Cynthia Sauer, who had agreed before the trial that she would not seek to enforce the order, expressed her “displeasure” in court over Labalme’s news reporting of the trial, and asked the judge to enforce the order. Carroll moved to have both Labalme’s subpoena and the separation order quashed. She described the results as an “abject failure.”

Carroll petitioned the Indiana Supreme Court for a writ of prohibition to quash the trial court’s orders because, she argued, “the trial court was overreaching its jurisdiction.”

The state Supreme Court denied Carroll’s motion, primarily for procedural reasons and because the order had not been initially contested after the prosecutor agreed it would not be enforced. (See NM&L, Spring 1997)

But some justices noted in a separate opinion that “the trial court should consider the propriety of a separation of witnesses order” before enforcing it against a reporter. The justices also said the order was probably not appropriate, but the appeal of the appropriateness was not timely.

Labalme did not win at the high court, but the court did establish the proposition that such order must be closely examined.

“I would insist that, as required by the Supreme Court, there be a hearing” and that the party making the motion to bar the reporter from the courtroom “present the reasons that the reporter should be excluded,” said Owdom, Arax’s attorney. “I would like to look at both California and federal court rules. At least in federal court the court has broad discretionary powers” about whether to allow a reporter to stay in or be removed from the courtroom, Owdom said.

A separation of witnesses order is used in court proceedings to keep witnesses out of the courtroom. In theory, it prevents witnesses from aligning their testimony with that of those who have testified before them. It prevents witnesses from “baking” their stories, Carroll said.

“It really doesn’t apply to reporters,” Carroll continued. “A reporter is called to testify on what they wrote.” Because reporters are testifying about their published work, they do not have the same opportunity to manipulate their testimony that a witness whose testimony has not been put into print has. “The goal (preventing that manipulation) is not even an issue when the reporter is a witness,” Carroll said.

Instead, a separation of witnesses order, when it is applied to a reporter, “is a court-ordered prior restraint,” Carroll explained. “When a separation of witnesses order is entered, it prevents the witness from having access to the courtroom.” When the witness without access to the courtroom is a reporter, the reporter has been prevented from covering and reporting the proceedings within the courtroom.

In issuing a separation of witnesses order, a judge will often have to balance a reporter’s rights under the First Amendment against a criminal defendant’s Sixth Amendment right to a fair trial. And while such incidents seem to be rare, when they happen, reporters can often convince judges to at least limit their scope.

In one case that did not reach the appellate stage, Burlington, Vt., freelance reporter Peter Freyne was initially ordered out of a federal criminal trial in 1997 after he appeared on the defendant’s witness list. At a break in the trial, the judge decided that Freyne would only be excluded from the courtroom during the testimony of the federal agent whom he had quoted in articles, because those conversations were the subject of Freyne’s testimony. While Freyne’s First Amendment arguments might have helped, it was undoubtedly the agreement of the prosecutor and defense counsel that Freyne should be allowed to cover the trial that convinced the judge to limit the order.

In Labalme’s case, the trial court found that the defendant’s rights outweighed the reporter’s rights. While Labalme testified, she was called to testify the day after the Supreme Court denied her appeal, and was then able to cover the rest of the trial.

In Arax’s case, Judge Ishii sided with Arax who, in the end, was not called to testify.