A former OPB reporter will not be compelled to testify about his interview with an occupation leader during last year’s takeover of the Malheur National Wildlife Refuge.
In January 2016, former OPB reporter John Sepulvado, now with KQED in California, interviewed occupation leader Ryan Bundy about the refuge takeover. Prosecutors want to play the audio interview for the jury, which is tasked with deciding whether four defendants are guilty of federal charges related to their occupation of the wildlife refuge.
An attorney for OPB and Sepulvado argued that testifying in the case would violate journalists' legal privilege not to testify about their sources. Case law in this area holds some ambiguity. Courts are asked to weigh the need to gather evidence in balance with the benefits of a healthy free press.
Defense attorneys raised questions about the veracity of Sepulvado’s edited audio. If prosecutors were permitted to play the interview for the jury, attorney Jesse Merrithew, representing defendant Jake Ryan, promised to counter with evidence to question Sepulvado’s credibility.
At Friday’s hearing, U.S. District Court Judge Anna Brown affirmed journalists’ privilege and granted Bosworth’s motion to quash the subpoena.
But she encouraged attorneys on both sides to do more work on questions the subpoena raised. Ryan Bundy is awaiting trial in Nevada regarding a 2014 standoff with federal agents at his father's ranch.
In court, the parties acknowledged Bundy might be more likely to lend his presence for the defense.
“This decision affirms the role and value of the free press in today’s society. We appreciate that Judge Brown recognized that this subpoena would undermine the work of reporters everywhere by jeopardizing their ability to act as independent observers,” said Morgan Holm, OPB’s senior vice president and chief content officer.
Holm added important issues remain regarding protections for journalists in federal criminal cases.
Legal observers are parsing the case for clues about whether the Trump administration might have an appetite for more legal tussles with the press.
David Alan Sklansky is a professor at Stanford law school, and a former federal prosecutor.
“It’s reasonable to expect that Attorney General [Jeff] Sessions will take a different approach to all kinds of issues than his predecessors,” Sklansky said. “But this particular decision, I don’t think is telling of any shift in position.”
But Charles Tobin sees it differently. A partner at the Washington, D.C., law firm of Holland and Knight, he specializes in media law. He had a hand in crafting guidelines for federal prosecutors to use when considering a subpoena.
“Those negotiations were attended by representatives of all the big and small news media in the country,” Tobin said. “And it looks like those guidelines are going out the window the moment the new attorney general steps into office. That is very, very troubling.”
The trial of Jason Patrick, Darryl Thorn, Jake Ryan and Duane Ehmer continues next week.
Update, Feb. 25, 2017, 5:34 p.m. PST: This story was updated to include additional information, quotes from OPB and legal experts.