Judge Orders Reporter to Disclose Notes of Interview with Dead Criminal Suspect

A state district judge in Blue Earth County, Minn. has ordered a reporter for The (Mankato) Free Press to disclose his notes about a telephone conversation he had with a man during a police standoff that ended in the man’s death and the wounding of two police officers. The Free Press published a story the day after the incident including information received during the telephone conversation, and the county attorney subpoenaed The Press and all the notes of its reporter, Dan Nienaber, who spoke with Skjervold. Judge Norb Smith denied The Press’ motion to quash the subpoena on Feb. 13, 2007, and the paper has decided to appeal the ruling.

The conflict between Skjervold and the police took place on Dec. 23, 2006, in Amboy, Minn., and the exact nature of it is in dispute. According to the Minneapolis Star-Tribune, Skjervold spoke with family members and Nienaber, claiming that two policemen entered his home around 4:00 p.m. while he was quarreling with his wife. Skjervold further contended he did not know the men entering his home were police officers, and they exchanged gunfire before the police tasered him in the stomach. Mark Peterson, a spokesman for the Minnesota Department of Public Safety, disputed Skjervold’s account, and said that the two officers retreated and called back-up after realizing Skjervold was armed. A tactical-response unit then entered the home and exchanged fire, and Skjervold shot two officers in the head before they retreated. Both officers survived the shooting. It is undisputed that the situation ended when Skjervold took his own life by shooting himself.

Skjervold’s contact with Nienaber began after Nienaber began calling homes around the area surrounded by the police to report on the standoff with Skjervold. At the time of the call, Nienaber was unaware of the reason for the police activity. According to a Community Newspapers Holdings, Inc. (CNHI) story, Skjervold answered Nienaber’s call, and the two spoke for a few minutes approximately three hours into the seven-hour standoff. During that conversation, Skjervold described the standoff to Nienaber, including information about the shootout with the officers, and then hung up. Nienaber reported the conversation the following day in the print and Web version of The Free Press.

The Blue Earth County Attorney sought Nienaber’s notes as part of its investigation into the death of Skjervold. The attorney subpoenaed Nienaber’s notes about his conversation with Skjervold to determine whether Skjervold said anything that was not reported in Nienaber’s story. The Free Press moved to quash the subpoena, and Judge Smith denied the paper’s motion after a February 2 hearing. The Press argued it was protected under the Minnesota Free Flow of Information Act, Minn. Stat. sectionsection 595.021-595.025, which prohibits any court from compelling a person who was gathering information for the purpose of disseminating that information to disclose unpublished information to the court. There is an exception to the shield law if the material is clearly relevant to the prosecution of a gross misdemeanor or felony, but Skjervold’s death precludes the county attorney from bringing any charges against him. At the time the subpoena was issued, no crime was being prosecuted or potentially prosecuted by the Blue Earth County Attorney’s office, but rather an investigation into Skjervold’s death. The county attorney has not disclosed specifics about whom he is investigating or why he wants to see all of Nienaber’s notes.

Smith rejected the paper’s argument that the shield law’s exception can only apply when a crime is being prosecuted, and ruled that there was probable cause to believe the information being sought is clearly relevant to a gross misdemeanor or felony, despite the lack of prosecution of one. Smith continued, stating, “[f]reedom of the press is not quite as sacrosanct or absolute as the Free Press would like it to be. That is especially true where the actions of a reporter interfere with the efforts of police negotiators to entice a distraught man out of his barricaded house while he is still alive. The right claimed by the Free Press to seek the truth must never be allowed to take precedent over the compelling and overriding interest of law enforcement authority to maintain human life.” Also in his opinion, Smith said it is “safe to infer that the call exacerbated Skjervold’s mental state, which in turn contributed to his taking his own life.”

Mark Anfinson, attorney for The Press, expressed concern that Smith’s ruling represents a flawed interpretation of how the shield law is supposed to work. Anfinson continued that under this ruling, the protections granted by the shield law would be dramatically reduced as subpoenas could be used in a much broader range of situations than just prosecutions for felonies or gross misdemeanors.

The Associated Press reported on February 23 that The Free Press has decided to appeal Smith’s ruling. Managing Editor of The Press Joe Spear said that the paper is “asking that prosecutors follow the law in requesting our notes. We’re asking the appeals court to require that of the prosecutors.”

– Scott Schraut, Silha Research Assistant

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This page contains a single entry by cla published on October 21, 2009 3:28 PM.

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