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Patch Reporter Wins Appeal to Protect Confidential Source

By Joe Roselius and Ken Schmetterer

The lifeless bodies of two young men, Eric Grover and Terrance Rankins, were found strangled in a house in Joliet Illinois, after they were lured into the house to be robbed for money to buy alcohol and cigarettes. The four perpetrators discussed dismembering the bodies to hide their crime and having sex on the dead bodies. In early 2013, reporter Joseph Hosey – drawing on police reports that had not otherwise been released to the public – described these and other gruesome details in a series of articles, titled "Nightmare on Hickory Street," for online news service, Patch.com.

One of the defendants, Bethany McKee, served a subpoena on Hosey, demanding that he reveal his confidential source and turn over his reporter's files. Hosey moved to quash the subpoena based on two grounds: (1) the Illinois statutory reporter's privilege, 735 ILCS 5/8-901, which bars courts from compelling reporters to divulge confidential sources unless certain conditions are satisfied and (2) the common law "special witness doctrine," which protects reporters from testifying unless the information sought is essential to the case and cannot be secured by other means.

McKee responded by filing a petition to divest Hosey of his reporter's privilege and to secure a gag order preventing the parties, attorneys, police, and court personnel from discussing certain aspects of the case. The judge entered the gag order and required all counsel and the Joliet Police Department to submit affidavits from their employees certifying that they were not Hosey's confidential source. All affiants stated that they were not the source.

In her petition to divest Hosey of his reporter's privilege, McKee argued that the leak and Hosey's stories violated her right to a fair trial and prevented her from testing whether any of the affiants committed perjury by averring that they were not the source. The trial court granted the petition and ordered Hosey to identify his source and submit for in camera inspection all documents that he received from the source or that would identify the source. If no such documents existed, he was ordered to identify his source and explain the circumstances surrounding his ability to obtain the police records.

The court justified its ruling on several rationales: that an attorney may have violated discovery rules, that someone may have violated the secrecy of the grand jury, or that someone may have provided a false affidavit. The court also observed in its ruling that a reporter could reap financial gains from writing books and screenplays about high profile cases based on confidential sources. The court recognized "its duty and obligation to protect the First Amendment Rights of the reporters," but also stated that it "cannot envision where those rights are superior to the fair trial rights of individuals charged by the State with the most serious criminal offenses."

Hosey refused to reveal the identity of his source or turn over his files, and the trial court held him in contempt, imposing a daily fine and ordering that Hosey be jailed if he continued to refuse to identify his source.

Appellate Court Decision

Hosey appealed, arguing that the identity of his confidential source was not relevant to the merits of a claim or defense in the underlying case, but only relevant to collateral matters. Hosey – noting that police reports were public records and that no gag order was in effect when he obtained the reports – also argued that disclosure of his source was not necessary to protect an important public interest, and that McKee failed to pursue sufficient efforts to obtain the information by some other means, as required by statute. Finally, Hosey argued that the Special Witness Doctrine should protect him from testifying to the matters that the judge had ordered.

The Illinois Appellate Court – focusing solely on the relevance issue raised by Hosey – agreed and reversed the trial courts order. People v. McKee, 2014 IL App (3d) 130696 (Dec. 15, 2014).

The appellate court recognized the importance of the statutory reporter's privilege "to assure reporters access to information, thereby encouraging a free press and a well-informed citizenry." As the court explained, the relevancy requirement depends on the type of proceeding in which the information is being sought. "[A] fact is 'relevant' if it tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."

In other words, confidential source information is relevant if the information sought is material to proof of an element of the offense charged, to proof of the defense asserted by the accused, to a reduction in the gradation of the charge, or to a mitigation of the penalty associated with the charge. When the information is only relevant to collateral matters, such as violation of court rules or a witness's credibility, that is not enough to overcome the protections afforded by the Illinois Reporter's Privilege.

Although the First Amendment to the United States Constitution provides that "Congress shall make no law ... abridging the freedom ... of the press," attempts to rely on the First Amendment to protect reporters from testifying about their investigation and confidential sources have been limited by the United States Supreme Court.

In Branzburg v. Hayes, the Supreme Court declined to protect reporters from being forced to testify about crimes being investigated that they had witnessed or written about in the course of their work as journalists. At least in that instance, the Supreme Court chose not to recognize a constitutional testimonial privilege for reporters different from that of other citizens.

In response to the Supreme Court's failure to recognize more stringent First Amendment protections for reporters, many state legislatures passed statutory reporter's privilege or shield laws to provide additional protections to reporters and confidential sources. In other states, state courts created similar privileges. These statutory and common-law protections run the gamut from absolute privileges allowing reporters to refuse to testify, to qualified privileges of varying strengths.

While there are efforts in the United States Congress to pass a federal shield law, it is unclear when, or if, such a federal statute will be enacted. Until then, the resulting patchwork of state protections demands that reporters, confidential sources, and the attorneys representing them carefully examine the protections available in their state and any states in which they work. The Reporters Committee for Freedom of the Press has created a helpful guide (http://www.rcfp.org/reporters-privilege) that will help practitioners navigate the various statutes and state laws.

Courts are all too often willing to weaken the freedom of the press (a freedom that, reporters argue, would be eviscerated if confidential sources feared being revealed) when they believe it is essential to protect the constitutional rights of criminal defendants. Advocates representing the press must understand the protections and rights afforded to reporters, prosecutors, defendants, and civil litigants across the various jurisdictions in which they practice. A journalist's right to disseminate news reflects a corresponding right to gather news – a right that is threatened if reporters are forced to divulge confidential sources without some compelling justification and as anything other than a last resort. The freedom of the press is not just important to reporters; it also ensures an active, well-informed public. As Thomas Jefferson declared, "our liberty depends on the freedom of the press, and that cannot be limited without being lost."

Joe Roselius is a senior associate, and Ken Schmetterer is a partner in the Chicago office of DLA Piper

 
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