Reporters shouldn't be forced to testify

I've been in the news business for decades, and prior to last week, two reporters I worked with have been subpoenaed to testify about stories they wrote.

In both cases, the newspapers fought the subpoenas and won,

Last week, Havre Daily News reporter Zach White doubled that number. He was ordered to testify in two cases pending in Hill County courts.

John Kelleher

In the most immediate case, Zach was ordered by the prosecution to testify against City Councilman Rick Dow, who was later found not guilty in Havre City Court Tuesday on charges he violated the city's ban on cellphone-while-driving law, a law Dow fought hard to repeal. Dow was under court order not to comment on the case, but it's fair to say he's not a publicity-shy defendant.

Some things Dow told Zach after his arraignment are considered by some to be incriminating, and that apparently is what City Prosecutor Tamara Barkus wanted him to testify about.

I'm not a lawyer, but from reading the Montana Constitution's free press clause and the statutes that the Montana Legislature has passed, there are no grounds for subpoenaing a reporter to testify. And the Montana Newspaper Association executive director John Barrows shook his head in disbelief when I told him of the subpoenas.

In the criminal justice system, there should be three forces — the prosecution, the defense and an independent media that reports on the first two forces.

Reporters can hardly be independent if people we interview suspect we may soon be the main witness against them.

So in fighting this case, reporters ended up exactly where they hate being the most — in the news instead of reporting on it. We were the opening round of the Rick Dow case.

In the Dow case, Zach was being called to testify against the defendant. What if in the future, he was summoned by the defense to testify about what police told us during an investigation? The end result of this action would be that prosecutors and defendants would be even more reluctant to let the public know what is going on in cases of public interest. And the public would lose.

So we found ourselves in the uncomfortable position of being the news instead of reporting on it. But if Zach had agreed to testify, reporting the news would be far more difficult in the future, and the public would be less informed.

This whole case raises lots of questions about just what the media are these days. Can the prosecutor subpoena the Havre Daily Corrector or Montana Cowgirl to testify, if only she could figure out who they were? That's a matter for debate. But there is no doubt that the Havre Daily News fits in the definition of what the legislation defines as media.

Some have expressed amazement that we don't jump at the opportunity to testify against Dow. He is not especially a big fan of this newspaper, its reporters and especially its editorial positions. On this page, we have been strong supporters of the cellphone-while-driving ban he has so passionately opposed.

But the issues involved here are far more important. Are reporters free of government control? If they can be called at will to testify about their work, they certainly are not.

So Dow's trial went on without Zach's testimony. Prosecutors tried to prove their case against Dow, as they should. The defense made its case that he should be cleared, which is what is supposed to happen.

And Zach White reported on the events so you can read about them here and on http://www.havredailynews.com.

That's how the framers of the U.S. Constitution, the Montana Constitution and the Montana Legislature intended it to be.

(John Kelleher is managing editor of the Havre Daily News and havredailynews.com. He can be reached at [email protected], (406) 265-6795, ext. 17, and (406) 390-0798.)