NEWS MEDIA UPDATE · LOUISIANA · Confidentiality/Privilege · May 31, 2006
Newspaper reporter to testify at capital murder trial
May 31, 2006 · A former Baton Rouge Advocate reporter who conducted a jailhouse interview with a suspected serial killer in 2004 will not appeal a court order compelling him to testify at the upcoming capital murder trial, newspaper representatives said Wednesday.
Louisiana state District Judge Bonnie Jackson of East Baton Rouge Parish granted the prosecution’s motion compelling Josh Noel, now a reporter for the Chicago Tribune, to testify at the trial of Sean Vincent Gillis. He was indicted in the 2004 murder of Donna Bennett Johnston and allegedly confessed to as many as seven other murders, the Advocate reported. Noel’s testimony has been called for only in Gillis’ upcoming trial for Johnston’s murder, in which Louisiana will seek the death penalty.
East Baton Rouge Assistant District Attorney Premila Burns said her motion to compel the testimony was necessary because of shortcomings with other evidence allegedly demonstrating Gillis’ guilt, including a videotaped confession and letters sent to another inmate who died before the correspondence implicating Gillis could be introduced as evidence.
Linda Lightfoot, executive editor of The Advocate, said Judge Jackson limited Noel’s testimony exclusively to statements that appeared in the July 2004 article he wrote after a jailhouse interview with Gillis during which he took no notes.
“Everything that he learned in the course of the interview he put into the article,” Lightfoot said. “I was pleased that the judge narrowed her ruling to the four corners of the article and quite frankly, when you have the case of an accused mass murderer and when the district attorney has indicated there may be problems with the state’s confession, it did not appear to me to be the ideal case to take up on appeal.”
Under Louisiana law, reporters have a conditional privilege from disclosing the identity of any information or source, subject to revocation for good cause. The privilege applies only to unpublished information. Even if information from the article is relevant and necessary to the case, Louisiana law provides the option of the reporter or news organization offering an affidavit in place of live testimony.
The prosecution argued in its motion to compel Noel’s testimony that an affidavit would not be an option in this case. Noel’s live testimony would be more compelling and effective than an affidavit handed to the jury, Burns said. The importance of the case to the public and the absence of an alternative source of gaining the relevant information make Noel’s testimony crucial, he said. “I think he [Noel] becomes a very powerful witness,” Burns said.
Defense attorneys also would not consent to the use of an affidavit, said Edwin Fleshman, attorney for The Advocate, noting they would not waive the defendant’s right to confront a witness in court. Kerry Cuccia, Gillis’ attorney, did not immediately return a call seeking comment.
The prosecution also argued in the motion, first filed in January, that if a conditional privilege were found to exist in this case, it should be overcome because under the law, the prosecution provided clear and convincing evidence that the testimony would be important to the case and could not be obtained from any other source.
Fleshman said if the prosecution had asked to review Noel’s notes or any recordings — although none existed in this case — the issue would have been very different. Louisiana’s shield law is particularly strong because it protects unpublished material even it did not come from a confidential source.
“There has to be a showing by clear and convincing evidence that the information is highly material and relevant to the requesting party’s case and that it’s critical to a defense or claim and it’s not available from any alternative source,” Fleshman said.
Lightfoot noted the unique circumstances of the case and that journalists and newspapers run the risk of becoming directly involved in legal proceedings when jailhouse interviews are conducted.
(Louisiana v. Gillis; Media counsel: Edwin Fleshman, Taylor, Porter, Brooks, & Phillips, LLP, East Baton Rouge) — PS