Dane County judge compels three Madison journalists to testify in trial of women accused of beating state lawmaker

MADISON - In a rare move, a Dane County judge is compelling three journalists to testify in the trial of two women accused of assaulting a state lawmaker during protests and riots last summer over racial discrimination. 

Judge Josann Reynolds on Thursday sided with prosecutors who argued testimony from Isthmus newspaper reporter Dylan Brogan, WORT-FM radio reporter Chali Pittman and WKOW television reporter Lance Veeser on the night of June 23, 2020, is crucial to the case and that the information could not be retrieved by any other source.

Those requirements must be met to overcome the state law shielding journalists from disclosing confidential sources and other newsgathering information. But an attorney representing the journalists called the judge's conclusion incorrect because hundreds of other people were on hand the night of the assault and could provide witness testimony.

Thursday's ruling puts the journalists in a difficult position of balancing legal obligations and ethical principles requiring them not to participate in stories they cover. 

"Today the judge basically said as a journalist I'm a material witness — well it's very hard to be both," Brogan said. "Putting me or any other reporter on the stand to put forth this narrative seems very inappropriate to me. That's up to the district attorney to do."  

Sen. Tim Carpenter, D-Milwaukee, was physically attacked for using his camera phone to film the protesting and rioting that occurred on a night last summer in the wake of protests over the murder of George Floyd, a Black Minneapolis man, by a white police officer. 

Prosecutors charged Samantha Hamer and Kerida O'Reilly, both of Dane County, in the assault. They are accused of beating the state senator as he tried to take video of a crowd that had torn down statues during the protest. A crowd charged Carpenter and he was kicked and punched in the head, injuries that required surgery. 

The three reporters are considering appealing the judge's ruling compelling them to testify about that night. 

"Everything I know, I published," Brogan said. "I don't think it's a good precedent. I think part of protecting journalists to allow them to do their job is not to put them in this compromising position."

Assistant District Attorney Paul Humphrey told the judge in a brief arguing to subpoena the journalists that "an objective view of the mood and tenor of the protesters and crowd, the way the two defendants rushed the Victim, corroboration of the fact that they pushed him down, are not obtainable anywhere else."

"... each of these witnesses provides important testimony about their observations about the crime, and its aftermath, including the immediate physical/medical condition of Senator Carpenter," he argued. "One of these witnesses can also describe for the jury the high emotions and ramped up energy of the protesters which goes to elements of the Felony Battery count and the Disorderly Conduct count. No one else is able to do that."

James Friedman, an attorney representing the journalists, argued police and prosecutors should work harder to find witnesses and that the ruling contradicts state lawmakers' intention for the protections contained in Wisconsin's shield law to be broad.

"(Police) should have been getting names and phone numbers and email addresses of witnesses," Friedman said, referring to the night of the assault. "We in the news media shouldn’t suffer and have to be forced to testify contrary to the legislature's strong intent just because the police and DA didn’t do their jobs."

Carpenter, who was part of the state Legislature that passed the 2010 law for journalists, did not immediately return a phone call seeking comment. 

Wisconsin's shield law bars courts from issuing subpoenas to journalists unless the information or identity of sources "is highly relevant to the investigation, prosecution, action, or proceeding," "is necessary to the maintenance of a party's claim, defense, or to the proof of an issue material to the investigation, prosecution, action, or proceeding," "is not obtainable from any alternative source," and unless "there is an overriding public interest" in the disclosure of the information.

Humphrey argued the reporters' witness accounts meet these four criteria. Reynolds agreed. 

"The testimony we are seeking is not asking anyone for any work product completed during the course of their work as news persons. Instead, the State is asking these proposed witnesses only what they observed when the defendants committed crimes directly in front of these witnesses," Humphrey wrote to Reynolds. 

Dane County District Attorney Ismael Ozanne did not immediately respond to a request for an interview. 

There have been no published state court decisions interpreting Wisconsin's shield law that was enacted in 2010, according to the Reporters Committee for the Freedom of the Press. 

"It does seem contrary to the idea that journalists should be free to do their jobs without being called on to give testimony in court," Bill Lueders, president of the Wisconsin Freedom of Information Council, said about the ruling. 

Journalists are required by ethical principles not to participate in what they cover. 

"If you are doing your job as a journalist and you have to think about anything you see you'd have to be compelled to testify about, I could see it have a potentially chilling effect on your ability to do your job," Lueders said. 

Contact Molly Beck at molly.beck@jrn.com. Follow her on Twitter at @MollyBeck.