A Dane County judge is compelling three Madison-based reporters to testify in a trial of two women accused of assaulting a state senator during protests following the police killing of George Floyd last summer.
Isthmus newspaper reporter Dylan Brogan, WORT-FM news director Chali Pittman and WKOW TV reporter Lance Veeser were issued subpoenas by Dane County District Attorney Ismael Ozanne’s office requiring them to testify in the criminal case against Kerida O’Reilly and Samantha Hamer. The two have been charged with assaulting state Sen. Tim Carpenter, D-Milwaukee, on June 24, 2020, amid a spate of protests following the murder of George Floyd in May of that year.
Pittman and Brogan told WPR that while they witnessed the assault, they weren’t able to positively identify the assailants. Beyond that, they said a decade-old state statute protects reporters from being forced to disclose sources or materials obtained during news gathering.
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In 2010, Wisconsin lawmakers passed a “shield law,” which prohibits prosecutors from issuing subpoenas forcing reporters to testify or disclosing documents that would identify a confidential source. The law does allow courts to compel reporters to testify if the identity of the source is highly relevant to a criminal investigation, if the identity of a source is necessary to an investigation and not obtainable from alternative sources during the investigation or if there is an overriding public interest in disclosure of information or identities of a reporters’ sources.
On Tuesday, Dane County Assistant District Attorney Paul Humphrey submitted a legal brief arguing the need for the reporters’ testimony. He said while subpoenas like this are not usually issued, prosecutors are “not asking for confidential information, or the identities of any confidential informants.”
“The testimony we are seeking is not asking anyone for any work product completed during the course of their work as news persons,” wrote Humphrey. “Instead, the State is asking these proposed witnesses only what they observed when the defendants committed crimes directly in front of these witnesses. These witnesses are direct fact witnesses of the crimes in this case. This distinction makes their testimony so poignantly relevant, necessary, and in the public interest that the Court should compel these subpoenas under s. 885.14.”
James Friedman, an attorney representing Brogan, Pittman and Veeser, issued a brief in opposition to the request to subpoena the journalists. He argued that the District Attorney’s office “cannot satisfy the elements necessary for the Court to issue subpoenas to the reporters” because facts underlying their potential testimony can be obtained using other sources, including news stories about the attack on Carpenter filed by the reporters.
“Moreover, there were hundreds, if not thousands, of attendees protesting around the Capitol Square during the late night and early morning hours of June 23 and 24, 2020,” wrote Friedman. “Thus, the State cannot possibly prove that there are no alternative witnesses to the alleged assault on Senator Carpenter.”
On Thursday, Dane County Circuit Court Judge Josann Reynolds agreed with Humphrey’s argument and compelled Brogan, Pittman and Veeser to testify at an upcoming jury trial in October.
WORT-FM news director Pitmann said she’s worked hard to build trust with community members and potential sources, and having her and the other reporters testify in a criminal trial could undo that and make her job and that of other journalists more difficult.
“But I also understand the argument that we were witnesses to a crime,” said Pittman. “But my counterargument would be that is ADA Humphrey’s job, to investigate and find other witnesses, track digital signals and do a proper investigation.”
Isthmus reporter Brogan also questioned why reporters should be placed on the stand when so many other witnesses were nearby during the assault.
“I understand some of the circumstances, and I was there,” said Brogan, “but it just all seems a little unnecessary to me, mostly because I reported on everything I saw. It’s all out there and just having to testify in front of a jury seems like a conflict of interest that puts me in the story as opposed to just covering it.”
Brogan and Pittman told WPR they’re considering appealing the judge’s order but haven’t made a decision yet in consultation with their attorney.
A jury trial for the case is scheduled for Oct. 18 and 19.
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