Subpoena of Jamie Kalven – December 2017

Judge protects reporter from revealing his sources

Chicago, IL

A Chicago police officer accused of killing an African American teenager attempted to force Jamie Kalven, the independent journalist who uncovered evidence of the shooting, to reveal his sources, for the purposes of the defense in the officer’s murder trial. Though Kalven was reportedly prepared to face jail time rather than comply, a Cook County, Illinois, judge rejected the officer’s subpoena.

Key Players

Officer Jason Van Dyke is accused of killing Laquan McDonald, a 17-year-old African American man, on October 20, 2014. A police dashboard camera video, released by court order on November 25, 2017, allegedly shows that Van Dyke shot McDonald 16 times, according to the Chicago Tribune. The video’s publication inspired weeks of protests, the firing of the police superintendent, and a critical examination of the Chicago Police Department by the U.S. Department of Justice. Van Dyke is charged with 16 counts of aggravated battery, six counts of first-degree murder, and one count of official misconduct. His indictment marks “the first time a Chicago police officer has been charged with first-degree murder for an on-duty fatality in nearly 35 years,” reported the Tribune.

Jamie Kalven is an independent journalist who investigated McDonald’s death. It was Kalven who revealed the existence of the video that documents the incident, reported The New York Times. His story about the killing, titled “Sixteen Shots,” was published by Slate in February 2015. Kalven is the founder of the Invisible Institute, an independent news organization based in Chicago. His father, Harry Kalven Jr., was a professor at the University of Chicago Law School and a First Amendment scholar. After his father’s death, Jamie Kalven completed his unfinished book about the First Amendment.

Further Details

Jamie Kalven brought the death of Laquan McDonald into the national spotlight by questioning the actions of Officer Jason Van Dyke and revealing the existence of dashboard-camera footage that documented the incident. With the help of two anonymous sources, Kalven discovered that McDonald had been shot 16 times. An autopsy report, as well as the dashboard-camera video, sharply contrasted with the police department’s report that McDonald had “lunged at police” before being shot. Shortly after Kalven’s story was published, protests against the police erupted in Chicago.

Van Dyke, whose trial is pending, filed a subpoena to discover Kalven’s sources of information relating to the shooting. The officer’s attorney suggested that the journalist had “obtained leaked documents and may have passed along that information to witnesses of the shooting, influencing their accounts to investigators,” reported the Times. Specifically, he posited that Kalven may have received statements made by Van Dyke to the Independent Police Review Authority, an agency conducting an internal investigation of the incident. Public employees have a right not to incriminate themselves during investigatory interviews by their employers. This right, often referred to as a “Garrity Right,” is rooted in the 1967 United States Supreme Court decision, Garrity v. New Jersey. Van Dyke’s legal team alleged that Kalven had obtained and reported on the police officer’s Garrity-protected statements.

Kalven resisted the subpoena, and 18 news organizations, joined by the Reporters Committee for Freedom of the Press, filed an amicus curiae brief in support of him. “The public interest in protecting confidential sources is particularly compelling in this case,” the brief asserted. “Kalven’s reporting exposed misconduct by the Chicago Police Department and an official cover-up that led to a public accounting and an investigation by the U.S. Department of Justice.”

On December 13, 2017, the subpoena was rejected by Judge Vincent Gaughan. However, his decision rested primarily on the “inadequacies of the subpoena itself rather than Kalven’s legally protected status as a reporter,” according to the Tribune. The judge determined that Kalven may have received information from multiple legitimate sources, and there existed no evidence that he ever was leaked protected material.

Kalven, who had expressed a willingness to face imprisonment rather than reveal his sources, attended the court hearing concerning his subpoena wearing his press identification around his neck. “I think it’s part of the job description to uphold a covenant with sources,” he told the Tribune. “The real hero in this case is a source within law enforcement who provided information … that enabled me and others to report on it. We have kind of a sacred trust with sources.”

Outcome

Kalven will not be compelled to reveal his sources

Judge Gaughan ruled that Van Dyke had failed to demonstrate that Kalven’s testimony would be relevant to the case. “To uphold the subpoena of Jamie Kalven would be nothing more than a fishing expedition in search of information that the timeline of events, discovery documents and testimony suggest simply does not exist,” he wrote.

External References

Journalist Who Told Laquan McDonald’s Story Faces Fight Over Sources, New York Times

Sixteen Shots, Slate

Laquan McDonald reporter won’t be forced to testify at Chicago cop’s hearing, Chicago Tribune

Amicus Curiae Brief by News Coalition and the Reporters Committee for Freedom of the Press

Van Dyke indicted on 16 added counts for each shot to Laquan McDonald, Chicago Tribune

Van Dyke lawyers want activist-journalist Jamie Kalven on the stand, Chicago Sun Times

Prepared by Will Haskell ‘18

Uploaded on January 25, 2018