The HSPA Foundation Board of Directors approved two recent requests to file, if needed, amicus briefs before Indiana Court of Appeals panels.
The first request was from The Elkhart Truth. It concerns a subpoena issued by the Elkhart County Prosecutor’s Office for reporter Emily Pfund to testify in a criminal case.
Pfund conducted a jail interview with Freddie Rhodes, who is charged with murder. Rhodes claims he was suffering from an concussion when police obtained a confession to the crime from him prior to Rhodes receiving any medical treatment.
Rhodes’ attorney filed a motion to suppress the confession. Deputy Prosecutor Vicki Becker then filed a subpoena so Pfund would be available as a possible rebuttal witness in the hearing on the motion. Becker asked for Pfund’s notes from the interview.
The Truth retained Indianapolis attorney Steve Badger to fight the subpoena. Judge Terry Shewmakeer ruled the reporter’s notes were out of bounds for the prosecutor’s office but didn’t close the door to Pfund being required to testify.
Rhodes’ attorney withdrew the motion prior to the hearing, but those involved believe the motion will be refiled before the trial.
HSPA Foundation supports the newspaper’s efforts to fight the subpoena. It has retained Jan Carroll of Barnes and Thornburg to file an amicus brief if that becomes necessary.
HSPA executive director and general counsel Steve Key said the attitude shown by the prosecutor’s office – that reporters should be subject to a subpoena if they talk to a defendant – is troubling.
Key said criminal defendants should feel safe in telling their side of the story to the public through reporters. The criminal system says one is innocent until proven guilty.
The sheriff’s department taped Pfund’s interview as part of its normal protocol, but the video wasn’t saved. Key said Pfund shouldn’t be drawn into the case because law enforcement officials failed to secure the recording.
The second amicus brief request came from Alan Achkar, editor of the South Bend Tribune.
Achkar asked the Foundation to participate in an amicus brief the newspaper plans to file in support of an appeal of a trial court ruling in an ESPN lawsuit against the University of Notre Dame.
ESPN seeks university police records concerning Notre Dame athletes.
Notre Dame refused the request, saying the school is a private institution not subject to the state’s Access to Public Records Act.
ESPN did not take the position that the entire university should be subject to the state’s public access laws. The sports network argued that Notre Dame’s campus police department, which has arrest powers granted by the state of Indiana, should be subject to the provisions of I.C. 5-14-3-5.
That section of the Access to Public Records Act requires law enforcement agencies to make certain information available to the public concerning requests for assistance.
This information is referred to as the daily log or daily record.
Several previous Indiana public access counselors had written opinions saying the wording of the Access to Public Records Act would exclude a private university from the scope of the statute.
Current access counselor Luke Britt took the opposite view based on campus police actions as an agent of the state.
The trial court judge in St. Joseph County ruled in favor of Notre Dame based on the wording of the statute but was sympathetic to Britt’s position and suggested it is an area that the state legislature might want to examine.
John Twohy of Eichhorn & Eichhorn will prepare the amicus brief for The Tribune. Jim Dimos of Frost Brown Todd in Indianapolis is representing ESPN in the matter.
Key said even if the appellate court rules against ESPN, the decision would set the stage for an effort to convince the legislature that the interpretation of the law is untenable.