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American Journalism Review
Book Writer Not Journalist, Says Court; Notes Subpoenaed  | American Journalism Review
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From AJR,   December 1991

Book Writer Not Journalist, Says Court; Notes Subpoenaed   

By Garrett Scott Brunswick
Garret Scott Brunswick is a former AJR editorial assistant.     

When a defendant in an Arizona corruption case subpoenaed a freelance writer's notes, the writer sought relief through the state's Media Subpoena Law – a routine procedure in Arizona. However, a Superior Court judge ruled that the writer did not qualify for such relief, in part because he is writing a book and books are not a "traditional method of news dissemination."

Dary Matera, a former Miami News reporter, wrote the book with Joseph Stedino, a flamboyant ex-mobster, an undercover operative for the state and the prosecution's star witness in Arizona's AzScam corruption trial. Matera told WJR that the book details how Stedino posed as a Mafia associate interested in purchasing pro-gambling votes from state politicians.

The difficulties for Matera began when former state Senator and AzScam defendant Carolyn Walker subpoenaed all of Matera's notes, records and materials relating to the book, to Stedino or to any of Stedino's activities. Matera says that the subpoenaed material totals nearly 50,000 pages.

Matera and his attorneys subsequently asked the judge to quash the subpoena because it did not include an affidavit specifying exactly what materials the defense needs and why it has not been able to obtain them from some other source. Under the Media Subpoena Law such affidavits are required for the subpoena of materials from "a person engaged in gathering, reporting, writing, editing, publishing or broadcasting news to the public."

However, in his ruling Judge Thomas Dunevant III indicated that the law was not specific enough in defining who it protected, so he turned to another statute for a definition, Arizona's Press Shield Law. That statute, designed to prevent the forced testimony of journalists, covers persons "engaged in newspaper, radio, television or reportorial work or connected with or employed by a newspaper, radio or television station."

Since Matera was connected with a publishing house, HarperCollins, and not a newspaper or broadcast station, Dunevant decided that Matera does not qualify for protection under the Media Subpoena Law. Furthermore, Dunevant found that Matera was not actually gathering "the news." He wrote that "Dary Matera's intention at the inception of the information gathering process was to author a book (biography) about Joseph Stedino, rather than to act as a news gathering investigator."

Matera denies that the book is meant to be a biography. "Twenty-eight chapters are about AzScam, and two are about Stedino," says Matera. "Without AzScam this guy doesn't even rate a biography."

Daniel Barr, one of Matera's attorneys, said he was shocked by Dunevant's ruling. "It's their point that to be news it has to be spot news," he says.

Matera requested and was granted an emergency appeal of Dunevant's ruling from the state court of appeals. However, the appeals court upheld Dunevant's decision and has yet to issue a written opinion.

Matera says he will probably ask the Arizona Supreme Court to review the ruling. He says HarperCollins, which is assisting with the legal fees, wants to appeal. Whatever the outcome, Matera is adamantly opposed to relinquishing his notes. "I'm not giving them anything – no matter what anybody rules," he says.

Jane Kirtley of the Reporters Committee for Freedom of the Press says writers need to be aware of the laws and potential problems in their states. "Are journalists who write books in danger of getting subpoenaed? Yes," she says. "That's been a problem in the past and will be a problem again." Garret Scott Brunswick

Garret Scott Brunswick is a news aide at WJR.



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