Judge KO's Prosecutor's Attempt to Seize RFT Notes in Knockout King Case

A judge has quashed a subpoena from the Office of St. Louis Circuit Attorney Jennifer Joyce, which demanded that Riverfront Times reporter John H. Tucker produce his notes and testify about his interviews with Elex Murphy, who is in jail awaiting trial on a homicide charge.

Murphy is the focus of Tucker's June 9 feature, "Knockout King," which describes the murder of an elderly Vietnamese immigrant, Hoang Nguyen, in the Dutchtown neighborhood of south city. Police investigators surmised that Nguyen, 72, was attacked as part of a game played by local youths in which they try to knock down -- or better yet, knock out -- an innocent and unsuspecting victim with a single punch.

Soon after Tucker's story was published, Joyce's office issued a subpoena ordering the staff writer to appear in court, testify and produce "any and all notes, recording and documentation of interviews and/or conversations with Elex Murphy, and any and all other documentation relied upon from other sources utilizing in producing the article...."

RFT moved to quash the subpoena, and this past Friday Circuit Court Judge Jack Garvey agreed with the newspaper's objections.

Missouri has no "shield law" providing reporters with a veritable get-out-of-jail-free card from subpoenas and attempts to compel testimony. But the RFT's attorneys argued -- and Judge Garvey agreed -- that reporters are entitled to some protection, lest they be subjected to a never-ending series of calls to the witness stand, and that the First Amendment implications must be considered before they can be required to turn over notes or testify.

In this instance, Garvey noted, prosecutors already have in hand recordings of Tucker's interviews with Murphy, because all inmate phone calls are recorded as a matter of policy.

"The prosecution essentially seeks the reporter's impression of materials already in its possession," Garvey writes in his ruling. "While such information may well facilitate the State's investigation into the present crime as well as similar crimes not at issue here, the State has not adequately shown how disclosure of the reporter's impressions and of non-witness sources directly bears on the elements of the crimes for which defendant [Murphy] has been charged."

Attorneys Mark Sableman and Michael Nepple of Thompson Coburn argued the motion on behalf of RFT.

"The judge issued the correct ruling, in that he recognized there is a reporter's privilege in Missouri that's applicable to criminal proceedings," Nepple says. "Reporters should not be the witnesses of first resort. They are not the investigative arm of private attorneys -- or of the state."

That's particularly true in this instance, Nepple notes, because the reporter did not personally witness the crime or have any photos of the incident. And while prosecutors claimed they need Tucker's notes in order to learn more about the "knockout king" phenomenon, it was the city's law-enforcement agencies and not RFT that connected the crime to the game in the first place.

In their motion to quash the subpoena, RFT's attorneys argued that: 

Signally, the RFT and Reporter Tucker did their work only after the alleged crimes had been committed. Neither the RFT nor Mr. Tucker has any unique eyewitness or original evidence. After the crime involved here, they simply asked questions about the so-called "Knockout King" phenomenon, and reported them in the newspaper. Nothing that they did was unavailable to the circuit attorney or the police.

Now, instead of using its vast arsenal of police officers, detectives, informants and law enforcement files and databases, the State requests that the RFT turn over "any and all other documentation relied upon from other sources utilized in producing the article" in question. In short, it seeks all of RFT's journalistic work product. The RFT, however, is not the investigatory arm of the state.