Sunday, December 02, 2012

From the Newsroom: Photographer gets different view of courtroom

From the newsroom

Michael Stowe, managing editor

michael.stowe @roanoke.com





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Photographer Stephanie Klein-Davis has spent dozens of hours in courtrooms taking pictures during her 25-year career at The Roanoke Times.

She was in Roanoke Circuit Court again on Wednesday but in an unfamiliar position — on the stand as a witness subpoenaed by prosecutors to testify in the trial of Gene Anthony Brown, the man found guilty of killing security guard Steve Orange at the Afton Gardens apartments in July 2011.

Klein-Davis was summoned to court to testify about an encounter she had with Brown as she took photos near the crime scene hours after Orange's death.

Given the number of court trials and crimes we cover, it's not unusual for one of our journalists (usually a reporter) to be subpoenaed to testify. On average, it happens once or twice a year.

However, it's quite uncommon for one of our journalists to actually end up on the stand.

We resist every time one of our reporters is subpoenaed to testify in a criminal case, usually by filing a motion with the court to "quash," or dismiss, the subpoena.

Over the years, numerous courts have held that reporters cannot be compelled to testify about what they learn in the course of reporting a story, or even to confirm statements that have appeared in published articles. The reasoning behind these decisions is clear: Forcing reporters — or any working journalist — to testify can hamper the news-gathering function of a free press as guaranteed in the First Amendment.

Said another way by our attorney, Stan Barnhill, when he briefed us on the case this week: The newspaper can't be seen as an investigative "arm of the state."

Stephanie Klein-Davis

Stephanie Klein-Davis

That was one of the key arguments Barnhill made in a motion filed last week asking Judge Jonathan Apgar to quash the subpoena issued to Klein-Davis. While we were willing to stipulate — without testifying — to the accuracy of our published reporting and photos, we did not think any information that Klein-Davis could provide about her brief exchange with the defendant would be important to the case.

That stance changed, however, at a motions hearing Monday when Barnhill heard prosecutors reveal that a little over an hour before Orange was shot, about midnight, he'd had a conflict with a group of children that included two relatives of Brown's.

Barnhill realized that a key exception cited by courts in previous cases — that a reporter can be compelled to testify if the information sought is material and relevant to the case, essential to an underlying claim or defense, and has been sought unsuccessfully from all other possible sources — was relevant. Barnhill said it was the first time in almost 30 years of representing The Roanoke Times that he was compelled to concede that the exception applied.

We agreed to drop our motion. Klein-Davis first appeared for questioning Wednesday before the judge, but without the jury in the courtroom, so Apgar could decide if her testimony was relevant to the prosecution's case.

Once he ruled it was, the jury was brought into the courtroom and Klein-Davis was questioned first by the prosecution and then by Brown's defense lawyers.

Klein-Davis testified that she talked with Brown and photographed him at the scene as he offered theories about the shooting that morning.

"He just seemed willing to talk to me, and he was open about what he felt," she told prosecutors during her testimony. "The tone was he felt the security guard was mean to children."

Details of the encounter Klein-Davis and reporter Jorge Valencia had with Brown were published in a story July 26, 2011, after Brown was charged with a gun offense and investigators were trying to link him to the shooting.

"I mean, it's sad that he was killed," Valencia reported Brown saying in a sidewalk interview. "But obviously he must have messed with the wrong people's kids."

Assistant Commonwealth's Attorney John McNeil initially asked Valencia, who has since left the newspaper for a job in North Carolina, if he would testify. When Valencia refused to do so voluntarily, without a subpoena, the prosecutor turned his attention to Klein-Davis.

Klein-Davis said getting called to testify was a "bit of a surreal experience" but that McNeil was respectful to her throughout the process and she wasn't nervous about taking the stand. She's still not certain that her testimony had any bearing on the outcome of the trial.

"I don't think the facts I gathered proved anything," she said. "I was merely there to document the scene and gather information."

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