By: Todd Shields
Decatur Paper Appeals While Editor Ordered To Jail
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by Todd Shields
Karyn Slover’s dismembered body turned up floating in trash bags on
an Illinois lake in 1996. More than a year later, police searched a
used-car lot owned by her husband’s parents. Confronted with a
possible break in the investigation of a sensational crime, the
Decatur Herald & Review published a story and a photograph.
Police came away from Miracle Motors with bone fragments and a
conviction that Slover was dismembered there. The H&R came away
with a problem that surfaced only after Slover’s spouse and former
in-laws were charged in the slaying.
Defense attorneys want the H&R’s unpublished photos of what they
call a tainted search, and a judge agrees with them. The newspaper
has refused. Editor Peggy Bellows is under a contempt order and
could go to jail.
Under the Illinois shield law, newspapers can be compelled to
answer subpoenas, but only after a proceeding that weighs such
questions as whether the information can be obtained elsewhere.
Macon County Circuit Judge James A. Hendrian acted without such a
hearing, saying the shield law did not apply since the newspaper
was not being asked to divulge a confidential source. He ordered
Bellows to be jailed until the H&R produced the photos, but
immediately granted a stay as the newspaper appealed his ruling.
Bellows, 44, said she was prepared to go to jail at the Sept. 8
hearing before Hendrian. She thinks the appeal will succeed. And
she is certain that turning over the photos would sour potential
sources. ‘The pall it would cast over our ability to do our job –
I don’t think we could ever get over it,’ she said.
In several other cases, papers recently have posted photographs or
notes on the Web so authorities need not issue subpoenas. Bellows
rejected such a course, saying it amounted to compelled publication.
‘It is our privilege to decide what to publish,’ she said.
At the same time, H&R Publisher Michael Gulledge has contended that
defense lawyers need to exhaust other sources before free-press
protections can be set aside. For instance, during their lengthy investigation, police shot more than 1,100 photographs, including
some that show the search.
Illinois case isn’t unique
The turmoil surrounding the 35,350-circulation daily in central
Illinois is but the latest in a rash of demands by defense
attorneys, prosecutors, and police for newspapers’ unpublished
notes or photographs. Other recent examples are in New Jersey,
Minnesota, Kansas, and California. Several experts say it appears
authorities increasingly are willing to brush aside First Amendment
concerns as they seek journalists’ unpublished work.
‘What’s happening, what’s unequivocal, is a pretty dramatic increase
in subpoenas,’ said Anders Gyllenhaal, executive editor of The News
& Observer in Raleigh, N.C., and Freedom of Information Committee
chair for the American Society of Newspaper Editors. Reasons for the
surge are unclear. Some suggest that subpoenas simply are cyclical,
waxing some years and waning in others. Others said awareness of a
reporter’s role in a democracy may have diminished. And Gyllenhaal
said defense lawyers may increasingly regard subpoenas as a quick
and cheap way to conduct research, in essence piggybacking on
In the 1970s and 1980s, legal authorities throughout the nation seemed
mindful of the journalist’s special role, said Robert O’Neil, director
of the University of Virginia’s Thomas Jefferson Center for Protection
of Free Expression. ‘In the past few years, courts have subtly swung
back the other way and for whatever reason are less likely to be
protective,’ O’Neil said.
Roughly 30 states have shield laws designed to protect journalists
from subpoenas. The statutes aim to protect free-press rights, yet
generally concede circumstances when journalists may be compelled
to turn over material. Usually, those seeking it must prove their
request is relevant and that they cannot get the information
In New Jersey last week, a judge quashed a subpoena aimed at a
reporter for The Philadelphia Inquirer, ruling Sept. 11 that a
murder defendant could not have notes Nancy Phillips made of
conversations with a key prosecution witness. Camden County Superior
Court Judge Linda C. Rosenzweig said lawyers had a less intrusive
way to get the information: simply by cross-examining the witness.
Using language that cheered First Amendment advocates, Rosenzweig
wrote that any benefit to the defendant’s case was ‘dwarfed by the
enormity of the harm that would result to the freedom of the press.’
Todd Shields (email@example.com) is the Washington
editor for E&P.
(c) Copyright 2000, Editor & Publisher