MOUNT VERNON — The Mount Vernon News filed two motions Friday to counter the Knox County Prosecutor’s subpoenas of staff reporter Anton Hepler to testify in the trials of seven defendants accused of drug trafficking. The first case, that of defendant Mark Cline, is slated to begin Tuesday.
One motion asks the court to require the prosecutor to show the need for Hepler’s testimony; the other responds to the prosecutor’s threat to get a court order to bar Hepler from watching the trial.
On Jan. 4, the News published an article by Hepler about the use by Mount Vernon police of informants to make drug busts. The article reported allegations by some defendants that Jason Blubaugh, an informant used by the Mount Vernon police, kept some of the drugs and money for himself. The article named three defendants who provided information to Hepler, all of whom pleaded guilty to drug trafficking charges, but did not identify Hepler’s other sources except to say they were defendants. The article reported that unnamed defendants admitted providing Blubaugh with prescription drugs, apparently while Blubaugh was wearing a police microphone and working for the police.
Ohio’s shield law protects a newspaper reporter from being forced to disclose unnamed sources even when subpoenaed. Because of that protection, the News argued, Hepler cannot disclose at Cline’s trial who admitted to Hepler that they provided drugs to Blubaugh while he was a police agent.
“Because Hepler did not witness the alleged crime, the prosecutor presumably has subpoenaed Hepler to find out if defendant Mark Cline spoke to Hepler and, if so, what Cline said to Hepler,” the newspaper’s motion states. “But, under the shield law, the state cannot force Hepler to disclose whether Cline was one of his sources. Without knowing whether Hepler actually spoke with Cline, Hepler cannot offer any testimony that is admissible, or even relevant, in this case.”
The News motion called the prosecutor’s subpoenas a “classic fishing expedition.”
“We are skeptical that the prosecutor needs Hepler’s testimony,” said David Marburger of the law firm Baker & Hostetler in Cleveland.
A prosecutor does not have to get a judge’s permission before issuing a subpoena, Marburger explained.
“If all it takes to impress a journalist into service for the prosecutor is to sign a form subpoena, then the press is in trouble,” Marburger said. “The press is in the business of investigating information of public interest — that’s one of the roles that the Constitution protects. But the press can hardly do that if the government waits to see what the press uncovers and then subpoenas reporters to become state witnesses. The press can’t be truly free if the public perceives the press as being forced to become an investigative arm of the government.”
The News second motion responds to a threat made to Marburger by Knox County Prosecutor John Thatcher. Thatcher said he would seek an order barring Hepler from watching the trials for which Thatacher subpoenaed Hepler to testify.
“The prosecutor says that he’ll get an order barring Hepler from watching the trials because the prosecutor is naming Hepler as a witness,” said Marburger.
It’s customary, said Marburger, to exclude (sequester) everybody that’s been named as a witness sitting in the courtroom to listen to other witnesses testify.
“The theory is that a witness might skew his testimony based on what the other witnesses say,” said Marburger.
The problem with that, said Marburger, is that there’s nobody who would testify in Cline’s trial who could possibly influence Hepler’s testimony. Hepler’s article reported that he spoke with unnamed defendants.
“The defendants aren’t likely to testify, so which witness possibly would influence Hepler’s testimony?” Marburger asked.
In addition, he said, “Hepler has already committed himself to what he published in the newspaper; if he departs from that, the prosecutor can confront Hepler with his own article.”
Barring Hepler from watching the trial, the News argued, violates his First Amendment right to attend.
“As the reporter most informed about the case, he is the best one to inform the public about the case and the trial,” said Marburger. “And so we’re asking the prosecutor to justify keeping him out of the courtroom.
“I’m disappointed that the prosecutor would subpoena Hepler, and that the prosecutor is considering sequestering him,” said Marburger. “I think it would be a good thing if the prosecutor would withdraw the subpoenas.”
