Prosecutors have dropped their demand to have two news reporters testify in a sexual assault case against Franklin County Sen. Norm McAllister.
As they prepared the case, prosecutors subpoenaed three reporters asking them to provide information that prosecutors think will help their case. The journalists fought the subpoenas, but in two of the three cases, the court ordered the reporters to testify in violation of one of the pillars of journalism ethics.
But on Tuesday afternoon, the prosecutors released Seven Days reporter Mark Davis and Vermont Public Radio reporter Peter Hirschfeld from taking the stand.
The three reporters were represented in court Monday by attorney Bob Hemley.
He says the nature of reporting can make journalists likely targets for subpoenas.
"Reporters get in the situation when, doing their job, they go beyond simply reporting events and do some independent investigation - which is a good thing," Hemley said. "And that's why there is a restriction on the use of reporters as witnesses of convenience so that they don't become easy targets for parties to a case who want to avoid doing their own investigation or who find it easier to use reporters."
The legal restriction around using reporters as witnesses requires two standards to be met, Hemley said.
“They require first that the information that is being sought be material to guilt or innocence, and secondly that there’s no alternative source of the information other than the reporter,” he said. “And in various ways, those principles are applied to various situations in an effort to protect the press.”
Monday, Judge Robert Mello ruled that two of the subpoenaed reporters – Davis of Seven Days andHirschfeld of VPR – met those standards and will have to testify in the McAllister trial. Prosecutors argued that McAllister admitted to Davis that he had sex with one of alleged victims, which McAllister later recanted.
Hemley says the circumstances that led to Davis being subpoenaed are unusual.
"This case is different because McAllister did not follow the advice of his counsel and, in this case, spoke to the press," Hemley said. "That doesn't happen very often."
The information in question is from an interview Davis had with McAllister on McAllister’s property in Highgate.
Prosecutors subpoenaed Hirschfeld to verify the accuracy of a quote McAllister made in a press scrum at the Statehouse. Hirschfeld asked McAllister if he had sex with one of the alleged victims, and approximately a dozen people heard McAllister say "no.”
Hemley argued on behalf of VPR's Hirschfeld that prosecutors could verify that information without relying on the journalist. Prosecutors said they are unable to identify the other witnesses to the comment, despite the fact that WCAX's Kyle Midura and Seven Days Political Editor Paul Heintz are clearly audible on the recording, among others.
Hemley says a previous case in Vermont called Spooner v. the Town of Topsham allows attorneys to choose which witness they wish to have testify when a group of people witness the same thing.
“The court said that the availability in a public setting of other witnesses where a statement is made that is overheard by many witnesses doesn’t attain the same level of protection as in certain other situations," Hemley said. "And the prosecution can choose which of the witnesses it wants to avail itself of.”
Mello ruled that because Hirschfeld is being asked only to verify the authenticity of a recording, the reporter does not have first amendment protections in this case.
Still, Hemley argues there is a chilling effect on journalism when reporters are subpoenaed in trials.
"The concern is that the use of reporters who do investigations in order to get news and insight to the public, will refrain from doing that because they don't want to be witnesses in courtroom proceedings. That's the concern and that's the policy argument that's made on behalf of the press."
In an interview, VPR News Director John Dillon elaborated on this point.
“We don’t like to be put in the situation where we’re an arm of law enforcement, and are investigators for law enforcement," Dillon said.
"And in this case it’s a very limited role for the reporter but it’s still compelling us to testify on something that they could have gotten from multiple other people.”
(Disclosure: Dillon is the author’s direct supervisor at VPR. He did not take part in the editing or publication of this story.)
"We don't like to be put in the situation where we're an arm of law enforcement, and are investigators for law enforcement, and in this case it's a very limited role for the reporter but it's still compelling us to testify on something that they could have gotten from multiple other people." - John Dillon, VPR News Director
Protections for reporters under Vermont law have been clarified and narrowed in recent years, Hemley said, by a couple of key cases, one civil and one criminal.
“The criminal case is the one in which WCAX obtained outtakes of video after University of Vermont students were engaged in a disturbance following the Boston Red Sox winning the penant in the early 2000s," he said.
Hemley said the Vermont Supreme Court required WCAX to produce the video to the prosecutors "because they said that there is a greater – a prevailing interest in obtaining evidence of a crime and if the reporters or the media witness a crime being committed they have to provide that evidence."
The other case is the Spooner v. Topsham case, Hemley said, “where a statement was made at a meeting of a select board that was written down by a reporter. That case had to do with an employment claim in a civil context where someone did not get a particular position and claimed he was discriminated against. Some admissions were made by the town officials, written down by the reporter; the reporter was required to testify even though there were other witnesses available, so the Supreme Court in that case again restricted the application of these principles.”
Part of the reason journalists are sometimes uncomfortable testifying in court is that they may be asked to betray promises of confidentiality, such as protecting the identity of a source or maintaining a promise to keep a fact or conversation "off the record."
One of the four major tenets of the Society of Professional Journalists' code of ethics is that journalists should "Act Independently," whether that be from government prosecutors or private companies.
Some reporters have gone to jail in order to protect their professional integrity. In 2005, New York Times reporter Judith Miller was jailed for refusing to name a source to whom she had promised anonymity.
Citing advice from Hemley, neither Davis nor Seven Days publisher and co-editor Paula Routly would comment on whether Davis plans to testify or provide materials as part of the McAllister case.
VPR News Director John Dillon said Hirschfeld will testify on the narrow question of the authenticity of a VTDigger recording of the statehouse press scrum which was posted to VTDigger’s website. It’s not clear why prosecutors chose to subpoena Hirschfeld, as opposed to the VTDigger reporter who recorded the exchange, the other reporters audible on the recording or other bystanders.
Still, Dillon said verifying the authenticity of a recording isn't the same as disclosing privileged information that the reporter is professionally obligated to protect.
“We didn’t feel like there was a principle of a reporter having to give up a source or notes or other privileged information that was at stake here, and we’re reluctantly allowing him to testify,” Dillon said.
Dillon said Hirschfeld’s testimony is expected to be limited to simply verifying the authenticity of the VTDigger recording.
“If the questions go any further than that, we’ll totally object,” Dillon said.
He added that a key consideration for VPR and Hirschfeld was whether testimony by Hirschfeld would cause the “chilling effect” Hemley mentioned.
“A big concern was whether this would have a chilling effect on our work, and we decided it wouldn’t,” Dillon said.
Correction 5:18 p.m. 6/14/2016 VPR News Director John Dillon's comments have been updated to correct a misprint and to correct Seven Days publisher and co-editor Paula Routly's title.
Update 4:15 p.m. 6/15/16 The post was updated to include the news that prosecutors released the reporters from testifying.
