WBAL-TV Div., Hearst Corp. v. State

ORDER PER CURIAM. For reasons to be stated in an opinion later to be filed, it is this 6th day of April, 1984 ORDERED, by the Court of Appeals of Maryland, that the order of the Court of Special Appeals of Maryland granting the motion to stay the contempt order of the Circuit Court for Somerset County be, and it is hereby, vacated as of 4:00 p.m. Monday, April 9, 1984 and the judgment of the Circuit Court for Somerset County is hereby affirmed; and it is further ORDERED that the mandate shall issue forthwith, costs to be paid by the appellant. OPINION MURPHY, Chief Judge.

At issue in this case is whether the trial court erred by refusing to quash a summons issued to a television station to produce the unbroadcast portions of a video taped interview with a criminal defendant for possible use at his trial. By per curiam order dated April 6, 1984, we affirmed the judgment below. We now give our reasons for that determination. ²³⁶ I. On April 28, 1983, Scott Piechowicz and his sister-in-law, Susan Kennedy, were murdered at the Warren House Motel in Pikesville, Maryland. A federal indictment was subsequently returned against Anthony Grandison on May 27, 1983, charging inter alia that he solicited and procured another to kill Piechowicz and Piechowicz’ wife Cheryl to prevent them from testifying against him at his pending federal trial on drug charges.

On June 30, 1983, Grandison was indicted by a Baltimore County Grand Jury for first degree murder, in connection with the murders of Scott Piechowicz and Susan Kennedy. Grandison was convicted in the United States District Court for the District of Maryland on November 3, 1983 of conspiring to deprive Piechowicz and his wife of their constitutional rights—the conspiracy having resulted in the contract murder of Piechowicz, and mistakenly, Susan Kennedy. Dana Levitz, an Assistant State’s Attorney for Baltimore County, acted as Special Assistant United States Attorney and actively participated in the federal trial. On November 17, 1983, Grandison, in writing, granted “complete authorization to be interviewed by the news media.” Thereafter, on November 30, 1983, Linda Mann, a reporter for WBAL-TV (WBAL), conducted a video taped interview with Grandison at his place of incarceration.

The video tapes were subsequently edited for broadcast and short excerpts (approximately ten percent of the total interview) were broadcast that evening on the local TV news. On December 9, 1983, the State’s Attorney for Baltimore County, acting through Levitz, requested that a summons be issued to the custodian of records of WBAL to produce the video taped interview between Mann and Grandison, including the “outtakes,” i.e., those unbroadcast segments of the interview. WBAL moved to quash the summons, contending that as a news organization it enjoyed a quali ²³⁷ fied first amendment and state constitutional privilege 1 against being compelled to testify or to produce information about news gathering activities or the editorial process. The qualified privilege, according to WBAL, could be overcome only by a three-fold showing of need by the State: (1) that the information sought by the State was relevant and material to the trial and admissible in evidence; (2) that the information sought by the State was essential to a determination of guilt or innocence of the accused; and (3) that the information was not otherwise available to the State from alternative sources.

It was WBAL’s position that because Levitz had acted as Special Assistant United States Attorney in the federal case, and was participating in the state prosecution, all the facts necessary to a successful state prosecution were available to the State and, therefore, the requested outtakes were not essential to a determination of Grandison’s guilt or innocence. At the hearing on February 27, 1984, in the Circuit Court for Somerset County, to which the case had been removed, the State made clear that it sought only the video tapes of the verbatim statements made by Grandison to Mann. It argued that WBA1 had no qualified first amendment or state constitutional privilege to refuse production of the video taped portions which it sought for use at Grandison’s trial. WBAL furnished the trial court with a verbatim transcript of the entire interview which the court reviewed in camera.

It concluded that the interview related to four areas: (1) Grandison’s past record, (2) his family background, (3) his federal prosecution, and (4) the state prosecution pending before the court. The court found that the interview was a voluntary one given without any promise of ²³⁸ confidentiality. For purposes of ruling on the motion to quash, the court accepted WBAL’s claim of qualified privilege. It determined, however, that the three-fold test proposed by WBAL had been satisfied and consequently it denied the motion to quash.

WBAL refused to comply with the summons and was held in contempt. It appealed to the Court of Special Appeals. We granted certiorari prior to decision by the intermediate appellate court to consider the issue of public importance involved in the case.

II

The only United States Supreme Court decision to discuss the news reporter’s privilege is Branzburg v. Hayes, 408 U.S. 665 , 92 S.Ct. 2646 , 33 L.Ed.2d 626 (1972). The issue in Branzburg , as stated by the Court, concerned “the obligation of reporters 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 , 92 S.Ct. at 2657 . The Court emphatically refused to create any special exceptions for news reporters summoned to give evidence in legal proceedings. It said: “It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability.

Under prior cases, otherwise valid laws serving substantial public interests may be enforced against the press as against others, despite the possible burden that may be imposed. The Court has emphasized that ‘[t]he publisher of a newspaper has no special immunity from the application of general laws----’ Associated Press v. NLRB, 301 U.S. 103, 132-133 [ 57 S.Ct. 650, 655-656 , 81 L.Ed. 953 ] (1937).” Id. at 682-83, 92 S.Ct. at 2657-58 . The Court continued: “We are asked to create another [privilege] by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do....

On the records now before us, we perceive no basis for holding that the public interest in law enforce ²³⁹ ment 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 690-91 , 92 S.Ct. at 2661-62 (footnote omitted). The Court rejected the argument that compelled disclosure of information obtained from confidential sources would deter informants from revealing vital information to the press in the future. It stated: “[W]e cannot accept 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 695 , 92 S.Ct. at 2664 . The reporters in Branzburg argued that the State must make a preliminary showing, similar to the one urged by WBAL in this case, before the reporters may be forced to turn over the evidence.

They contended that “the reporter should not be forced either to appear or to testify before a grand jury or at trial until and unless sufficient grounds are shown for believing that the reporter possesses information relevant to a crime the grand jury is investigating, that the information the reporter has is unavailable from other sources, and that the need for the information is sufficiently compelling to override the claimed invasion of First Amendment interests occasioned by the disclosure.” Id. at 680 , 92 S.Ct. at 2656 . The Court flatly rejected the notion that any such preliminary showing was necessary: “predicting in advance when and in what circumstances [reporters] could be compelled to [give evidence] would be difficult. Such a rule would also have implications for ²⁴⁰ the issuance of compulsory process to reporters at civil and criminal trials and at legislative hearings.” Id. at 702 , 92 S.Ct. at 2667 . The Court cautioned, however, that “news gathering is not without its First Amendment protections, and grand jury investigations if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment.

Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter’s relationship with his news sources would have no justification. Grand juries are subject to judicial control and subpoenas to motions to quash. We do not expect courts will forget that grand juries must operate within the limits of the First Amendment as well as the Fifth.” Id. at 707-08 , 92 S.Ct. at 2669-70 (footnote omitted). In his concurring opinion, Justice Powell emphasized this point: “If a newsman believes that the grand jury investigation is not being conducted in good faith he is not without remedy.

Indeed, 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 relationships 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 to 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 709-10 , 92 S.Ct. at 2670-71 (footnote omitted). Tofani v. State, 297 Md. 165 , 465 A.2d 413 (1983) involved a situation similar to that in Branzburg .

Tofani had written a series of articles about sexual assaults in the Prince ²⁴¹ George’s County Jail. Names of both assailants and victims were published in the articles. Tofani was summoned to appear as a witness before the Grand Jury to testify about whether the facts set forth in the articles were accurate. She moved to quash the summons relying on both the Maryland reporters’ shield law and a First Amendment testimonial privilege.

We rejected both arguments. We held that Tofani had waived the privilege created by the Maryland shield law, Maryland Code (1984 Repl.Vol.), § 9-112 of the Courts and Judicial Proceedings Article, by disclosing the identity of her news sources in the articles. 2 We also ruled that under the Branzburg decision, Tofani had no First Amendment privilege not to testify before the grand jury. Relying on the Supreme Court’s decision in Branzburg , cases in other jurisdictions have rejected claims of a constitutional privilege by reporters called upon to provide evidence in civil and criminal trials. See Gagnon v. Dist.

Court In & For Cty. of Fremont, 632 P.2d 567 (Colo.1981); Georgia Communications Corp. v. Horne, 164 Ga.App. 227 , 294 S.E.2d 725 (1982); Caldero v. Tribune Pub. Co., 98 Idaho 288 , 562 P.2d 791 (1977), cert. denied, 434 U.S. 930 , 98 S.Ct. 418 , 54 L.Ed.2d 291 (1977); Com. v. Corsetti, 387 Mass. 1 , 438 N.E.2d 805 (1982); Newburn v. Howard Hughes Med. Inst., 95 Nev. 368 , 594 P.2d 1146 (1979); Matter of Farber, 78 N.J. 259 , 394 A.2d 330 (1978), cert. denied, 439 U.S. 997 , 99 S.Ct. 598 , 58 L.Ed.2d 670 (1978); Ammerman v. Hubbard Broadcasting, Inc., 91 N.M. 250 , ²⁴² 572 P.2d 1258 (N.M.App.1977), cert. denied, 436 U.S. 906 , 98 S.Ct. 2237 , 56 L.Ed.2d 404 (1978). 3 On the other hand, as we observed in Tofani, supra, 297 Md. at 186-88 , 465 A.2d 413 , a significant number of federal and state courts have indicated that Branzburg does create a qualified privilege for members of the news media. These courts have based the existence of the qualified privilege on a variety of sources including the First Amendment, e.g., Zerilli v. Smith, 656 F.2d 705 (D.C.Cir.1981); Federal Rule of Civil