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First Amendment Protection for Journalists; Vanessa Leggett Jailed for not Turning Over Material

Aired August 13, 2001 - 12:30   ET


ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF, the jailing of a woman writing a book about the slaying of a Texas millionaire's wife becomes embroiled in a battle pitting federal prosecutors against a claim of freedom of the press.

ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack.

COSSACK: Hello, and welcome to BURDEN OF PROOF.

Author Vanessa Leggett is - has been held in a Houston jail for contempt of court. The 33-year-old refused to turn over to the court information that she had discovered while researching a book about the Texas murder of Doris Angleton. Now Leggett says turning over the material would violate her rights as a journalist under the First Amendment to the Constitution. But the Justice Department disagrees, and does not consider Leggett to be a journalist who may be protected by rules covering writers.

So to discuss all of this and joining us today from Houston - from Houston, attorney for Vanessa Leggett, Michael DeGeurin. And also in Houston, Nelda Blair, a former Texas state prosecutor. And here in Washington, Melissa Burkland (ph), Lucy Dalglish, executive director for the Reporters Committee for the Freedom of the Press, and former assistant U.S. attorney in Texas, Sol Wisenberg.

And let's say for full disclosure, I want you to know that CNN has joined several other news organizations in support of Vanessa Leggett in her assertion to a claim of reporter's privilege.

Michael, I want to go right to you, and if I call you Dick, you'll forgive me. I've known your father for years, so I'm going to try very hard not to. But, Michael, tell me, you have a client who is in prison, tell me why.

MICHAEL DEGEURIN, ATTORNEY FOR VANESSA LEGGETT: She is there because she has refused to comply with a grand jury subpoena that is asking her to produce to the grand jury all of her research that she has been doing for the last four years to write a book about a very sensational murder case here in Houston.

COSSACK: Michael, let's - let me then ask you to back up for just a second and tell me a little bit about the case -- about the sensational murder case, what has happened, the history of the prosecution, where it stands now.

DEGEURIN: Well, first of all, Doris Angleton was found murdered in her home. And the suspects was her husband, Robert Angleton, and his brother, Roger Angleton. Eventually, to make a long story short, they were both charged with capital murder and were awaiting trail in a Harris County jail when Roger Angleton died or came up dead in the jail. And it was determined that Vanessa Leggett, who had been preparing to write a book, had interviewed Roger for over 200 hours of taped interviews, that's where she first came in. She was subpoenaed to bring those tapes with her to the trial of the first case.

Robert Angleton was acquitted in state court, and a federal grand jury began investigating.

COSSACK: All right. Let's talk a little bit about her cooperation up until she got into problem with the federal government. She had her material subpoenaed by the state of Texas for the trial of Robert Angleton and she complied, isn't that true?

DEGEURIN: Yes, it was not without resistance, but Roger Angleton, the person -- they only asked for one thing and that was her tapes of her interviews with Roger who had committed suicide. Roger was expecting what he said to be published and he was dead. She was advised, at the time, that she had no confidentiality in those tapes and eventually worked out an agreement with the prosecutors that those tapes would be turned over to the prosecutors if they would all be returned, originals and copies, thereof if it was determined they were not going to be used at trial. That's what happened, they were not used at trial, they were not returned to her. They were supposed to be but some of the copies went to the federal grand jury.

That's not what the grand jury is looking for now. If I have the time, I'll explain.

COSSACK: Well, what is the grand jury looking for? I mean why is she now in jail after turning over all those materials to the state court?

DEGEURIN: They - the - when the federal government began investigating, they approached Miss Leggett, knowing she was writing this book, and offered her to become a secret informant of the government, continue going to those places that a journalists can get into that the agents could not, interviewing people and secretly giving that information over to their grand jury. When she refused to do that on the grounds that she couldn't be an independent journalist and also be working for the government, even though it'd be secret, is when they ended up subpoenaing her to bring everything for the last four-and-a-half years and produce it.

COSSACK: All right. Nelda, what's the law in Texas? Why is she - why is this woman suddenly in jail for contempt of court...


COSSACK: or contempt of the grand jury, rather? BLAIR: Well, it's federal law and the U.S. attorney's stance on this, and I think quite rightly, is that Miss Leggett is not a journalist. She's not a reporter. She's not an author. Even the "Houston Chronicle," press at its best, said yesterday, she's never published anything that even might be called journalism. She doesn't A) have the right to claim the free press or First Amendment protection of a journalist because she's not a journalist. And B) she's become a martyr who is a wannabe author and a part-time teacher and that's it.

COSSACK: Lucy, is this really all about the fact that she's not a journalist or is it - what -- or is there something in the law - the federal law that the government is interpreting is not giving her her right?

LUCY DALGLISH, EXECUTIVE DIRECTOR, REPORTERS COMMITTEE: Well, actually I've seen the secret order that Judge Harmon came down with last month and that order doesn't have anything to do with whether or not she's a journalist. What's on appeal to the Fifth Circuit right now is whether or not a qualified privilege exists in the Fifth Circuit for materials that are unpublished.

COSSACK: All right. Let's talk about qualified privilege, materials unpublished and let's break that down. What is a qualified privilege?

DALGLISH: A qualified privilege is something that says that there are certain people in society that we convey a privilege not to identify information that they have. People who have an absolute privilege would be like lawyers and clients,...


DALGLISH: ... priests and penitents. But there's a body of law out there that says that journalists have a qualified privilege not to identify information that they deem as either from a confidential source or is of a confidential nature. Now what we mean by qualified is not that it's never going to be divulged...


DALGLISH: ... but that you determine that the qualified privilege exists. And then you go back to the court and the court makes a determination, is this information that they are seeking relevant to the case, is it highly material, and can it be found in no other way. We never got to that step in this case because they determined that in the Fifth Circuit a qualified privilege does only exists when it comes to the identity of a - the identity of a confidential source.

COSSACK: So the issue here would be, as it stands right now, is whether or not there's a qualified privilege and the court had held there is no qualified privilege?

DALGLISH: Yes, that's the way I understand it. But this is so highly secret, Mike probably has a better idea of whether or not I have stated that correctly because, as you know, the hearing that's coming up on Wednesday is going to be secret. So that's the way we understand it and that's the way we have briefed it.

COSSACK: Why is - why are things going to be secret?

SOLOMON WISENBERG, FORMER TEXAS ASSISTANT U.S. ATTORNEY: Well, because it's connected to a grand jury investigation and I imagine that's why -- and the government in making its case is probably -- even though their position is they don't - they don't have to justify it apart from the grand jury, the government is probably coming in and saying this is what we're investigating, this is why we need it. But basically, anything connected with a grand jury investigation the government wants to keep secret, Roger.

COSSACK: All right. So any of these hearings on this -- so you have sort of a double whammy, if you will, you have an issue of freedom of the - of the - of the press, and the decision being made because of grand jury requirements in secret?

WISENBERG: Yes, but often in these cases involving the grand jury you will ultimately get a published opinion but it will be limited and sometimes it's more limited than what the parties get in secret.

COSSACK: All right.

Let's take a break. When we come back, how do you define a journalist, and when does the needs of the United States government trump the rights of the press? Stay with us.

LEGAL BRIEF: The Justice Department has reported that during the last six months of 2000, the state prison population dropped for the first time since 1972. Thirteen states housed fewer inmates on December 31, 2000 than they did when the year began.


COSSACK: Vanessa Leggett sits in a federal detention center since July 20. She is there because she refused a court order to turn over her research notes regarding the 1997 murder of the wife of a wealthy Houston bookmaker. Now Leggett considers herself a journalist, but the government does not.

Sol, should the government be in the business of deciding who's a journalist and who isn't?

When we -- what we know is that she was apparently interviewing people, gathering information with the intent to eventually publish a book. How much more do you need to be a journalist?

WISENBERG: Roger, the government shouldn't be in that business. To begin with, she was credentialed by "Texas Monthly" and she has published scholarly articles. But if you go back to the leading Supreme Court case on this Brandsberg versus Hayes (ph), I believe, where the Supreme Court said there is no right of the press to refuse to give up their sources. That was one of the points the majority made or the polarity made is that if we recognize something like this, we're going to be spending our time deciding who's a journalist and who's not a journalist.

COSSACK: Lucy, is the idea of the government coming in and saying this woman is not a journalist, is it to their advantage to just make that blanket statement because then they have to - then they're able to avoid certain self-imposed regulations that are in the Justice Department?

DALGLISH: Well, I think that possibly was the thinking in this case. But obviously it's backfired on them because the Justice Department does have internal regulations that says if you subpoena a journalists, here are the, you know, three or four steps that you have to follow. And essentially you have to meet that test: is it relevant, is it material, and is there no alternative way to get it.

COSSACK: Right, but the government says that she's not a journalist, so therefore, they don't have to go through these hoops.

DALGLISH: Well, you know they apparently recognize the fact that she's a writer of some sort because I'm sitting here holding on my lap a copy of a report that was published in 1999 from a symposium - an academic symposium at the FBI Academy and she was one of four editors of this book. And one of her academic articles is published in this FBI publication. And there is case law out there that says that academic researchers are covered on -- under a lot of shield laws.

COSSACK: Nelda, what about that? You know you have a situation here where it can get -- it could be disconcerting to have the government defining, you know, who's an author and who isn't an author because you perhaps don't want the government making those kinds of decisions and here you have a woman who clearly is published.

BLAIR: But where do you draw that line? You know, I'm an - I'm an author of a monthly legal article myself. So if I have information about a crime that's been committed, should I be able to keep that to myself? What if this were a child abuse case, would we feel the same way? Where do you draw that line between withholding evidence and what she calls herself is a champion of the free press?

COSSACK: Well, what if you were writing, gathering information to write your column and in doing so inadvertently came across some information that you didn't want to give up because you felt that it -- you know you -- would lead you to other things and as a - as a member of the press you just wanted to go forward? I mean wouldn't you therefore have the right to say, look, you know I'm gathering information, I should be shielded?

BLAIR: Well, Lucy's right, the test is is it - is it essential or relevant to the case and can it be obtained elsewhere? Now which - what we're talking about is a man who was possibly a partner in crime with his brother so I would say that's essential, relevant. And secondly, who else interviewed this man? He's dead now. She interviewed him in jail. So whether or not it's obtainable from elsewhere is pretty much a moot question. So assuming she is a journalist, her protection still does not extend that far. Even journalists have legal, and in my opinion, ethical and moral obligations to help crime fighting.

COSSACK: Michael, don't they have the tapes of her interviews with the - with the deceased Angleton?

BLAIR: Well, you know that's another thing. She gave up the tapes four years ago,...


BLAIR: ... but here four years later she's still got no book published, she's still got no agent, she's still got no contract, what better way to bring publicity to herself than to become a martyr?

COSSACK: Well,...

DEGEURIN: May I - may I comment on that?

COSSACK: Yes, please go ahead.

DEGEURIN: And I understand that she doesn't have all...


COSSACK: I just want to say one thing, to become a martyr, unfortunately you have to go to prison and she's been there for a long time. It's a tough way to become a martyr.

Go ahead, Michael.

DEGEURIN: Yes, and this was not her choice, of course. The only choice that she has that she's made is that in order to protect our right, yours and mine and everybody's right to an independent press, one that is not annexed as an arm of the investigation of the government, and in this case they wanted to control her publication, she is having to go to jail to have this litigated, you know.

And as far as being published, you're right, she's published. The FBI has published her, and they didn't realize that when they started making these comments. And that lady who doesn't know that, that they published in a - in a - in a federal publication. She's also been published in a book recently, that the book signing is starting next week in Barnes and Noble. She's been published in numerous - there was never a question about whether or not she was a journalist until this all -- you see this was all done in secret, necessarily so in some cases, but when a journalist is standing up for our right to an independent press, not being part of the government and is jailed, some -- because we still have the free press, some media got hold of it and here we are today.

And so -- I understand someone's even gotten hold of the sealed order, but it's not going to go for naught because at least the public's appreciation of what's at issue is being raised by the press.

COSSACK: Michael, isn't it -- aren't I right that the authorities do have her interviews with the deceased Roger Angleton? Haven't she -- hasn't she turned those over? DEGEURIN: Yes, but that's not what they're asking for. They have that. They're asking for four and a half - four-and-one-half years of interviews with other people. They don't even know who they are, they don't even know what they're going to find, they have simply decided that it's easier to use a journalist to do their investigation than to do it themselves. That is what is so - our right to free press is very fragile. Most countries don't have it like we have. Many of them, you're intimidated by, you do the beckoning calls of the government or it's absolutely controlled by the government. This is a situation where it could happen here, if this is going to be what the government is going to start doing. That's why the Department of Justice is trying to explain, well, we wouldn't do this if she was -- had been published by somebody. Well, we do not want the government -- I know one thing, we do not want the government deciding who is a member of the press and who is not. Someone else has to decide that.

COSSACK: All right, let's take a break. When we come back, what effect will the jailing of Vanessa Leggett have on the future of journalists' First Amendment protections? Don't go away.

QUESTION: The Utah Supreme Court ruled that Salt Lake City resident David Porter could officially change his name to what?


ANSWER: Santa Claus. Porter; who says he has a big bushy white beard, a big tummy and glasses, spends the month of December acting as Santa for parties.

COSSACK: The members of the news media have used the First Amendment to protect their sources since the late 1800s. Vanessa Leggett is the first journalist in ten years to be jailed by the federal government for failing to comply with a subpoena.

Nelda, look, here's the problem that I - that I have with this, there are rules within the Justice Department that say if a - if a person is a journalist we are going to go through certain hoops before we get their information. And the ones that you accurately point out, you know is there any other way to get it or do we need it and if you can't get it any other way then perhaps you're just going to have to give it up. In this situation, what they just decided was unilaterally they said, look, you know this woman is not a journalist, therefore we don't have to go through any of these hoops, therefore, come on, we're taking you right down to court. That bothers me. You're a writer, doesn't that kind of bother you, too?

BLAIR: Well, no it doesn't. Remember it's not the U.S. attorney that jailed her, it's a very competent federal judge here in Houston that jailed this woman. She heard arguments and decided, yes, this lady's in contempt of court and put her in jail for that reason for withholding criminal evidence.

COSSACK: You know I understand that that's what - that -- that's what happened, but the way this woman ended up getting in front of the federal criminal court was because the Justice Department made a unilateral decision that said you just don't qualify as a journalist...

BLAIR: But she's not a journalist.

COSSACK: ... and we don't have to follow the usual rules.

BLAIR: And let me tell you, you just...

COSSACK: I mean that's why this is the first jailing in 10 years.

BLAIR: But you said -- you said to me you're a writing. I write a monthly legal article. I do not consider myself a journalist. I mean what does it take to be a journalist? I think about maybe someday I'll publish poems. I mean how far do you go?



COSSACK: OK, Michael.

DEGEURIN: Yes, she also has been a prosecutor and I think that she's blending in refusing - I mean not seeing how important it is to have a prosecution or the government separate from our independent press. We cannot let our press become an arm of the government. It's - you just got to stop it somewhere. Now when they took the position she wasn't a journalist, they did not know, they had not researched to know that they themselves had published her. I think they have egg on their face there. They're not making that argument in court, I don't suspect. I can't go into what happened in the hearings but they have to take that possession -- position publicly, at this point, because what they've done is really outrageous.

COSSACK: Let me -- let me go to one (INAUDIBLE) Sol Wisenberg. Sol, is it one of those cases you just feel uncomfortable about because it's clear that, look, juries have the right to know evidence and this could be - this is an important case, the jury should hear as much evidence as they possibly can unless there's a privilege that stops it, but you kind of feel uncomfortable the way this is - the way this is working out?

WISENBERG: I agree. You know, Roger, I agree with Brandsberg that the press is not above the law. I don't think...


COSSACK: Brandsberg is a Supreme Court case.

WISENBERG: That's right and they said that the press doesn't have special rights here. The grand jury has a right to every person's evidence and the press can't say -- it's kind of Nixonian for the press to say we're above the law and we're going to decide what we're going to give.

But having said that, based upon what I've read, there are disturbing things about this case. Apparently, if I understand correctly, they're asking for all originals and copies of her material and they don't want her to keep anything, which they absolutely don't have the right to do, and apparently there's some personal issues here.

The FBI agent -- the lead FBI agent in this case is the wife of the Houston DA and it was the Houston DA's office that originally lost this case. So there are some disturbing things here and I think it's possible, and maybe Mike's done this, to litigate this in terms of, in this particular instance, you have a First Amendment violation because of the way this particular matter is being handled.

COSSACK: Lucy, why is the press so concerned about this case? I mean I know the press gets concerned about every time that there is maybe a reporter is required to give up some information, but why this case in particular?

DALGLISH: Well, this one in particular has come down in such a secret way. Most of the time you see it coming.

COSSACK: But that's the grand jury.


COSSACK: I mean that's - there's no - there's no plot here. The grand jury meets secretly.

DALGLISH: Yes. Yes, but it -- the -- that the journalists across the country are so worked up about it is because the future of the reporter's privilege is on the line in Fifth Circuit and this is going to affect everybody from CNN to your freelancer who's working for the Brownsville weekly newspaper. What's at stake here is making sure that the press works independently and is not perceived as the public -- by the public as someone who's...

COSSACK: Well,...

DALGLISH: ... just going to be an...

COSSACK: ... let me - let me just jump in a second. Is there a privilege in the - in Texas in the Fifth Circuit which covers Texas or is this something the press wishes there was?

DALGLISH: Well, in the Fifth Circuit it is clear that there is a privilege for journalists to withhold the identity of confidential sources and then - unless - and the government can overcome that privilege by following that test that I described earlier. We argue that has not been clearly delineated in the Fifth Circuit whether or not that privilege also is conveyed to nonconfidential information or information gathered from confidential sources. And we're just trying to make sure that the privilege is extended in the Fifth Circuit to the extent that it survives in most other parts of the country.

COSSACK: Michael, what's going to happen with Vanessa Leggett? She's -- there's a hearing scheduled soon, will she be out of jail soon? DEGEURIN: Well, no, that -- not necessarily. If the -- they have to decide the case, the Fifth Circuit, by the 19th of August because it's an expedited appeal. But if it goes the wrong way, then I suppose it would go to the Supreme Court and that would take additional time and she'd have to remain in custody.

I want to comment...

COSSACK: Michael, I'm afraid that I...


COSSACK: ... just got the word that I don't have time to let you have any more comments because I'm afraid we're out of time.

DEGEURIN: That's...

COSSACK: Thank you to all of our guests. Thank you all for watching.

Today, on "TALKBACK LIVE": Gore in 2004, does he have a chance? Send your e-mail to CNN contributor Tavis Smiley and tune in at 3:00 p.m. Eastern time.

And we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.



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