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TRIBUNE COLUMN
Lesson in media/judicial battles is that restraint serves us well

Published Sunday, November 6, 2005

The Judith Miller saga meant little to me until last Friday.

Sure, as a journalist, I followed her tale. Big-city reporter from The New York Times protects anonymous source. Source is tied to White House scandal. Prosecutor goes after the media. Reporter trashed by critics. Miller goes to jail and becomes martyr, then pariah. I knew the story’s broad outlines but didn’t personalize it because out here in the hinterlands things are different.

The brand of journalism we practice far from the Beltway has an entirely different taste to it. "Off the record" means what everybody thinks it means. We don’t have umpteen derivations of the term, from background, to deep background to whatever else it is our counterparts out East are calling it these days. Our public officials are more adept at avoiding our calls than they are at playing a game in which "senior government officials" give news conferences to groups of reporters and then the reporters all write about what is said without naming the real person with a real face and a real job.

Our world is different, and that’s why I didn’t follow Miller’s case that closely. I felt bad that she was in jail. I didn’t like that she went there, seemingly, to protect a source who was probably up to no good. But I wasn’t ready to weigh in on her role as a modern-day media Joan of Arc.

A yellow sheet of paper marked "official business" changed that.

It was a subpoena from the public defender’s office. I was being summoned to testify in a murder case.

My initial reaction was a dismissive chuckle. Surely there was a mistake. Yes, I had interviewed the suspected murderer, Shawan Daniels, in jail. She told me she committed the act that led to the death of 72-year-old Earlene Bradshaw. She claimed it was self defense. I wrote a column about it and put all the details right there in black and white.

Daniels’ trial is scheduled for next month. What could I possibly testify to that would be beneficial to either the defense or the prosecution?

The answer is I don’t know.

But the yellow sheet of paper made me think seriously for the first time about all the issues surrounding the Miller case. Wipe away all the political discourse about the mainstream media and the right wing or left wing and any conspiracies fueled by overactive Beltway imaginations, and the issue involved in Patrick Fitzgerald’s subpoena of Miller and Valerie Leftwich’s subpoena of me are roughly the same.

An arm of the state wants to use the benefit of a reporter’s work to make its case.

In Missouri, as in the federal judicial system, there is no shield law specifically protecting reporters from this kind of disclosure. I happen to disagree with many of my colleagues who say such a law is necessary. One of the bedrocks of journalism is that we are no different than members of the public; we simply dedicate ourselves to being their eyes and ears. Open-meetings laws and public-records laws aren’t for us, they’re for everybody. The judicial system, I believe, should be the same. But the legal system also recognizes an important First Amendment protection that members of the press should not be used as arms of the state. To that end, for a reporter to testify, the state must prove that it cannot obtain the information elsewhere and that the reporter’s testimony is necessary because he or she is an eyewitness to a crime.

In Miller’s case, Fitzgerald apparently met his burden. Miller, Time reporter Matthew Cooper and NBC correspondent Tim Russert all had specific conversations with White House aide Lewis "Scooter" Libby that provide the proof, the prosecutor says, that Libby violated the law.

In my case, that burden has not been met, and it’s why Boone County Circuit Judge Gene Hamilton quashed my subpoena Friday minutes before I was scheduled to be deposed. If either side wants to talk to me, they will have to prove they can’t get the information from anywhere else.

Of course, it gets a little more complicated than that. In my column about Daniels, I also spoke to an anonymous source who verified her self-defense story. This source played a voice mail for me from somebody else involved in the conflict. I granted anonymity to this source because he was afraid of the person who Daniels alleges threatened her with physical harm.

So if forced to sit through a deposition, will I answer questions about this source? Of course not. Nor will I ask for a waiver, a la Miller. Why?

It all comes back to our different worlds. Miller was defending an insider who was using the system to his advantage. I’m potentially protecting an innocent man who’s afraid the system will cause him personal harm.

The likelihood is that this is much ado about nothing. But I’m grateful a little yellow sheet of paper caused me to pay more attention. I’m more convinced than ever that the state should tread lightly when asking reporters to testify, lest whistleblowers and other likely sources of information feel that promises of confidentiality can never be honored. Equally apparent is that journalists should be careful with such promises of anonymity.

Even in the hinterlands, we sometimes hand them out without enough regard for the consequences of their use.

Restraint, it seems, should be the order of the day.


Tony Messenger is a columnist at the Tribune. His column appears on Sunday and Tuesday through Thursday. He can be reached at 815-1728 or by e-mail at tmessenger@tribmail.com.

 

 

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