ABC's Bashir invokes reporter's privilege

ABC's Bashir invokes reporter's privilege

By David Angier

Florida Freedom News Service

PANAMA CITY, Fla. - Miami attorney Roy Black might have to convince a circuit judge that State Attorney Steve Meadows broke the law before ABC "Nightline" reporter Martin Bashir can be compelled to testify.

In October, Black filed a motion asking Circuit Judge Dedee Costello to drop felony charges against "Girls Gone Wild" founder Joe Francis because he said Meadows tried to poison a potential jury pool by misrepresenting facts of the case in a VH1 interview about Francis.

Black amended the motion in November, claiming Meadows violated state law when he showed Bashir a video of two 17-year-old girls engage in sexual activity in a Panama City Beach motel room shower. The video once formed the basis of the criminal charges against Francis but has since been thrown out as evidence.

Francis, 34, faces two counts each of using and conspiring to use minors in a sexual performance stemming from the "shower scene" video during Spring Break 2003.

Francis always has claimed the girls lied about their age to a contract cameraman in order to be filmed and he didn't meet the girls until after the incident. Black said in his motion that Meadows knew the girls were underage and had labeled the film as child pornography, making it specifically exempt from public records laws.

Meadows, in a written response to Black's motion, denied showing pornographic material to Bashir. Costello signed an order compelling Bashir's testimony, or sworn deposition, as to what he saw.

ABC News attorney Robert Rivas of Tallahassee filed a motion last week asking Costello to vacate her order. He said, in essence, that there are other ways of getting the information than to violate Bashir's privilege as a reporter. The state and U.S. supreme courts have opined that reporters have First Amendment protection against revealing information, such as confidential sources or materials.

Rivas wrote in his motion that Black has not shown that the issue itself - whether Meadows showed Bashir child pornography - would warrant a dismissal of Francis' charges.

Sanford Bohrer, who co-authored the chapter on reporter's privilege in the Florida Bar Reporter's Handbook, said Friday the issue of prosecutorial misconduct in this circumstance does not make sense.

"If Black shows that, somehow by the prosecution showing what was evidence in the case to a reporter, if he somehow shows that that is prosecutorial misconduct, then it shows you how good Roy Black is," Bohrer said. "In my opinion, it's not relevant to anything."

He said there are two distinct issues that need to be resolved. First, he said, is whether there is another source besides Bashir to get the information from. Bohrer said a reporter should be dragged into a legal matter only as a last resort.

Rivas, in his motion, argued Black hasn't exhausted his other avenues. Besides Bashir and Meadows, he said, assistant state attorneys Mark Graham and Joe Grammer also were in the room. Rivas said Costello should compel them to testify before looking to Bashir.

Bohrer said if the prosecutors take the stand and invoke their protection against self-incrimination under the Fifth Amendment of the U.S. Constitution, "then let the celebration begin." But if they take the stand and deny any wrongdoing, then it negates Black's motion.

Bohrer said the other issue is whether Meadows broke the law. That, he said, is distinct from the prosecutorial misconduct. If a reporter witnesses a crime, Bohrer said, the reporter's privilege is nullified.

Bohrer said law enforcement does not have to charge Meadows with a crime; Black has to convince Costello that Meadows broke the law for her to order Bashir to testify."If this is a crime, then I don't see how the defense can seek dismissal of the charges" against Francis, Bohrer said. "If this is a crime, then charge the prosecutor with a crime. If the judge agrees with Roy that the reporter witnessed a crime, then the judge can revoke the reporter's privilege under Florida law."