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Texas judge upholds shield law in criminal case

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  1. Protecting Sources and Materials
A state judge in Texas earlier this week quashed a subpoena ordering a journalist to testify in a murder trial,…

A state judge in Texas earlier this week quashed a subpoena ordering a journalist to testify in a murder trial, in a rare test of the reporter's privilege in criminal courts since Texas enacted its Free Flow of Information Act in 2009.

Defense attorneys argued that, as shown by her articles, Donna Fielder, a staff writer for the Denton Record-Chronicle, was privy to essential information that would refute investigators’ testimonies concerning the defendant.

But District Judge Bruce McFarling said that Fielder was protected from testifying under the state shield law. The law says that a party trying to compel a journalist to testify must first exhaust all efforts to find the information elsewhere, show that the information is material and relevant to the case, and show that the information is essential to the claim.

Laura Prather, a partner in the law firm Sedgwick, Detert, Moran & Arnold and president of the Freedom of Information Foundation of Texas, called the decision “a positive reinforcement of the law.”

“Every time a judge takes the time to apply the test that is contained within the privilege, that’s beneficial to everyone,” she said. “The balancing test is set forth very clearly, and in this particular instance, the criminal defense was not able to meet the burden that would require a reporter to take the stand.”

In addition to the shield law, Texas state laws say that reporters do not need to be put on the witness stand to attest to their stories because their published works are self-authenticating.

Fielder wrote a series of articles on the investigation of the 2004 disappearance and presumed murder of Kathy Stobaugh. Police charged the victim’s estranged husband Charles Stobaugh with murder, but never recovered a body.

Attorneys for Stobaugh said that in at least one of Fielder's stories, she quoted a former investigator with the Denton County Sheriff’s Office as saying that without a body, the state didn’t have a case. Their efforts to subpoena the former investigator were unsuccessful and they looked to Fielder to testify.

The judge heard arguments about Fielder’s testimony on Tuesday. Stobaugh’s attorneys argued that their client’s right to a fair trial under the Sixth Amendment outweighed the claims of journalistic privilege. They also urged the judge to bar Fielder from the courtroom during the trial under a "sworn witness" rule.

McFarling ruled Wednesday afternoon that Fielder could not be compelled to serve as a witness and should not be barred from the court because the subpoena was too broad and did not meet statutory requirements, including having the signature of District Attorney Paul Johnson. Defense attorneys said Johnson would not sign the subpoena.