St. Louis Circuit Attorney Jennifer Joyce pictured in 2005. (Photo: AP)
United States Project

St. Louis editors divided on how to respond to subpoenas from prosecutor

October 20, 2015 By Deron Lee
St. Louis Circuit Attorney Jennifer Joyce pictured in 2005. (Photo: AP)

In 15 years as St. Louis circuit attorney, Jennifer Joyce says, she has issued “hundreds of subpoenas” to media outlets in the course of her investigations. And as Joyce tells it, this had never been an issue—until January of this year, when one of those subpoenas reached the desk of Margaret Freivogel, the editor of St. Louis Public Radio (KWMU).

Freivogel, a 40-year veteran of the news business who plans to retire at the end of this year, not only refused to hand over any materials in response to the subpoena, which asked for audio or video recordings related to an altercation involving a police union rep at a public meeting. She also publicly defied the prosecutor’s request not to disclose the existence of the subpoena itself—publishing a column calling the order “both baffling and disturbing.”

That subpoena was withdrawn in February. But the issue was revived last week, when Joyce, who is the top prosecutor for state-level crimes in the city, sent a second subpoena to St. Louis Public Radio, this time for materials related to the fatal shooting by police of Mansur Ball-Bey, an African American 18-year-old, in August. Again, KWMU was asked not to publicly disclose the subpoena, and again Freivogel very publicly disclosed it in her weekly column, arguing that such orders “can have a chilling effect on reporting.”

If nothing else, by bringing the issue out of the shadows, Freivogel has spurred an unusual public conversation about this prosecutorial practice—and revealed some differences of opinion among the city’s journalists.

Though Joyce initially wanted these subpoenas bottled up, since they were made public, she has been remarkably candid, pushing back against Freivogel on Twitter, on the KWMU airwaves, and in talking to CJR. “I have strong feelings about it,” she says, arguing that Freivogel is overreacting and abdicating her duty as a citizen.

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Meanwhile, the argument that journalists should be ready to turn over material to law enforcement—at least in some cases—found support from what might seem an unlikely source. Chris King, the editorial director of the St. Louis American, the city’s African-American weekly, revealed in a tweet last week that his paper had “coughed up” some materials related to the Ball-Bey shooting investigation in compliance with a subpoena from Joyce. He posted another tweet the next day, after Freivogel’s latest op-ed had appeared.

King told CJR in an email that the American also received a subpoena for audio or video related to the union-rep incident in January—and, unlike KWMU, complied with that order as well.

In both cases, notably, the prosecutor’s investigation was focused on actions taken by police officers or a police union representative.

When contacted by CJR, both Freivogel and King expressed their mutual respect and emphasized that they were not criticizing the other, noting that their two organizations are in fact content partners.

Freivogel said that her primary concern was the safety of her reporters—noting incidents of violence against journalists that have occurred during the unrest in Ferguson, Missouri—and their ability to do their jobs effectively.

“The press should be functioning independently,” she says. “It should not be used as an investigative arm of the authorities.” If reporters come to be viewed as agents of the government, she argues, they will meet distrust and resentment from the community, and this in turn will have a “chilling effect” on the press.

Other proponents of this argument have included the editorial page of Freivogel’s longtime former employer, the St. Louis Post-Dispatch, and, across state lines, Indiana’s Elkhart Truth, which defied a subpoena related to a murder case in April. That decision drew vocal support from the National Press Club. “We share the Elkhart Truth’s concerns that if this order is not quickly quashed, it could send the troubling message to the public and future sources that they cannot expect journalists to be allowed to remain independent of official criminal investigations,” John Hughes, president of the press club, said in a statement.

King, of the St. Louis American, does not dismiss such concerns out of hand. But he says that complying with the circuit attorney in these two cases does not compromise the paper’s standing with the community.

“I handed over what relevant evidence we had in both cases. None of it was privileged information. None of it endangered our sources, our reporters or our relationships with sources,” King told CJR.

“The most likely outcome from both instances is that the prosecutor will be in a better position to judge whether a police officer committed a crime against a civilian,” he added. “I think it is in the best interests of public safety that the prosecution have the materials we provided in both cases.” The subpoenas had not sought any information about protests following the Ball-Bey shooting, he said, and the American had not turned any over.

The disagreement between the American and KWMU in these cases may hinge on a difference in the way each views its mission. A 2014 New Yorker profile noted that the mission of the 87-year-old American “centers on advocacy” for its community. In deciding whether to comply with the subpoenas in these two cases, both of which involved the highly fraught issue of police violence, King told CJR:

“The question becomes: what truly serves the best interests of the community? In both of these cases, we think that this prosecutor having the best possible evidence best serves the best interests of the community. So complying with this narrowly defined subpoena from this prosecutor on this case was the right thing to do.”

While King and Freivogel said these were the only two such orders they had received from the circuit attorney, the cases seem to be merely the tip of the iceberg. Joyce said her office routinely asks for information from news organizations in the course of investigations, most often from TV stations, who tend toward more frequent crime coverage. (The alt-weekly Riverfront Times wrote in January about its response to a subpoena, in a piece that’s worth reading.)

Joyce said she values the role of journalists, but sees her job as getting to the truth in any way she can—even if it means issuing subpoenas to the media. “You have to be thorough and look at everything in this job,” she said. “And I think most of the media get that.”

As to Freivogel’s concerns about the safety of reporters: “There have been some attacks on journalists,” Joyce said. “None of this has anything to do with subpoenas. I think that’s really a stretch.”

On the other hand, to the extent that safety is a concern, she said, that’s one reason for the very secrecy request that Freivogel objected to. “No one would know she was ever subpoenaed if she hadn’t said anything about it.”

Nonetheless, Joyce says, Freivogel—who has insisted that KWMU has no materials in its possession that could have any bearing on the Ball-Bey case—need not worry about being hauled before a judge.

“Typically what happens is if the station or paper doesn’t have anything, they just call and say they don’t have anything. We don’t make them go to court to say that,” she said.

The outspoken Joyce, who like Freivogel is on the verge of retirement, maintains that she has great respect for the veteran journalist, and Freivogel says the same about Joyce. For the time being, it appears that their debate will go on—if not on Twitter or in the courts, then perhaps over the airwaves.

Deron Lee is CJR’s correspondent for Iowa, Missouri, Kansas, and Nebraska. A writer and copy editor who has spent nine years with the National Journal Group, he has also contributed to The Hotline and the Lawrence Journal-World. He lives in the Kansas City area. Follow him on Twitter at @deron_lee.