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Media need not release unpublished photographs, videos of rioters

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News media will not be forced to turn over to prosecutors photographs and video taken during a riot in East…

News media will not be forced to turn over to prosecutors photographs and video taken during a riot in East Lansing, the state Supreme Court ruled Sept. 26. Ingham County prosecutors had sought the photos to identify participants in the bedlam following a college basketball game.

The court ruled the Michigan investigative subpoena statute exempts the media from disclosing the identity of an informant and from releasing unpublished information. The only two exceptions to the statute did not apply, the court ruled.

Riots erupted at Michigan State University in March 1999 after the men’s basketball team lost in the NCAA tournament to Duke University. Local media sent photographers and videographers to the trouble spots to report on the riot. Prosecutors later issued subpoenas on numerous media organizations for the unpublished photos and video.

Initially, the district court approved both general and investigative subpoenas. Local prosecutors apply for investigative subpoenas, which are issued by trial courts to persons who may have knowledge of felony crimes. General subpoenas are issued to persons who have knowledge of issues in a pending criminal or civil case.

The circuit court, the first level of Michigan appeals, later quashed the investigative subpoenas. The state supreme court then ruled that a general subpoena cannot be used as a discovery procedure in a criminal case.

On remand, the district court authorized the prosecutors to issue investigative subpoenas to three newspapers, the Lansing State Journal, The State News and the Detroit Free Press, and seven television stations, WJBK-Southfield, WMMT-Kalamazoo, WLNS-Lansing, WXYZ-Southfield, WJRT-Flint, WZZM-Grand Rapids, and WKBD-Southfield.

On appeal, the circuit court quashed the investigative subpoenas because the investigative subpoena statute exempts news media from disclosing unpublished information. The circuit court ruled the First Amendment did not provide a basis on which to quash the subpoenas.

The state supreme court affirmed the lower rulings, and resolved confusion about applicability of the investigative subpoena statute to journalists. The first sentence of the statute frees reporters from having to disclose the identity of or information gleaned from an informant. The second sentence protects all reporters from investigative subpoenas except for information already disseminated and for reporters who are the subject of the prosecutor’s inquiry.

The prosecutor had pointed out the statute had a broader exemption in the second sentence than the first sentence, and therefore the exemptions of the second sentence only applied to situations protecting informants. The prosecutor argued that reporters are protected from investigative subpoenas to obtain the identity of informants or their statements, unless the information has already been disseminated publicly or the reporter has become the focus of the investigation.

However, the court agreed with the media that although the broader exemption is contained in the second sentence, the court’s construct of the statute was not illogical. Therefore, the exemption applied to all investigative subpoenas, not just those seeking related to confidential informants.

“In other words, when considering a prosecutor’s request to issue an investigative subpoena to a reporter, a court should first apply the second sentence and determine whether either of the two exceptions apply,” the court stated. “If not, the subpoena should not issue. However, if an exception is satisfied the subpoena may issue.”

(In re Investigation of March 1999 Riots; Media Counsel: Charles Barbieri, Foster, Swift, Collins & Smith, Lansing, Mich.) DB

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