Opinion
Case No. 02-80813.
July 14, 2003
ORDER GRANTING DEFENDANTS' MOTION TO AUTHORIZE SUBPOENA AND COMPEL TESTIMONY OF MITCH ALBOM AND DENYING MITCH ALBOM'S MOTION FOR A PROTECTIVE ORDER
At a hearing held on July 8, 2003, this matter came before the Court on Defendants' motion to authorize subpoena and compel testimony of Mitch Albom and Mitch Albom's motion for a protective order. Being fully advised in the premises, having read the pleadings, and for the reasons stated below, this Court GRANTS Defendants' motion and DENIES Mitch Albom's motion.
Chris Webber and his father, Mayce Webber Jr., are charged with giving false declarations to a grand jury. One of the pivotal allegations made by the government against both Defendants is that they received $280,000 in cash and/or other benefits from Eddie Martin while Chris Webber was in high school and college. Defendants argue that Mitch Albom had almost unlimited access to Chris Webber and his father during this time period and has written about his observations of Chris Webber's financial situation while he was at the University of Michigan, which observations cast doubt on the government's allegations. Defendants want to call Mitch Albom as a witness so that he can testify about what he himself observed concerning Chris Webber's financial situation during the many hours Mr. Albom spent with him and his family while Chris Webber was at the University of Michigan. Defendants emphasize that they are not asking Mr. Albom to testify as an expert witness, to disclose any confidential sources or any confidential information, or to disclose information he may have obtained from others. Rather, Defendants want Mr. Albom to testify about his personal observations just like any other citizen with relevant, material testimony to offer in this criminal case. Defendants argue that no journalist's privilege exists, and, even if it did, it would be overcome here where there is no need to protect sources, no confidential information is sought, and where the information sought is highly relevant to the defense in a criminal trial. Mitch Albom and The Detroit Free Press respond that Defendants' motion should be denied because a qualified privilege exists for journalists and that privilege cannot be overcome when examined under the three-prong test adopted by the courts when considering claims of journalist's privilege in criminal cases.
I. Analysis
In United States v. Branzburg, 408 U.S. 665 (1972), the United States Supreme Court addressed the question whether journalists have a First Amendment privilege to refuse "to respond to grand jury subpoenas as other citizens do and to answer questions relevant to an investigation into the commission of crime." Id. at 682. The Court refused "to grant newsmen a testimonial privilege that other citizens do not enjoy." Id. at 690. It explained:
Fair and effective law enforcement aimed at providing security for the person and property of the individual is a fundamental function of government, and the grand jury plays an important, constitutionally mandated role in this process. On the records before us now, we perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.Id. at 690. The Court rejected "the argument that the public interest in possible future news about crime from undisclosed, unverified sources must take precedence over the public interest in pursuing and prosecuting those crimes reported to the press by informants and in thus deterring the commission of such crimes in the future." Id. at 694. Justice Powell, in his concurring opinion, did caution, however, that:
if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationship without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered. The asserted claim of privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.Id. at 710.
The Sixth Circuit, applying Branzburg, similarly held that a television reporter was not entitled to a qualified privilege under the First Amendment "to withhold information sought by a grand jury." In re Grand Jury Proceedings, Storer Communications, Inc., 810 F.2d 580, 581 (6th Cir. 1987). The Court acknowledged that although other federal Circuit Courts of Appeal had recognized a qualified privilege for journalists based in part on the above-quoted language from Justice Powell's concurring opinion, it was declining to join them in recognizing such a privilege, finding that Justice Powell's opinion did not "warrant the rewriting of the majority opinion to grant a first amendment testimonial privilege to news reporters". Id. at 584-85.
Defendants argue that this Court should extend the above holdings beyond the scope of grand jury proceedings and refuse to recognize a qualified privilege for journalists in the context of a criminal trial. The vast majority of federal appellate courts, however, "have interpreted Branzburg as recognizing a qualified First Amendment privilege for journalists to be free from compelled disclosure." Karl H. Schmid, Journalist's Privilege in Criminal Proceedings: An Analysis of United States Courts of Appeals' Decisions from 1973 to 1999, 39 Am. Crim. L. Rev. 1441, 1454 (Fall 2002). More importantly, the qualified privilege has been recognized in the context of criminal cases. "The United States Courts of Appeals decided eight cases between 1973 and 1999 involving criminal defense subpoenas issued to members of the press. In these cases, the journalists' claims to First Amendment protection from forced disclosure of information is pitted against criminal defendants' claims of receiving a fair trial and compulsory process under the Sixth Amendment." Id. at 1473 (citing United States v. Cutler, 6 F.3d 67 (2d Cir. 1993); United States v. LaRouche Campaign, 841 F.2d 1176 (1st Cir. 1988); United States v. Caporale, 806 F.2d 1487 (11th Cir. 1986); United States v. Burke, 700 F.2d 70 (2d Cir. 1983); United States v. Cuthbertson, 651 F.2d 189 (3d Cir. 1981); United States v. Criden, 633 F.2d 346 (3d Cir. 1980); United States v. Orsini, No. 77-1019, 2 Media L. Rep. 2264 (2d Cir. May 17, 1977), aff'g United States v. Orsini, 424 F. Supp. 229 (E.D. N.Y. 1976); United States v. Pretzinger, 542 F.2d 517 (9th Cir. 1976)).
The majority of these eight cases were decided using a three-prong approach that makes it more difficult for the criminal defendant to overcome the journalist's qualified privilege. Id. at 1473-79 (citing United States v. Cutler, 6 F.3d at 71; United States v. Caporale, 806 F.2d at 1504; United States v. Burke, 700 F.2d at 77; United States v. Cuthbertson, 651 F.2d at 195-96; and United States v. Criden, 633 F.2d at 358-59). The three-prong approach requires that, to overcome the qualified privilege, the criminal defendant must "make a clear and specific showing" that the subpoenaed testimony is (1) "highly material and relevant", (2) "necessary or critical to the maintenance" of the defendant's defense, and (3) "not obtainable from other available sources." Burke, 700 F.2d at 77 (internal quotes and citations omitted). Even those courts applying the three-prong approach recognize that balancing is still required when deciding if the privilege is to be overcome in the context of a criminal case. See United States v. Cuthbertson, 630 F.2d 139,148 (3d Cir. 1980) (observing that "[b]ecause the privilege is qualified, there may be countervailing interests that will require it to yield in a particular case, and the district court must balance the defendant's need for the material against the interests underlying the privilege to make this determination") (internal citation omitted); Burke, 700 F.2d at 77 (observing that "a criminal defendant has more at stake than a civil litigant and the evidentiary needs of a criminal defendant may weigh more heavily in the balance.").
There are no Sixth Circuit cases directly on point. Examination of the relevant case law, however, reveals that the majority of cases considering the issue do recognize a qualified privilege for journalists in the context of criminal trials. Accordingly, the Court assumes there is such a privilege here, examines whether Defendants have clearly and convincingly shown that their interests overcome the qualified privilege, and concludes that they have. Mindful of fact that the evidentiary needs of Defendants weigh more heavily in the balance in the criminal context and applying the press-oriented three-prong approach described above, this Court GRANTS Defendants' motion.
The Court has reviewed Defendants' proposed direct examination questions for Albom and is persuaded that Defendants do not seek confidential information, an expert opinion, or information Albom may have obtained from others. Rather, Defendants seek testimony concerning Albom's personal observations gained as a result of Albom's unique experience of having spent a great deal of time with Chris Webber and his family during his years in high school and while at the University of Michigan. Defendants argue that Albom, unlike any other witness, was in a position to objectively observe whether Webber had substantial unaccounted-for cash or gifts during this critical time period.
Defendants are not seeking testimony from Mitch Albom about an informant, information obtained from an informant, or information about communications with an informant. Accordingly, this Court is not persuaded by Mitch Albom's argument that his testimony implicates Michigan's newsgatherers' shield law, Mich. Comp. Laws § 767.5a(1), which provides that:
A reporter or other person who is involved in the gathering or preparation of news for broadcast or publication shall not be required to disclose the identity of an informant, any unpublished information obtained from an informant, or any unpublished matter or documentation, in whatever manner recorded, relating to a communication with an informer, in any inquiry authorized by this act, except an inquiry for a crime punishable by imprisonment for life when it has been established that the information which is sought is essential to the purpose of the proceeding and that other available sources of the information have been exhausted.
Mich. Comp. Laws Ann. § 767.5a(1) (West 2000) (emphasis added).
Applying the above three-prong test, this Court concludes that the requested testimony is highly material and relevant as well as necessary or critical to Defendants' maintenance of their defense to the government's allegations that they received $280,000 in cash and/or other benefits from Eddie Martin while Chris Webber was in high school and college and then lied about that fact to the grand jury. Defendants have clearly and convincingly shown that Albom's testimony is not obtainable from some other neutral witness who had the quantity and quality of personal contact with Chris Webber during the relevant time period.
II. Conclusion
For the above-stated reasons, this Court GRANTS Defendants' motion to authorize subpoena and compel testimony of Mitch Albom and DENIES Mitch Albom's and the Detroit Free Press's motion for a protective order.