Reporter Jailed For Contempt p. 17

By: DOROTHY GIOBBE MIAMI HERALD reporter is serving a 70-day sentence in jail for refusing to testify about his interview with an accused murderer.
Judge Roger Colton of West Palm Beach Circuit Court found reporter David Kidwell guilty of contempt of court last week and ordered him to begin serving immediately. The penalty stems from a 1994 jail house interview with accused murdered John Zile, who prosecutors say killed his stepdaughter. In the interview, Zile admitted he was "furious" with his stepdaughter on the night she died.
Prosecutors say that Kidwell's interview, which was the basis of a Herald story, differs significantly from a statement Zile gave to police, and that's why the reporter has to testify.
The Herald initially backed Kidwell's decision not to testify, but in the end recommended that he answer some of the prosecution's questions about the interview. Florida does not have a shield law to protect journalists from being questioned in court.
Sam Terilli, general counsel for the Herald, said he believes 70 days is "extreme" and prosecutors have "run amok," but legally it's no use fighting the subpoena.
"We believe as a matter of public policy, that it's a bad idea for reporters to be hauled into court to testify," Terilli said. "When we receive a subpoena, we generally resist them. But if you exhaust every reasonable option and are faced with a valid court order, then absent some extraordinary circumstance, you comply with the law."
Terilli said the newspaper was trying neither to impede nor to aid the prosection, and Kidwell
"wasn't a witness in this case. This is a reporter who talked to a defendant."
Paul Zacks, chief assistant state attorney for Palm Beach County, said his office's policy is "not to subpoena unless it is absolutely essential, and in this case, we felt it is."
"This case is a first-degree murder case of a little 7-year-old girl," Zacks said. "The husband, John Zile, was the one who actually did the beating. He gave a statement to police, and was somewhat loose with the details.
"Kidwell . . . got into the jail before the trial and interviewed Zile, and he gave Kidwell a complete story that was printed in the Herald. The information Kidwell obtained differed in significant ways from Zile's version to the police," Zacks added. "That statement to Kidwell was important to our case."
According to Florida case law, Kidwell has no option but to comply with the subpoena, because he has no right to withhold information that doesn't involve a confidential source, Zacks said.
"We cannot get into the contents of the newspaper article in any other way than to have Kidwell on the stand," Zacks emphasized. "If there were any other way we would do it."
Terilli dismissed concerns that the Herald's position will set a precedent for reporters to testify.
"That's a silly suggestion," he said. "That ignores everything that happens in between. Reporters have testified, many of them. It depends on the facts. It depends on the case. If David had testified, he would not be the first, and he would not have been the last," Terilli said.
Reporters "are not above the law," the Herald attorney pointed out, and while reporters shouldn't be compelled to testify, "we don't believe that the press is empowered to exempt itself."
The Herald is paying Kidwell's salary while in jail, and a group of his co-workers reportedly paid his $500 fine.
Terilli said that Kidwell, who faces at least one other subpoena in another jail house interview, "is not enthusiastic about serving the 70 days, but he is resolved. You have to give him a lot of credit."
Zacks, representing the state of Florida, was less sympathetic. "Kidwell has chosen to make himself a martyr. Every time a reporter has been subpoened, in my experience, the newspaper or radio, or whatever, says the prosecutors are running amok."