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Judge Rejects Prosecutor's Attempt to Label Reporter 'Investigator.' (DuPage County, IL. Judge Thomas Callum, Assistant State Attorney Thomas Epach, David Protess)

Magazine article Editor & Publisher

Judge Rejects Prosecutor's Attempt to Label Reporter 'Investigator.' (DuPage County, IL. Judge Thomas Callum, Assistant State Attorney Thomas Epach, David Protess)

Article excerpt

WHEN AN INVESTIGATIVE reporter investigates, does he lose his First Amendment protection against being forced to testify at a trial?

In a high-profile murder case to go to trial in DuPage County, Ill., that's the argument prosecutors made in an attempt to force David Protess, a Northwestern University journalism professor, to take the witness stand.

County Judge Thomas Callum, how, ever, rejected that argument, and quashed a subpoena on Protess, who wrote a freelance article about the murder that was published in the Chicago Tribune Magazine on Feb. 5.

At a hearing April 11, DuPage County assistant state attorney Thomas Epach argued that "Protess was not an ordinary reporter covering a story." Instead, Epach suggested, Protess was "an investigator" who cannot claim a journalist's privilege of de, clining to testify.

"That is an interesting argument, to say that every investigator could say he was a reporter and give himself privilege," judge Callum said, according to a Chicago Tribune story by Art Barnum.

"But [Tribune columnist] Mike Royko is contacted every day by people with beefs," Callum continued, "and that doesn't make him an investigator. He is a reporter. You are fighting an uphill battle against this privilege."

In an interview, Protess said the subpoena was "one of several times the prosecutors in DuPage County have tried to harass reporters."

Protess said, "I wasn't surprised when I received the subpoena, and since it was so clearly unlawful I wasn't surprised when it was quashed."

The judge's ruling, he said, demonstrates anew that "the First Amendment belongs to everyone in this country."

"They were trying to claim I was somehow an investigator before I was a reporter," Protess said. "Well, obviously, as a reporter, you don't write first and investigate later. I have been an investigative reporter for 15 years."

Protess' article examined the case against James Kelly, who is charged with the 1991 murder of his ex-wife, Jayne, in her Naperville, Ill., apartment. The article detailed what Protess said were errors by local police an county prosecutors eager Kelly with the killing.

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