Wednesday, December 13, 2006

Does Texas need a shield law? Do reporters s#*t in the woods?

If the Legislature gives the media a "shield law," said Barry Macha, the Wichita County District Attorney, then "you're going to give them license to run naked through the woods."

Hmmmmm. I've heard of bloggers in their pajamas, but that's a new one to me about reporters naked among the trees.

Seriously, noticing on Rep. Peña's blog that the Texas House Judiciary Committee this morning was discussing journalist shield laws, I turned on the hearing just in time to hear my friend Wichita DA Barry Macha denouncing a "shield law" for reporters in Texas, saying that if approved it "would destroy the grand jury process in this state."

Two things come to mind here:

First, don't other states with shield laws run their grand juries just fine?

Second, shield laws are about many things besides grand jury testimony. Couldn't you exempt grand jury information?

Macha said he wouldn't mind an informer privilege, but only where the informer had not engaged in any criminal conduct. That's ironic - the informer privilege DAs and police use every day covers up plenty of criminal conduct.

Chair Will Hartnett picked up on this - the journalists, he said, just want "exactly the same" privilege the DAs themselves use. (Not even that, really.) Macha admitted that's right, but returned to his meme that what reporters "really" want is access to grand jury testimony.

Hartnett pressed Macha whether he thought journalists who obtained "material evidence" as opposed to the "extreme" example of grand jury testimony should receive a privilege. Macha responded by reading a letter from the prosecutor in the Jasper, Tx James Byrd murder - a racially charged incident where Byrd was dragged behind a pickup truck that made national headlines. The letter said that after the first two convictions, prosecutors obtained evidence incriminating the third defendant from an interview with the network TV show 60 Minutes. Macha implied the case couldn't have been made otherwise, but a later witness pointed out the evidence obtained from 60 Minutes was never entered at court in Jasper, so it wasn't "critical to the case."

I think it was Rep. Veronica Gonzales who noticed that the prosecutor can issue a grand jury subpoena to a reporter, but defendants cannot do the same if the reporter has exculpatory evidence. Macha confirmed that the defense could not depose witnesses, but they could supbpoena them at trial, he said. (Of course, that's a red herring - fewer than 1% of Texas criminal cases ever reach trial.)

Rep. Alonzo went back to the grand jury issue and asked point blank how the public could be sure the secret, non-transparent grand jury process wasn't being abused? According to Macha the only way to tell would be indirectly, if a lot of cases indicted by the grand jury started getting tossed. But he could not give any examples of how such misconduct might ever come out.

Rep. Peña has filed HB 382 that would create Texas' first journalist shield law since the common law version was struck down by the Texas Court of Criminal Appeals in 1993.

UPDATE: More from Capitol Annex, the Texas Law Blog, the Austin Statesman, the Brownsville Herald, the Associated Press, and an editorial from the Lufkin Daily News.

14 comments:

Shannon E. said...

Scott:

You may want to go back through and watch the entire hearing from the beginning; several of the questions you raised were answered by Mr. Macha or other witnesses at various points thoughout the hearing (for instance, Mr. Macha pointed out that grand jurors can report grand jury malfeasance to the district judge that impaneled them, and that judge can act on that information, as recently happened in Brazos County).

But more importantly ... how is it that Mr. Anti-Snitch is now writing in favor of snitching, but only if it is to the media? ;)

Gritsforbreakfast said...

I did hear that, Shannon, but I also heard responses by Macha to questioning from the panel that indicated that was not a very realistic or common response to DA misconduct in grand juries. He couldn't identify one time it had happened. Joel White from the Freedom of Information Foundation, e.g., also didn't think that was a significant or oft-used check/balance on DA's abuses of power, and I agree.

As for Grits being anti-snitch, that's simply a misrepresentation and/or oversimplification of my views. Ironically, I've actually been accused of being pro-snitch. The truth is I think snitching should be reformed, not abolished.

Thanks for your comments, Shannon, and tell Barry "hello" for me, and that there's no hard feelings. Best,

Catonya said...

In Wichita County the 'free flow of information' tends to flow in one direction. Local officials are diligent in keeping it that way, and in reducing the outflow.

Regarding checks and balances for abuses/misconduct....
-not if they can help it.

Shannon E. said...

Scott:

What keeps getting lost in the reporting on this issue (which is an irony for another day) is that the prosecutors who oppose an absolute privilege do NOT oppose giving the press a qualified privilege to protect their sources that is similar to the one prosecutors have with their own confidential sources (i.e., informants/snitches). That language was ready to roll last session, but the press lobbyists refused it.

Why? Because that's only half of what they want. Re-watch the video and notice what else the press complains about: subpoenas for evidence. The Tyler guy waxed on and on about what a pain it is to have to provide evidence of a crime to the state. Well, excuse me. Every other person on the face of the planet has to cough up evidence of a crime (or evidence of innocence!) when a court issues a subpoena -- why should the press get a pass? Everyone hates coming to court -- private citizen witnesses, doctors, EMTs, businessmen, et al., they just haven't thought up a clever spin for getting out of that duty of citizenship. And THAT is the real debate, not protecting whistleblowers. That latter protection could be agreed upon in 5 minutes. This is what you might call "bait and switch" on their part -- discuss whistleblowers, but push for a blanket right to refuse to cooperate with the criminal justice system.

(And don't buy the spin about how their proposal is only a "qualified" immunity. Just because they call it that doesn't make it so. In reality, the hoops written into their past versions have been basically insurmountable, equating to an effective absolute privilege.)

Ultimately, this is rank special interest legislation, pure and simple. The media lobbyists can repeat their new "free flow of information" mantra all they want, but it's really a "free from going to court" bill that they seek. There are legitimate arguments for where to draw the line between the public's (and defendant's) right to justice and the public's right to know, but they're drawing that line on the 5-yard line, not the 50-yard line where it belongs.

Gritsforbreakfast said...

BTW, gentle readers, Shannon represents the state prosecutors' association that's officially "neutral" on this topic, believe it or not. His neutrality really shows, doesn't it? ;)

Calling this "rank special interest legislation" is just a silly rhetorical flourish. A free press benefits everyone's interest, not any one "special interest." If you don't like CBS, watch FOX, but both their reporters deserve protection, IMO.

"Why should the press get a pass?"

Mostly because they watch the watchers - that is, you guys. Their function a democracy is to publicize abuses by state actors. And enough of y'all screw up that at the end of the day, "trust us, we're the government" just isn't good enough.

Why don't you ship me a copy of the "ready to roll" language you mentioned from last session, Shannon. If you don't mind, I'd like to see how far apart you guys are from the bill Rep. Peña proposed.

Shannon E. said...

Scott:

(1) Who said I/we were neutral on this issue?

(2) If writing about something is more important than doing something about it, then I agree, the press should have an absolute privilege. Case closed. But it's not that simple. Prosecutors have no interest in chilling whistleblowers or CIs -- sometimes, that's the only way crimes get revealed. But prosecutors also want to ACT on the information. If that doesn't require knowing the identity of the CI, then identity needn't be disclosed. But if the release of the information IS the crime, or the releaser of the information COMMITTED a crime that he tells the press about, then yes, prosecutors are duty-bound to pursue that evidence.

As for the "special interest" tag ... the result of any privilege is that is hides the truth from the courts and thwarts justice. Privileges not only free the guilty, but they may lead to the wrongful conviction of the innocent. So no one should be suprised that court officers might be offended when unelected, unregulated, unaccountable employees of private corporations come and ask for special treatment under the law.

(3) For a good model of an existing law that could work to protect confidential media sources, review Texas Rule of Evidence 508 ("Identity of Informer"). A similar law could easily protect media sources in civil and criminal cases, yet still prevent the abuses available under other proposals. (Sorry, Scott, we don't negotiate bills in the blogosphere, but thanks anyway). But again, that's not what the media lobbyists really want ... (see my previous post)

Gritsforbreakfast said...

Shannon: Who said you were neutral?

Barry Macha told the committee the association took no position, and that he spoke only on his own behalf because other prosecutors around the state may not be in agreement.

Writing about something and doing something about it aren't mutually exclusive as you seem to imply. You have your job and they have their's, that's all. Y'all should stay out of theirs unless you've met minimal due-diligence requirements to try to get the information another way, is the argument, and it's not unreasonable IMO.

Even more to the point, though, is when they're writing about stuff y'all DON'T do anything about - holding DA's accountable for crap like setting up innocent people in the sheetrock scandal or Tulia - the media plays a huge role there. Prosecutors are simply notoriously crappy at policing themselves. Sorry, but it's true.

As for "negotiating bills in the blogosphere," you're claiming prosecutors' positions are more moderate than Macha portrayed in the hearing, but now refusing to provide documentation that would confirm that. So tell me Shannon: why should folks who don't know you like I do believe you? When I make a claim, I typically provide a link. If you're not willing to share that information, it's probably not wise to claim it exists. Then it just looks like you're hiding something, whatever the truth of the matter.

Best,

Shannon said...

Scott:

I agree that writing about something and doing something about it don't have to be, and should not be, mutually exclusive. The problem is that past proposals for a shield law could make those things mutually exclusive by allowing the media to write about something and yet prevent prosecutors from doing something about it. Overbroad shield laws can make the two mutually exclusive, and that's why prosecutors get so exercised about this issue.

I also don't take issue with the proposition that the gov't should have to meet some requirements before getting information from the media. That is already the law -- "fishing expedition" subpoeanas can be quashed by the courts right now if they are unreasonable! But the proposals I've seen to date go way, way beyond that -- and there's the rub.

As for Tulia and Dallas, ... how did prosecutors not hold folks accountable? Tom Coleman WAS prosecuted. The Dallas cops WERE prosecuted. That's exactly my earlier point -- prosecutors sometimes need the media or other to alert them to problems so they can take action. Yet what if the authors of the Tulia expose or the Dallas stuff had refused to reveal sources or cooperate with later investigations by claiming an absolute journalist privilege, letting those who were eventually prosecuted escape justice? How is that good for society? Yet that is one (un-?)intended consequence of a law that is overbroad.

I'd encourage folks not to rely on the MSM to describe a bill designed to benefit the MSM, and to hold them to the same critical review that they would hold others up to. That's one thing I'm surprised the "PJ media" has not done on this issue to date.

p.s. - nice try, but you can give up baiting me for proprietary info ... it doesn't work ... ;)

Gritsforbreakfast said...

In Dallas, eight officers signed off on field tests claiming fake drugs were real, but only one was prosecuted - that just doesn't count as prosecutors' self-policing law enforcement, Shannon, sorry. Similarly, in Tulia Tom Coleman wasn't prosecuted until the original prosecutor was removed from the case by a judge and sanctioned by the Bar. So PLEASE, let's not hold up those instances as examples of prosecutorial accountability! There's just VERY little evidence that Texas prosecutors can or do self police when misconduct arises.

More to the point, in neither the Dallas nor Tulia cases was information from the media used in court, so I'm afraid your arguments don't follow from my examples at all.

Finally, I'm not baiting you, just asking you to back up your claims about how reasonable y'all are that didn't jibe with Macha's testimony. Whether you choose to do so, naturally, is up to you. Perhaps "Trust us, we're the government" can become the new association moto? ;)

Best,

Anonymous said...

Rule 505 would probably be a better model for creating privileged communications between two private citizens.

Modeling a shield law on Rule 508, as shannon e. proposes, would place on journalists all sorts of burdens that are intended for state prosecutors to bear, but not private citizens.

Shannon E. said...

"More to the point, in neither the Dallas nor Tulia cases was information from the media used in court, so I'm afraid your arguments don't follow from my examples at all."

Scott, I agree they are completely irrelevant to the issue of a journalistic privilege -- so I'm puzzled why you'd bring them up, except as a gratuitous smear tactic. ;)

TRE 505 would be a more honest approach from the media -- it's just a simple, absolute privilege, which is what the media really wants (methinks they doth protest too much when so accused!). But our members look forward to working with legislators to strike the right balance as they weigh the 1st Amendment against the 4th, 5th, 6th, 7th, 8th, and 14th Amendments.

Gritsforbreakfast said...

Shannon, I brought up Tulia and the Sheetrock scandal to illustrate my earlier point that journalists' privilege is most important "when they're writing about stuff y'all DON'T do anything about." You make it sound like DA's are the only ones pursuing justice, but in many of these high profile scandals they're the ones thwarting it. In those instances, the media has a public interest role to hold DAs and law enforcement accountable, and that's harder to do if DAs are empowered to intimidate those who report their misconduct, or law enforcement's, to the press.

It's natural for all public officials to fear increased scrutiny. But it's wrong to wrap those fears in the cause of justice when really it's just another case of bureaucratic CYA, hoping to preserve DAs ability to retaliate against their public critics in essentially anti-democratic ways.

I think y'all are on the wrong side of history on this one, Shannon. I guess we'll find out what the Lege thinks soon enough.

Without having seen TDCAA's secret alternative bill language, I also find interesting and probably accurate anonymous' comment that your Rule 508 proposal would "would place on journalists all sorts of burdens that are intended for state prosecutors to bear, but not private citizens." That strikes me as very true. I hadn't thought about it that way, but I think s/he is probably right that would be an inappropriate and unfortunate precedent for lawmakers to set. Merry Christmas,

Shannon E. said...

Scott:

It seems that many supporters of a journalist shield law are very critical of the judicial system. (Some with good reason.) Ironically, the creation of a shield law will only hobble the criminal justice system even more, exascerbating whatever problems of injustice already exist.

All so that the news industry can sell more ads. Is this a great country, or what? ;)

As for TRE 505 ... Texas only recognizes these privileges in criminal cases:

- attorney-client (TRE 503)
- husband-wife (TRE 504)
- priest-penitent (TRE 505)
- cops-informant (TRE 508)

It might be fitting for the MSM to choose as their model the most expansive of those privileges, the priest-penitent privilege -- many in the media already think they are holier than thou anyway.
:)

Gritsforbreakfast said...

:)

That's a good line, but as a regular reader of yall's message boards I must add that for Texas prosecutors to call anyone "holier than thou" requires an introduction: Pot meet kettle. I think you'll find you have a lot in common.

The problems in Tulia and Dallas didn't happen because the justice system was "hobbled," of course, but because it was unfettered.

Finally, I don't see how this would sell one more ad - media economics just doesn't work that way. What sells more ads, sadly, is boobs and blood. This would only help real journalists do a better job. best,