Taking a Stand

Should a reporter be compelled to testify in the state's case against an ex-lawmaker?

After an investigative reporter for SFR did the work that state prosecutors could have done, now they want him to testify in a fraud case against a former state lawmaker.

Ten months after he bolted from the Roundhouse and resigned his Senate seat, Phil Griego was charged by Attorney General Hector Balderas with bribery, solicitation, three counts of fraud, filing a false financial disclosure statement, tampering with government records and two counts of violating “ethical principles of public service” when he financially benefited from legislation that enabled the sale of a historic state property in Santa Fe. 

Griego, 67, has pleaded not guilty to the crimes, and in two weeks, his legal defense team, headed by Santa Fe attorney Thomas Cole, will try to convince District Judge Brett Loveless to determine there is no probable cause to proceed to trial. 

But first, the judge will hear motions on whether Peter St. Cyr, the journalist who broke the story about the deal in 2014, should be compelled to participate in the trial. It’s not a position a journalist ever wants to be in. Prosecutors are seeking to authenticate Griego’s voice on a recording St. Cyr made during a long telephone call just a few weeks before the story published. 

Colin Hunter, representing St. Cyr, is asking a judge to keep him off the stand. Statements Griego made during the course of his reporting, Hunter argues, are protected under the New Mexico News Media Confidential Source or Information Privilege, a rule that provides journalists a privilege to refuse to disclose their sources and any confidential information obtained in the course of pursuing a story. That hearing is scheduled for June 27. 

Read St. Cyr's own words about the situation:

Since 2014, I’ve penned a dozen stories about Phil Griego, a former state senator who now faces 10 felony corruption charges after SFR uncovered evidence the powerful chairman of the Senate Corporations and Transportation Committee financially benefited from legislation that enabled the sale of a historic state property in Santa Fe.

Those stories and the original investigation questioned Griego’s ethics and eventually led to the longtime lawmaker’s resignation from the Senate in March 2015—just a few hours before a hearing to vote on expelling him from the upper chamber.

When prosecutors first explained that I was "on the witness list" for the case I tried a simple request to exclude me from the list. But that went nowhere fast. After I turned down a request to be interviewed by one of the attorney general's investigators, a subpoena followed, explaining that prosecutors want me to authenticate Griego’s voice on a recording I made with him during a long telephone call just a few weeks before “Sold Out” was published on July 22, 2014. Prosecutors also want me to affirm that the recording, published on Twitter, is an original unedited version. This is something an affidavit should be able to accomplish.

Deputy Attorney General Sharon Pino and Assistant Attorney Generals Clara Moran and Zach Jones have also asked Loveless to compel me to testify about a conversation I had with Griego inside the Roundhouse after a Capital Building Planning Commission meeting two years ago. They contend Griego and I never intended to keep confidential the information from our conversation in the hallway.

The subpoena and being named as a witness in a criminal case that results from a story presents a huge ethics problem for journalists everywhere. No reporter will ever agree to testify about material provided by a confidential source. In this situation, the record and published stories should speak for themselves. 

Attorney Colin Hunter, who represents me in the matter, agrees. He’s filed a motion to quash a motion compelling my testimony.

Hunter's argument is that prosecutors haven't shown that I’m needed to authenticate the recording, and more importantly, that any statements Griego made to me during the course of my reporting are protected.

The state’s assertion that I have the burden to prove that journalistic privilege “misses the point,” according to Hunter, since Griego's first communication with me at the Roundhouse was a private conversation and not recorded. 

A First Amendment advocate, Hunter doesn’t believe the reference to an unrecorded interview “does not magically reclassify it from confidential to non-confidential” just because it is briefly referenced in a subsequent recorded telephone interview.

To win their argument and force me to take the stand, prosecutors will have to demonstrate that there is no privilege because the information is material and relevant to their case and that they have exhausted other means of discovering the information they want disclosed. They'll also need to persuade Loveless the information is so critical that it outweighs the public’s interest in protecting the news media’s confidential information and sources.

I’m not the first journalist to fight a subpoena in New Mexico. In 1973, the state Legislature passed a law granting journalists a privilege against disclosing their sources and unpublished notes, including film and audio recordings. Three years later, the New Mexico Supreme Court determined lawmakers could not create rules for the judicial branch and that there were no evidentiary rules granting journalists privilege. Less than a decade later, in 1982, the high court adopted a rule granting journalists the confidential source or information privilege.

That rule remains in place today. So, for now, the only place this journalist expects to be during the Griego case is in the back row of the court’s public seating, taking notes and covering the case I've been following for more than two years.

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