AGs-Motion-to-Compel-Witness-Testimony

STATE OF NEW MEXICO COUNTY OF SANTA FE FIRST JUDICIAL DISTRICT COURT No. AGO: Judge: STATE OF NEW MEXICO, Plaintiff, v. PHIL A. GRIEGO, Defendant. ENDORS FirstJudicial District rt MAY 112015 Santa Fe. Rio Arriba Los Aiamos Counties PO Box 2268 Santa Fe. NM 87504-2268 D-101-CR-2016-109 201504-00072 Brett R. Loveless MOTION TO COMPEL TESTIMONY The State of New Mexico, through Deputy Attorney General Sharon Pino and Assistant Attorneys General Clara Moran and Zach Jones, hereby submits this Motion in response to Colin L. Hunter?s Limited Entry of Appearance, fax-filed with the Court on May 10, 2016. The State asks this Court to enter an Order compelling essential fact witness Peter St. to testify at all stages of this case to which he is subpoenaed, including the preliminary hearing. In support of this Motion, the State avers: FACTS 1. Peter St. is a journalist who has reported on the alleged unlawfulness of the 2014 land sale from which former-Senator Phil Griego profited. He authored ten articles on Griego for the Santa Fe Reporter between July 2014 and April 2016. 2. Around March 15, 2015, St. telephonically interviewed Griego to discuss the land sale. St. recorded this conversation without Griego's knowledge. In that conversation, St. and Griego reference a prior interview conducted after the June 23, 2014, meeting of the Capital Buildings Planning Commission. In the 2015 interview, St. repeatedly questions Griego as to prior statements Griego made in the 2014 interview that Griego had been helping the Serets with the sale for about eighteen months. Griego also states he voted for HJR 8. The same day that he recorded the 2015 interview, St. posted a link to the ?full audio" of the 51?minute interview on his Twitter account See twittercom screenshot attached as Exhibit 1. .1 The State seeks St. Cyr?s testimony to: a. Authenticate the recording of the 2015 interview, which includes admissions by Griego; b. Testify to additional admissions made by Griego in the 2014 interview; This testimony is relevant and material to show that Griego and the Serets teamed up for the sale as soon as early-to-mid 2013. The State does not seek disclosure of any undisclosed or confidential source. The State seeks only to have St. testify about statements that St. himself has already identified, sourced, and disclosed to the general public. LAW As the party claiming a privilege, St. has the burden of showing that it applies. Breen v. State Taxation and Revenue Dept, 1T 1 St. Cyr?s tweet is available at Sthr/status/577216674153115648 and the interview recording is still available at Page 2 of 7 21, 287 P.3d 379 (?The party claiming privilege has the burden of establishing that a communication is protected"). The facts and circumstances of this case, as well as the text and history and the journalistic privileges in New Mexico, show that St. cannot meet his burden. In 1973, our Legislature enacted a broad statute purporting to grant journalists a privilege against disclosing their sources and all assistive unpublished information (notes, news copy, outtakes, etc.). NMSA 1953, (1973) (now compiled at NMSA 1978, 38-6-7 (1973)). The statute included a framework explaining how one could challenge the claim of privilege. id. 20-1- In 1976, our Supreme Court held this statute cannot be ?relied upon or enforced in judicial proceedings.? Ammerman v. Hubbard Broad. Inc., 1976-NMSC-O31, 1] 17, 89 NM. 307, cert. denied, 436 US 906 (1978). The rationale was that only the Constitution and the judiciary hold power to make rules governing judicial practice and procedure, and since there was no evidentiary rule granting journalists a privilege against disclosure, the Legislature?s attempt to create a new rule of evidence was unconstitutional. jg. Ammerman is still be good law in New Mexico. In 1982, the New Mexico Supreme Court adopted Rule 11-514 NMRA, the ?News media-confidential source or information privilege?. See generally Daniel M. Faber, Cooptinq the Journalist?s Privileqe: Of Sources and Spray Paint, 23 N.M.L. Rev. 435, 442 (1993) (providing a broad history of the privilege). This Rule provides in pertinent part: Page 3 of 7 B. Scope of the privilege. A person engaged or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing, or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited, or disseminated has a privilege to refuse to disclose: (1) a confidential source who provided information to the person in the course of pursuing professional news activities; and (2) any confidential information obtained in the course of pursuing professional news activities. Rule 5. The Rule clarifies what is considered a confidential source, and what is considered confidential information: (1) a source who communicates information is ?confidential? if the identity of the source is disclosed privately and not intended for further disclosure except to other persons in furtherance of the purpose of the communication; (2) information is ?confidential? if communicated privately and not intended for further disclosure except to other persons in furtherance of the purpose of the communication; Rule (2). APPLICATION 1. Unless St. can assert a valid privilege, he cannot refuse to be a witness. Rule 11-501 NMRA. The only conceivable source of any privilege available to St. is Rule 11-514. Yet the text of that rule makes clear that it does not apply on these facts. 2. Rule 11-514 grants reporters a privilege against disclosing confidential sources and information. Rule But nothing about this situation is confidential the interviewee is identified by name and context, the interviewer made this Page 4 of 7 information publicly available on the internet, and the interviewer advertised the interview on at least one of his social-media accounts. There is no intent by either Griego during interview nor St. afterwards to keep this information con?den?al Moreover, since the privilege belongs to St. Cyr, Faber, 23 N.M.L. Rev. at 448, he waived that privilege through voluntary disclosure. Rule 11?511 NMRA (?Waiver of privilege by voluntary disclosure"). Even if this Court liberally permits St. to assert the privilege, Rule 11-514 provides an exception if the State shows each of these by a preponderance of the evidence: (1 a reasonable probability exists that a news media person has confidential information or sources that are material and relevant to the action; (2) the party seeking disclosure has reasonably exhausted alternative means of discovering the confidential information or sources sought to be disclosed; (3) the confidential information or source is crucial to the case of the party seeking disclosure; and (4) the need of the party seeking the confidential source or information is of such importance that it clearly outweighs the public interest in protecting the news media's confidential information and sources. Rule St. can provide material and relevant testimony?without disclosing any confidential sources or information. The statutory and rule-based privileges simply do not apply in this context. By refusing to testify, St. turns the journalistic privilege on its head. Instead of protecting confidential sources, St. would use the privilege to simply avoid testifying about matters he has already disclosed, sourced, and identified in public media. The State knows Page 5 of 7 through investigation that this information is unavailable elsewhere. This evidence is crucial to the State's case, and the State's need outweighs any conceivable public interest in stifling information that is still publicly available. 6. Nothing places a journalist above any other prospective witness. Where no privilege applies, ?no person has a privilege to . . . refuse to be a witness.? Rule 11-501. CONCURRENCE 1. The State contacted Thomas M. Clark, attorney for Defendant, for his position on this Motion. He takes no position on the State?s Motion. REQUEST FOR RELIEF The State asks this Court to enter an Order requiring essential fact witness Peter St. to testify at all proceedings to which he is subpoenaed by either party, including the preliminary hearing. HECTOR H. BALDERAS NEW ME RNEY GENERAL Y: har DEPUTY ATTORNEY GENERAL Clara Moran Zach Jones ASSISTANT ATTORNEY GENERAL certify that I emailed a copy of this Motion to defense counsel Thomas M. Clark and counsel for Peter St. Cyr, Colin L. Hunter, on May 11, 2016. Page 6 of 7 arSnEir? DEPUTY ATTORNEY GENERAL Page 7 of 7 .. ,twittencom ,0 a Identified-try Stewart 0 Peter St.Cyr on Twitter. "Lasm EXHIBIT Peter St.Cyr Last summer, Sen. Phil Griego relied on record when he told me he voted on HJR8. Full audio: .. 2:15 PM - 15 Mar 2015 @2016 Twitter About Help Terms Privacy Cookies Ads Info