FOI Alert Volume 2 Issue 6
An aggressive reporter, sometimes working harder at getting the facts than police and prosecutors, faces a subpoena.
In a state with no shield law, the consequences can mean being treated like a criminal.
David Kidwell ought to know.
The Miami Herald reporter was sentenced to 70 days in a Palm Beach jail for refusing to testify in the criminal case of John Zile.
Ziles' second trial is now underway. He's accused of beating his stepdaughter to death, burying her behind a Kmart store, and then covering up the crime with his wife.
Ziles first trial resulted in a hung jury.
At that time, he took the stand, testified and mirrored what appeared in a prior Herald article written by Kidwell.
Prior to the second trial, Kidwell was deposed for 40 minutes refusing to answer such questions as "What was he wearing?" and "What conversations did you have with your editors about the story?"
Because Kidwell refused to testify, he was sentenced to 70 days in jail which is one of the most excessive sentences imposed on a working journalist in recent history.
Kidwell served two weeks in jail before he was released after a federal district court hearing, and his case is now on appeal.
Jail was not the worst of this.
"The worst of it was the heartache and disappointment from within the profession," said Kidwell, who is now back at work.
As many journalists do, Kidwell learned that the loneliest choice to make is one based on principle.
He was assailed by competitors. Some accused him of going to jail only as a publicity stunt, to further his career, or land a lucrative book deal.
But he was also concerned about setting bad case law in his state. In posting a message to his co-workers, Kidwell wrote that the paper supported him but did not condone violating a court order.
That choice was Kidwell's alone to make.
"The government clearly does not need me for any new evidence I have to offer. They don't want me for what I have. They want me for who I am. They want my credibility. They way I see it, I can either give it to them or I can keep it," he wrote.
The Society of Professional Journalists condemned the sentence.
Society President Steve Geimann said journalists should not be called upon to do the work of government. "We can't, and shouldn't, become extensions of the prosecutor s office or the police or any other government agency. Our roles in the community are different. Our country has relied on a free and independent press in the same way it depends on a strong judicial system."
The Reporters Committee for Freedom of the Press reports that there have been about a dozen cases since 1984 in which journalists have gone to jail, some involving more than one journalist per story.
That number does not include cases where contempt citations have been stayed or journalists have received suspended sentences.
"Florida and Texas have been two of the worst states in the last 10 years and neither have shield laws," said Jane Kirtley, executive director of the committee.
"The bottom line is, even if you've got a newspaper that will take you all the way to the U.S. Supreme Court, it's still your choice whether you go to jail or not," said Kirtley. "It's a matter of personal conviction."
Twenty-nine states and the District of Columbia have shield laws.
The Reporters Committee suggests you consider the following when served with a subpoena:
Under no circumstances should you comply with a subpoena without first consulting a lawyer.
It is imperative that your editor or news organization's legal counsel be advised as soon as you have been served.
You may not ignore a subpoena. If you not appear at the time and place specified, you could be held in contempt of court and fined or imprisoned or both. A subpoena is simply a notice that you have been called to appear at a deposition or other court proceeding to answer questions or supply documents.
In some situations, your news organization may not agree that sources should be withheld, and may try to persuade you to reveal that information. If the interests of the organization differ from yours, it may be appropriate for you to seek separate counsel.
If you state does not have a shield law, the state's courts may have recognized some common law or constitutional privilege that will protect you.
(For a copy of What to Do from the committee's "Confidential Sources & Information" guidebook, call 703-807-2100 or e-mail: email@example.com)
Kirtley also notes that in cases in which media organizations have lost, and a reporter is facing jail time, a habeas corpus can be filed in federal court. A habeas corpus is a legal petition alleging the state's position is contrary to constitutional law.
A habeas was filed in Kidwell's case.
"This worked, and it worked exactly the way it should have," said Kirtley.
In the meantime, state lawmakers from Dade County have promised to introduce legislation to create a shield law in Florida.