By Dan Kennedy • The press, politics, technology, culture and other passions

The iron lady versus the press

The Watertown Tab & Press will be in Waltham District Court today to argue that a subpoena brought against one of its reporters should be dropped. The subpoena was filed by town council member Marilyn Devaney, who faces charges that she threw a box containing a curling iron at a clerk in a Waltham store in April 2007.

Devaney wants Tab reporter Jillian Fennimore to testify about her knowledge of the case. But Fennimore, through Tab lawyer (and Friend of Media Nation) Rob Bertsche, counters (PDF) that Fennimore has no direct knowledge of what happened, covering the story only through “the traditional tools of journalism: official police reports, interviews with witnesses, and other shoe-leather reporting.”

Forcing Fennimore to testify, Bertsche adds, would have “the effect of preventing her [Fennimore] — the reporter with the most extensive knowledge of these proceedings — from reporting to the public about this criminal trial.” Such a result, Bertsche says, would interfere with the Tab’s newsgathering activities as protected by the First Amendment.

But Devaney’s lawyer, Janice Bassil, counters (PDF) that Devaney is entitled to know who supplied Fennimore with a Waltham police report labeled “Not for Public Release,” saying, “The information sought by the defendant goes to the heart of her claim for vindictive prosecution.”

That report, appended to Bassil’s brief, is highly entertaining. What allegedly set Devaney off was the clerk’s insistence that she couldn’t write a check without the proper ID. By far the best part is this quote from Devaney, which she allegedly spoke to the clerk shortly before hurling the bag at her: “Do you know who I am? I work for the Governor! I’m a lawyer! I’m in the Senate!”

Now, there are a few problems here. Assuming that Devaney knows what positions she holds, there is a good chance that she has been misquoted. She does not work for the governor, but she is a member of the Governor’s Council. She is not in the Senate, but, rather, serves on the Watertown Town Council. I could not immediately determine whether she’s a lawyer.

Devaney is something of a local legend — a contentious presence on the town council who has battled with her colleagues (there’s a whole section of Devaney clips on YouTube). As a Governor’s Council member, well, let’s just say she fits right in.

All kidding aside, it’s appalling that the Tab — part of the GateHouse Media chain — has been forced to spend one dime and devote more than one minute to fighting Devaney’s subpoena. Bassil, in her brief, makes a ludicrously offensive assertion:

The free flow of information will not be damaged as Ms. Fennimore will continue to be able to report on numerous matters similar to this so long as the information sought was authorized to be placed in the public domain.

This is a Soviet-style definition of journalism: Fennimore will continue to be able to do what is authorized, so where is the harm? I hope the judge can see through that and throws out Devaney’s subpoena with alacrity that it deserves.

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  1. mike_b1

    re the possible misquote: Seems to me someone capable of hurling an appliance at a store clerk might well be capable of exaggerating her political importance as well.

  2. Peter Porcupine

    Mike – Ya THINK????I would like the subpoena quashed just to curb ‘Do You Know Who I Am’ syndrome.Besides, according to what I read in the Gatehouse Media post, it appears that salesclerks and waitresses may well be underpaid reporters in disguise, garnering tips AND ‘tips’, if you know what I mean.

  3. Steve

    I am not a lawyer. I have some vague notions of admissible court testimony, but I might be misinformed. So someone clarify something for me – the reporter didn’t directly witness any of the events, so isn’t the reporter’s testimony hearsay? Isn’t there at least one actual eye-witness to this event (the clerk)? Why would the third-hand information from the reporter be at all relevant?Perhaps there’s a separate claim against the Waltham PD for unauthorized leaks, but that has no bearing on the case at hand, right? If someone brought that complaint, what would be the ethics of compelling Fennimore’s testimony?And an aside about Dan’s prose: “Soviet-style”? Pardon me if I am ignorant, but is this a reference to something in particular? It seems like an unnecessarily inflammatory adjective.

  4. Chris Helms

    Hi Dan, here’s an update from court. The judge put off taking up the subpoena.

  5. Dan Kennedy

    Steve:1. I’m not a lawyer either, but I don’t think you need to be to follow her argument. She wants to know who gave Fennimore the police report labeled “Not for Public Release.” She claims that will help her prove the Waltham police had a vendetta against her.2. My reference to “Soviet-style” journalism is hardly less chilling than Bassil’s claim that Fennimore would not be harmed by disclosing her source on the grounds that she could still report on “authorized” information.

  6. Anonymous

    what i’d like to know is who stamped “not for public release” on a public document.

  7. Dan Kennedy

    Anon 2:08: In fact, the police are under no obligation to release detailed reports until after their investigation is complete. Before that, they need only disclose the name, age and address of the person who’s been arrested and what the charges are.

  8. O-FISH-L

    Dan, not sure if Marilyn Devaney is a lawyer, but FWIW, it appears she has not been admitted to the Massachusetts bar. I even tried under her sometimes name Petitto.Use the “look up a lawyer” feature at

  9. Dan Kennedy

    Fish: I tried a few other search engines and got the same non-result. But as Donald Rumsfeld said, absence of evidence isn’t the same as evidence of absence. Then again, he was wrong.

  10. Anonymous

    re: anon 2:08Actually, Dan, you are mistaken about police reports. Like most other public records, there is a presumption they are public unless a specific exemption is cited to refuse it. This from the Secstate explainer on the public records law:Generally, a police incident report may be released to a requester after the records custodian has redacted the exempt portions from the record, such as, medical information (exemption (c)) and witness statements (exemption (f)).

  11. Anonymous

    sorry, dan, i hit the send button too quick. like many others, you have bought the misinterpretation of the exemption (f) statute of the public records law. here is the law:”…investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” and from the secstate explainer:”Exemption (f) does not, however, create a blanket exemption for all records that investigative officials create or maintain. A records custodian must demonstrate a prejudice to investigative efforts in order to withhold requested materials.”In other words, they have to prove they aren’t public records before they hide them and according to the law, that’s an awful high bar to jump. i’m hoping like hell the judge actually rules on this and we could have the first meaningful backbone placed in the law since its passage.

  12. Lissa Harris

    Three cheers for Rob Bertsche. I’ve told him before, if I ever have just one phone call from a filthy cell in Tijuana, he’s getting it. This subpoena is thoroughly ridiculous.

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