Reporter off the hook– this time

Hook reporter Courteney Stuart went into Charlottesville General District Court this morning prepared for the worst, adamant that she would not testify after being subpoenaed as a witness by a prosecutor. Represented by the Rutherford Institute, Stuart filed a motion to quash the subpoena and was ready to argue that it violated her First Amendment, freedom-of-the-press rights. Instead, the Commonwealth and defense attorneys stipulated her article on a misdemeanor drunk-in-public case was accurate, and she was excused as a witness.

"I'm pleased that the situation was taken care of in this one instance," says Stuart after her ordeal. "I hope in the future that will not happen again." That, however, is one thing the Charlottesville Commonwealth's Attorney's Office will not guarantee.

"We talked to the Commonwealth and they made it clear if reporters gather evidence they need, they will subpoena reporters," says Ned Michie (pictured, right), who, along with Doug McKusick, staff attorney with the Rutherford Institute (pictured left, large photo), represented Stuart. "People are going to worry the press are an arm of the police," says Michie.

Neither attorney recalls members of the media being subpoenaed locally, although they say it is happening across the country and is a problem of national importance.

"We wanted to get this cleared up so in the future, the press isn't willy nilly subjected to subpoenas," says McKusick. Such subpoena power puts a "chill" on a free, independent press, he says. "Obviously we were hoping to win it before Judge [Robert] Downer. If we lost, Courteney was prepared to stand by her privilege and we were prepared to appeal it on up."

Stuart had reported on the September 28 arrest of Richard Silva for public drunkenness after he allegedly yelled at Charlottesville Police Officer Mike Flaherty to slow down in a Water Street crosswalk. Silva's financee, Blair Austin, also was arrested for being drunk in public and for obstruction of justice. According to witnesses, Flaherty pushed her to the ground, and the couple allege police brutality. Stuart interviewed the defendants and witnesses, and there were no confidential sources. [An update on Silva and Austin's November 29 trial will follow.]

"The issue is whether the Fourth Estate can be used as an agent of the state to prove their case," says Rutherford Institute founder John Whitehead. "The press has to be in an objective position to give the news. Whether intentional or not, it's intimidating when they're called to testify with a subpoena."

Deputy Commonwealth's Attorney Claude Worrell says Stuart was excused as a witness because Silva and Austin's attorneys agreed to stipulate that her story was accurate– and that in the future he would subpoena reporters if the government needed their testimony.

"We were looking for statements defendants made that inculpate them from [Stuart's] article," explains Worrell.

Whitehead contends that subpoenaing reporters strikes at the First Amendment freedom of the press and has an intimidating effect upon the press.

"We would disagree with that," says Worrell. "A free press, while unfettered in many respects, does not mean they can opt out of their responsibility as citizens to provide information."

Nor does Worrell see any danger of chilling the press by subpoenaing reporters. "It's theoretically possible," he says. "However, your paper's response was to have [editor] Hawes Spencer show up, you showed up, other reporters showed up. It did not chill your efforts to vigorously cover this story."

He also disputes the notion that such subpoenas make reporters an arm of the government. "No one thought the New York Times was going to be seen as a stooge of the government if Judith Miller revealed information on Scooter Libby or Valerie Plame," says Worrell.

"Subpoenas are intimidating; prosecutors are intimidating," argues Whitehead, promising, "We'll be there if they want to do it again."

19 comments

Sick, since the charges were dismissed, the couple is guilty of nothing.

Believe what you want, CVille Eye. Especially if you really want to believe "contempt of cop" doesn't exist. You want me to direct you to some online police forums where they joke and laugh about taser useage ("taking the ride" as they call it) contempt of cop, people deserving a beatdown, etc... :)

There was never any doubt in my mind that there would never be any convictions in this happy BS. And it's just like Silva said, indigent innocent people go to jail every day because they can't afford a good attorney.

"indigent innocent people go to jail every day because they can't afford a good attorney." Sick Of The Local Rambos, is this an evaluation of the local Public Defender's Office?

Sick of...
Thanks for being such an engaged, informed, and passionate contributor here....we appreciate it.
One thing about the law...it's written so ambiguously that everyone can use it to make their point! As you've noticed, the post about the trial is up and Silva and Austin were found not guilty of being drunk in public and obstruction of justice... doesn't look like the public swearing bit specifically played much of a part in the prosecution's argument anyway.
Besides, as I'm sure you'll agree, that's hardly the point here...

the public profanity and drunkeness statute are one and the same. one may be charged with either or both behaviors, so one can't tell from the charge what the behavior was.

Yeah, it's very disturbing when THE defendant tells the truth, isn't it, Eugene? Wonder if everybody else told the truth?

Put a statue of Courteney Stuart on the downtown mall. What a hero. YEAH RIGHT. And Hawes Spencer is a thoughtful journalist and publisher.

JacKnock,

If you have something to say, say it. Don't be shy.

Lost here, among all the Hook's self-righteous promotion, is the fact that if Courteney Stuart had simply not quoted the defendant admitting guilt, she would not have been subpoenaed. It seems that a profanity in quotation marks is a pretty important piece of evidence in a case concerning public profanity. Of course, any professional journalist in the editorial chain of command should have seen the problem in publishing an admission of guilt before a trial, and edited the story appropriately, but sometimes editors are more concerned with good copy and making themselves the story.

Furthermore, the next time one of us is charged with a crime, we should listen to our lawyers and remain silent. What got our brave soldier into trouble here was admitting to Courteney Stuart that he had used a profanity in public.
Had a published story revealed that the serial rapist told Courteney Stuart "Yeah, I raped her." about any one of the victims, the community certainly would have expected her to testify as to the accuracy of the published story. Did he say it? Or is the published report inaccurate in its placement of quotation marks?
Imagine if the police officer had told Courteney Stuart that he had "pushed the bitch as hard as I could, hoping she would break her arm!" I wonder if Courteney Stuart would have whelped so strongly about her First Amendment rights.

Why the Hook was amenable to reporting a story with a quotation from the accused confessing to the crime but saw nothing but the evisceration of the First Amendment in testifying to that action in a court of law is incomprehensible. If you publish confessions, don't be surprised if a prosecutor wants to talk to you.

Eugene has done it for me Dave. Sorry to be so shy. You never know who owns your job in this town.

Dave, this thing stunk to high heaven since it first made the news. I sure am glad Judge Downer didn't feel some type of obligation to uphold the city police in these BS charges. I appreciate The Hook being the only local media outlet that would even step up and cover this story. I feel the others aren't going to bite the hand that feeds them official police "press releases" on a daily basis. And that's a damn shame.

And CVille Eye, in my opinion the public defender's office is just about as good as *some* of the court appointed attorneys used to be. Keep in mind though that my opinion and $1.50 will get you a cup of coffee at McDonalds. If and when I go to court for anything -- I only hire the best money can buy. Not everybody is in the position to do this though. Namely, the indigent innocent people out there. :)

OK.

Too bad the law isn't written as "public swearing, intoxication or contempt of cop." The commonwealth might have gotten a conviction!

Dave, according to the court docket Silva was indeed charged with profanity.

Case Number: GC07008430-00 PUBLIC SWEARING/INTOXICATION

Austin was too.

Case Number: GC07008432-00 PUBLIC SWEARING/INTOXICATION
Case Number: GC07008431-00 OBSTRUCT JUSTICE WITHOUT FORCE

Well, as someone else has said on another thread, if they feel they have been abused by the system, they will seek civil redress. Otherwise, they will go quietly, this time, into the night. Eugene makes a good case for circumstances underwhich a reporter can be and should be called for testimoney and I enjoyed reading it. Why were the charges dismissed, lack of evidence, lack of witnesses or the prosecution deciding the point was made? There are many reasons charges can be dismissed.

CVille Eye, the only thing Silva and Austin were guilty of was "contempt of cop" in my opinion (please put me on the jury if they file a civil suit). I suspect this is why the charges were dropped. But I am sure the commonwealth can sugar coat it and offer a more plausible -excuse- for anybody that might believe it. The reporters promise a follow up story about the trial today is coming. I can hardly wait to see it.

Eugene, JacKnock,

The charges against Silva and Austin were dropped (look for a forthcoming post on Judge Downer's decision) earlier today. Also, they had been charged with public drunkenness and obstruction of justice, not public profanity. Nowhere in the original story do Silva and Austin confess to being drunk. If fact, they insisted that they were not drunk, and a judge appears to have agreed with them. They do, however, alledge possible police brutality....that was the impetus for running the story. Also, wasn't the "brave soldier" in trouble before he spoke to Ms. Stuart....?

Frankly, it's your argument that seems incomprehesible to me. Are you sure you read the story and are familar with the case?

There is a difference between the charges being dropped and aquittal, is there not? Are they in fact are NOT GUILTY, not just Nolle prosequi, or dismissed.
Isn't this better for thier hopefully soon to ensue, civil case? Any lawyers out there willing to offer an opinion?

And what happens if it is without prejudice?

Yet, 1st of all the default value is innocence. Until you have been convicted by competent court you are, by definition, innocent. Secondly, it depends on whether the charges are dropped with or without prejudice by the judge. If you ever find yourself in such a situation ask the judge to kindly dismiss the charges with prejudice.