Case: 25CI1:16-cr-00836-LER

Document #: 166-1

Filed: 12/16/2016

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Case: 25CI1:16-cr-00836-LER

Document #: 166-1

Filed: 12/16/2016

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Case: 25CI1:16-cr-00836-LER

Document #: 166-1

Filed: 12/16/2016

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Case: 25CI1:16-cr-00836-LER

Document #: 166

Filed: 12/16/2016

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IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI

VS.

PLAINTIFF

CAUSE NO. 25CI1:16-CR-00836

ROBERT SHULER SMITH

DEFENDANT

GANNETT RIVER STATES PUBLISHING CORP.

D/B/A THE CLARION-LEDGER AND SAM HALLS
MOTION TO QUASH SUBPOENA
Gannett River States Publishing Corp. d/b/a The Clarion-Ledger and Sam Hall (Hall),
Executive Editor of The Clarion-Ledger (collectively The Clarion-Ledger), respectfully
request the Court pursuant to Miss. R. Civ. P. 45 to quash the subpoena duces tecum served by
Defendant Robert Shuler Smith (Smith) on Hall because the subpoena seeks privileged
information protected by the First Amendment to the United States Constitution, and Smith
cannot override that privilege with a demonstration that he cannot obtain the requested
information by alternative means when a witness will be available at trial to testify about it, nor
has he made any showing that the information is relevant or its production necessary. In support
of the Motion, The Clarion-Ledger states:
1.

On December 9, 2016, Smiths counsel served a subpoena on Hall by facsimile.

(Ex. A) The subpoena requests all letters that Anna Wolfe or any other employee has received
from Christopher Butler. (Id.) Butler will be a witness at this trial whose presence has been
ordered by this Court. (Ex. B, motion to require Butlers attendance and order granting motion).

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Case: 25CI1:16-cr-00836-LER

Document #: 166

Filed: 12/16/2016

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Presumably the request in the subpoena arises from an October 20, 2016 article authored by
Anna Wolfe which references and quotes a letter sent by Butler to The Clarion-Ledger. (Ex. C)1
2.

The letter contains information from a non-confidential source, i.e., Butler, that

the newspaper elected not to publish. The United States District Court for the Southern District
of Mississippi has held the First Amendment protects journalists with a qualified privilege from
compelled production of this type of unpublished information and resource material. See
Brinston v. Dunn, 919 F.Supp. 240, 243 (S.D. Miss. 1996) (holding it was contrary to law for a
Magistrate Judge to compel a reporter to produce unpublished information without weighing the
interests of the party seeking the information against the potential infringements on First
Amendment protections afforded journalists); but see U.S. v. Smith, 135 F.3d 963 (U.S. 5th Cir.
1998) (not citing Brinston but holding no qualified privilege not to disclose non-confidential
information in a criminal case when the information consisted of a videotaped interview with an
arson suspect who was interviewed about the cause of the questioned fires and the information
was sought by the government in relation to its charges against the suspect). Although the
Mississippi Supreme Court has not addressed the issue of whether a journalists qualified
privilege applies to information that a newspaper elects not to publish, this Court should follow
the reasoning of the federal district court in Briston in finding that it does.

The quotes contain general philosophical musings on our government and criminal justice system that are not
relevant to the charges against Smith. The quotes as they read in full in the article:
Who police the policies when they are out on the street policing because the police need policing
when they are out policingThink about thisin Mississippi pretty much all these law
enforcement agencies, justice departments, judges and prosecutors are friends and they will protect
each other. Sometimes at any cost and if anyone that steps up to them can and will get buried.
Regardless if that person is right or not. We are seeing it right now. Attorney General office vs.
Hinds County D.A. office. With all this trust that is put into authorities, over law enforcement and
the justice systems, who corrects them when they are wrong?
(Id.)

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Case: 25CI1:16-cr-00836-LER

3.

Document #: 166

Filed: 12/16/2016

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The qualified privilege should apply, and Smith cannot meet the applicable legal

test to override the privilege and demonstrate he is entitled to a copy of the letter. This very
Court has on numerous occasions applied the test articulated by the United States Fifth Circuit
Court of Appeals to quash subpoenas issued by parties to The Clarion-Ledger. (Ex. D, Orders)
Under that test, the court must ask (1) is the information relevant, (2) can the information be
obtained by alternate means, and (3) is there a compelling interest in the information? Brinston
v. Dunn, 919 F.Supp. 240 (S.D. Miss. 1996) (citing Miller v. Transamerican Press, Inc., 621
F.2d 721 (5th Cir. 1980)); also see U.S. v. Cuthbertson, 630 F.2d 139, 148 (3rd Cir. 1980)
(court should not be required to make the delicate balance of interests required by the
privilege unless the defendant first shows that he is unable to acquire the information from
another source that does not enjoy protection of the privilege); Zerilli v. Smith, 656 F.2d 705
(D.C. Cir. 1981).
4.

It is readily apparent Smith cannot meet the second prong of the test that he

cannot obtain the information by alternative means because he has obtained an order by this very
Court requiring the author of the sought-after letter, Butler, to testify at trial. (Ex. B). If Smith
would like to know about the contents of the letter, Smiths counsel is free to question Butler, the
author of it, about it.2
5.

The Clarion-Ledger finally notes that if it is subject to compelled document

production in response to subpoenas issued by criminal defense attorneys for documents,

materials, and information that assisted reporters at The Clarion-Ledger in the writing of news
2

As to the first and third prongs of the test, the court must guard closely against the chilling effects that would
result from subjugating reporters to the whims of attorneys seeking discovery of information obtained in the course
of reporting a story, especially when the relevance and necessity of obtaining the information are questionable.
Brinston, 919 F.Supp. at 244. The relevance and necessity of obtaining the letter are questionable. Because it is
readily apparent that Smith cannot meet the second prong of the test, The Clarion-Ledger does not address in full the
first and third prongs of the test, but does note that Smith has not demonstrated the informations relevance or the
compelling interest for it.

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Case: 25CI1:16-cr-00836-LER

Document #: 166

Filed: 12/16/2016

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stories about criminal matters when it is readily apparent the information is obtainable from a
witness at the trial and there has been absolutely no showing of the relevance of the sought after
document or the need for it criminal defense attorneys will have the green light to conduct
fishing expeditions, as is happening here.
ACCORDINGLY, The Clarion-Ledger respectfully requests the Court to quash the
subpoena duces tecum served by Smith on Hall. The Clarion-Ledger further requests any other
relief the Court deems appropriate.
Dated: December 16, 2016.
Respectfully submitted,
THE CLARION-LEDGER AND SAM
HALL

By:
OF COUNSEL:
Leonard D. Van Slyke, MSB No. 6589
Matthew W. Allen (MSB No. 101605)
Brunini Grantham Grower & Hewes, PLLC
The Pinnacle Building, Suite 100
190 East Capitol Street (39201)
Post Office Drawer 119
Jackson, Mississippi 39205
Telephone: (601) 948-3101
Facsimile: (601) 960-6902
E-Mail: mwallen@brunini.com

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/s/ Matthew W. Allen

One of Its Attorneys

Case: 25CI1:16-cr-00836-LER

Document #: 166

Filed: 12/16/2016

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CERTIFICATE OF SERVICE
I, Matthew W. Allen, certify that I have this day caused the foregoing document to be
electronically filed with the Clerk of the Court using the ECF system which sent notification of
the filing to all counsel of record.
Dated: December 15, 2016.

/s/ Matthew W. Allen

MATTHEW W. ALLEN

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