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Legal roundtable: Who can subpoena witnesses? Who should have access to police video?

The Supreme Court of Missouri
Flickr | david_shane
Thirteen people have applied to fill a vacancy on the Missouri Supreme Court.

Questions over subpoenas are making headlines for a variety of reasons in St. Louis.

In January, St. Louis circuit attorney Jennifer Joyce subpoenaed St. Louis Public Radio and other local news outlets for media related to a raucous St. Louis Board of Aldermen committee meeting.

The broad subpoena asked for “all raw and aired video and audio footage of the meeting of the Public Safety Committee of the St. Louis Board of Aldermen on January 28, 2015, including footage of interviews, the meeting itself and any events that occurred in the meeting room or in the area outside the meeting room.”

The subpoena also asked that the media outlets not share that they had been subpoenaed.

“It can impinge upon the news gathering of the journalists because pretty soon the people who are having their pictures taken or being interviewed are wondering whether or not that information is going to be going to the police and to the prosecuting attorney,” William “Bill” Freivogel, professor at the Paul Simon Public Policy Institute at Southern Illinois University–Carbondale, told “St. Louis on the Air” host Don Marsh on Wednesday.  

“This was a public meeting. It happened with all sorts of witnesses there,” he said. “One would think that it would be very easy for (Joyce) to investigate whether there were any criminal violations, given all of the witnesses who were present.”

The subpoena originally also asked for reporters’ notes. The circuit attorney’s office is no longer asking for those notes, but is still asking for other media, published and unpublished. St. Louis Public Radio’s lawyers are in discussions with the circuit attorney’s office.

But even if subpoenas were going to be issued, there was a way to do it tactfully, Thompson Coburn partner Booker T. Shaw said.

“Typically when these subpoenas are issued, there has been some discussion ahead of time,” Shaw said. “There has been some attempts to get the information otherwise and that it’s a last resort, in effect. While no one doubts the prosecutor’s integrity, sometimes I think diplomacy may be lacking.”

On the flip side, Mark Smith, associate vice chancellor of students at Washington University, said he understands the prosecutor’s actions.

“As an attorney, anytime you do discovery you always ask for everything,” Smith said. “And then you negotiate from there. Other people are filming it, but they might not have had the angle. It’s like on football — you want to get just the right angle; maybe you can see what happened.”

Related, a St. Louis Police Department civilian review board likely will not be able to issue subpoenas. Smith said it’s a political and legal issue. Politically, St. Louis Mayor Francis Slay has said he will not sign a bill that includes subpoena power for the board. Legally, Missouri Attorney General Chris Koster has informally said he sees no problem with granting subpoena power under state law, but a city counselor has said there is a problem under St. Louis’ charter.

A bill to create a civilian board cleared its first legislative hurdle earlier this month. That bill does not include subpoena power. The Public Safety Committee that will oversee a civilian board does have subpoena power.

But with or without the authority to subpoena witnesses, the board still may not have as much power as some want. The committee will not hear directly from police officers; that will be done by the police department’s internal affairs division. It could hear from witnesses.

“The civilian oversight board members, or their staff, can sit in on internal affairs interviews with civilian witnesses, but can’t ask questions. They can suggest questions,” Freivogel said. “They cannot sit in with the internal interviews with police. That’s quite a restriction.”

Police camera access

In April 2014, St. Louis police made an arrest that has since been called abusive. The arrest was captured on a police dash camera. During the arrest, though, an officer is heard yelling “Everybody hold up. We’re red right now!” Lawyers have said that “red” is cop slang for a running camera.

The St. Louis Post-Dispatch reports that under the police department’s “special orders,” its cameras must remain on; they can be stopped “once the assignment or the reason for the initiation of recording is completed.”

In a related case, Koster has recommended that the public not have access to police camera footage.

Smith and Shaw said those videos should be part of the public record, similar to police reports.

Grand juror lawsuit

A grand juror filed suit against St. Louis County Prosecutor Bob McCulloch in January, saying the prosecutor had mischaracterized the Darren Wilson case. The grand juror says he wants to discuss the case; grand jurors are prohibited from talking about cases they heard. Doing so can result in a class A misdemeanor.

After the grand jury’s decision to not indict Wilson was announced, McCulloch released the grand jury transcripts with witness and juror names redacted.

McCulloch has asked a judge to dismiss the grand juror’s lawsuit.

“What McCulloch is saying is ‘I’ve already released all of this information.’ (The juror) hasn’t shown you that I would prosecute him or her for saying something, and so doesn’t have standing,” Freivogel said.

“Standing simply means that an individual or a company or a corporation, a plaintiff usually, the person who brings the lawsuit, is not the proper person to bring that lawsuit,” Shaw said. “It generally does not mean that there is not a controversy or that there may not be a just claim, simply that this is the wrong person to bring it.”

Shaw said he expects this case will “get kicked,” and is not likely to change secrecy laws.

Same-sex marriage, divorce

Earlier this month, the Missouri Supreme Court ruled that a St. Louis County circuit judge should not have dismissed the divorce case of two St. Louis men. In dismissing the case, the circuit judge said that since Missouri does not recognize same-sex marriage, it cannot dissolve a same-sex marriage. The Missouri Supreme Court has ordered the lower court to again take up the case.

In this situation, Shaw said the courts likely will wait to see how the U.S. Supreme Court rules on upcoming same-sex marriage cases. The high court previously announced that it will decide whether same-sex couples have a right to marry under the Constitution. It will hear cases that ask the court to overturn same-sex marriage bans in four states. Those cases will be argued in April; a decision is expected in June.

In Alabama, a federal judge recently ruled a same-sex marriage ban was unconstitutional. The state asked the Supreme Court to stay that ruling; it declined. Alabama Supreme Court Chief Justice Roy Moore ordered probate judges to not perform marriages. A federal judge said they should.

“I think Judge Moore wants to be a politician,” Shaw said. Alabama Media Group reports that Moore and the federal judge could rule on same-sex marriage licenses within a week.

“St. Louis on the Air” discusses issues and concerns facing the St. Louis area. The show is produced by Mary Edwards and Alex Heuer and hosted by veteran journalist Don Marsh. Follow us on Twitter: @STLonAir.

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