It took Boulder District Judge Gwyneth Whalen less than a minute this morning to rule that prosecutors shouldn't be allowed to compel a Westword writer to testify in a criminal racketeering case simply because the newspaper had published an interview with the accused. The writer in question, yours truly, left the courtroom relieved of duty -- and chagrined at the time and expense involved in fending off the pile-on tactics of prosecutors in the case.
My 2009 feature about one-man crime wave Victor Gabler, "A Hundred Miles an Hour Down a Dead-End Street," featured a jailhouse interview with Gabler, who has an extensive history of identity theft, credit-card scams and computer crimes and claims to be suffering from an untreated manic condition. Since that time Gabler has been convicted of additional crimes, drawing a 75-year sentence out of Adams County. He now faces a 100-count indictment handed down by a state grand jury, including violation of the Colorado Organized Crime Control Act.
In an effort to make Gabler's conviction on the COCCA rap a slam dunk, the Boulder District Attorney's Office and Michael Melito, a member of the Colorado Attorney General's special prosecution unit, sought to introduce evidence of prior "bad acts" by Gabler to show a pattern of crimes stretching back for years. And one of those pieces of evidence they were eager to present was the Westword article, in which Gabler discussed various methods of fraud and even expressed remorse for his victims, saying, "I can stop and see what people have to go through because some asshole like me, someone who's taken shortcuts their whole fucking life, has messed up their lives."
But Judge Whalen ruled that the prosecution couldn't simply introduce the article without putting its author on the stand -- and, from a newsgathering perspective, that raises all kinds of problems. It's generally a bad idea to force reporters to testify in criminal cases, since it inevitably compromises their ability to protect the confidentiality of sources and serve as a watchdog of government (rather than its stooge). Although Melito insisted that he would confine his questioning to the actual contents of the article, the process could open the door for Gabler's attorney or other parties to seek access to reporters' notes and other sources.
Westword attorney Jim Hubbell filed a motion to quash the subpoena, citing a body of state and federal law that seeks to protect journalists' work product from government scrutiny -- unless the information is vital to a case and can't be obtained any other way.
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Hubbell argued that clearly isn't the case here. If prosecutors want to put Gabler away forever and a day, they have ample court records dealing with his prior convictions. They could even (here's a novel idea) do their own investigating. After all, the guy isn't exactly shy about admitting what he's done.
But Colorado's press shield law doesn't apply to information that's already been published or broadcast, and prosecutor Melito insisted that was all he was after. So this morning's face-off came down to whether the state's limits on press protections should cancel out all the constitutional implications of putting a reporter on the stand -- or, as Hubbell put it in a one-sentence response, "The issue is whether the [Colorado] shield law can trump the First Amendment."
Judge Whalen promptly granted the motion to toss the subpoena. "The Court finds that the grounds set forth in the motion to quash are compelling and correct," she said.
And with that, Hubbell and I made our swift departure. The prosecution has enough evidence of bad acts to bury Gabler (who's already doing what amounts to a life sentence) a mile or two deep. It doesn't need to add my visit with him to the pile.