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Home Columns JGL Eye Should Journalists Yield Their Notes to their Sources?
Should Journalists Yield Their Notes to their Sources? PDF Print E-mail
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Columns - JGL Eye
Friday, 23 July 2010 16:19

 

JGL Eye

By JOSEPH G. LARIOSA

(Journal Group Link International)

 

C HICAGO (jGLi) – One of the outlets of my news agency, the Journal Group Link International, has asked me to comment on how reporters here in the United States and there in the Philippines would react if a source of a news reporter would subpoena his notes as part of discovery in a court proceedings.

 

Renato “Rambo” Avenido, publisher of the U.S. News Las Vegas website, was referring me to a news item, entitled “Accused Cop Killer Demands Reporter’s Notes.”

The news items concerns the request of a suspect, Christopher Monforth, in the killing of Seattle, Washington, state police officer Tim Brenton in an Oct. 31, 2009, ambush. Monforth wants to have access to the notes taken by Jonathan Martin, a Seattle Times reporter, who was interviewing Monforth in a jailhouse while Monforth was being interviewed by mental experts “to investigate Mr. Monforth’s obvious mental health issues.”

Monforth is charged with aggravated first-degree murder that carries only two sentences under state law -- life in prison without parole, or death.

If Monforth wants to get a lenient sentence -- a life in prison –he needs to establish “mitigating circumstances” that will convince the jury that he does not deserve the death sentence.

Monforth’s lawyer contends because Martin interviewed Monfort at the King County Jail on three occasions in preparation for a news story and “will likely become a state’s witness,” Mr. Monforth is entitled “to have full discovery from any potential witnesses against him.”

 

$64-M “QUEST-TUNE

 

N ow the $64-million dollar question: “Should Mr. Martin surrender his notes or ignore the subpoena”?

Washington is one of the 36 states in the nation that adopted the “shield law.” It is a legislation designed to provide a news reporter with the right to refuse to testify as to information and/or sources of information obtained during the news gathering and dissemination process.

The first line of defense by a journalist in this dilemma is to ignore the subpoena because of “privacy issues” and coupled with Washington’s  “shield law” that protects him from divulging “confidential information or sources” as part of his federal First Amendment Right.

But I think there are other issues that need to be considered.

In this case, there is no Privacy Right involved because this is being waived by the source – Mr. Monforth – himself. The only thing at play here is whether the reporter keeps his notes or tape or video recordings of his every interview or discard them after writing his story.

If the reporter keeps his notes and other records, he is bound to produce them in court. If he tosses his records every time after writing his story then he has no notes to surrender to the court, although it will call into question the reporter’s credibility.

On the question of First Amendment Right, this is a non-issue either as the subpoena is not restricting the freedom of expression of the reporter.

And the third issue to consider is the Monforth’s Sixth Amendment Right for a fair and speedy trial, which will take precedence over Martin’s First Amendment Right.

The last I heard the principle laid down in the Sam Sheppard case has not yet been overturned.

The media that sensationalized the 1954 trial of Dr. Sheppard (accused of murdering his wife), his acquittal, and post-prison years was an endorsement by the Supreme Court that the right of the accused to get a fair hearing takes precedence over the First Amendment Right of sensationalized reporting when it ordered a retrial of the case.

 

The massive coverage appeared to have influenced the decision of the jurors to convict Sheppard.

 

So, I think, Mr. Martin will not go wrong if he yields his notes to the court.

 

IN OTHER CASES

 

It will be a completely different matter if Monforth were asking notes other than his own interview as in the case of the Valerie Plame affair. In this case, the federal prosecutors were demanding the notes and testimonies of reporters to find out who among the officials in the White House blew the cover of Plame as a covert operative of the Central Intelligence Agency.

New York Times reporter Judith Miller spent twelve weeks in jail when she was found in contempt of court for refusing to divulge the identity of her source to a Grand Jury after she was subpoenaed to testify.

Miller was only released from jail after getting an assurance from her source, I. “Scotter” Libby, that he was allowing prosecutors to question her.

Libby, assistant of Vice President Cheney, was later convicted of obstruction of justice, making false statements, and two counts of perjury. He was acquitted on one count of making false statements. He was not charged for revealing Plame's CIA status. His sentence included a $250,000 fine, 30 months in prison and two years of probation.

On July 2, 2007, President George W. Bush commuted Libby's sentence, removing the jail term but leaving in place the fine and probation, calling the sentence "excessive.”

The US Supreme Court, in this case, decided in a five-to-four decision that the press did not have a Constitutional right of protection from revealing confidential information in court. The court acknowledged, however, that the government must "convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest."

In Riley v. City of Chester, the U.S. Third Court of Appeals held that a reporter's right to protect his sources from disclosure could be overcome by a party who, by a preponderance of the evidence, demonstrated that he has made an effort to obtain the information elsewhere, that the only access to the information sought is through the journalist and his or her source, and that the information sought is crucial to the case. # # #

 

Editor’s Note: To contact the author, please e-mail him at:  (lariosa_jos@sbcglobal.net)

 



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Last Updated on Friday, 23 July 2010 16:23
 

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