Story updated at 1:40 p.m., and again at 2:57 p.m. Friday, July 30:
TOPEKA — The Kansas Attorney General’s office issued a subpoena commanding a journalist to turn over information he gathered while writing a book and news stories about a Jefferson County man who served 16 years in prison for a murder he didn’t commit.
After Kansas Reflector published this story, the attorney general’s office filed a notice with the court to withdraw the subpoena. A spokesman for Attorney General Derek Schmidt blamed an assistant for issuing the subpoena without his knowledge or approval.
Justin Wingerter, who wrote about Floyd Bledsoe’s wrongful conviction as a reporter for the Topeka Capital-Journal and in a book, “Four Shots in Oskie,” published earlier this year, said he wouldn’t have complied with the unconstitutional demand to turn over his notes.
Bledsoe was convicted in the 1999 sexual abuse and murder of a 14-year-old girl, a crime actually committed by his brother. A DNA test helped exonerate him in 2016, and the state paid $1 million to settle a wrongful conviction lawsuit three years later.
A separate, federal lawsuit filed by Bledsoe accuses county and state law enforcement officers and others of conspiring to frame him, despite a confession from his brother. They fabricated evidence “to bolster their flimsy case,” the lawsuit contends. He is asking for unspecified punitive damages.
Defendants include Kansas Bureau of Investigation agents Terry Morgan and Jim Woods, who are represented by Attorney General Derek Schmidt’s office.
Assistant attorney general Shon Qualseth filed a subpoena on July 22 that commands Wingerter to produce “any and all notes, audio recordings, video recordings, memoranda, reports, correspondence, and any other materials which were prepared and/or maintained by you which relate in any way to the authorship of the book ‘Four Shots in Oskie’ or any news article related to the claims in this lawsuit.”
The subpoena ordered Wingerter to deliver the materials to Schmidt’s office by 9:30 a.m. Aug. 23.
“It’s everything,” Wingerter said. “That would mean turning over confidential sources, people who leaked information to me, people who put a lot of trust in me to feel very confident, because I told them they can feel confident that this was never going to come back to bite them. So I’m not going to comply. I consider this unconstitutional.”
Wingerter, now a reporter for the Denver Post, is represented by attorneys with the Reporters Committee for Freedom of the Press. Based on interviews, court documents and confidential police reports, his book explains how powerful individuals in the small town of a Oskaloosa carried out an injustice against Bledsoe.
Wingerter said he discovered the subpoena because he periodically checks for new filings in the federal lawsuit.
“I was looking at another case, thought I would take a quick look at the Bledsoe case, see if anything’s new, and, ‘Oh, a subpoena’s been filed. That’s interesting. Who’s going to be subpoenaed this time? Oh, that’s my name,’ ” Wingerter said.
Federal courts have determined the First Amendment to the U.S. Constitution protects newsgatherers from being forced to reveal news sources and confidential information. Kansas law also makes it clear that a journalist can’t be compelled to turn over information.
The Kansas Press Association in a statement said Schmidt’s office would have a “tall task ahead of it” in trying to obtain an author’s notes under the Kansas Shield Law.
“The A.G.’s decision to subpoena the notes is particularly interesting given that Derek Schmidt, as a legislator, was instrumental in passing the law precisely to protect journalists from this type of legal quandary,” the KPA statement said. “The shield law has protected journalists from disclosing sources in civil cases for over a decade, and there is no reason to believe it will cease being effective now.”
The subpoena was scheduled to be delivered on Friday, but wasn’t served before Schmidt’s office backed down.
Kansas Reflector asked the attorney general’s office for comment at 9:36 a.m. and published the original version of this story at 11:15 a.m. John Milburn, a spokesman for Schmidt, sent a statement at 2:31 p.m.
“That notice was filed without Attorney General Schmidt’s knowledge or approval,” Milburn said. “After learning of it this morning, Attorney General Schmidt expressed his disapproval and has directed that the notice be withdrawn and the subpoena not be issued.”
The Press Freedom Tracker has documented an increase in the number of subpoenas for reporter records in recent years. In 2017, just eight subpoenas like this were reported nationwide, but the number increased to 26, 29 and 31 in the past three years. A report from the Press Freedom Tracker said the subpoenas undermine the independence of journalists by giving the impression they are an arm of law enforcement.
Sarah Matthews, an attorney representing Wingerter through the Reporters Committee for Freedom of the Press, said the subpoena from the attorney general’s office represents “a real threat to press freedom.” Sources who fear retaliation are unlikely to speak to a reporter if they know they could be identified, she said.
“This would really have a chilling effect on the free flow of information, and ultimately would hurt the public’s right to know about what is happening and how, for example, law enforcement is handling a case like this one,” Matthews said. “That’s really important information that the public needs to know in order to hold their public officials accountable.”
Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com. Follow Kansas Reflector on Facebook and Twitter.
