2 NOLA journos are being forced to testify in a federal criminal case

Would a shield law have made a difference?

At the end of this month, two reporters will have to take the witness stand in the trial of an alleged crime boss in New Orleans, because a federal district court judge rejected their arguments that their testimony would violate reporter’s privilege.

At issue is an article Gordon Russell and John Simerman wrote for the Times-Picayune in October 2012 about an impending indictment against Telly Hankton and alleged members of his gang, who stand accused of 22 counts, including murder and racketeering. The defense now wants to argue that a leak could have prejudiced the grand jury that issued the charges.

“I think it’s a dangerous precedent when nobody’s alleging any wrongdoing by the media. We’re sort of collateral damage here,” said Russell, who along with Simerman, now works at The Advocate. (The Times-Picayune is paying for the reporters’ legal representation.)

The judge ruled in late March that the reporters would be required to testify, but limited the questioning to a meeting between FBI agents and Russell and Simerman and the article they subsequently wrote. Russell and Simerman’s case isn’t a standard case of a reporter being asked to divulge confidential sources. The government has admitted to the court that the meeting took place and that information from it ended up in the article. But the defense still wants the reporters’ testimony.

Anthony Fargo, associate professor at the Indiana University School of Journalism, said that there was little precedent for the two journalists’ situation had they taken it to the US Court of Appeals for the 5th circuit, which includes New Orleans, “and what there is is not terribly press-friendly.”

A federal shield law “certainly could have given the reporters a stronger basis to make their case against having to testify.” The latest attempt by Congress to pass legislation enshrining reporters’ right to protect confidential information was approved by the Senate Judiciary Committee in September, but has yet to be brought to a full vote. Attorney General Eric Holder has expressed support for a shield law.

“A federal shield law would give us a consistent standard across all the different districts and circuits. As it is now, you’re at the mercy of what your particular circuit has said,” said Fargo. (Louisiana has a state shield law, but federal judges aren’t bound by it.)

New Orleans federal prosecutors’ use of the media has also come under scrutiny in recent years. As the Advocate reported last month, Billy Gibbens, one of the defense attorneys in the Hankton case, had previously revealed that local prosecutors were using pseudonyms to comment on crime stories. Last September, a judge ordered a new trial for five New Orleans cops accused of shootings after Hurricane Katrina on the basis that prosecutors waged a smear campaign against the defendants by logging comments on articles about the case. The judge called the prosecutors’ behavior “bizarre and appalling,” and said that “they had used social media to circumvent ethical obligations [and] professional responsibilities.”

“I understand they want to get to the bottom of any possible misconduct,” said Russell. “But Telly Hankton was Public Enemy Number One in New Orleans, the mayor was having press conferences about him, and the idea that a grand jury proceeding might have been prejudiced by this article seems a bit far-fetched.”

Russell and Simerman have been subpoenaed for information about 19 articles, “possibly in hopes that questioning would reveal information that could be used on behalf of other defendants,” the Advocate noted. The judge did not allow such a wide sweep, limiting it to the October 2012 story.

Russell says the case hasn’t had an impact on his reporting. But “we don’t know what we’re going to be asked. If—hypothetically—I were to reveal a source to whom I had promised confidentiality, that would be a huge problem,” he said. “You give people your word that you’re going to protect them.”

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Cora Currier is a freelance journalist focusing on national security. Previously, she was a reporting fellow at ProPublica and on the editorial staff of The New Yorker