NEW ORLEANS -- A federal judge has ordered two local reporters to testify about a meeting they had with FBI sources before they printed a story about alleged Central City gang leader Telly Hankton.
Judge Martin Feldman denied, at least partially, The Times-Picayune's motion to quash the subpoenas served on reporters John Simerman and Gordon Russell, who both now work for The New Orleans Advocate.
The ruling could raise important First Amendment press freedom issues.
Feldman said Billy Gibbens and Arthur 'Buddy' Lemann, the attorneys for Andre Hankton and his cousin Telly, respectively, have a right to ask the reporters about what happened when they met with FBI agents at the bureau's Lakefront office, to see if the agents violated federal rules by disclosing secret grand jury information.
Simerman wrote an article in The Times-Picayune just days after that meeting, correctly predicting that Telly Hankton, already in prison for murder, would soon be indicted by a grand jury for allegedly running a massive racketeering operation. The article included a chart of the Hankton organization, and FBI agents have already testified that the reporters came to the meeting with the chart in hand.
But because the agents have already said what happened, and stated that they believed the meeting was 'on the record,' the reporters may not be put in the position of giving up confidential sources. Feldman roundly rejected Gibbens' efforts to ask Simerman and Russell about other stories that used unnamed sources, calling it 'false theatre' and 'wholly irrelevant.'
Lori Mince, who represents The Times-Picayune and the two reporters in the case, said it's always a concern when a reporter is put on the stand and asked about his newsgathering process. But, she said, the judge recognized the First Amendment protections when he limited testimony to the Oct. 10, 2012 meeting.
WWL Legal Analyst Chick Foret says Feldman is likely to keep a tight lid on the defense attorneys' questions.
'Billy Gibbens, in his earlier cases and in this case, has taken the position that the U.S. Attorney's Office has attempted to poison the prospective jury pool, so I anticipate that Billy Gibbens is going to ask questions to the reporters, 'Who are your sources? Were those sources in the U.S. Attorney's Office? Were those sources in the FBI?'' Foret said. 'I think Judge Feldman is going to shut down those questions quite quickly and limit them to the meeting that took place between the FBI agents and these subpoenaed reporters.'
The FBI agents have testified in affidavits that they did not disclose anything about the imminent indictment and only questioned the reporters about two people on the chart that they didn't recognize as part of the alleged racketeering operation.
The ruling comes just as the U.S. Supreme Court considers an appeal from a New York Times reporter who was ordered to give up confidential sources. Several large media groups filed briefs to the high court this week urging it to overturn a lower court's ruling ordering Times reporter James Risen to testify about who leaked national security information to him.
Also, Gibbens has been leading the effort to expose the identities of anonymous online commenters related to the U.S. Attorney's Office and has filed briefs in the Hankton case questioning if the FBI leaked stories to several former Times-Picayune reporters, including Simerman, Russell and myself.
'Whenever there is a subpoena issued to a reporter, whether it be a print reporter or a television reporter, everyone gets very nervous,' Foret said. 'Everyone is very protective of the First Amendment and the First Amendment rights that are afforded to reporters.'