NEWS- Unquashed: Judge upholds subpoena of <i>Hook</i> reporter

Jail for Courteney Stuart?

New York Times reporter Judith Miller spent 12 weeks in jail for refusing to testify about a confidential source when she was subpoenaed to appear before a grand jury. Will Charlottesville's Courteney Stuart soon find herself behind bars?

As the Hook reported last week, the Charlottesville Commonwealth's Attorney's office has subpoenaed Stuart to testify about a public drunkenness case on which she reported. However, there were no confidential sources or weapons of mass destruction. But a judge's refusal to quash the subpoena has turned a misdemeanor case into a First Amendment challenge.

Stuart appeared in Charlottesville General District court November 19 before Judge William Barkley with a motion to dismiss her subpoena to testify about a case she'd reported on in an October 11 issue of the Hook.

"I cover crime," Stuart told the judge. "This is drunk in public– a minor crime. This week I'm also covering a capital murder. Am I to be called to testify in every crime I cover?"

Deputy Commonwealth's Attorney Claude Worrell argued that Stuart should be on hand as a "rebuttal" witness, to "reply to any discrepancies" in the testimony of witnesses in the case.

"We're not asking her to disclose any confidential sources," said Worrell, sidestepping the issue of privilege reporters routinely invoke.

"This interferes with my ability to do my job and violates my First Amendment rights," Stuart told Barkley.

To no avail. He denied Stuart's motion, saying it's premature to quash her subpoena 10 days before the November 29 trial, but he said Stuart could raise the issue again.

The charges stem from the September 28 arrest of Richard Silva and his fiancée, Blair Austin, who were charged with public swearing and intoxication after they shouted at a police officer whom they contend nearly ran over them in a crosswalk. In addition, Austin was charged with obstruction of justice, also a misdemeanor.

The couple– and their friends who witnessed their encounter with Charlottesville Police Officer Mike Flaherty– allege that Flaherty so violently knocked Austin to the ground that the friends called 911 to report him.

Stuart, whose story quoted multiple witnesses blasting the behavior of of Officer Flaherty, was not a witness to the events.

"I believe the police should be doing their own investigation," says Rutherford Institute founder John Whitehead, whose civil liberties organization has offered to represent Stuart. Virginia, he says, recognizes only two exceptions to First Amendment protections of the press: if the state needs a reporter's testimony to solve a crime ("That doesn't seem to be true here as there are other witnesses," says Whitehead) or if the defendant needs it to prove his innocence.

As for calling a reporter to testify in a misdemeanor case, "I don't agree with it," says Whitehead. "You just don't mess with the press. You don't want reporters to feel intimidated, philosophically. And Constitutionally it's a problem."

"I think it's frightening," says Stuart. "If the Commonwealth wants to use journalists to trap people on the stand, it's an outrage."

"What I find startling is that taxpayer money is being used in the Commonwealth's Attorney's office for such a low-level case," says Hook editor Hawes Spencer. "It certainly gives the appearance of desperation."