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Journalists find little protection under Illinois shield law

By Douglas Lee
Lawyer, Ehrmann Gehlbach Badger & Lee

Almost by definition, high-profile murder cases don't have many benefits. Occasionally, though, they help to focus our attention on cracks in our criminal justice system. This occurred recently in the April Whiteside murder case, when a trial judge's ruling reminded us that the Illinois law "protecting" news reporters from harassing subpoenas is wholly inadequate.

In the Whiteside case, I was privileged to represent the reporter who had been subpoenaed to turn over his notes and tape of an interview he'd conducted with an alleged accomplice in the murder. I therefore was the lawyer who had to explain to the newspaper's publisher why the judge's order to turn over the tape might not be reversed on appeal.

"April Whiteside" is the name given to the dead newborn found in April 1999 along a canal in rural Whiteside County, Illinois. Her mother, Catalina Mendoza, pled guilty to second-degree murder in January, admitting she had left the baby to die but claiming her on-and-off boyfriend, Nicholas Olalde, had persuaded her to do so.

Phillip Hartman, the reporter who had been covering the case for the Daily Gazette in Sterling, Ill., interviewed Olalde about Mendoza's allegations. During the interview, Olalde denied any involvement in the murder, saying he didn't even know Mendoza was pregnant. Hartman then wrote an article based on the interview.

Almost immediately, Mendoza's lawyer subpoenaed Hartman's notes and tape. These materials were necessary for Mendoza's sentencing hearing, he claimed, because Olalde's reported statements to the newspaper were inconsistent with other statements he had made. Moreover, the lawyer freely admitted, he wanted the tape to learn what else Olalde might have said during the interview.

To its credit, the newspaper resisted vigorously. Unfortunately, the subpoena exposed a gaping hole in the statutory and judicially recognized privileges designed to protect Illinois reporters from the fishing expeditions of prosecutors and defense lawyers.

The Illinois Reporter's Privilege Act, for example, protects only confidential sources. While one Illinois appellate court appeared to extend the statute's protection to unpublished information, it did so without analysis, leaving media lawyers with little ammunition in a battle against a skeptical judge. In cases without confidential sources, many courts have held, the act simply does not apply.

In many other states, courts have stepped forward to plug holes in the statutory privileges protecting reporters. Without some protection for newsgathering, these courts have recognized, freedom of the press is hollow. Sadly, this has not occurred in Illinois. Instead, a lone Illinois appellate court has extended the "special witness" privilege — which protects judges and prosecutors — to reporters. Because reporters have a similarly important status in Illinois, the court reasoned, they also should be treated as special witnesses.

Unfortunately, no other Illinois court has embraced this reasoning. Nor, for that matter, has any other court across the country. As a result, Judge Dan Dunagan was understandably skeptical as I argued the privilege's applicability.

Under the privilege, I argued, Mendoza's lawyer was required to show the subpoenaed information was necessary to the case and could not be obtained elsewhere. While Dunagan reluctantly applied the privilege, he held the wide-ranging nature of a sentencing hearing diluted the requirement that the information be necessary. He then found that, while there were other sources for the information on the tape, there was no alternative source for the tape itself. He therefore ordered that, while Hartman could not be compelled to testify or turn over his notes, he must produce the tape.

As I explained to my client, I believe Dunagan applied the special witness privilege incorrectly. As everyone conceded, Mendoza's allegations against Olalde would not be challenged during the sentencing hearing. Therefore, neither Olalde's testimony nor his allegedly inconsistent statements were necessary. Additionally, Dunagan's ruling that there was no alternative source for the tape effectively gutted the privilege. In a case like this, the inquiry cannot be whether other sources exist for the tape. If it were, the privilege would be meaningless, as a reporter's tape is always unique. Rather, the inquiry must be whether other sources exist for the information on the tape.

Nevertheless, the newspaper correctly decided not to appeal Dunagan's order. From a practical standpoint, the newspaper was most concerned that an appeal would unavoidably delay Mendoza's sentencing and imprisonment. The newspaper also knew the tape contained little information that had not been published in the article.

From a legal standpoint, moreover, the newspaper could not ignore the possibility that a different appellate court would reject the special witness privilege's applicability and not extend another privilege in its place. An appellate court also could apply the special witness privilege to testimony but not to the production of tapes and notes. Under either scenario, Illinois law would be even worse than it is today.

As the Whiteside case demonstrates, the Illinois reporter's privilege must be strengthened. Illinois is in the minority of states that has failed to clearly protect journalists from harassing subpoenas. As a result, reporters in Illinois working with nonconfidential sources have little defense against lawyers' efforts to interfere in newsgathering.

No reason exists for Illinois to be in this minority. The General Assembly should act quickly and decisively to create an environment in which reporters can freely gather and report the news.

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