Judge tells two newspapers to preserve emails in capital murder case

By Claire Osborn
Austin American-Statesman
Originally published Jan. 7, 2015

GEORGETOWN — A Williamson County judge ordered the publishers of two newspapers Thursday to preserve any emails they had received this fall from District Attorney Jana Duty about the controversial Crispin Harmel murder case.

There has been an order since April prohibiting lawyers involved in the case from talking to reporters about it. Duty has already served time in jail for talking to an American-Statesman reporter about the case while the gag order was in effect.

Defense attorneys had subpoenaed the publishers of The Williamson County Sun and The Advocate to request any emails they had received from Duty about the Harmel case from October through December.

R. Mark Dietz, an attorney for the Sun’s publishers, told District Judge Rick Kennon on Thursday there was only one email between the newspaper and Duty during the time period requested. In that Dec. 3 email, Duty spoke about a grievance filed with the State Bar of Texas against her, according to a motion filed by Dietz to quash the subpoena.

Duty’s email said: “The complainant in the Bar grievance is Royger Harris, a disgruntled employee and Ryan Deck, attorney for Crispin Harmel who is accused of Capital Murder,” according to Dietz’s motion.

The email also said, “It’s just more of the same harassment that I have been dealing with for the past year. More of the same.”

It wasn’t clear from Thursday’s hearing how many emails, if any, there were between Duty and The Advocate. Wayne Cavalier, the lawyer for that newspaper’s publisher, declined to say after the hearing whether he would file a motion to quash a subpoena for the email.

Judges are allowed to ask journalists to preserve evidence in a case if it’s relevant, but they have to first hold a hearing, said Jim Hemphill, an Austin attorney and a member of the board of the Texas Freedom of Information Foundation.

Under Texas’ shield law, which seeks to protect journalists from having to testify in court, a party seeking information from a journalist has to prove in a hearing that the information is relevant and important to the case and not available from alternative sources, said Hemphill, who has sometimes represented the Statesman.

Harmel is accused of strangling Jessika Kalaher in 2009 in Cedar Park after following her out of a Wal-Mart. His first trial ended in a mistrial in 2014.

Prosecutors revealed halfway through Harmel’s trial in May 2014 that there were time stamps on a video that showed when events occurred, defense attorneys have said. The time stamps were at odds with the defense’s timeline of events.

Harmel was scheduled to be retried March 30, 2015, before defense lawyers alleged in court documents that Duty knew the time stamps were on the video before the first trial because Harris, then her chief investigator, said he saw them when he watched the video with her.

Kennon ruled in September that Harmel could be retried because Duty didn’t intend to provoke a mistrial during Harmel’s first trial. A defense attorney has appealed the ruling to the 3rd Court of Appeals.