02/12/01 – ARIZONA PROSECUTOR SUBPOENAS EDITOR

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Monday, February 12, 2001



ARIZONA PROSECUTOR SUBPOENAS EDITOR
Fallout From Arson Story Continues In Phoenix









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by Randy Dotinga

An Arizona prosecutor has expanded his legal battle against an
alternative newspaper by demanding to see communications between
the managing editor and a reporter who wrote a blockbuster story
about an alleged arsonist. The Phoenix New Times plans to
fight Maricopa County Prosecutor Richard Romley’s latest attempt
to dig for information about the anonymous arsonist, who claims
to have torched local mansions.

The newspaper has already gone to court to stop a subpoena of
reporter James Hibberd. The newspaper’s chances for success may
be mixed, however. While Arizona has one of the nation’s
strongest shield laws, prosecutors appear likely to argue that
Hibberd waived his rights to protect a source when he agreed to
cooperate with investigators.

The New Times, which has a free distribution of about
120,000, printed a 90-inch cover story on Jan. 24 about a man who
claimed to be responsible for a series of fires at newly built
custom homes near a wilderness preserve. The alleged arsonist had
contacted Hibberd after reading his earlier story about the
fires, which have caused millions in damage.

Hibberd agreed to not tape record or photograph the man, who wore
a disguise to their meeting at a downtown park. After Hibberd
wrote about his meeting with the man, the New Times met a
barrage of criticism from radio-talk show hosts, letter writers,
and newspaper columnists who felt he should have alerted
authorities.

The furor has died down, however, and last week’s issue featured
many more letters in favor of the newspaper than against it, said
managing editor Carol Hanner. “We’re getting overwhelming support
now,” she said. “They’ve had a chance to read and think about it,
and we’re getting a clear majority in favor.”

But fan letters aren’t coming from the county prosecutor’s
office, which is busy issuing subpoenas. First, prosecutor Romley
targeted Hibberd with a Jan. 25 grand jury summons demanding his
notes, Web page records, computer storage devices, keyboards,
printers, monitors, modems, and a number of other items. In court
papers, the New Times claims the subpoena is illegal:
“When members of the press are forced to turn over their notes
and work-product, they lose their independence and are
conscripted into the role of investigators for the State.”

Later, the grand jury subpoenaed Hanner, the New Times
managing editor, and asked for documents related to conversations
she had with Hibberd, said newspaper attorney Michael J. Meehan.
Legal experts disagreed about how common it is for a prosecutor
to subpoena an editor. “It is certainly known for editors to be
subpoenaed, especially if the party seeking the information
believes the editor has knowledge,” said Jane Kirtley, media
ethics professor at the University of Minnesota and former
executive director of the Reporters Committee for Freedom of the
Press.

“We always focus on the reporter,” said Kirtley, who is an
attorney. “In fact, this is a good educational lesson that it
isn’t always the reporter who’s vulnerable. It’s anyone in the
chain of command who could have knowledge.”

Daniel Barr, an attorney for the Arizona First Amendment
Coalition, said prosecutors usually want material that has
already been broadcast or published. “Obviously having an editor
subpoenaed is extremely invasive of the reporting and editing
process,” he said. “You don’t see that very often.”

Arizona’s shield law is clear and concise, Barr said. It states
that a reporter “shall not be compelled to testify or disclose
… the source of information procured or obtained by him for
publication …” Prosecutors, however, may argue that Hibberd
waived his rights to protect his source, Barr said.

Meehan, the newspaper’s attorney, said he has heard that
prosecutors will use that very argument. “It comes down to two
things,” Barr said. “What was the nature of the New Times
promise to this purported arsonist, and was it promising
confidentiality or not? And two, has that promise been waived?”

After his cover story was printed, Hibberd met with investigators
and revealed things that did not make it into the story due to
space constraints. Only about 10% of the information he had
didn’t make it into the story, Hibberd said. “I didn’t have any
problem telling them material that was in the story or providing
material that was on the record,” he said in an earlier interview
with E&P Online. He did balk, however, at assisting with voice
identification or helping police create a sketch of the suspect.

Prosecutors may argue that Hibberd can’t have total control over
his own cooperation with authorities, Barr said. “They’re going
to say you can’t talk about what you want to talk about and then
not provide further details.”

But Meehan pointed out that the shield law protects sources, not
just journalists. He asked: “Whose right is it, the reporter’s or
the source’s?” Ultimately, a judge may provide the answer.



Randy Dotinga (rdotinga@aol.com) is a freelance writer based in San Diego.



Related story:

FIRESTORM SURROUNDS PHOENIX NEW TIMES STORY (02/01/01)



Copyright 2001, Editor & Publisher.

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