VIRGINIA: lN THE IRCTUIT FOR THE CITY OF PORTS COM Docket No. CR 1 7000428 MARK. M. Defendant. In Re: Subpoena Issued to Scott [Mu/gnarl)! MEMORANDUM IN SUPPORT OF MOTION TO SUBPOENA Preliminary Statement" The trial subpoena issued to Mr. Daugherty in this case raises the serious First Amendment concerns. The issue is whether any reporter who interviews a criminal defendant and publishes that defendant?s protestations ot?innoeenee loses the ability to cover the criminal trial when the reporter has no inlbrination that would indicate that the defendant is guilty. The Virginian-Pilot" and Mr. Daugherty respectfully assert that a prosecutor must have some factual basis to subpoena a reporter for testimony and there has to he some reasonable expectancy that the reporter would he called as a witness. It is critically important to the press that its reporters have the factual background and expertise to provide the most accurate coverage possible. (Reece Af?davit 3). In the vast majority ol?eases, this laudable goal cannot be achieved. There are simply not enough resources to allow the type oli?in?depth investigation that would be ideal. In this case involving as it does the prosecution ofa public of?cial for 20 felonies where the public of?cial vigorously protests his innocence and where allegations ofa politically motivated prosecution have been made: Mr. Daugherty has fully investigated and reported on the allegations. Mr. [knigherty has written at least l5 stories on these allegations. (Daugherty l? I 534679.! Affidavit 11 3). li?Mr. Dangherty?s subpoena is not quashed, he will be excluded from the courtroom and will not be permitted to even be advised of what is happening. The newspaper wilt lose virtually all its institutional knowledge concerning one ot? the most important criminal cases to he tried in the Portsmouth this year. (Reece Affidavit 11"] 2 and 3), ler. Whitaker is guilty; he should be convicted and the public should know the reasons for the conviction. On the other hand, it?the indictments are groundless and were motivated by political considerations, the public is also entitled to the full and complete details. As Mr. Daugherty?s Affidavit establishes, Mr. Whitaker has provided him no interimttion of any kind that would suggest that he is in any way guilty of any criminal offense. (Daugherty Affidavit ll 6). On the contrary, Mi?. Whitaker has vigorously asserted his innocence, he has claimed that the prosecution is groundless and politically motivated, and he has stated that he expects to be completely vindicated in the trial. He has compared Portsmouth Attorney Stephanie Morales to Pontius Pilate and the sheri ft" to Herod. (Exhibit 1 to Daugherty Af?davit). The newspaper and Mr. Daugherty recognize the discretion possessed by a prosecutor in selecting witnesses, but the notion that the prosecutor is going to call a reporter to testify that Mr. Whitaker told the reporter he was innocent and that the charges were politically motivated is dittieult to accept, it would be extraordinarily rare for a prosecutor to call a witness to establish that a defendant vigorousty protested his innocence. A prosecutor opening the door to a defendant?s statements concerning, the inappropriateness of his and the investigator?s conduct is hard to accept. The facts raise substantial questions concerning the propriety ot?this subpoena. is.) l- i Argument 1. A SUBPOISNA SHOULD NOT BE USliil.) TO NEWS COV IERAGE The idea that a prosecutor intends to call a news reporter to the stand in a criminal case to open the door to a discussion ofan interview where the defendant maintained his innocence, said nothing that indicated in any way that he was guilty, stated the prosecution was politically int'itivatech and stated that he had in no way executed any document that was the basis oft'he ciaini raise-s troubling issues. Ii?the prosecutor asks about the interview, he is opening the door to the full details ofthe interview including the vigorous, repeated; and force-?ll z-tssertions hy the defendant that he was not guilty and was a victim of an unfair politically motivated prosecution. Subpoenas to reporters have been quashed regularly in situations where the reporter possesses marginally relevant information. The notion that a reporter can he subpoenaed when he possesses nothing that would appear in any way to he helpful to the prosecution or unavailable from another source raises serious concern. Mr. Daugherty and The Virginiand?ilot ask the Court. to determine that there is a basis for the issuance ofthe subpoena which means, at the very least, that there is some circumstance that might arise where the reporter would be called as a witness for the prosecution and asked about the interview. The notion that a prosecutor would call a reporter to the witness stand to open the. door to 25 minutes oi"crossnexanimation relating to the vigorous repeated and consistent protestations ofinnocence by a defendant raises questions ot?t'he most seritnls nature. ll. A RI-EPORTER SH OULD NOT BE EXCLUDED FROM COVERING A TRIAL SIMPLY ii ABOti'l? TH 13 SAYING it 1-3 WAS recognized that reporters? newsgalhering activities qualify for First Amendment protection. Justice Powell said: newsman is called upon to give information bearing only a remote and tenuous relationship to the subject efthe investigation, or ifhe has some other reason to believe that his testimony implicates confidential source relationship without a legitimate need oflaw enforcement, he will have access to the court on a motion to quash . lei: at 710. The. Court stressed that ?without some protection for seeking out the news, freedom particular circumstances presented, a reporter who had actually witnessed a crime could be compelled to testify hefore a grand jury, the Court carefully limited the scope ofits holding. in his concurrence, Justice Powell, the filth member oftlte iriajority, stated that government authorities are not free to annex the news media as an investigative arm of The asserted claim to privilege should hejudgcci on its facts by the striking, ofa proper balance between freedom ofthe press anti the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance ofthesc vital constitutional and societal interests on a case~by?case basis accords with the tried and traditional way ofacl?judicating such questions. 151; at 710. Courts have subsequently interpreted as granting a quali?ed First Amendment privilege for reporters that can be overcome only by meeting a three?part test. Specifically, a reporter cannot be compelled to testify or produce information unless the party requesting the subpoena first proves each ofthe lollowing: the. relevance and materiality ol?tlie information in C]t.lCSliOll; (2) the absence of alternative sources for the information; and (3) the existence ofa partieulariaecl state interest in the disclosure ofinformation sufficiently compelling to override the fundamental constitutional right ofa free press. l- Ref, v. Nat?l Broad. Inc, 780 F.2d 1 134 (41h Cir. 1986); Ci. 1987). The First Amendment privi1ege applies to all inliirn?iation acquired by a reporter in gathering the news, regardless of whether the information is con?dential, because the purpose oi" the privilege is to assure, to the ?dlest extent possible, the free flow ot'iut'orination to the public. 5 13.3(1 1289, 1294 (9th Cir. 1993) 19131 appeal, 48 1:.3d 412 (91h Cir. 1995); United States v.NI_.aRouehe Can?ipaign, 841 F.2d 1 176, 1 182 (1 st Cir. 1988), Auersperg v. von Buhiw, 81 1 F.2d 136, 142 (2d Cir. 1987); United States v. 630 13.201 139, 147 (3d Cir. 1980). Following 1333111213111}; Virginia courts have recognized this constitutionally?hased qualiti ed privilege for reporters and have engaged in the ha1ancing of interests mandated by The Supreme Court ut?Virginia, in Brown v. Commonwealth, 214 Va. 755 (1974), plainly recognized a reporter?s First Amendment privi1ege. 1n the criminal defendant argued that the trial court erred in refusing to require a reperter to testify as to the identity eta Spokesman whom he had quoted in an article about the crime. The spokesman had summarized certain remarks allegedly made by the prosecution?s witness on the night ot?the murder. The defend ant claimed the statements would be useful for impeachment purposes. In af?rming the trial court?s decision to uphold the reporter?s First Amendment privilege, the Supreme Court of Virginia ruled that the privilege could be overcome only in very hinited circumstances. The privilege wouid yield only when the defendant?s need is ?essential to a fair trial." 19; at 757. The court de?ned ?essentiai to a fair trial? as: l?153a1ti79. material to proofof any element ofa criminal or to proot?of the defense asserted by the defendant, or to a reduction in the classi?cation or gradation ofthe offense c-l'iarged, or to a mitigation oi?the penalty attached . available iron} other sources. BL Under these principles, the court concluded that the possibility ofprior inconsistent statements to the police by the prosecution?s witness lacked suf?cient materiality to overcome the First Amendment privilege ot?the reporter. id. at 758, 204 8.13.2(1 at 43 l. The privilege protects the press unless each element oi?tbe test are present. in StateyidMgliil?p. 24 Media L. Rep. l638, 1639 (NC. Dist. Ct. 1995), the court found that the prosecution could not compel a reporter to testify to defendant?s published statements without showing that was unavailable ti'om other sources. in Li??nited States v. Blanton, 534 F. Supp. 295, 297 (SD. l-i?la. l982), the court ruled the prosecution was not entitled to subpoena a reporter to testify regarding defendant?s published statements because it tailed to exhaust or make reasonable attempts to exhaust non-media sources for the information sought. in puma S_ta_teswy_.mlj_u_bbinj, 493 F. Supp. 202, 205 1979), the court found that a criminal defendant eoutd not require a reporter to testify to published absent a showing that the information is necessary to a fair hearing, and (2) the information was unavailable ln Spitemglgemery, 23 Media L. Rep. 1958, 1959 (NC. Super. (7t. 1995), the court found that a reporter could not be compelled to testify about the defendant?s published statements because it determined as matter otlaw that the detendant failed to demonstrate that the information sought was essential to the pursuit ofhis motion or that there existed any other important state interest in compelling the reporters? testimony suf?cient to override press freedoms. (i r153iarai The quali?ed privilege rellects ?a paramount public interest in the maintenance ol?a vigorous, aggressive and independent" press eapahle ot? participating in rohust?, unfettered debate over controversial matters, an interest which has always been a principal concern oi" the First Amendment." United States v. Budge, 700 F.2d 70, 77 (2d Cir. 1983). The West Virginia Supreme Court has recognized that ?the news gathering t?unction itselfwould be substantially hampered and the free flow of information to the public would be impinged il?newspei'sons could be routinely subpoenaed.?l State ex rel. l-ludok v. Ilenrv, 389 S.l?3.2d 188, 192 1989). The fact that some ofthe information may not be con?dential is irrelevant. Sec, United States v. Cuthbertson, 630 li-?Qd I39, 147 (3d Cir. l980) (?We do not think that the privilege can be limited solely to protection United States v. LaRouehe Campaign, 341 F.2d 1 l7(i, 182 (lst Cir. l988) discern a lurking, and suht'le threat to journalists and their employers it" disclosure of outtakes, notes, and other unused information, even il?nons conl'idential, becomes routine and casually compelled?); Shoen v. Sheen, 5 F.3d l289, IE95 (9th Cir. 1993) (?tlie?iournalist?s privilege applies to a journalist?s resource materials even in the absence ot'the element ol?con?dentiality?), later-aupeal, 48 F.3d 412 (9th Cir. 1995). This is because, as one court has noted, lack ol?cont'iclentiality is ?utterly irrelevant to the ?chilling effect" that the enforcement ol?these subpoenas would have. on the ?ow ofint?ormation to the press and to the public. The compelled production ofa reporter?s resource materials is equally as 1 The compelled production oi?a reporter?s resource materials and testimony can also constitute a significant intrusion into the news gathering and editorial processes and may substantially undercut the public policy favoring the free ?ow ofinthrimtion to the public that is the Cir. 1980). The ability olithe press to function mandates that it not he the subject of the story. It is only by preserving the right ol?the press to avoid being made 2 part ofthc controversy merely as a result oi?its peri'orniing its constitutionally favored duties that the press may avoid the ?chilling effect? that the enforcement ol? this subpoena would have on the ?ow ofinformation to the press and to the public. 389 F. Supp. 1299, 1303 Fla. 1975.). Mil-1679.} invidious as the. compelled disclosure ofhis con?dential ini?orinaticni." 389 F. Supp. l299, l303 lila l975) (quashing subpoena requesting non?con?dential information):2 ill. COURTS l-iAVlzi BRITJWN v. Virginia circuit courts have followed and applied the principles set forth in Courts in otherjurist'lictions have quashed subpoenas under circumstances similar to this case. con?dential, were entitled to constitutional prt?itection. ?The compelled production ot?a 3 Accord Cont?l Cablevision. inc. v. Storer Broad. Co, 583 Supp. 427 Mo. 1984-); (SD. 1531a. 1982); Mauchan v. NL indus, 524 F. Supp. 93 (1.3.13.0 1981); Altemose Constr. Co, Bldg. Constr. Trades Council, 443 F. Supp. 489 (ED. Pa. 1977). Mrs. Ann Smith, Ch. No. (Norfolk Circuit Court, Oct. 7, l976) (Ryan, J.) (court quashed subpoena holding that party must ?absolutely lose [his] case without" the reporter?s testimony before reporter can be compelled to testify) (Ex. 1). See also Commonwealth v. Von feel}; -l979, Virginia Beach Circuit Court (Oct. 28, 1991) (Hanson, J.) (reporter who obtained confession not required to testify because eyewitness to crime meant there was no 914729, Virginia Beach (flireuit Court (Sep. 23, 1991) (Cromwell, (reporter not compelled to produce notes regarding interview ofalieged co?conspirator) (Ex. Commonwealth v. Ford, In Re: Subpoena issued to Sandra Ann Baksys, Record No. 8353 (\t?irginia Beach Circuit Court, April 12, 1982) (Valuis, .1.) (court quashed defendant's subpoena seeking information reporter obtained in interviews with witnesses to crime) (Ex. in Re: Motitm to Quash Subpoena issued to Jim Jennings, Docket No. 939?79 (Newport News General District (Joan, Criminal Division, li?ebruary 28, 1979) (Phelps, (court quashed subpoena to photojournalist who had covered steel workers? strike because alternative sources were available as to whether defendant's committed acts with which they were changed, even though detendants argued journalist was disinterested and independent party) (Ex. v. llirschi?eld, In Re: Subpoena issued to Michael D?Orso, Chancery No. (336-352 (Portsmouth Circuit Court, April 29, l983) (Whitley, (court quashed subpoena to reporter whose testimony was sought for impeachment purposes) (Ex. 6). 1- 1 5346119} reporter?s [nonconl?identiat] resource materials is equally as invidious as the compelled ?1 disctosure othis confidential informants.? at tittla. in i2 Med. la. Rptr. 2l35 (l 986), the court quashed a criminai defendant?s subpoena seeking information from a reporter to aid in the defendant's entrapment defense. The court hetd that the defendant tailed to prove- that the information sought was material and relevant, not otherwise obt'ainabie, and that the appiication was ?n'iade in geod faith? and ?not intended as a general ?shing expedition.? at 2336. (3d Cir. t?int) (quoting United States v. Criden, (333 133.2(1 346, 35869 (3d Cir. 1980)). in this case, the Commonwealth already has the story prepared by Mr. Daugherty. h/loreover= Mr. Daugherty has no notes from his interview, and has no independent? reeottection ot" any relevant details ot?the interview different or in addition to the information disclosed in the story. Daugherty Af?davit ?t 10). 13 or whatever reason, however, the has subpoenaed Mr. Daugherty thus eliminating his ability to cover the trial. Conclusion if the quali?ed privilege has any meaning, and the Supreme Court of Virginia has stated that it does, it means that subpoenas cannot: be issued to reporters where the reporter knows nothing that wouid be material to the case and where the oniy conceivable basis for the issuance ot?the subpoena-1 wouid be to prevent the reporter from covering the trial. The idea that the C(?Jinmonweatth intends to call the reporter to open the door to testimony concerning Mr. Whitaker?s repeated consistent and vigorous protestations does not make sense. ER liiliiORlii, The Virginian-Pilot and Scott Daugherty respeclt?uily requests that the subpoena issued to him by the Commonwealth be quashed. 9 Lt534o79J THE and SCOTT ER TY .543? Of Counsel Conrad M. Shummline (VSB No. 4325) WILLCOX SAVAGE. 0C. 440 Monticello Avenue, Suite 2200 Norfolk, Virginia 2353 0 Phone: 757.628.5500 Fax: 757.628.5566 e-sliumacline?fgwilBah-neom Counsel for Scot? Daugherly FICATE SERVICE I hereby certify the! on the 20th day (il?Ma1'eli, 20l 8, a true and correct copy olitlie foregoing was served via electronic transmission on the following: Andrew M. Robbins, Deputy Commonweal[ifs Attorney Of?ce ol?i'lie Commonwealtli's Attorney 107 Norl Kent Street Winchester, VA 2260] Don Seen, Esq. Don Scoti Law Finn 355 Crawfonl Street. Suite 602 Porlsmoulli, Virginia 23704 and Jon M. Babineau, Esq. Jon M. Babineau, PC l09 East Main Street, Suite 413 Norfolk, Virginia 235 0 Cmms?eUbr Defendant? 10 1453-1679.} . "n I 7 v? .- q_ 2:THE CIRCUIT COURT OF THE CITY 01-: NORFOLK 'CHANCERY no. c~?4~173: ha? iaoma CARE REMODELING COMPANY .9 - 'vs. ?Motion to Quashyu I Subpoena issued to 5} LELA M. MOZELL, et als. Mrs; Anne Smith -1. . - Defendant.13(1.: . A .. Stenographio transcript of the 41.11:? ?3 9 proceedings had upon the hearing of the above entitied I I .10 MotionI in said Court on October 7 1976 Iat 4: 00 p. m. T?anbefore the Honorable Edward L. Ryan, J1., JudgeAPPEARANCES: Messrs. Kaufman, Oberndorfer . I IIMII II: . . ISpair?uDur fIFgT??w._ . Conrad M. Shomadine, ?a . .. 3.3, appearing on behalf of: 3 "f4? . r- -I- .- i&33?3- _;1f why (A a? .9 Anne SmitIhI and The .Meaara. Mason, Moore Robinson Ltd. j. . . By: Mr William T. Mason Jr. naav . - . appearing on behalf of the 791: defendant - I I by Mr John O. Wynne, Corporate Secreta Landmark Communications, 3 observing . -4?(403I.- 1?.1-1-ana?ll????fty" . - . -- 35 EXHIBIT a. I 3132313,; Wafui - . . .1 .. \m .1- . M- .-.. . . 11gge'1.21 1 1 Gamma: 10 Wei-.-_'It1 5:3- 20 {?"'4.. (3'31. or ?1 E. . civil caser a sound it's my feeling that a sound publiIoI poliIcy dictates that on most unusue ciroumstances should a newapaper-.I l?al t? H: . er or its exhibits ever be involved or required in a civil case and I think this is_a case for sucl?a involvement of the newspaper._ . . "1 Hw'. - .. Ir v-v 11R MASON: May I inquire .I If?. v' THE COURT: I?m throwino it out Ito you. I saio it may bIe helpful to. you to 'm3_ _knOW what thinking What are the exceptional astances of this case that override the important First Amendment rights and the other necessities that Mr. Shumadine argued? II Ioould probably repeat what he "said, but I won because it's in the record there; but what is the overriding necessity that require; that we invade I can't think of a better word but invade -- the necessary sanctity that mus be accorded the newspaper - . . . kl? MR. MASON: I would suggest - ?a n: J- THE COURT: It' got to be coxpe1_li mg MR. MASON: I would sugqut to the 4-. a. WI I .i ?x E. A . ya22-: 2: vrr?? 0 hm" ~31; 1? ?r 231?" Court since we?re talking about a casonbyucage 2 basisIf~ .- a the way I feel* i 37*?3i?ixwx?fva?o ut-it in this -. '4 5 MR. MASON: I would say to the Court 5 5 that as far as i have been able Eo dot -orminc- . ,7 i IMrs- Smith may havo boon who ?x3; 8 made cohtomporori hotes oh the time sho 9 observed aho heard these people mean you absolooely know you lose your case . . Mg? 13 I without those Coort is going toIdooide the case and I would 15 be presumptuous J. 16: THE COURT: Lot's put it this way: 17 tha? You don Istandla snowbird' 5 chance \in11?:3t; 18 you know where. I - 19 HR. MASON: I think I can say in 30 all candor and honesty to Your Honor that 31 we're going to have a difficult time because ?3o22 of all the problems and the Inature of the if ?3 ?case. There is going to ho a lot of confliotingg? E4 evidence as tof?ho?o?idsohot and Ghe? it has' ?255 25 said and who did what and that type Of thing. wamhm I i VIRGINIA: IN THE CIRCUIT OF THE CITY OF VIRGINIA BEACH .. H. R.L 3 PthCOMMONWEALTH OF VIRGINIA RECORD EKENT VON FECHT, 3 Defendant[judge of said court. I the trial of the above~entitled cause in said court on October 28, 1991, before the Honorable Edward W. Hanson, Jr., Stenographic tranecript of proceedings had upon APPEARANCES: Mr. Michael J. Cummings, Assistant Commonwealth's Attorney. Willcox and Savage (Mr. Randy D. Singer), attorneys for Landmark Communications. No appearance on behalf of the defendant. WW We EXHITBI DONN, GRAHAM ASSOCIATES Virginia Beach, Virginia Phone (804) 490?1100 OITONNE. thJ. 31'002 - 3991 5.0.. PEMGJD THE COURT: All right. The me. is. to of? Commonwealth of Virginia versus Carl Kent Von Fecht, Jr. This iv a motion by Landmark Communications represented by Mr. Singer to quash the subpoena for the reporter, Mrs. Waltz. Is that correct? MR. SINGER: Yee, eir. Thank you. THE COURT: You have filed a memorandum, Mr. Singer. Have you examined it, Mr. Cummings? MR. CUMMINGS: I have, Your Honor. THE COURT: Do you wish to etaud on the InenunrauzdLun? MR. SINGER: If I might, Your Honor, the Commonwealth filed a reply memorandum. I would like to just briefly address some of the issues. COURT: I haven't seen that. Is that in .4 TH l-_r here? MR. Should be, Your Honor. THE COURT: I mean the reeponoe to the motion? MR. SINGER: That's correct, Your Honor. (Pause) THE COURT: All right. I have read it. MR. SINGER: Your Honor, 1 would like to address the issues raised in the memorandum very briefly. AS 1 read the ?m first of all, I back up a little bit. This J. 0?032 - FORM :{193 BAYONNE. PENCAD 19 20 22 :L-v motion was aotuelly scheduled for hearing on Gotober 28th of this year, at which time the trial was also scheduled. At that hearing there was some problems between the defendant and his counsel, so the trial was continue?. Judge Cromwell decided not to hear the motion at that time because of the fact there was an independent: witness up in New York, and the court wanted to see if the Commonwealth could get that witness under subpoena, find out his address prior to ruling on our motion. It?s my understanding that that witness has now been located. He was an Independent eyewitness to this event, name is Officer Grindstaff, and that the Commonwealth will he able to procure him to testify in this case. THE COURT: Is that right? MR. CUMMINGS: It's suspected that we'll he able to get him to testify, Your Honor. We would submit that?s irrelevant to the motion, however. THE COURT: All right, Mr. Singer. Anything further? MR. SINGER: Yes, Your Honor. I think the only two issues before the court today is, one, whether there was a qualified First Amendment protection for newspaper reporters and other reporters in the gathering of news; and, secondly, if there is such a protection, whether the balancing test in this ease weighs in favor of the newspaper NSAU ELL. . PT (A: (.the Commonwealth. i 1 12 twin 't rezhaasii cal}. tjie cease: Jiiw tiie1; x9e tuit. ttae i memorandum, but I do want to pOint out some oi the cases than i the Commonwealth submitted in reply and show Your ionor how those cases do not stand for the proposition that there is not a qualified First Amendment protection for newspaper reporters. Certainly the United States Supreme Court case that we cited, the seminal case, the first case on the issue, Brantshurg v. Hayes, which is a 1978 case, and the follOWsup Virginia Supreme Court case, Brown v. Commonwealth, stand for the preposition that there is constitutional protection for a news reporter in the gathering of news. Now, the Commonweaith's position is that that protection only goes to protection of confidential sources, 1 not general protection to as far as compelled testimony goes! or to produce notes and other reports. It's Our position that the courts throughout this Commonwealth including this court on two prior occasions have recently, both Judge Cromwell and Judge Shodrick recognized the qualified protection that a newspaper reporter has in this w~ in this function of news gathering. Judge Cromwell in the in a very recent case where_Mrs. Waltz's notes were subpoenaed involving an alleged confession of a coconspirator to a person who's being tried, Valerie Swanson ?w the court may be familiar with this case. It was the case of a saiior 2391. Form NJ. Ci?" 19 2O 2? :31? I- that returned from the Persian Gulf. TIHE MR. SINGER: Judge Cromwell quashed a subpoena of Mrs. Waltz?s notes in that case, recognising the protection of the First Amendment. Also Judge Shadrick in the Keiiam case very recently had a similar hearing to the one today, held that the Commonwealth had not shown a compelling need for the reporter?s testimony, said that the circumstances may change at trial, but as of that date the Commonwealth had not shown that need; and the reporter was never called to testify at trial. My point in both of those cases, Your Honor, is that in this court as well as other courts throughout the Commonwealth have recognized that qualified privilege under the First Amendment. Now, the cases the Commonwealth has cited in their brief they basically cited three cases w~ two of them decided by Judge Merhige, one by the United States Court of Appeals for the Fourth Circuit for the proposition that there is no qualified privilege for nonconfidential materials. The cases cited by Merhige I found to be very instructive. The first one is Gilbert v. Allied Chemicals. That's a 1976 case, and it is true in that case, Your Honor, that Judge Merhige found in the subpoena of m? of certain notes or outtakes or photographs that there was no First i ?1 I Amendment qualified privilege. Later on the Fourth Circuit a Court of Appeals addressed this issue in a case involving a wildcat strike by the United Mine Workers, and it has a i funny procedural history, but it went up there on a panel of, three. The Fourth Circuit Court of Appeals then granted en banc hearing on the case and accepted the minority decision of the panel. The import of that case, however, Your honor, is that the Fourth Circuit Court of Appeals recognized the qualified privilege. They compelled production of documents, but they recognized that privilege and then Judge Merhige himself had occasion to come hack and address this again in the Stickels case. Third case cited by the Commonwealth in their memorandum ?u that?s a 1990 case. Very recent, November 9,5 1990, and in that case the language that I wanted to read to the court shows that Judge Merhige now recognized his prior opinion in Gilbert that there is no such qualified privilege in light of a recent ruling by the Fourth Circuit, now recognized this as well as other courts throughout the Commonwealth. He wrote, Therefore, to the extent that this court?s decision in Gilbert conflicts with Steelhammer, the approach of Gilbert is abandoned, and a qualified privilege for nonconfidential information in materials acquired by the press in the course of the newsugathering process is adopted. NJ. 07032 fob". 2391 BAYONNE. 4'25three cases Liter? by the to go contrary to our proposition, I think one OL those cases that stands for our proposition two or them do w? and the other one has been expressly abandoned by its author We have set out a plethora of cases in our memorandum which also support this proposition. I will only mention one of them, Your Honor, because it seems to be so much on point. That?s the U.S. v. Blanton opinion, which is a circuit court opinion from 1982; and the issue in that opinion was whether or not a reporter could be subpoenaed to testify to the fact that a doctor who was charged with abuse of Quaaludes in distributing Quaaludes in an unauthorized manner who made certain admissions to that reporter, whether that reporter could be qualified to testify as to the admissions that that doctor had made. The Commonwealth or the prosecuting attorney in that case claims that they had a circumstantial case. These admissions were critical to their case, and the court nonetheless quashed the subpoena, recognized the qualified privilege, and did not make the newspaper reporter testify in this case. I think those cases together with the cases I cited from this very court, the Virginia Supreme Court and even the cases cited in the Commonwealth?s brief suppert without dispute the proposition that there is a qualified NJ. 07332 - FORK 2391 swarmsprivilege for this type of material. Whether it's policy considerations are the same. I think the court is I i confidential or not confidential is not relevant because the; i well aware of those policy considerations. I?m not going I to prolong this argument by running through each of them, but just to highlight the main ones that the courts consider in applying their balancing test is, Number 1, whether the press mw whether there will he a chilling effect on the press. If a newspaper reporter is called to testify against and impeach the very sources that provide her with information. The courts have uniformly held that would be the case. Further, the courts have recognized that to the extent that newspaper reporters are compelled to testify in trials where information is otherwise available and makes the press appear in the eyes of the public subjective and not objective and to be taking sides in the dispute. This also has a chilling effect on the press, and I think ?w just to sum up the policy, which is contained and set forth in all the cases, Justice Powell?s quote in the United States Supreme Court case of Brantzburg v. Hayes really sums it up when he says the press is not to be annexed as the investigative arm of the government. I think we all know that newspaper reporters investigate ccses that are high profile cases. If the ?{613 NJ. 5?court is to allow their compelled testimony, to allow i production of notes, then it seems that the first subpoena fen counsel or the Commonwealth?s Attorney would be to the newspaper reporter. This would create a serious burden on the press. Courts have recognized that, so the courts have quashed similar subpoenas. Now, once the court recognizes the qualified First Amendment privilege, the only decision left for the defendant is this balancing approach. We have before us a First Amendment concern on the one hand which can only be outweighed when there is a compelling need and there are no alternative sources for such information. Here, Your Honor, we have the statements, the eyewitness testimony of the victim himself. We have the eyewitness testimony of an auxiliary police officer who was no more than a few feet away from this. Officer Grindstaff who is up in New York saw the whole thing happen. He apparently reported it to Internal Affairs. Based on that, they took disciplinary action. He's been consistent in his eyewitness accounts of what happened. There?s a third eyewitness as well, and that's Officer Kensil I believe her name is who was out there with the defendant at the time that this occurred. 9-H 2053 -rc C) 19 20 21 22' The long and short of it, Your Honor, is there is there are three eyewitnesses to this alleged event. The testimony that the Commonwealth seeks to procure through Mrs. Waltz is to put her on the stand and allow her to recite alleged admissions by the defendant such as, slapped him on the face and said why did you run? That was kind of stupid,? or, ?1 kicked him even though I didn?t kick him very hard when my officer was helping to handcuff him.? Your Honor, the issue in this case is not whether there was whether someone got slapped or might have gotten roughed up a little bit in the course of an arrest. The issue is whether the amount of force used was excessive in the arrest of the suspect. The peepie that know that are the eyewitnesses that were there that saw it happen, and that's the other alternative sources that provide the same information that the Commonwealth seeks through the subpoena of Mrs. Waltz. Based on that, based on the balancing test and the prior cases that we have cited, it's our position that the subpoena should he quashed at this time. THE COURT: All right. Thank you, Mr. Singer. Mt. Cummings. MR. CUMMINGS: Your Honor, the Commonwealth submits that is balderdash. First of all, the Commonwealth would submit that the Mr. Singer?s characterization of . .MM 31.1, 4 C73the case law in this case again continues to grossly overstate the cases, and we would invite the court's attention to reading them. Mr. Singer cites, offers for dicta as having some kind of force of law, and his speculation as to Judge Merhige we submit is totally inappropriate. We ask the court to look at the precise language in which he cites from Judge Merhige which is, to the extent that this court's decision in Gilbert conflicts with Steelhammer, the approach of Gilbert is abandoned. It you look at the hearing en banc, Your Honor, there is nothing to support the Mr. Singer's proposition here in that decision en banc. We wOUld submit to the court there is no qualified privilege to a newspaper repoxter to be compelled to testify by subpoena where there is no source qualified or unqualified alleged. We're not talking about source of information, Your Honor. We?re talking about this witness testifying as to the defendant?s confession. Mr. Singer would like to dictate how the Commonwealth tries its case by submitting that there is no other alternative evidence available upon which the Commonwealth can rely. Yes, there is other evidence, Your Honor; but there is no other evidence of a confession; and confession is the strongest form of proof known to the law. Clearly it?s material evidence that?s available to the Commonwealth. The 20? 5736:. . ?EmuCommonwealth is prepared to call Lieutenant Blevins and 1 Sergeant. Vander?eiden to establish for the record that there is no other admission or confession by the defendant. Your Honor, we would submit that the court never reaches the threshold question here, the balancing test here, because the threshold question is, Is there a privilege? And we would submit that just as in the i I Supreme Court case that began this, the Brantsburg v. Hayes,i the press is trying to put a burden on the Commonwealth that it doesn?t have here. You don?t even reach it. If you do reach it, Your Honor, we would submit that applying that threshold test isn?t relevant. it's a confession. It?s absolutely material, it?s outcome determinative. Is there any other source or alternative to that evidence? No, there is not. There is no other evidence of that confession; and lastly when you apply the balancing test, where there is no confidential source, the balance goes in favor of the Commonwealth. Clearly, Your Honor, that's the law. We submit you never reach it; but if you do, the Commonwealth wins. For the record we would state, Your Honor, the Commonwealth believes that without that confession, that the Commonwealth cannot prove its case. (Pause) THE COURW: All right. We are going to issue an . row-1. 2994 3?003 PENGAO 60order to quash the subpoena. MR . Your Honor, may the note its appeal Since it's on conotitutional groundsMr. Slipow. appeal, so it. IE COURT: You may. Singer, prepare the order, please. SINGER: 1 will, Your Honor. Thank you. CUMMINGS: Your Honor, 1 will contact The Commonwealth does intend to pursue the will affect the trial date. COURT: Okay. (The hearing wag concluded at 12:23 oOo?~w~~ ul?u?v {.121333.STATE OF VIRGINIA, I 5 CITY OF VIRGINIA BEACH, tOwwit: I Ronald Graham, court reporter, certify that the - foregoing is a correct transcript of the proceedings had befcxe the said court on the date aforementioned. 6? . Given under my hand 0i I ??borter -17 . NARA {a HUIZBARD ?99 AT LAW r: w: UUTE STRILLZT VA. 23510 {3041622h2675 . VIRGINIA: Iii- CIRCUIT COURT 1.70?" TE-JII CITY VIRGIN 313.Plaintiff CASE NO. 9l~1739 U. VALERIE O. SWANSON, Defendant IN PE: SUBPOENA ISSUED TO LYNN REPORTER FOR i??i?l??i?l?h??lkgi QEQEE THIS DAY came all partieg, by counsel, on nation of Waltz, pursuant to her qualified First Amendment privilege an a journalist, to quash the subpoena issued in) hex behaif of the defendant in the above~captioned matter; WHEREFORE, having heard {?ue arguments counnei and having considered the Memoranda and authorities submitted by tha partieg; The Court is of the opinion that the subpoena requiring Ms, Waltz to produce her notes and recordg regarding ah interview of an alleged co?conspiraLor of defendant does not meet the criteria set forth in Eig?h xi 314 Va. 75:, :04 439 (1974) for those rare cases when the reporter?a qualified First Amendment newsgathering privilege must yield to the defendant?s due procegs right to compel of nuch of 1.1mm "r information: the isnuw whether cann29112in tine Si?ratenice (ii Narcotic, can be compelled at of the court. I her with co~deiendant. Qinu ?rial iu reserved for Eater dwciaiun HUBIBARD AT LAW 1 I 4 w. nun: smear I VA. 23510 (arm) 622926135 It is therefere Motim'; to Quasah the luau-313}? 353 3'30 1' the 3164.533an in 1: he: matter can Sept. (amine: 1' 1 ENTER .1.