Vanessa Leggett:
Defying court subpoenas in the nameof the First Amendment

Keeping tight-lipped about confidential sources landed Vanessa Leggett six months in jail

By Sue Ellison

Vanessa Leggett had hoped to have a contract for her true-crime book by the end of 2001. She had spent four years researching the high-profile 1997 murder-for-hire of the wife of Houston millionaire bookie Robert Angleton. Instead, the petite aspiring freelance true-crime writer celebrated the New Year in an 8x10-foot federal detention center cinderblock cell, in defiance of a federal grand jury subpoena for all of her investigative research.

Released in early January, Leggett holds the dubious distinction for the longest incarceration — 168 days — of writers and reporters jailed in the United States while claiming the journalist’s privilege of media confidentiality.

Although a Texas state jury acquitted Robert Angleton of the murder in 1998, a federal grand jury investigating his activities wanted all the information Leggett had gained about his wife’s murder. When she was arrested in July, Leggett said from jail: “I am not a martyr and I want to see justice done. But I am doing what I must to protect the public’s interest in a free press.” Although she was free, her ordeal had not ended.

A succeeding grand jury indicted Angleton for murder conspiracy, and the government claimed Leggett as a witness. Vowing to maintain her “journalist integrity,” Leggett said she’d face further jail time rather than divulge confidential sources.

Unsuccessful in three lower federal court appeals to overturn her contempt citation, she learned in mid-April that the U.S. Supreme Court declined to hear her appeal.

Leggett’s defiance has drawn unprecedented support from journalists around the world, who vociferously protested Leggett’s jailing as a blatant disregard for the First Amendment and international conventions for freedom of the press. They have appealed to the U.S. Department of Justice, filed friend-of-the-court briefs and announced their displeasure in countless media and Internet Web sites.

How is it that the American government, whose successful function relies in part on freedom of the press, not only allowed but participated in this threat to a fundamental constitutional privilege? The threat lies in the Justice Department’s formidable discretion in determining which writers are journalists entitled to First Amendment protections.

Leggett, 34, says she has always been fascinated with murder cases and was once a licensed private investigator. Later, she taught police courses at the University of Houston-Downtown and wrote a chapter for an FBI Academy training manual.

In 1997, Leggett’s interest was diverted to the Angleton murder. Doris Angleton, 46, was shot to death shortly after she initiated divorce proceedings. According to Leggett, Doris threatened to expose her husband’s questionably gained fortune. The state charged Robert, 48, with hiring his brother, Roger Angleton, to kill Doris.

In the ensuing four years, Leggett conducted interviews in six states and taped more than 40 hours of conversations with Roger in the Harris County, Texas, jail. Roger committed suicide in his cell in February 1998 and left a note exonerating Robert. Despite the note, Robert was still tried for the murder.

Leggett risked arrest by ignoring a subpoena to appear before the state grand jury investigating the crime. But, after being advised that Roger’s death erased her confidentiality agreement with him, she negotiated a deal to loan tapes to the prosecution she said clearly implicated Robert. Prosecutors did not introduce the tapes as evidence, and Robert was acquitted. The Los Angeles Times quoted prosecuting attorney Lyn McClellan as saying, “There was nothing in them that was earth shattering.”

Never called to testify, Leggett admitted to being “stunned” at Robert’s acquittal.

The Harris County district attorney referred the case to the FBI. If that agency’s ensuing investigation of Robert — supposedly for tax evasion and money laundering — could prove Angleton crossed state lines to hire his brother, the federal government could claim jurisdiction and retry him for the murder.

The FBI offered Leggett a confidential informant contract in November 2000 to buy her research and control its publication. She refused on the basis of media confidentiality. The federal grand jury investigating the case served her a subpoena. Leggett testified before the grand jury in December, on the FBI’s promise she would not be asked to reveal confidential sources.

The grand jury issued another subpoena on June 18, 2001, ordering Leggett to provide “Any and all taped recorded conversations, originals and copies, of conversations (she) had with (34 people listed) or any other recorded conversations with individuals associated with the prosecution of Robert Angleton, either with or without their consent ...”

The Southern District Court denied Leggett’s appeal to quash the subpoena in a closed hearing on July 6, ruling that no qualified reporter’s privilege exists in criminal cases. The contempt order and court decision were sealed.

In an identical subpoena issued July 18, Judge Melinda Harmon ordered Leggett to appear before the grand jury the following day. After hiring Houston attorney Mike DeGuerin, she appeared as ordered but refused to testify, claiming First and Fifth Amendment protections.

Clark offered Leggett what DeGuerin later called “a limited offer of partial immunity.” When she declined, Judge Harmon — without applying any First Amendment considerations for media confidentiality — held Leggett in contempt as a recalcitrant witness.

Leggett was arrested the next day and jailed without bail in the Houston Federal Detention Center. DeGuerin immediately filed an appeal to the 5th U.S. Circuit Court of Appeals, arguing the lower court abused its discretion when it failed to address reporter’s privilege and approved an overly broad subpoena.

Four prominent journalism organizations, The Reporters Committee for Freedom of the Press, the Society of Professional Journalists, The American Society of Newspaper Editors and the Radio-Television News Directors Association, joined in an amicus brief on Leggett’s behalf. The brief argued that unrestrained subpoenas in disregard of journalists’ constitutional qualified privilege amount to press harassment and the use of journalists as private investigators for the government.

Petitioning the court for permission to join the brief were more than 20 news media and writer’s groups, including major television networks, The New York Times, The Washington Post and The Associated Press. The Reporters Committee, having secured DeGuerin’s agreement, asked the court’s permission to participate in oral arguments. The court denied both petitions and ordered the Aug. 15 hearing closed.

The court also denied an emergency motion filed by news media asking the 5th Circuit to reconsider closure on the basis that constitutional interests demanded a public hearing. But the court rescinded that decision the day of the hearing, after U.S. Rep Sheila Jackson Lee, D-Texas, a member of the Committee on the Judiciary, publicly censured U.S. Attorney General John Ashcroft.

Reuters quoted the congresswoman on Aug. 14: “I believe the Justice Department has not followed its own internal guidelines (which) require an attorney general’s review.” Since 1973’s Watergate scandal, the U.S. attorney general must give permission for a journalist’s subpoena. Justice’s guidelines require the exhaustion of all alternative sources for subpoenas, which must never be used to gain “peripheral, nonessential or speculative information.”

The SPJ felt so strongly Leggett’s incarceration was an injustice that, in August, its national board voted to contribute half of her legal fees, which DeGuerin capped at $25,000, from its Legal Defense Fund.

A three-judge panel heard Leggett’s appeal and, on Aug. 17, released its unsigned opinion affirming the district court’s judgment. While the 5th Circuit Court of Appeals recognized Leggett as an “aspiring freelance writer,” it did not address the qualified reporter’s privilege test established in 1972 in Branzburg v. Hayes.

In that case, the dissent of four Supreme Court justices combined with the enigmatic opinion of concurring Justice Lewis Powell to establish a balancing test for consideration of qualified privilege in criminal cases. The three-part test asks if reasonable grounds exist that the reporter has information relevant to the grand jury’s investigation; if the government can show a compelling need for the information; and if the information is unavailable from other sources.

Neither did the court address Leggett’s journalist status as defined In re Madden (3rd in Circuit, 1998). The case recognized a journalist as one engaged in investigative reporting to gather news for public dissemination.

While Leggett’s appeal argued that both precedents applied, the court defined reporter’s privilege as “ineffectual against a grand jury subpoena absent of governmental harassment or oppression.” That is exactly what the government was doing — harassing Leggett — argued DeGuerin. The subpoena was overly broad and a government “fishing expedition.”

Some of those sources listed in the subpoena, according to Leggett, include FBI agents and Houston detectives involved in the Angleton case.

However, the court ruled that the subpoena was “not so overly broad as to be oppressive.”

Lucy Dalglish, Reporters Committee executive director, publicly noted that prosecutors might be less aggressive if dealing with a major news publication journalist. (CBS was also investigating the Angleton murder case and aired its 48 Hours program shortly after Leggett’s release.)

In an Aug. 16 PBS NewsHour interview, Dalglish commented that the secret nature of the contempt order and closed court hearings could have buried Leggett’s case in obscurity. “Had (Leggett) not sought help from journalism organizations prior to being sentenced for contempt,” Dalglish said, “she would have been secretly jailed as well.”

The Reporters Committee has kept track of reporters and writers jailed for contempt in America since 1984. Of 17 jailed, only one was a freelance book writer. Chris Van Ness spent several hours in jail before giving up a taped interview with a suspect in the 1984 drug overdose death of John Belushi. Until Leggett’s incarceration, the longest-jailed journalist was Los Angeles Herald Examiner reporter William Farr, who spent 46 days behind bars in 1972 for protecting the source of leaked documents pertaining to the Charles Manson trial. The last time the Justice Department effected the jailing of a journalist was in 1991, when four South Carolina reporters spent eight hours in jail for refusing to testify about unpublished conversations with a state senator on trial for corruption.

SPJ honored Leggett’s self-conviction at its October 2001 National Convention in Seattle. SPJ hoped to present a videotaped interview with her at its award ceremony. But the detention center warden denied the interview, saying that SPJ — publisher of the magazine Quill — is not considered a news media representative.

Officials of the U.S. Justice Department, in response to questions and criticism about the department’s handling of the case, say that its guidelines were fully considered and no legal reason existed to negate Leggett’s incarceration.

USA Today opined that Ashcroft’s disengagement in the case “is reversing a policy that gives journalists wide latitude in protecting confidential sources ...”

On Sept. 10, Leggett appealed again to the 5th Circuit, asking for bond and a hearing before the entire 14-judge court. Lacking a response, her attorney asked for bond again in early November. DeGuerin said in a subsequent interview, “The press should be the watchdog of the police, not their lapdog.”

When, on Nov. 13, the court rejected the appeal, DeGuerin announced Leggett’s appeal to the Supreme Court.

In an interview with SPJ Legal Defense Fund chair Christine Tatum, DeGuerin raised a question disquieting to journalists’ responsibility to the public. While Leggett denied the government access to her investigative research, DeGuerin said, “I wonder how many other journalists didn’t tell them no.”

By refusing to hear Leggett’s appeal, the Supreme Court’s decision could have disastrous ramifications. But it also would have been determental if it had heard the case and re-affirmed the lower court decisions.

Under threat of compelled disclosure, journalists may lose the incentive to gather news for later dissemination, to the detriment of the public and historical record. A journalist subject to a government’s subpoena of work products loses objective reporting ability and becomes an ex officio arm of the government, negating public government officials’ accountability. Investigative reporters could lose the trust of sources and frighten away potential ones. Fighting subpoenas is costly to both the journalist and the government.

More frightening is the prospect that state and federal judges can decide whether a journalist’s work product qualifies for First Amendment protections and can arbitrarily pass judgment, bypassing constitutional balancing tests.

Espousing international human rights, the United States is attacking its own credibility. The free flow of information — endorsed by the U.S. Constitution and demanded globally by the American government — is in jeopardy, especially in countries where it is newly emerging from historical repression.

Notable is the fact that the only person sentenced to jail time in the murder case was in no way involved in the crime. Greta Van Susteren, in an Aug. 17 CNN Flashpoint interview, reflected the cynicism of some who felt Leggett held out only to advance the value of her book.

“This is not a writer’s publicity stunt,” Leggett answered. “I did not choose to put myself here. The only beneficiary is not me or an agent or a publisher ... it’s the American people.”

Leggett answered the hundreds of letters she received in jail, mindful that her jailors read each inbound and outbound letter. She wrote supporters their letters were lights “at the end of the tunnel” of her struggle to hold fast to the government’s promise of a free press.

She may yet need their support, as she has said she will return to jail rather than break her promises of media confidentiality. Under scrutiny by journalist and federal prosecutors alike, Leggett is still surprisingly calm, still articulate and still focused on her book. (She landed an estimated $600,000 contract with Crown Publishing, a division of Random House, in May.) But she worries the merits of the book will be buried under the sensationalism of her own highly publicized experience.

The 1735 John Peter Zenger case established that no government agency has jurisdiction over the truth, and truth is what American democracy, through a free press, purports to uphold.

The Supreme Court’s decision (without explanation) to deny Leggett’s media confidentiality appeal leaves open the question of the means by which journalists can match Zenger’s principles. Leggett’s stance may be a lost cause for this generation of journalists.

Or, it may be a standard for future generations to demand truths untainted by federal intervention.