Looks like the media lobby is trying to get some public support for their bill. I just read an editorial in one of our local newspapers authored by someone named Stone who is described as a member of the Legislative Advisory Committee for the Texas Press Association and the Texas Daily Newspaper. The gist of the editorial is that law enforcement and prosecutors are opposing this bill because we want to thwart efforts to "expose corruption in government or force the local 'good old boy' network into the sunshine." Even the TDCAA website is prominently mentioned in the editorial! Although I don't expect my constituents to make a mad dash for the telephone to call their legislator, I'm going to try to put together a letter to the editor using the excellent talking points sent out by Rob last week. I'm confident that this editorial was sent out to most, if not all, Texas newspapers so you might watch for it. Oddly enough, I don't remember issuing a subpoena for a journalist except when they've interviewed a crook (not exactly a confidential informant), essentially told me about it by airing or publishing parts of the interview, and then refused to let me see the remainder of the interview ...

No new privileges. The creation of a privilege means that sometime, somewhere, a jury will be deprived of otherwise relevant, probative evidence. Where are these prosecutorial abuses the press are braying about? No journalist in modern memory has been jailed for failure to reveal information without a hearing, due process and an order from a Judge. Are the judges also in unholy alliance with the state?

I cannot remember a press subpoena issuing here for anything other than interviews with crooks already in the pokey or film of accident/crime scenes soon after the event.

I believe there is an exception in the proposed legislation for reporters who witness a crime. How would this help in the Valerie Plame case? That is the instance where someone revealed Plame was a CIA agent and not a state dept official...a reporter or two have been jailed on contempt charges for refusing to answer questions before a grand jury. In that case, the privilege would be useless because the reporter did witness a crime...the revelation of Plame's spy status. It also points out that the press can, on occasion, be unbelievably irresponsible. Not all information should be published.

We have never subpoenaed anything from the media except interviews with crooks or actual crime footage. Add my voice to the chorus.

Most of you who post in this forum are far more eloquent about criminal prosecution issues than I am. For what it's worth, however, below is the text of a letter I wrote to Sen. Duncan regarding SB 604 and the problems with it. The letter addresses itself primarily to the argument that the privilege is necessary to promote "government in the sunshine." It sums up my thoughts on the bill.

Dear Senator Duncan:

I am the County Attorney of Potter County, Texas. In following bills of interest to prosecutors that are under consideration by the 79th Legislature, I have learned that you have expressed favorable interest in Senate Bill 604, which would afford a privilege against disclosure to journalists. As a current prosecutor and civil practitioner in governmental entity law, as well as a former journalist, I have a measure of concern with the bill. I write to express that concern.

In particular, I am troubled by the prospect of extending a privilege to cover those who reveal confidential government documents to the media. The basis for my discomfort is twofold.

First, Texas law currently provides that distribution of confidential governmental information is a criminal offense. TEX. GOV�T CODE ANN. � 552.352 (Vernon 2004). Among other forms, confidential information within the ambit of the Public Information Act (�PIA�) frequently takes the guise of information protected under the lawyer-client and work product privileges. See TEX. GOV�T CODE ANN. � 552.022(a) (Vernon 2004) (removing from class of information that must be disclosed under PIA, regardless of whether subchapter C exception applies, information made �expressly confidential under other law�); TEX. R. EVID. 503; TEX. R. CIV. P. 192.5; see also In re City of Georgetown, 53 S.W.3d 328, 332-36 (Tex. 2001) (orig. proceeding) (examining history of privileges and holding information subject to attorney-client and work product privileges to be �expressly confidential under other law�). Where governmental interests are implicated, so too are the interests of the taxpayers. It is the added dimension of the potential for damage to the public treasury that makes the deterrent of a criminal penalty for disclosing governmental confidential information all the more apropos. Affording the privilege proposed by SB 604 to those who distribute confidential government information to a �journalist� carries the grave, and very real, potential to permit disgruntled insiders to severely and unjustifiably damage the litigation position of a governmental entity with impunity. Given the strategic disability imposed upon government by such disclosures, it is the taxpayers who ultimately will pay the costs of this privilege despite minimal countervailing public benefit to support it.

Altogether, in the case of one who discloses confidential governmental information, the privilege would directly conflict with section 552.352 within the PIA. This criminal provision has long been part of the PIA, and little reason has been advanced for it to be jettisoned from the statute. Moreover, the policy concerns expressed above reinforce the propriety of the criminal prohibition of section 552.352. At the same time, I cannot say that I have seen persuasive evidence that the statutory scheme as it currently exists is substantially flawed.

Second, and just as significantly, those who seek to expose governmental wrongdoing from within already enjoy legal protection. Taking adverse employment action against a government employee who in good faith reports a violation of law by his or her employing governmental entity or another public employee to an appropriate law enforcement authority is statutorily prohibited. TEX. GOV�T CODE ANN. � 554.002(a) (Vernon 2004). It should go without saying that those who make bad faith allegations should have no shield against the consequences of their actions. The employee with more salutary motives, however, need only submit a report to an appropriate law enforcement authority to invoke the protections of the Whistleblower Act. Presumably, if a whistleblower is sufficiently familiar with key documents to spirit them away to the news media, he or she will be able to direct the appropriate law enforcement agency to them. The agency can then subpoena or obtain a search warrant for the relevant material. Also, it is significant that the Whistleblower Act, which stands as a comprehensive remedy for the exposure of governmental wrongdoing, itself contains no confidentiality provision, yet the statute has worked relatively well for more than two decades. Concurrently, presuming that a privilege is necessary to shield government employees who disclose confidential government documents to the news media requires concomitant assumption of one or more of three unfounded premises: (1) police and prosecutors won�t do their jobs with respect to public integrity issues; (2) police and prosecutors are too incompetent to do their jobs in the field of public integrity; and (3) the news media is uniformly superior as a mechanism to assure public integrity than the justice system.

Gathering and presenting the evidence to enforce the state�s criminal laws already is a challenging undertaking. The privilege contemplated by SB 604 would represent an unwarranted step toward making that task all the more difficult, if not impossible. While I have a somewhat unique respect for the work of journalists, I also know that the journalist�s job is to report the news, rather than being an active participant in its making. In the latter role, the journalist is simply a citizen who is no more entitled to avoid his or her civic duty to the administration of justice than anyone else.

I respectfully request that you take these concerns into consideration as you form your ultimate views on SB 604. If I can be of any assistance in this pursuit, please do not hesitate to contact me.

Sincerely,


Scott Brumley
Potter County Attorney

The hearings on these bills were interesting...the media's noble purpose was to protect the identity of confidential informations who are whitstleblowers. That argument is the most intellectually-defensible argument the have. But the real complaint that came through time and time again was that it is just a pain the rear to respond to subpoenas. But they were never able to articulate why, when they tape the statement of a defendant and shoe the parts they want to on TV, the public shouldn't have access to the rest of it to do justice in court. And that is where this comes up time and time again...

rob

I'm sure it is a pain for media outlets to respond to subpoenas. Imagine the headache it is for outfits who are subpoened with much greater frequency; hospitals and cellular service providers leap to mind. Of course, those businesses don't respond to every subpoena with a motion to quash and an associate from a five partner firm. Hospitals (even after HIPPA) and the rest don't insist that they don't have the item and they don't obstruct. In fact, they usually have a subpoena compliance protocol and the whole thing runs smoothly.

I don't understand how these media reps can support their position. They would be the first ones to stamp their feet and scream about it if the government tries to accuse someone of a crime without disclosing how we know they committed it. They are quick to point the finger if a suspected terrorist is being held without the government's disclosing their evidence. But they expect to be taken at their word that their allegations in the media are credible, and then they ask for legal protection against being asked to provide the source for the allegations that they are making. If only the criminal justice system worked that way we'd never lose a case!

Although compliance with frequent subpoenas is not difficult for many folks, like doctors, phone companies and the like, the news outlets testified that it was a burden. The testimony was interesting, because one media lawyer suggested everyone would save a lot of money and time if we would just quit asking for the evidence!

The best testimony was by Ted Wilson of the Harris County DA's Office, who had a fight with a TV outlet recently, and after weeks of litigation, got what the station should have turned over without a fuss.

Ted testified that he finally got the evidence, but it was like "being bitten to death by a duck."

Classic.

The following editorial, quoting this web site, appeared in one of my local papers, the Taylor Daily Press:

Editorial freedom protects right to know

By Richard Stone

For more than 200 years, the only help that newspapers needed to report on the workings of government (or anything else) was the First Amendment to the Constitution.

The founders of this country believed that a free press is so important, that "right" was enshrined at the very top of the Bill of Rights.
Unfortunately, over the last several years, decisions handed down by state and federal courts have slowly stripped away that First Amendment remedy until it affords virtually no protection at all.

This means that publishers have to weigh the chance of a libel suit or a district attorney's subpoena each and every time his or her newspaper reports a controversial story.

Some newspapers have information that, if published, could expose corruption in government or force the local "good old boy" network into the sunshine. But few newspapers can write and publish those stories because most of this information depends on a confidential source. In Texas, that confidentiality cannot be guaranteed and sources know it so these stories go unreported.

Just like most of our advertisers, most community newspapers in Texas are small businesses that operate on very thin profit margins. If small newspapers had to keep an attorney on retainer to fight potential libel suits or defend against adventurous state prosecutors, very few could stay in business for very long.

That situation is why two Texas legislators have filed bills that would grant reporters and publishers a limited, sharply defined ability to protect themselves and confidential sources.

Senate Bill 604 by Rodney Ellis, D-Houston, and House Bill 188 by Aaron Pena, D-Edinburg, would bring into existence what is known by the media as a "shield law," something 31 states and the District of Columbia already have, to help reporters resist the disclosure of information or a confidential source.

The protections in the original bills don't extend to information relating to violent crimes or eyewitness accounts. Reporters wouldn't be able to shield evidence of a murder or use these protections to avoid testimony regarding an incident they witnessed. It would, however, help reporters and publishers shield government "whistle-blowers."

Obviously, many in government - especially in law enforcement - don't like this idea. Just read this item that was posted on the Texas District and County Attorney Association's Web site after a hearing in the Texas Senate recently:

"We wonder what public policy interest justifies requiring [prosecutors] - and the defense bar - to fight the media for evidence in their possession?"

As if it's a newspaper's job to collect information for prosecutors. It's not.

A free press has a place in our society and that place is just as important in a town like Taylor as it is in Austin or Washington.

The function of a newspaper in our democratic society is to help readers (taxpayers, citizens) monitor local government.

It is not a newspaper's place to be an information-gathering arm for local prosecutors. Newspapers cannot meet that obligation very well if they have to practice defensive journalism.

These two bills would help change that and return a measure of freedom to the press in Texas.

Regardless of how I might feel about the editorial writer's point of view, I do think that this article's use of information from this forum serves as a very good example of why it is important to consider carefully what you post here. I know that I have forgotten that this forum has a secondary audience on more than one occasion, and I intend to consider my posts more carefully in the future.

My point exactly.

quote:

---

This means that publishers have to weigh the chance of a libel suit or a district attorney's subpoena each and every time his or her newspaper reports a controversial story.

---

In a country founded upon the concept of checks and balances at all levels these are the checks which keep a free press honest. A publisher should weigh the prospect of a libel suit each time she prints a controversial story. That prospect focuses the thinking.

Is it the job of the media to collect evidence for the prosecution or defense? Of course not. But having gathered the information, why should it be denied to those attempting an orderly administration of justice?

The reason our forum is open to all, as opposed to the other forum is,to borrow JB's test, because what we post here we would have no problem seeing on the front page of the hometown paper.

[This message was edited by BLeonard on 04-30-05 at .]

I think the comments about where the editorial goes off the mark are right on. My only point in posting the reminder about secondary audiences is, and I thought this was why the article was posted, was simply to point out the importance of making sure that when you post, you should be comfortable with seeing it turn up somewhere else. I forget that from time to time, and seeing the article made me feel bad about some of my posts. I certainly did not intend to suggest that anyone else's posts were wrong or bad. If that is the message that I conveyed, I apologize. In fact, I thought there was nothing wrong with the quote that was used in the editorial, and the way in which, as BLeonard pointed out, the writer sidesteps the whole point of the comment by going off on a rant about how the press shouldn't gather evidence for us and they're supposed to be a check on the government, makes the quote from the forum seem all that more valid. This bill does nothing to force the press to gather evidence for the state, and why the editorial writer seems to think it does, demonstrates, dare I say it, poor journalism.

No, David, I think that it is wise to remind us all that we have no secrets here. Sometimes words on a screen absent the voice inflection and other audio or visual cues can convey the wrong subtext. I took no offense. I guess that my comment was by way of affirmation. Just a different way to keep us all mindful of our audience.

I really don't think anyone who regularly posts here holds opinions they would fear to air elsewhere, merely that on occasion I know I for one must seek a temperate way of expressing myself.

"As if its a newspaper's job to collect information for a prosecutor--it's not."

In law school I was taught that a long held principle of law was that every man owed the grand jury his true testimony. Why would journalists think they should be exempt from being good citizens?

When I'm teaching police, I bring up the problem of the witness who will not give a statement because, "I don't want to get involved."

My advice is to quote John Dunne to this self-centered person in hopes of shaming him into doing his civic duty:

"No man is an island, a rock unto himself. Every man is a part of the continent, a part of the main. Therefore, send not for whom the bell tolls--it tolls for thee."

I tell the cops if that doesn't work, call us at the DA's Office, and we'll issue a grand jury subpoena.

Newspapers are usually cheerleaders for civic virtue. It's disheartening to see their association pushing for a privledge that would exmept them from one of the oldest responsibilities of citizenship.

White House wants retraction from Newsweek
12:20 PM CDT on Monday, May 16, 2005

By DINO HAZELL / Associated Press Writer

NEW YORK (AP) -- In an apology to readers this week, Newsweek acknowledged errors in a story alleging U.S. interrogators at Guantanamo Bay desecrated the Quran. The accusations, which the magazine vowed to re-examine, spawned protests in Afghanistan that left 15 dead and scores injured.

Responding to harsh criticism from Muslim leaders worldwide, the Pentagon promised to investigate the charges and pinned the deadly clashes on Newsweek for what it described as "irresponsible" reporting.
"We regret that we got any part of our story wrong, and extend our sympathies to victims of the violence and to the U.S. soldiers caught in its midst," Editor Mark Whitaker wrote in the apology.

The White House said Monday that Newsweek's response was insufficient.

"It's puzzling. While Newsweek now acknowledges that they got the facts wrong, they refuse to retract the story," said presidential spokesman Scott McClellan. "I think there's a certain journalistic standard that should be met. In this instance it was not.
"This was a report based on a single anonymous source that could not substantiate the allegation that was made," McClellan added. "The report has had serious consequences. People have lost their lives. The image of the United States abroad has been damaged. I just find it puzzling."

In its issue dated May 9, Newsweek had reported that U.S. military investigators had found evidence that interrogators placed copies of Islam's holy book in washrooms and had flushed one down the toilet to get inmates to talk.

Whitaker wrote that the magazine's information came from "a knowledgeable U.S. government source," and writers Michael Isikoff and John Barry had sought comment from two Defense Department officials. One declined to respond, and the other challenged another part of the story but did not dispute the Quran charge, Whitaker said.

But on Friday, a top Pentagon spokesman told the magazine that a review of the military's investigation concluded "it was never meant to look into charges of Quran desecration. The spokesman also said the Pentagon had investigated other desecration charges by detainees and found them 'not credible.'"

Whitaker added that the magazine's original source later said he could not be sure he read about the alleged Quran incident in the report Newsweek cited, and that it might have been in another document.
"Top administration officials have promised to continue looking into the charges, and so will we," Whitaker wrote.

Newsweek Washington Bureau Chief Daniel Klaidman said the magazine believes it erred in reporting the allegation that a prison guard tried to flush the Quran down a toilet and that military investigators had confirmed the accusation.

"The issue here is to get the truth out, to acknowledge as quickly as possible what happened, and that's what we're trying to do," Klaidman told the "CBS Evening News" on Sunday.
Many of the 520 inmates at Guantanamo are Muslims arrested during the U.S.-led war against the Taliban and its al-Qaida allies in Afghanistan.
In a statement, Pentagon spokesman Bryan Whitman said the original story was "demonstrably false" and "irresponsible," and "had significant consequences that reverberated throughout Muslim communities around the world."

"Newsweek hid behind anonymous sources, which by their own admission do not withstand scrutiny," Whitman said. "Unfortunately, they cannot retract the damage they have done to this nation or those that were viciously attacked by those false allegations."

I immediately thought of the privilege issue when the Newsweek perfidy surfaced this weekend. Today, a presidential spokesman called upon Newsweek to retract the story. The editors have so far refused, saying they need "more time" to determine the facts. Meantime seventeen people are dead and our friends in the middle east are further pressured to abandon us.

[This message was edited by BLeonard on 05-16-05 at .]

Oh, so 17 people are only "technically" dead and others have been put into jeopardy because a news story happened to include parts of the truth in its overall reporting of a story that had not been thoroughly checked-out before going to press. If it was the whole truth and not a mixture of "well there were SOME Quran investigations going on somewhere or something like that..." and unsubstantiated exaggerations, then why is Newsweek still investigating itself to see what happened -- if it's that cut-and-dried, they should have the final word by now.

The difference between saying there is an investigation pending and saying that the events actually happened really isn't important to the 17 families, now is it?

Although that may technically be what AP is saying.

Newsweek retracts Quran story
04:48 PM CDT on Monday, May 16, 2005

By DINO HAZELL / Associated Press Writer

NEW YORK � Newsweek magazine, under fire for a publishing story that led to deadly protests in Afghanistan, said Monday it was retracting its report that a military probe had found evidence of desecration of the Quran by U.S. interrogators at Guantanamo Bay.

Earlier Monday, presidential spokesman Scott McClellan had criticized Newsweek's initial response to the incident, saying it was "puzzling."
Newsweek had reported in its issue dated May 9 that U.S. military investigators had found evidence that interrogators placed copies of Islam's holy book in washrooms and had flushed one down the toilet to get inmates to talk.

Newsweek acknowledged problems with the story and its editor, Mark Whitaker, apologized in an editor's note in this week's edition. The accusations spawned protests in Afghanistan that left 15 dead and scores injured.
Whitaker wrote in an editor's note that "We regret that we got any part of our story wrong, and extend our sympathies to victims of the violence and to the U.S. soldiers caught in its midst."

But after the White House criticized Newsweek's response to the story, Whitaker released a statement later Monday through a spokesman saying the magazine was retracting the story.

"Based on what we know now, we are retracting our original story that an internal military investigation had uncovered Quran abuse at Guantanamo Bay," Whitaker said.

If the story was 100% true those people would still be dead. Likewise if it was 100% false.

The Newsweek story didn't kill anyone... they died when a protest turned into a riot.

The police opened fire, they were were not trained in crowd conrol.

...sort of like what occasionally happens in Europe and elsewhere after soccer games.