The Havre Daily News had a day in court this morning, with a local judge ruling a reporter was protected from being forced to testify in a trial.
“The press truly, I believe, is protected, ” Hill County Justice of the Peace Audrey Barger said when making her ruling.
Barger said she does not prefer to admit newspaper articles as evidence, but left the door open to admitting the contents of the story.
The city of Havre’s prosecuting attorney, Tamara Barkus, subpoenaed Havre Daily News reporter Zach White to testify in the trial of Havre City Council member Rick Dow, which began this morning.
Dow is accused of violating the Havre ordinance prohibiting use of a handheld cellphone while driving.
The newspaper filed a motion to quash the subpoena, citing state law — and the First Amendment — that specifies reporters may not be forced to testify in regards to information gathered in the intent of disseminating news.
White has covered the issue, including coverage of City Council and law enforcement in its implementation and enforcement of the ban, as well as the ticketing and initial court hearings of Dow for his alleged violation of the ordinance.
The city passed a law that went into effect Oct. 1, 2011, making it illegal to use or hold a hand-held cellphone while driving. Use of a hands-free device, such as a Bluetooth cellphone headset, is allowed.
Dow was an outspoken opponent of the ordinance, speaking against it in council meetings before he was elected and trying to have it repealed once he was elected in 2011.
He was among the first people ticketed for being accused of violating the ordinance. His trial, with Barger presiding, started this morning with jury selection.
The identical free press issue has arisen in state District Court. The Hill County Attorney has subpoenaed White to testify in the trial of Kenneth Erickson, who is accused of assaulting and injuring a man in Havre in April 2011.
A subpoena for White was issued and later withdrawn after plea agreement negotiations were nearly completed. After the negotiations fell through and the trial rescheduled, the county attorney again issued but never served a subpoena to White.
The Havre Daily filed a motion to quash that subpoena, citing the same state code as it did in the Dow case.
Judge Dan Boucher, who is presiding in that case, had not ruled on the motion to quash.
Havre attorney Chris Young, representing White and the Havre Daily, said in the hearing this morning that both Montana law and the U. S. Constitution prohibit forcing a reporter to testify.
“He cannot be examined in a court of law unless he waives that privilege …, ” Young said. “(The Shield Law) is designed to protect. The First Amendment of the (Constitution of the) United States of America pertains to freedom of the press. There are many reasons why a person … would not want to go down the slippery slope of answering questions in a court of law.
“And the (Montana) law is black and white. It very clearly says that my client has the privilege of not testifying, ” Young added.
He quoted Montana Supreme Court Justice William Hunt saying the code was written “to encourage a free and dynamic press by protecting journalists” to access sources and confidential information.
Havre attorney Lindsay Lorang, who is representing Dow, said the ideal of a free press is the opposite of a police state — the press should be free to question and investigate the government.
If forced to testify in court, “the reporter in this situation becomes almost like a police officer …, ” Lorang said. “It is not the role of the press to do the job of the government. ”
Barkus said the best evidence the prosecution has that Dow violated the city ordinance was an interview, which she called a “press conference, ” following the councilman’s arraignment in which White reported Dow said he was not using his cellphone while driving, but only holding it in his hand.
“I’m not sure how this press conference came to be, ” she said. “There is no other word for it. …
“A defendant in a similar situation probably should have said ‘no comment. ’ He did not. He had lots to comment on …, ” Barkus said. “In all my years as a prosecutor, this is the first time I have seen evidence in a newspaper article. ”
Lorang said her client did not hold a press conference. White interviewed her client after he was arraigned, she said.
“He (Dow) objects strenuously to the use of that phrase, ” Lorang said.
Lorang said she agrees that White is protected from being forced to testify, but also said she objects to a newspaper article being introduced as evidence. That avoids a millennia-old concept of justice saying the accused can face and cross-examine their accusers, she said.
Young said if the judge had ordered White to testify, he would advise his client to simply answer questions about his name and occupation. After that, he said, he would advise White to decline to answer based on his rights under the Montana Confidentiality Act and the First Amendment.
He said Barkus does not White to introduce the evidence from the interview. She doesn’t need him to take the stand and say this “is the newspaper article, ” he said.
“I think this whole hearing this morning reveals the whole reasoning behind the constitutional provision and the Montana Confidentiality Act …, ” Young said. “It would not accomplish anything by bringing this young man up … and he would find himself jeopardizing everything he stands for as a journalist and putting every journalist in that same position. ”