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Judge Upholds Reporters’ Shield

by Paul Bass | Dec 10, 2012 5:59 pm

(3) Comments | Commenting has been closed | E-mail the Author

Posted to: Legal Writes, Media

A Superior Court judge Monday quashed an attempt to compel a reporter to take the stand and produce notes about a criminal case.

Judge Brian T. Fischer took the action in Courtroom 5A on Church Street just before lunch recess in the trial of a New Haven man who faces 21 charges, including six felony charges, in connection with a July 2011 incident. He allegedly led officers on a high-speed car chase, then a foot chase; threw an illegally possessed pistol into a Dumpster; and failed to wear a seat belt, among other offenses. The same man has seven charges pending in three other separate cases, including alleged assault and narcotics charges. (Read about the 2011 incident here.)

Paul McCarty, the defendant’s lawyer, subpoenaed an Independent reporter (this reporter, aka “me”) who had written about the 2011 incident to appear in court Monday morning “to testify what you know in the case” and to produce “all notes regarding an interview” with one of the police officers involved.

The Independent’s attorney, Alan Neigher (pictured), showed up in court to ask the judge to quash the motion. He noted that the state has a “shield” law to protect attorneys from routinely hauling reporters into court to discuss their interviews. (Read that law here.)

In a motion submitted to the court, and in oral argument before Fischer, Neigher pointed out that an attorney must first conduct “prior negotiations” with members of the media before issuing a subpoena. Attorney McCarty never did that. With no notice, he sent a “process server” to the reporter’s door over the weekend with the order to appear in court Monday.

Even if McCarty had done that, he still had no grounds to issue the subpoena under the state law, Neigher argued. The law for the most part bans subpoenas to “compel the news media to testify concerning, or to produce or otherwise disclose, any information obtained or received, whether or not in confidence, by the news media in its capacity in gathering, receiving or processing information for potential communication to the public.” Narrow exceptions still require the attorney to make the case that the information he or she would glean would prove “critical or necessary to the investigation or prosecution of a crime or to a defense thereto.” Even then, the attorney must also prove that the crucial information can’t be obtained elsewhere and that the value of such information “overrides” the “public interest” in a freely functioning press.

In the end, McCarty didn’t challenge the judge when he agreed with Neigher and quashed the motion. McCarty hadn’t bothered bringing up news coverage of the crime in his examination of the police officer, anyway.

Neigher participated in discussions that led to the creation of the state shield law in 2006. He said he knows of no cases where reporters have been compelled to testify or produce notes since the law’s passage.

The issue gets to the heart of a free press’s ability to do its job, Neigher said after his court appearance.

“The media can’t do its job if it’s constantly under siege by the government or defense lawyers or private persons in litigation,” he argued. “The news media, whether it’s the large super-media conglomerates or small newspapers or radio stations, cannot be spending their time responding to subpoenas. They weren’t intended to be the information-gatherer for people in litigation. They weren’t supposed to be the information-gatherer for big companies whose practices were called into question.”

A leading media attorney, William S. Fish, Jr. of Hinckley Allen & Snyder LLP , said Monday that the shield law has come in handy.

Defense attorneys often don’t know of the law when they discuss subpoenaing a reporter, said Fish, whose clients include the Hartford Courant. Most of the time the other side has “backed off” when he informs the lawyer of the 2006 law, he said. In a few cases attorneys have proceeded with subpoenas. Never have they succeeded in getting a reporter to have to testify in court or to produce notes, Fish said. In one case a reporter did have to sit for a deposition on what he saw and heard at a public meeting.

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Comments

posted by: Brutus2011 on December 10, 2012  7:24pm

Thank you for this article and for providing the link to the relevant statute.

I learned something today.

posted by: HhE on December 10, 2012  8:04pm

Good.  Pity we do not have “English Rule” as a remedy for lawyers needlessly subpoenaing people.

posted by: Edward_H on December 10, 2012  8:42pm

What a waste of time. I wonder if the client is being charged for the time spent on this?

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