St. Albans, Vt.
A refusal by a judge this week to quash subpoenas of two reporters by the prosecution mean they will be compelled to testify in the senator’s case.
The 64-year-old McAllister was charged with three counts of sexual assault and three misdemeanor charges of prohibited acts. Authorities allege he sexually assaulted three women over the course of several years, including one legislative assistant and two women who had been tenants of his. One has since died.
The reporters’ subpoenas illustrate the fine line the court must walk in balancing the privileges of a free press with Vermont law that generally requires witnesses to testify when summoned into court by prosecutors. Media advocates are wary of such tactics, saying forcing journalists to testify about their reporting could hinder their ability to gather news, especially on sensitive topics that may involve confidential sources.
The co-founder of one of the newspapers involved, Seven Days, also said such subpoenas threaten to turn an independent press “into an investigative arm of the legal system.”
On Monday, Franklin Superior Court Judge Robert Mello heard motions seeking to quash subpoenas of reporter Mark Davis and political editor Paul Heintz from Seven Days, the Burlington-based alternative weekly, and of Vermont Public Radio reporter Peter Hirschfeld. Mello later on Monday affirmed Davis’ subpoena, meaning the prosecution can call him to testify about a story he wrote last fall in which McAllister seemed to acknowledge that he had had sex with the women.
Mello also upheld Hirschfeld’s subpoena, meaning the VPR reporter may be required to take the witness stand to authenticate an audio recording of McAllister in January in which the lawmaker denied ever having sex with the victim.
Mello granted the motion to quash Heintz’s subpoena after the prosecution indicated it no longer intended to call him as a witness.
Because Davis’ subpoena allows him to be questioned more generally by the prosecution than Hirschfeld, it raises significant questions about the First Amendment implications at stake, according to Vermont journalists and advocates.
Reporter subpoenas aren’t particularly uncommon, according to Robert Hemley, a Burlington attorney representing all three reporters in the case. He said a Vermont journalist is subpoenaed about once a year.
Davis, a former courts and police reporter for the Valley News, declined to comment. He was subpoenaed to testify regarding an interview with McAllister at his Highgate farm in October.
McAllister, a Weathersfield native and Windsor High School graduate, has steadfastly maintained his innocence since he was arrested outside the Statehouse in May 2015.
Davis’ subpoena centers on this paragraph in an Oct. 14 Seven Days article he wrote:
“Asked whether he’d had sex with the two women who have accused him of assault, McAllister didn’t hold back: ‘After my wife died. Months after. I’ve never denied that I had sex with them.’ He said his legislative assistant was at least 16 years old at the time.”
The legal age of consent in Vermont is 16.
McAllister at other times has denied having sex with the women.
McAllister will be tried in two cases; the trial starting today — on two counts of sexual assault — covers only the allegations lodged by the former legislative assistant. The second trial involving the other living victim has not yet been scheduled.
Mello’s ruling on Monday indicated that McAllister’s defense “will not contest (his) having a sexual relationship with the complaining witness,” but that he did not admit to having sex with the woman on the dates alleged.
Usually, any number of factors prevent a reporter from testifying. Often, the subpoena is quashed or lawyers negotiate a situation where the reporter doesn’t have to testify in open court. Other times, the defendant accepts a plea deal, eliminating the need for testimony during trial.
Franklin County Deputy State’s Attorney Diane Wheeler has argued that none of the information the prosecution seeks is confidential, and Mello’s Monday ruling noted that McAllister’s “admission to having sex with the complaining witness relates to an essential piece of the state’s case.”
In a Jan. 14 ruling, he had said: “The state can also no longer interrogate (McAllister); Mr. Davis is the only source of this information … The evidence must be disclosed … The unpublished notes and testimony of Mr. Davis regarding (McAllister’s) admission to having sexual intercourse with the victims will likely be crucial for the state’s case.”
Asked for comment before Monday’s ruling, Seven Days co-founder and editor Paula Routly said in a written statement, “As Judge Mello rightfully acknowledged in a previous ruling, compelling reporters to testify risks turning the press into an investigative arm of the legal system … We’ve filed motions to quash both subpoenas and will continue to fight for a free and vibrant press.”
VPR News Director John Dillon said on Tuesday, “We are disappointed by the judge’s decision. We believe the prosecution in this case could have confirmed McAllister’s statement by questioning other witnesses to the media scrum with McAllister in January, and therefore did not have to subpoena our reporter.
“However, we will not fight the decision and Peter can testify for the sole purpose of authenticating the recording that was made of the scrum. If the questions go further than that, we will object in court. A key factor in our decision is whether our compelled testimony would cause a chilling effect on our newsgathering. We decided that it would not in this case, since Peter is being asked to authenticate a recording made by another news organization of an event witnessed by many people.”
Hemley, the reporters’ attorney, chalked up the whole situation involving Davis to a misstep by McAllister last fall, faulting him for speaking to the reporter in the midst of ongoing legal proceedings.
“McAllister has simply disregarded the advice of his counsel and that’s why we are where we are,” Hemley said in a phone interview.
Phone messages left for prosecutor Wheeler and McAllister’s attorney, Brooks McArthur, were not returned.
As the cases have unfolded, they have triggered a nuanced discussion of First Amendment implications. They also highlight the lack of legal protections for Vermont reporters.
Vermont is one of 10 states to have no shield law to protect journalists from being required to reveal in court confidential sources or other information, which is also known as “reporters’ privilege.” If this case was tried in a state with a shield law, Davis might merely be required to confirm the veracity of his October article and the accuracy of his conversation with McAllister, but could not be compelled to give up his notes or provide other testimony about the interview.
Vermont has a lesser degree of reporter protection: a qualified reporter’s privilege drawn primarily from a 1974 Vermont Supreme Court case. In that case, judges ruled that reporters must testify if there is no alternative source for the information and if the information is relevant in determining guilt or innocence.
New Hampshire also doesn’t have a shield law, though protection for the press is written into the state constitution, which says, “Free speech and liberty of the press are essential to the security of freedom in a state: They ought, therefore, to be inviolably preserved.”
Still, said William Chapman, a Concord lawyer who has defended several reporters in similar cases, New Hampshire’s reporter privilege is qualified, with similar tenets as that of Vermont’s.
How exactly the McAllister trial will unfold remains to be seen. Come Wednesday, Davis may or may not decide to testify.
“It’s too early to tell,” Hemley said on Friday. “I don’t know what’s going to happen.”
Best-case scenario, Hemley said, would be a “resolution that appreciates the First Amendment’s rights that reporters have” or an order restricting testimony to simply confirming the story’s accuracy. If Davis chooses not to testify, he could be held in contempt by the court — possibly sent to jail or subject to appeal to the Vermont Supreme Court.
To date, no Vermont reporter has ever been jailed for refusing to testify.
Wheeler, the prosecutor, argues that since none of the sources involved are confidential, court testimony does not chill the speech of the press. “The threat to free-press interests in cases involving nonconfidential information is a fairly subtle one and relies more on intuition than empirical evidence,” she wrote in December, citing a 1972 Vermont Supreme Court case.
Indeed, it’s a fine balance, according to some observers.
“Sometimes, the state’s interest in ensuring the right to a fair trial means that clipping ultimate protection under the First Amendment is justified,” said Allen Gilbert, executive director of the Vermont American Civil Liberties Union.
Vermont Press Association Executive Director Mike Donoghue said he was subpoenaed 18 times over a 47-year career with the Burlington Free Press. He only had to testify once, and even then, he said, it was not a confidential or “source-related thing.”
“That’s one of the hazards of being a journalist,” he said. “There are times you go out and do your job and suddenly someone wants to subpoena you to see if it’s true.”
Many of the stories he uncovered over the years came through because his sources trusted his vow of confidentiality, he said.
“We consider the notebook to be somewhat sacred,” Donoghue said. “If suddenly that reporter’s notebook is subject to public inspection or to the subpoena, that’s going to have a chilling impact on the police chiefs, fire chiefs, or any whistleblower coming forward about wrongdoing.”
The public also will suffer the ill-effects of a constrained press, said Gilbert, a former reporter and editor at the Rutland Herald.
“We rely on reporters to get all kinds of confidential information that has a direct bearing on the actions of what government is doing,” he said. “Every time there’s a case like this, we all — as the ACLU, as reporters, as the public generally — we all need to pay attention and make sure our First Amendment freedoms are protected.”
Katie Jickling can be reached at katiejickling@gmail.com.