By Mickey H. Osterreicher, Esq.
EAST AMHERST, NY (September 5, 2005) – Updating the case involving a Kentucky television station, a Circuit Court Judge ruled last week that a lower court did not have jurisdiction when it ordered WPSD-TV to hand over unedited tapes (of interviews with witnesses to a shooting) to the defendant’s attorney. The Circuit Court Judge, Jeffrey Hines, also held that District Court Judge, Bard Brian, lacked authority to impose a fine of $10,000 a day upon the station for refusing to comply with a subpoena demanding the tapes. (See previous story.)
The seven page ruling was issued after a hearing held as a result of an order to show cause brought by attorneys for the station in response to the lower court’s findings.
At issue is whether or not the station is legally required to hand over these tapes, bringing the defendant’s Sixth Amendment right to a fair trial in direct conflict with the station’s First Amendment right to gather news. The Kentucky Revised Statutes (Section 421.100) entitled Newspaper, radio or television broadcasting station personnel need not disclose source of information, states in pertinent part “no person shall be compelled to disclose in any legal proceeding or trial before any court, or before any grand or petit jury . . . the source of any information procured or obtained by him, and published in a newspaper or by a radio or television broadcasting station by which he is engaged or employed, or with which he is connected.” This “qualified privilege” more commonly referred to as a “press shield law” has been the topic of much discussion lately.
In his ruling, Judge Hines did not address that question but instead narrowed his focus to the legal technicality that the lower court did not have jurisdiction to make rulings in criminal cases and therefore lacked authority to enforce the subpoena demanding the tapes.
The felony case now moves to the grand jury for further review and if the defendant is indicted on the charges, the case will be heard in Circuit Court, where the question of “qualified privilege” of the media vs. a defendant’s “right to a fair trial” will more than likely be reviewed on the substantive issues.
In an interesting side note the lower court judge may have had a conflict of interest in hearing this matter to begin with because Paxton Media Group, which owns both the Paducah Sun Times and WPSD-TV, had previously done stories about the judge’s personal legal difficulties.
Mickey H. Osterreicher has been an NPPA member since 1972 and is on the Advocacy Committee. He has been a photojournalist for over 30 years in Buffalo, NY, where he now practices law. He can be reached at mickeyo@lawyer.com.
