CHICAGO, IL — The account of a 2013 double murder, dubbed the “Nightmare on Hickory Street,” sounds like a plot out of a horror flick.
Two strangled victims. A plan to dismember the bodies with a saw and blow torch. An alleged sex act on top of the corpses. And talk of skinning one victim and wearing his face like “Leatherface.”
Since last week, these gruesome details have been emerging out of the murder trial of one of the four accused killers, grabbing front-page headlines and leading newscasts all around Chicago.
But most of this is old news to readers of Joseph Hosey, a Patch.com editor who covers Chicago’s southwest suburbs, including Joliet, where the murders took place. Early last year, Hosey scooped his competitors by being the first to get hold of police reports detailing the killings and writing a series of articles about them.
The scoop came at a considerable cost, though: Hosey is now facing the possibility of crippling fines and jail time, and finds himself at the center of a legal dispute that pits the principles of press freedom and open government against the rights of criminal defendants. At its core is a key question: How much protection do state shield laws offer to journalists and their confidential sources?
Hosey’s trouble began shortly after his articles were published in February 2013. Lawyers for Bethany McKee, one of the defendants, arguing that her fair-trial rights had been violated, sought to identify Hosey’s source for the reports. Their efforts led the court to collect sworn affidavits from more than 500 police officials, courthouse workers, and attorneys—all of whom denied leaking the documents.
Eventually, in September, Judge Gerald R. Kinney ordered Hosey to reveal the source, ruling that the protections under the state’s shield law were not applicable. When Hosey refused, Kinney slapped him with a contempt charge and imposed a one-time fine of $1,000, plus $300 for each day Hosey refuses to reveal his source. After 180 days, an indefinite jail sentence will kick in. (Kinney’s order has been stayed for the duration of Hosey’s appeal, which is now pending before the Illinois Appellate Court, and Hosey is still racking up bylines, including coverage of the Hickory Street murder trial.)
Hosey declined to comment for this story. But an array of media organizations have stepped in to lend their support. David Cuillier, president of the Society of Professional Journalists, slammed Kinney’s decision, calling it “a witch hunt to find the leaker,” and warned against its chilling effect.
“All of this directly affects how journalists do their jobs,” Cuillier told me. “We need to ensure that journalists don’t have to go to jail to protect the flow of information and to protect the ability of people to come forward with the information that’s important.”
In March, the Reporters Committee for Freedom of the Press, joined by 38 other media organizations, filed an amicus brief at the appeals court on Hosey’s behalf. “Anytime a journalist is threatened with a contempt citation for not cooperating with a court, it’s important that we go to the court and explain why these matters are important to journalists,” says Gregg Leslie, the Reporters Committee’s legal defense director.
Leslie also notes that, while it’s cold comfort for Hosey, the silver lining may be that cases like his—in which a reporter gets into a high-stakes dispute over the validity of a subpoena—come up but a handful times each year. “The fact that it only happens so rarely might be a good indication that the courts know not to tolerate subpoenas to journalists,” he says. “And maybe there are a lot of lawyers out there who don’t even try because they know that it’ll be quite a fight and they often lose.”
A backlash, and renewed interest in a federal shield law
Of course, Hosey’s legal fight is also playing out at a time when subpoenas served to journalists are very much in the news.
In June, the US Supreme Court declined to hear an appeal from James Risen, a reporter for The New York Times. At issue was a dispute over whether he should be forced to identify his source for a chapter in his 2006 book, State of War, that described the CIA’s bungled attempt at monitoring Iran’s nuclear program.
The high court’s move paved the way for the government to compel his testimony, but Risen has vowed not to give up his source, even in the face of possible prolonged imprisonment. The case has fueled a growing backlash against the Obama administration’s tactics; on Monday, 14 Pulitzer Prize winners publicly announced their support for Risen.
Against this backdrop, there are signs of renewed interest in Congress for a federal shield law. In May, the House adopted a measure in a broad appropriations bill that would give journalists a “near-absolute shield” to protect their confidential sources. Sen. Chuck Schumer of New York has even predicted that a refined version of a shield bill, which passed the Senate Judiciary Committee in September and has the support of the Obama administration, will pass the Senate this year.
SPJ’s Cuillier says such a measure is long overdue. “With most industrialized countries having shield laws, it’s baffling that we still don’t have a federal one,” he says.
But a shield law is no guarantee that media organizations won’t have to contend with subpoenas. After all, all but two states have a statute or case law offering some protection to journalists, but a 2008 study in the Minnesota Law Review found hundreds of subpoenas issued to the media each year, with the number then on the rise. The study, based on a survey of 761 newsrooms around the country, estimated that more than 7,200 subpoenas were issued to journalists in 2006—with nearly 90 percent coming at the state level.
Is Hosey’s source really relevant?
According to the Reporters Committee, Illinois is among 37 states that have a shield law on the books. But the state’s statute provides only “qualified” protections—meaning that they can be stripped away if a court finds that the requested information is relevant, essential to protect the public interest and unavailable through any other means.
In Hosey’s case, Judge Kinney concluded that the statutory conditions for overcoming the protections had been met and ruled in favor of McKee, the criminal defendant.
Hosey’s appeal rests on a couple of key points.
First, Hosey’s legal team sees two unexplored avenues for obtaining the information: an evidentiary hearing and a court-ordered investigation, both of which were denied by Kinney. This shows that Hosey’s testimony was preferred as “a first resort, rather than a ‘last resort,’” his latest brief, filed earlier this month, states.
Second, Hosey’s appeal argues that his source’s identity has no direct relevance to the guilt or innocence of McKee. Instead, his brief states, “McKee argues for a very broad construction of ‘relevance’ … to include the possibility that a lawyer may have violated a discovery rule or that the grand jury secrecy rules may have been violated.”
On this point, McKee’s lawyers cite Kinney’s ruling: “The issue of relevancy is not essentially limited to relevancy for trial issues.” They add: “To suggest that violations of court rules have nothing to do with the merits of the case or defense is shortsighted.”
But Hosey contends that McKee’s claim is undermined by her own decision to opt for a bench trial and request for an expedited schedule—effectively ensuring that a verdict in her murder trial, now anticipated on Aug. 29, will come in well before Hosey’s appeal concludes.
McKee’s attorneys could not be reached for comment for this story.
For its part, the Reporters Committee, in its amicus brief, argues that Hosey’s reporting was based on “presumptively public records” in the first place. Says Leslie: “The information … should have been in a public police report anyway, and they are now trying to figure out who passed on what should’ve been a public report. It just seems absurd to threaten a journalist with contempt to get that kind of information.” (In its appellate filing, the McKee’s camp argued that, while journalists routinely obtain “arrest reports,” they “do not obtain the full police reports of pending charges, including confessions, toxicology reports and grizzly details of the crimes, such as sex on top of dead bodies.” The state’s attorney’s office, meanwhile, sided with Hosey on the reporter’s privilege question but called the release of the police reports “regrettable.”)
In any case, the Reporters Committee’s brief also warns that Illinois’ shield law would be “rendered useless” if Kinney’s ruling were allowed to stand. “The claims of perjury [in the sworn affidavits] and the resulting interest in impeaching potential witnesses arose out of the affidavit process,” it notes. “In the future, a party who seeks privileged information from a reporter will merely have to obtain affidavits from anyone who could possibly be the source, then declare that someone must have lied and, therefore, insist that unmasking the source is necessary. … This is a complete misuse of the statute.”
That’s an argument intended to convince the appeals court to overturn the ruling against Hosey. Of course, if the case goes the other way, it could be a prediction of what’s to come—a weakened state shield law that shifts attention back again to a federal response.