When a Subpoena Stops the Press   

A judge's "no-access" order blocks an Indiana journalist from covering a trial.

Plenty of lawyers try to control the way journalists cover the criminal courts. Defense attorneys frequently seek restrictions on media access to trials. Although they invariably cite preservation of the Sixth Amendment rights of their clients, they are usually equally concerned with spin control.

Prosecutors, too, try to orchestrate coverage. Following O.J. Simpson's acquittal, many have advocated excluding cameras from courtrooms, often for reasons other than fair trials. Carlos Valdez, the Texas district attorney who prosecuted Yolanda Saldivar for the murder of Tejano singer Selena, told the American Bar Association Journal that he wanted cameras kept out of that trial because he didn't want to be "the Marcia Clark of South Texas."

Journalists have legal recourse when a lawyer tries to close a courtroom. U.S. Supreme Court decisions dating from 1980 say that criminal trials are presumed open to the press and the public, and that they may be closed in only very limited circumstances.

Given these obstacles, prosecutors seldom can justify trying a criminal defendant in secret. But as a recent skirmish in Indiana shows, there's more than one way to close a courtroom.

For more than a year, Indianapolis Star reporter Jennifer Labalme had covered the circumstances surrounding the death of 6-year-old Lance Planck in November 1995. His parents were charged with reckless homicide, involuntary manslaughter and neglect after their son died of meningitis.

Shortly before the trial began on January 30, 1997, Labalme was subpoenaed by the prosecutor's office. Her lawyer asked the court to quash the subpoena, citing the federal and state constitutions and arguing that the reporter had no firsthand knowledge of the crimes of which the Plancks were accused.

So far, this sounds like just another example of the all-too-common practice of government attorneys trying to use reporters as unpaid investigators. But in an unusual twist, the state asked the trial judge to issue a "separation order" prohibiting witnesses from attending any portion of the trial except when they appeared to testify.

As a potential witness, Labalme was subject to this order. Initially, the prosecutor agreed she would not invoke the order to stop Labalme from covering the trial. But in mid-February, after expressing displeasure over Labalme's reporting, the prosecutor persuaded the judge to prohibit her from attending and reporting on the trial. A few days later, the state rested its case without calling Labalme to the stand.

The trial judge nevertheless refused to lift the "no-access" order, finding that because "no other witness in the world" could testify to the accuracy of quotations attributed to the Plancks, the state might need to call Labalme during rebuttal. While "this court is perfectly willing to allow Labalme to be both a reporter and a witness," the judge said, the rules of evidence would not allow him to admit her to the courtroom.

Labalme filed an emergency appeal with the Indiana Supreme Court, arguing that unless the state could show that her testimony was essential to its case, the court had no authority to bar her from the courtroom. She alleged that the state had labeled her a "theoretical" witness solely for the purpose of excluding from the courtroom "a reporter whose news coverage was displeasing to the state's counsel."

In early March, the Indiana Supreme Court declined to quash the subpoena or grant any emergency relief. But it noted in its opinion that "at least some justices" concluded that whether Labalme could be barred from the courtroom was an issue distinct from whether she could be forced to testify. Before excluding her, the high court said, the trial judge should have considered the First Amendment ramifications of keeping Labalme out.

Two days later Labalme testified during rebuttal about the accuracy of her stories, and the judge allowed her to resume covering the trial.

But the damage had been done. Labalme, presumably the Indianapolis Star's best-informed reporter on this story, had been barred for several weeks from covering the trial, simply because the state had subpoenaed her. As the newspaper's counsel argued, the practical effect is that Labalme's case will "become a roadmap on how to exclude from the courtroom a journalist whose news stories displeased a prosecutor."

In Branzburg vs. Hayes , the 1972 decision defining the scope of a reporter's constitutional privilege, the U.S. Supreme Court wrote that there is no justification for "official harassment of the press undertaken not for the purposes of law enforcement but to disrupt a reporter's relationship with his news sources."

It might well have added, "or to control who covers the courts."