Big Bend Sentinel reporter subpoenaed; defense attorney cites shield law, First Amendment rights

By Alberto Tomas Halpern
Big Bend Sentinel
Originally published March 20, 2014

PRESIDIO and JEFF DAVIS COUNTIES – Investigators have served a Big Bend Sentinel reporter with a subpoena in the Prada Marfa vandalism case.

But Texas’ journalist shield law requires certain tests and measures be met before a journalist can be compelled to disclose information.

The alleged vandal, a guerilla artist known only as 9271977, was arrested on Tuesday in Waco and identified as Joe Magnano. The artist exchanged text messages with Sentinel reporter John Daniel Garcia last week. Garcia acquired the alleged vandal’s phone number through an internet search, which Garcia wrote.

At about 3pm on Friday, March 14, Jerry Walker, a Jeff Davis County deputy sheriff who is leading the investigation, entered the Sentinel office in Marfa and served Garcia with the subpoena.

The subpoena, signed by Jeff Davis County justice of the Peace Fred Granado, summoned Garcia to “produce and permit inspection and copying” of “text messages from an artist known as ‘9271977,’ including all pertinent information, ie, phone number messages were received from.”

The subpoena goes on to say that failure to comply “may be punished by fine or confinement, or both.” In addition, the subpoena required Garcia to turn over his text messages by 5pm that same day.

“All of a sudden you have two hours to comply,” Garcia said. “It was kind of a bummer. There really was no time to confer with counsel.”

Robert Halpern, publisher and editor of the Sentinel, explained that upon Garcia being served, the newspaper retained Marfa and El Paso attorney Steve Spurgin as legal counsel. Spurgin was able to delay the time prescribed by the subpoena in which Garcia was to produce his phone records.

“While we want to cooperate with the investigation,” Halpern said, “certain aspects of the First Amendment come into play, as does a reporter’s privilege to keep his notes private, in addition to protecting one’s sources, even if the source may be accused of a crime.”

Investigators say subpoena is not a violation of First Amendment

While the Sentinel maintains that the subpoena represents an infringement on its and Garcia’s First Amendment rights, investigators and public officials involved in the case disagree.

Granado, the Jeff Davis County JP, explained that deputy Walker requested the subpoena as “part of his investigation,” but conceded that Garcia’s nor the Sentinel’s First Amendment rights were taken into consideration.

“I don’t know what you want to make out of it,” Granado said this week. “We never looked at it that way. (Walker) just felt like he needed that information.” He added that he held no malicious intent toward journalists.

Walker said this week that the purpose of the subpoena was to track down the alleged vandal using the phone number Garcia had obtained.

Walker insisted that his request to subpoena Garcia doesn’t constitute a First Amendment violation. “I’m not telling your reporter not to print anything. We have a felony that was committed. Other people’s property was damaged extensively. Ultimately, it affects everybody.”

Rod Ponton, the 83rd District Attorney who has prosecutorial jurisdiction over Jeff Davis and Presidio counties, also said the subpoena isn’t a violation of constitutional rights, just one aspect of a law enforcement investigation.

“(Garcia) reported that he sent and received texts. And the number that texted to and from could be evidence of the identity of the person who did it,” said Ponton. “I’m not trying to get notes or emails. I don’t want to make a First Amendment deal out of it.”

Ponton asserted that the vandal and news media are the only ones drumming up the story for attention. “Neither me nor my office have an intention of making this a big case.”

Pressed on the matter, Ponton revealed that investigators can identify the vandal “in other ways.”

“I figured that good citizens in our area would cooperate with law enforcement,” added Ponton.

The Texas Shield Law

In 2009, state lawmakers resoundingly adopted a shield law, known as the Free Flow of Information Act, which prohibits a judicial, legislative, administrative or other authoritative body in the state from compelling a journalist to disclose “any confidential or non-confidential unpublished information, document, or item obtained or prepared while acting as a journalist.”

The law was approved by the Texas House of Representatives by a vote of 146 in favor and 0 opposed. The Texas Senate approved the measure by a vote of 31 in support and none opposed. It was signed into law by Governor Rick Perry on May 13, 2009, making Texas the 37th state in the United States to adopt such a law. Today, 49 states and the District of Columbia have “journalist’s privilege” laws codified in statute. Wyoming remains the sole state without such a law. The federal government, too, has yet to adopt a shield law for reporters.

Under the law, a journalist may be compelled to disclose information if the journalist witnessed a felony offense, if a confession of a felony crime is made to a journalist, or if probable cause exists that a source committed a felony. A journalist can also be compelled to testify or disclose information if disclosure is “necessary to stop or prevent reasonably certain death or substantial bodily harm.”

According to Laura Lee Prather, a media attorney and former president of the Freedom of Information Foundation of Texas, if one of three scenarios exists in which a journalist could be compelled to divulge information, “the only hurdle one must overcome before calling the journalist to testify is establishing by clear and specific evidence that they have exhausted all reasonable efforts to get the information elsewhere.”

Ponton’s contention that the vandal’s identity can be sought “in other ways” may indicate that investigators have not exhausted all reasonable efforts.

Further, the subpoena Garcia received was signed by Granado, a justice of the peace, not Ponton, the district attorney.

Prather explained that Texas’ shield law was written “to require more stringent requirements” in serving a journalist a subpoena. And the fact that the district attorney’s signature is not on the subpoena, means statutory procedure may not have been followed.

“The district attorney’s signature is required under the Free Flow of Information Act,” Prather said. “If the district attorney didn’t sign off, then that’s grounds for having the subpoena voided.”