By Donald R. Winslow
COLUMBIA, MO – A Boone County Circuit Court judge today scheduled a hearing for Monday, April 24, to address the question of whether The Columbia Tribune will be required to turn over 622 unpublished photographs by Jenna Isaacson of a University of Missouri strength-and-conditioning football training session where a 19-year-old player struggled, collapsed, and then later died.
The hearing will be the second time lawyers for the family of deceased freshman redshirt football player Aaron O’Neal have asked the court to order the Tribune to release the images. In late March, Boone County Circuit Court Judge Gary Oxenhandler ruled that, by law, Isaacson first had to refuse to turn over the photographs during a sworn deposition before the court had the legal standing to compel the release of the images.
On April 3, the photojournalist was deposed in St. Louis and the Tribune reports today that during that sworn statement Isaacson refused to surrender the photos. Now that she has refused, which meets the court’s legal requirements, the court may now properly consider whether it can order the newspaper to release the unpublished pictures.
Isaacson, an NPPA member since March 2000, has for four months had plans to depart from the States on April 24 for Kashmir where she will be a participant in a VII Photo Agency workshop led by Gary Knight. "That's just my luck," she told News Photographer today.
"I'm anxious to see how it all unfolds," Isaacson said today after learning of the hearing date. "I really do hope that the judge sees that compelling us to produce the outtakes would set a horrible precedent for our newspaper and the other journalists in this state. No photographer should have to feel forced to edit what they choose to save for the archive to avoid potential legal pursuits in the future."
In today’s Tribune in a story by reporter Matthew LeBlanc the newspaper’s managing editor – Jim Robertson – is quoted saying the newspaper has a First Amendment right to refuse to release unpublished photos and an ethical duty to remain independent of government entities, including the courts.
O’Neal’s lawyers have reiterated to the judge their original argument that Missouri lacks a press shield law and therefore there’s no statutory privilege for reporters’ work products, such as notes and photographs, and therefore the court should order the Tribune to turn over all of Isaacson’s photographs.
Isaacson photographed O’Neal and other football players for the Tribune in July 2005 as they took part in a voluntary one-hour workout. The photographer noticed O’Neal struggling as the session progressed and photographed him as he collapsed and was then helped from the field. Hours later he died at University Hospital on the University of Missouri campus in Columbia.
In late August 2005 the Boone County medical examiner ruled that O’Neal died as the result of viral meningitis. Valerie Rao would not directly say whether the workout session contributed to O’Neal’s death, but about the physical activity she did tell reporters, “I don’t think it helped him.”
The same day of the medical examiner’s ruling O’Neal’s father, Lonnie O’Neal, filed a $300,000 wrongful death lawsuit naming members of MU’s athletic training staff, the strength and conditioning staff, athletic director Mike Alden, head football coach Gary Pinkel, and director of football operations Mark Alnutt, but not the university. The suit alleges that O’Neal died as a result of “neglect” by university staff and that “university officials were callous and fell far short of any reasonable standard.”
A lawyer representing O’Neal’s family in the claim, Chris Bauman, wants 622 of Isaacson’s unpublished pictures turned over to support his case. The upcoming April 24 court hearing will now address Bauman’s motion to compel the Tribune to release Isaacson’s pictures. Unpublished photographs and reporters’ notes are not protected from discovery by any press shield law in Missouri, Bauman told the court in his motion to compel, and he believes access to her unpublished photographs will help prove his contention that the university’s staff somehow contributed to O’Neal’s death.
So far the Tribune has not complied with Bauman’s subpoena and editors have been waiting to see what the judge would do after Isaccson’s sworn deposition, where she refused to hand over the unpublished pictures. A lawyer representing the Tribune, Jean Maneke of the Missouri Press Association, said the newspaper had already agreed to share the 18 published photographs and offered to allow Isaacson to testify about what she personally saw at the workout. O’Neal’s lawyers were apparently not satisfied with the offer and subpoenaed Isaacson’s unpublished photographs.
The night O’Neal collapsed and died the Tribune published a Web gallery of 18 of Isaacson’s images of him working out, collapsing, and being helped from the field. The images were published alongside the newspaper’s Web site stories about O’Neal’s death. Isaacson’s primary images from the selection of 18 pictures were also published on the front page of the next day’s newspaper packaged with several follow-up news stories.
Some members of the Columbia and university community were outraged at the newspaper for publishing the images, but editors stood by their decision to publish and explained to readers why it was important for them to see what Isaacson had witnessed on the football field.