Tag: Gretchen Voss

The Karen Read case shows why we need a shield law; plus, a State Police outrage, and Trump and the press

Massachusetts is one of eight states with the weakest level of protection for journalists’ confidential sources and materials

Prosecutors in the Karen Read murder trial are asking that a judge order Boston magazine to turn over unredacted audio recordings, notes and other materials stemming from a story about the case written by reporter Gretchen Voss that was published in September 2023.

The request raises some uncomfortable questions about freedom of the press. Kirsten Glavin, reporting for NBC10 Boston, writes that the magazine’s lawyer has argued previously that journalists have a right to protect off-the-record information. But that right — known as the journalist’s privilege — is tenuous in Massachusetts.

According to Glavin, Judge Beverly Cannone had previously granted access to audio of Read’s on-the-record interviews with Voss. Now the prosecution is seeking the full, unredacted recordings, which would include off-the-record statements by Read.

Michael Coyne, NBC10’s legal analyst, is quoted as saying that the prosecution’s strategy appears to be aimed at finding contradictions in what Read has said about the circumstances surrounding the death of her boyfriend, Boston police officer John O’Keefe. “The more information they gather, the more likely they’re going to start to uncover inconsistencies in the story and the like, and that’s all going to help them ultimately prove their case at trial,” Coyne said.

Read is accused of driving over O’Keefe while drunk and leaving him in a snowbank to die. She and her supporters contend that O’Keefe was beaten up in a nearby house and then dragged outside. Her first trial ended in a mistrial, and she is expected to be retried early next year.

The U.S. Supreme Court ruled in the 1972 case of Branzburg v. Hayes that the First Amendment does not provide for a journalist’s privilege and that reporters, like ordinary citizens, must provide testimony in court if ordered to do so.

At the state level, 49 states recognize some form of a journalist’s privilege, either through a shield law or judicial rulings. In Massachusetts, the privilege is based on the latter, as efforts to enact a shield law over the years have not gone anywhere. According to the Reporters Committee for Freedom of the Press, that places the Bay State among the eight states with the weakest protections for reporters seeking to guard their anonymous sources and off-the-record materials.

Not even shield laws provide absolute protection for the press. Nevertheless, such a law in Massachusetts is long overdue.

That will be $176k, please

In another case that raises concerns about freedom of the press in Massachusetts, Kerry Kavanaugh of Boston 25 News reports that the State Police have told the station it will have to fork over some $176,000 for records about the State Police Training Academy — and that’s just so the scandal-ridden agency can review those records to determine if they are public or not.

“Again, please note that the majority of the responsive records may be exempt in their entirety from disclosure,” the agency told her in a response to her public records request.

Kavanaugh, an investigative reporter and anchor for Boston 25, writes that the station began seeking the records following the sudden death of Enrique Delgado Garcia, a recruit who collapsed while taking part in a boxing match that was part of his training.

She also quoted Justin Silverman, executive director of the New England First Amendment Coalition, as saying:

We shouldn’t have to pay almost $200,000 to get this information. These are our tax dollars that are being spent on the state police training program. And we have a right to know whether or not that program is operating safely or whether it’s just teeing up another tragedy to occur somewhere down the road.

The state’s public records law is notoriously weak. In 2017, though, Gov. Charlies Baker signed into law a reform measure that, according to the ACLU of Massachusetts, “set clear limits on how much money government agencies can charge for public records.”

By demanding nearly $200,000 merely to screen its records to make its own determination as to whether they are public or not, the State Police may be in violation of that provision.

Kavanaugh writes that rather than paying the outrageous fee, her station is working with the State Police and has filed an appeal with the secretary of state’s office.

Journalism in the Age of Trump II

What will be the fate of journalism in the Age of Trump II? Poynter Online media columnist Tom Jones asked several folks (including me) what role the press played in Trump’s victory over Kamala Harris and what the next four years may look like. I think this observation from NPR TV critic Eric Deggans is especially on point:

The bubble of conservative-oriented media has distorted what many people even believe is fair news coverage and increased the amount of misinformation and disinformation in the public space. But I think one of the biggest problems facing mainstream news outlets now is the belief among nonconservative consumers that coverage of this election cycle let them down by “sanewashing” and normalizing Trump’s excesses. Traditional journalists who have already lost the confidence of conservative consumers are now facing diminishing trust from the news consumers who are left, which is not a great combination.

 

A Mass. judge weighs whether to compel a journalist to turn over her interview notes

Photo (cc) 2017 by Allen Allen

An important press freedom case is playing out in a Dedham courtroom, where a prosecutor has asked a judge to force a reporter for Boston magazine to turn over her interview notes.

The magazine reporter, Gretchen Voss, wrote a lengthy article last September about Karen Read, a Mansfield woman who’s been charged with second-degree murder in the 2022 death of her boyfriend, Boston Police Officer John O’Keefe. The case is massively complicated and has become emotionally fraught, as supporters of Read have accused authorities of staging an elaborate coverup. Essentially, though, Read has been charged with running over O’Keefe with her SUV while under the influence of alcohol and leaving him to die in a snowbank. Read and her supporters counter that O’Keefe was severely beaten inside the Canton home of a fellow officer and dragged outside, where he died.

Ironically, a hearing into whether Voss would be compelled to turn over the notes of her interviews with Read was held on the same day that Congress took a rare bipartisan step toward granting journalists the right to protect their sources. More about that below.

According to an account by Ivy Scott and Travis Andersen in The Boston Globe, Norfolk District Attorney Michael Morrissey has asked Superior Court Judge Beverly Cannone to demand that Voss cooperate with the prosecution by producing her notes of what Read told her off the record. Voss replied that she would be willing to testify about the article that Boston published, but that going beyond that would be a violation of her First Amendment right to protect her sources. The magazine’s attorney, First Amendment lawyer Robert Bertsche, said the prosecution was demanding that Voss help them compile evidence to help with their case, “which was outside the scope of the law,” as the Globe summarized Bertsche’s argument.

“You can be sure if Karen Read confessed in her interview with Gretchen Voss,” Bertsche added, “that would have made it into the article.”

The Globe also quoted Assistant District Attorney Adam Lally as saying that there is “no reporter privilege in the Commonwealth of Massachusetts.” That’s true, but it’s also complicated.

Massachusetts is one of 49 states that offer some protection to journalists to protect their sources, either through a shield law or rulings by their state’s courts. (Wyoming, by the way, is the sole exception.) There is no shield law in Massachusetts, nor has the state’s Supreme Judicial Court ever ruled that there is a reporter’s privilege. But according to an overview compiled by the Reporters Committee for Freedom of the Press (RCFP), the courts in Massachusetts have recognized that journalists may have a limited right to protect their sources. The overview begins:

Massachusetts does not have a shield law, and the Supreme Judicial Court of Massachusetts has not been willing to recognize a reporter’s privilege under either the Massachusetts or U.S. Constitution. Nevertheless, Massachusetts courts have been willing to use a common law balancing test based on general First Amendment principles to protect reporters’ confidential sources in some circumstances.

That balancing test is about as good as it gets in any state, since the reporter’s privilege is not absolute. Way back in 1972, the U.S. Supreme Court ruled in Branzburg v. Hayes that the First Amendment provides no such protection, although the convoluted ruling suggested that judges should balance concerns about press freedom with the need to compel testimony. What will happen in the Karen Read prosecution is that Judge Cannone will decide whether the information Voss has is so important to the case, and unobtainable from any other non-journalistic source, that she should be compelled to turn it over.

A complicating factor is that no journalist would cooperate with such a demand, leading to the possibility that Voss could be held in contempt of court. One of the more notable Massachusetts examples of that took place in 1985, when WCVB-TV (Channel 5) reporter Susan Wornick narrowly avoided a three-month jail sentence when the source she was protecting in a police corruption case came forward and agreed to cooperate with the prosecution.

As anyone who’s been following the Karen Read case knows, I’m only chipping away at a tiny piece of it. Also on Thursday, Read’s lawyers argued that correspondence between District Attorney Morrissey and the U.S. attorney’s office should be made public and that Morrissey should be disqualified. Federal authorities are investigating how the district attorney’s office has handled the case, although the nature of their investigation has not been made public.

Finally, blogger Aidan Kearney, who goes by Turtleboy, and who has taken Read’s side, is currently being held in custody on charges of witness intimidation and domestic assault and battery. Kearney and his supporters claim those charges were filed in retaliation for his crusade on Read’s behalf.

As I wrote up top, all of this is playing out against the background of a positive step taken by Congress. Despite the existence of some shield protections in 49 states, there is no shield law at the federal level. On Thursday, though, the House unanimously passed the PRESS Act, which the the RCFP describes as “a bipartisan federal reporter’s shield law that would protect journalists from being forced to name their sources in federal court and would stop the federal government from spying on journalists through their technology providers.” The sole exceptions, according to a summary of the bill, would be in “limited circumstances such as to prevent terrorism or imminent violence.”

Given that the Republican House was able to act for all its dysfunction, there would appear to be reason for optimism that the Senate will approve the measure as well.

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