Jailing a reporter ... legal question.

[AlecWest]

But what we have here is a political kangaroo court, so I can readily see why the journalists are refusing to cooperate.

So can I ... but this is more than that. It's a situation where the story has overwhelming national security importance and where the source is potentially at great personal risk. In such a case, if I was the reporter, I'd have "fibbed" ... said I didn't know the identity of the source ... so my access to the source would remain uninfringed. The story is that important and needs to be completely outed.

FWIW (and I could be wrong), I suspect this reporter going to jail is using herself as a scapegoat ... that she's revealed the source's identity to a colleague who will continue to pursue the story *discreetly* while she's going through her legal problems. When going to jail for protecting a source has the potential for letting powerful people "get away" with high crimes and misdemeanors, it's hard for me to see how this could be seen as "integrity" on her part. It's more like "stupidity." Just my take.

[adam]

There is another problem few people understand... if you work with a confidential source, and then blow their cover, they can sue you, and they have been known to win. Breach of contract, maybe even slander/libel. See "promissort estoppel" and the case "Cohen v. Cowles Media Co." Again, reading out of the ol' college book.

Promissory estoppel is just a way to enforce an agreement in the absense of a contract. Even with an express contract not to disclose a source's identity, that has nothing to do with the current situation. It would not be a breach of such a contract to disclose the source under court order. Its the law, you have to. A contract where you agreed not to disclose evidence to a court under order would not only be unenforceable, it would be illegal to enter into.

In the case you cited the newspaper just published the source's name along with the story. Thats not the same as giving evidence to a court under order.

[AlecWest]

There is another problem few people understand... if you work with a confidential source, and then blow their cover, they can sue you, and they have been known to win.

I think Adam's right on this one ... that a court order would supercede any oral or written contract promising confidentiality. To my knowledge there are only two exceptions to that rule. A Priest or minister cannot be issued a court order to reveal any information they've received in "confession." And, in some states (but maybe not all), I think that medical and mental health professionals are protected in a similar way.

Hehehe ... it just occured to me. The IRS recognizes the Universal Life Church as a bonafide church. They're the people who issue minister licences online for free to anyone who asks:

http://www.ulc.org

So, every investigative reporter should get one and, when a judge asks them to reveal their source, say, "I'm sorry, but my source gave me his name during the course of a religious confession ... and as a duly-ordained minister in the U.L.C., recognized by the Internal Revenue Service as a bonafide church, I'm obliged to keep that identity confidential for religious reasons."

BTW, you might want to check out the Texas Counselor Licensing Act. One person is using it to sue a Pastor for breach of confidentiality because he revealed her confession to being an adulteress (snicker). The complaint was filed in 2004 and it might be resolved by now. I was only able to find a brief mention of it here:

http://www.alliancealert.org/archive.php?&CDS_PAGER_ORDER=&CDS_PAGER_NUMROWS=298&CDS_P..._PAGER_FROM=90

EDIT: Wow, that was fast. I saw a brief mention of the story but, now, when I click on the link above, it's not there (woo woo). Maybe this was something I wasn't supposed to see.

[adam]

All fifty states recognize a privilege for doctor/patient (which includes phsychologists), attorney/client, and priest/communicant. Additionally there are all sorts of types of evidence that are not discoverable regardless of how obtained. None of this has anything to do with confidentiality agreements in contracts though. Even if the court finds that you have a privilege to withhold evidence, you can still disclose it with no penalty. You simply cannot be held liable in any way for providing discoverable evidence to a court.

Also privileges are strictly construed. The information has to have been obtained under the authority and in the capacity of the person claiming the privilege. So it doesn't matter if you are the Pope himself, if the identity you are protecting is the source of your news article, then you did not obtain it as a clergyman you obtained it as a reporter, and under this latest ruling that doesn't mean anything in a criminal proceeding.

[AlecWest]

So it doesn't matter if you are the Pope himself, if the identity you are protecting is the source of your news article, then you did not obtain it as a clergyman you obtained it as a reporter, and under this latest ruling that doesn't mean anything in a criminal proceeding.

You're an attorney, Adam, and I'm not. But I respectfully disagree with your assessment. Some clergymen moonlight in a number of professions. Merely using information in a non-clerical setting does not mean it was not obtained in a clerical setting. And the burden of proof to prove otherwise would be on the court.

This calls for a test case (grin). I'd love to hear of one if, in fact, there is a precedent. Otherwise...

Disclaimer - The graphic below is presented within the context of this topic ... namely, the right of all citizens (in particular, reporters) to become ordained ministers and use that status to shield them from court orders to reveal sources ... by claiming that the source revealed their identity as part of a "religious confession." If I ever become a reporter (doubtful) or am otherwise ordered by a court to reveal someone's identity, I intend to use it:

[adam]

You're an attorney, Adam, and I'm not. But I respectfully disagree with your assessment. Some clergymen moonlight in a number of professions. Merely using information in a non-clerical setting does not mean it was not obtained in a clerical setting. And the burden of proof to prove otherwise would be on the court.

The burden of proof in asserting a privilege is always on the party invoking that priviledge, with no exception. Also no burden is ever placed on the court. The court makes findings, not arguments.

The priest-penitent privilege, unlike the others in most cases, is almost exclusively provided for by state statute. Many states limit the privilege only to criminal and family law proceedings and many limit it to specific types of clergymen. Many states require that the communication be made as part of a prescribed church rite, and all require that the information be "confidentially communicated and subsequently used for the purpose of seeking spiritual advice, and that it remain confidential." I suppose its maybe possible for the substance of the confession to get out and published in some manner and then the priest could invoke a priviledge not to disclose the source of that information when he had nothing to do with the publication...again if he can convince the court. But if the priest himself did the publishing or gave the substance of the information (not the source's name) to someone who did the publishing, I respecfully have to say no way in hell would any court in the United States grant the priviledge.

Anyway we're getting off topic. Priviledges do exist if you meet the requirements and its just up to the court to decide.

[AlecWest]

The burden of proof in asserting a privilege is always on the party invoking that priviledge, with no exception. Also no burden is ever placed on the court. The court makes findings, not arguments.

So, I come up in front of a judge, show him an official copy of my credentials, and tell him, "Your honor, my source contacted me in my clerical capacity and revealed sensitive information as well as his identity. But he revealed this information only because I promised, in my clerical capacity, that his identity would be kept confidential."

Now ... if the court had no witness to this initial contact refuting this, what would a court use to put me behind bars ... especially if I requested a jury trial ... based on the criminal court standard, "beyond a reasonable doubt?"

One of my clients is a clinical psychologist. She's also a columnist for the Del Mar Times. In her columns, she sometimes reveals behaviors of real clients that may be construed as criminal ... yet at the same time, no one has ordered her to name names (nor would they get away with doing so). Clergymen can be columnists, too, and publish the substance of confessions without the identities of confessors. And likewise, no one has ordered them to name names (nor would they get away with doing so).

But, you're correct that this is straying from the original topic. I only mentioned this as a possible defense for future situations like this one. I suspect that the ACLU would *love* to defend such a case.

[adam]

Unless you are being charged with criminal contempt there will be no jury deciding the validity of your actions and there will be no "beyond a reasonable doubt" standard applied. You convince the judge, or you either give up the information or risk being held in contempt. Proving the right of a priviledge is more than just stating it was obtained in confidence. If it wasn't used for those specific purposes then no priviledge will be allowed and you have to show some proof of the existence of a right to the priviledge. Ultimately the judge has absolute discretion in determining whether to allow a privilege or not. If he/she makes a mistake it can only be challenged on appeal or interlocutory appeal (basically don't have to wait til after trial). As for the person held in contempt there is no remedy, assuming of course they aren't still sitting in jail in which case they of course will just be released. You can challenge a court order through other proceedings, but you can't just disobey it.

Yes clergymen and psychologists can invoke the priviledge under a number of different circumstances, but it is not available just because of your status. The rationale behind the priviledge must be there, so reporters cannot just get clergy licenses to protect their sources.

BTW, alot of problems are aleviated by the fact that evidence can be disclosed to the court "in camera" and under sealed record. It is shown/told only to those that need to know (judge, jury, attorneys, bailiff, and court reporter...no one else) and the record will subsequently be sealed.

[lordsmurf]

There is another problem few people understand... if you work with a confidential source, and then blow their cover, they can sue you, and they have been known to win. Breach of contract, maybe even slander/libel. See "promissort estoppel" and the case "Cohen v. Cowles Media Co." Again, reading out of the ol' college book.

Promissory estoppel is just a way to enforce an agreement in the absense of a contract. Even with an express contract not to disclose a source's identity, that has nothing to do with the current situation. It would not be a breach of such a contract to disclose the source under court order. Its the law, you have to. A contract where you agreed not to disclose evidence to a court under order would not only be unenforceable, it would be illegal to enter into.

In the case you cited the newspaper just published the source's name along with the story. Thats not the same as giving evidence to a court under order.

Typo.
And interesting.

[adam]

Typo.

I figured. Even with your smurf fingers, that T is too close to the Y.

[lordsmurf]

Smurfs only have 3 fingers and a thumb. We're at a disadvantage.

[AlecWest]

BTW, alot of problems are aleviated by the fact that evidence can be disclosed to the court "in camera" and under sealed record. It is shown/told only to those that need to know (judge, jury, attorneys, bailiff, and court reporter...no one else) and the record will subsequently be sealed.

In the case of the female reporter, has the judge offered such a closed situation that would be media-safe ... or is his request for the source made with no such promises? Really, I don't know. If in fact the judge told her, "Look, let's go into my chambers. It'll be between me, you, the bailiff, and the court reporter ... and all records will be sealed from the media," then yes ... I'd have a problem with her refusal. But without such a promise, I'd have a problem with the judge's request.

P.S. BTW, I can't remember the source (HONEST, hehe ... you can believe me because I'm a minister, hehe), but I read somewhere that this is being considered as criminal contempt ... and that the sentence she is facing is four months. If this is true, can her attorney say, "Your honor, my client would like to request a trial by jury?" And if she did get such a trial, and based on the low severity rating of her crime and the low likelihood of her fleeing to avoid prosecution, would the judge have any other recourse but to grant her bail?

[adam]

Thus far she has only been held in civil contempt. If charged with criminal contempt then yes she will have the option of trial by jury and her attorney can request bail or even that she be released on bond, or on her own recognizance.

But if she's still sitting in jail for civil contempt then she can't get out on bail for her subsequent criminal contempt

[AlecWest]

But if she's still sitting in jail for civil contempt then she can't get out on bail for her subsequent criminal contempt

For historical reference purposes, what is the longest time any reporter in the US has ever spent in jail for "civil contempt" ... who later got out of jail while continuing to refuse to reveal a source? Longer than 6 months or less?

[adam]

Do you remember in school when you'd ask a question that the teacher didn't know (or didn't feel like looking up) and they'd tell you that it would make a great homework assignment for you to report back to the class?

[AlecWest]

Do you remember in school when you'd ask a question that the teacher didn't know (or didn't feel like looking up) and they'd tell you that it would make a great homework assignment for you to report back to the class?

Yes. But most non-lawyers don't have ready access to Lexis-Nexis or other databases where such information can be retrieved.

HOWEVER ... (grin) ... that doesn't mean I'm not up to the challenge. I have, in the past, "snuck in" to the law library (extensive) at the Lewis & Clark School of Law and, feigning studenthood, asked a librarian or two for assistance in looking up caselaw references. And once, by checking caselaw at the Clark County Courthouse law library in Vancouver, Washington, I saved my ex-wife's bacon in a towing dispute (on state property) ... beating a Washington State Assistant AG in a fair fight (grin).

So, give me a couple of weeks to poke my nose where it doesn't belong and, if I'm not in jail myself , I'll try to come up with the answer to my own question.

P.S. In case you're curious, the Assistant AG filed a motion to dismiss my ex-wife's complaint because it was filed in the wrong jurisdiction (filed in District Court when it should have been filed in Superior Court). At the hearing, she asked the judge to dismiss the case. I smiled, walked up to the judge, and handed him the text of a law that "superceded" her contention ... granting jurisdiction to District Court. In short, the law had changed and she wasn't aware of it. The judge got a giggle out of that one ... and the AAG gave me a dirty look on the way out of the hearing room ... especially since the State had to reimburse my ex-wife for the cost of the "illegal" tow. Long story about that "illegality" ... which I'll spare you.

[AlecWest]

P.S. to anyone interested. You might be surprised just how easy it is to get into (and use) college law libraries ... and even medical reference libraries in hospitals. Your public library probably isn't the only one in your town (unless it's a small town). It's just that the "other" libraries don't do a lot of advertising.

[lordsmurf]

I know the answer to this one. I saw it the other day. It was that woman from Houston. She was writing a book, and knew info, and refused to tell, and she sat in jail for 165 or so days. That's what, 6 months? I think the info became unneeded, and she was released. But she never said a word.

Something I read. Not sure it's totally correct, but it was from a major newspaper story on the recent issue.

[AlecWest]

I know the answer to this one. I saw it the other day. It was that woman from Houston. She was writing a book, and knew info, and refused to tell, and she sat in jail for 165 or so days. That's what, 6 months? I think the info became unneeded, and she was released. But she never said a word.

Something I read. Not sure it's totally correct, but it was from a major newspaper story on the recent issue.

Was this for "civil contempt" or "criminal contempt?"

[lordsmurf]

I know the answer to this one. I saw it the other day. It was that woman from Houston. She was writing a book, and knew info, and refused to tell, and she sat in jail for 165 or so days. That's what, 6 months? I think the info became unneeded, and she was released. But she never said a word.

Something I read. Not sure it's totally correct, but it was from a major newspaper story on the recent issue.

Was this for "civil contempt" or "criminal contempt?"

See:

Do you remember in school when you'd ask a question that the teacher didn't know (or didn't feel like looking up) and they'd tell you that it would make a great homework assignment for you to report back to the class?

[adam]

It would have to be civil because the max sentence for criminal contempt is 30 days. Also it takes more than just that to be criminal contempt.

[AlecWest]

See:

Do you remember in school when you'd ask a question that the teacher didn't know (or didn't feel like looking up) and they'd tell you that it would make a great homework assignment for you to report back to the class?

Ssssssssssss ...

Brief threadjack. Did you ever have a teacher who scolded you for working a math problem incorrectly by saying, "If you didn't understand how to do the problem, why didn't you ask?" Which of course assumes the worst in a child ... that the child "knowingly" worked the problem wrong ... but doesn't take into consideration the alternative...

... that the kid was certain he was doing the problem correctly and saw no need to "ask" how to do it. People can be certain they're doing something correctly when, in fact, they're not. Learning by mistake is not evil, it's human.

"Watson, come here ... I need you."
Alexander Graham Bell

[lordsmurf]

I remember high school math class, the teacher would get pissy when I couldn't "prove" how I got the answer. And she got even more pissed when I said "I guessed". Which was often true.

Yet I got penalized .... go figure. Bitch.

Graham Bell is a perfect quote, BTW, as he often admitted he didn't understand how he made the phone, he just knew that he did.

[AlecWest]

I remember high school math class, the teacher would get pissy when I couldn't "prove" how I got the answer. And she got even more pissed when I said "I guessed". Which was often true.

Yet I got penalized .... go figure. Bitch.

Graham Bell is a perfect quote, BTW, as he often admitted he didn't understand how he made the phone, he just knew that he did.

Reminds me of "Mr. Switzer," my spelling teacher in the 8th grade. One of the words I was certain I spelled correctly was marked wrong:

ENDORSE

His spelling book showed it as INDORSE. But even when I showed him a dictionary showing that both spellings were valid, he refused to remove the check mark ... giving me a 95% instead of the 100% I deserved.

Ass-teroid.

[AlecWest]

Adam, this page is not related to confidentiality but does make a general statement about the maximum length of a civil contempt sentence. It does not, however, cite a source for this information:

If you are held in contempt, the judge will sentence you immediately. Ordinarily, grand jury witnesses are held in civil contempt rather than criminal contempt. The maximum sentence for civil contempt is eighteen months imprisonment, or the duration of the grand jury investigation, whichever is shorter. The maximum sentence of criminal contempt, without a jury trial, is no more than six months. If you are to be sentenced for longer than six months, you must be formally charged and offered the opportunity for a jury trial. There is no statutory limit to the length of the contempt sentence which results from such a trial.

http://www.animal-law.org/library/pamphlet.htm

However, another case VERY similar to the Time reporter's case invoked the exact same 18-month sentence on a Clinton-era figure:

The book details the relentless demands by Starr’s office that McDougal provide incriminating testimony against the Clintons, first to avoid prosecution, then to lessen charges, and then finally to gain her freedom. McDougal refused to cooperate and as a result served a virtually unprecedented 18 months in prison for civil contempt.

http://www.wsws.org/articles/2004/aug2004/mcdg-a13.shtml

So, I'm betting that 18 months is the maximum. But, I'll check further to see if I can find an actual "on the books" law that specifies a max.

[AlecWest]

Bingo. How about this:

(2) Notwithstanding the provisions of paragraph (1), an individual who is charged with criminal contempt pursuant to subsection (c) may be imprisoned until the completion of such individual's trial for criminal contempt, except that in no case may such an individual be imprisoned for more than 18 consecutive months for civil contempt pursuant to the contempt power described in subsection (a).

http://thomas.loc.gov/cgi-bin/query/z?r101:E19SE9-129:

18 months ... three different sources. Think this pretty much solves the issue. But, if you want me to check further, let me know.

Bottom line? No judge can force anyone to serve more than 18 months on a civil contempt violation. Of course (ulp), that's (I assume) 18 months per count.

P.S. BTW, to find this info, I used two search phrases simultaneously in Google .... "civil contempt" and "18 months" ... and I got over 4,000 hits.

[adam]

The first link is referring to Grand Jury proceedings. These are just where a jury decides whether there is sufficient cause to go to prosecute.

The second link is to a bill that was presented to the Senate as STATE legislation for the District of Columbia (yes its treated as its own jurisdiction) and it only applies to child custody cases. It was specific legislation to free a woman who was about to hit the 2 year mark in jail for civil contempt (so that may be the longest). It was raised in the House also with an attempt to make it apply generally to all forms of contempt and it was not passed. The narrow Senate version only applying in DC and only applying to child custody cases was passed.

Like I said, individual states have their own limits they have passed. There is no general Federal cap.

Check this out:
http://www.uiowa.edu/~030116/153/articles/coyle.htm

[AlecWest]

Like I said, individual states have their own limits they have passed. There is no general Federal cap.

Check this out:
http://www.uiowa.edu/~030116/153/articles/coyle.htm

It would be interesting to see what progress there has been made, if any, on more clearly defining caps under the judicial doctrine of release since that 16 year-old article was published.

[adam]

Hey, you cited a 16 year old billl so I cited a 16 year old article explaining it.

Its not a matter of progress, the legislature simply gives complete latitude to the judiciary in applying contempt sentences and leaves it up to individual states to limit this if they so desire. Since civil contempt is purely coercive, the sentence can continue so long as it serves this purpose. That's all there is to it.

I found tons of great law reviews on this subject but there's no way for me to link to them on Lexis. But I find this article to be very good...

http://www.bafirm.com/articles/federalcontempt.html

[AlecWest]

Since civil contempt is purely coercive, the sentence can continue so long as it serves this purpose. That's all there is to it.

Not quite. This is a response I got from the Library of Congress Law Library:

The specific statute under which Ms. Miller of the New York Times has been cited for contempt is the Federal Recalcitrant-Witness Statute, 28 U.S.C. § 1826 (2000). Under subsection (a) of this statute the length of confinement that a recalcitrant witness may be sentenced to is limited to no more than the life of the court proceedings or the term of the grand jury.

For general civil contempt other rules apply. The United States Supreme Court in International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821 (1994) specified some of the guidelines that would be used in determining if a civil contempt sanction actually should be considered to be a criminal contempt sanction and thus subject to specific constitutional standards. This decision is available by searching by the citation (512 U.S. 821) on the Internet at:

http://straylight.law.cornell.edu/supct/search/display.html?terms=512%20US%20821&url=/...2-1625.ZO.html

For a discussion of this case, see:

Margit Livingston, Disobedience and contempt, 75Washington L. Rev. 345 (2000). This journal is available at the Paul L. Boley Law Library at Lewis and Clark Law School in Portland. Information about the library is available at:

http://lawlib.lclark.edu