Reporter called to testify in marijuana trial

In October 2015, Sioux Falls, S.D., Argus Leader reporter Dana Ferguson was among several reporters and politicians on a tour of the Flandreau Santee Sioux Tribe’s proposed recreational marijuana resort.

After Attorney General Marty Jackley criticized the plan, the tribe shut down the operation and claims to have burned its marijuana plants.

Now, Jackley is compelling Ferguson to testify against a consultant for the marijuana industry on charges of conspiracy to possess, possession and attempt to possess more than 10 pounds of marijuana.

That’s generally a big “no” for journalists.

“Commanding our reporter to testify in this case is not only troubling but unnecessary,” Argus Leader Media news director Cory Myers said in an article today. “There are multiple avenues for the attorney general to get testimony about the tour, including from any of the five elected officials present, without compromising our reporter’s role as a independent observer.”

The head of the South Dakota newspaper association says the issue is troubling because the possibility of reporters being witnesses forced to testify makes it more difficult to cultivate sources and report stories.

Forty states have a shield law against reporters being forced to testify in criminal cases; South Dakota is not one of them.

Two of five politicians on the trip say they’ve not been subpoenaed in the case; two others didn’t return the Argus Leader’s phone calls.

“When a journalist does gain information that may be needed to provide to the jury, it is my general experience that defense attorneys have cooperated with stipulations that the photograph or video involved accurately shows what the evidence is to avoid a subpoena,” the state prosecutor said.

  • jon

    Seems like a problem begging for a loophole.

    Can reporters who pass the bar claim attorney-client privilege?
    Could a reporter who has their MD claim Physician–patient privilege?

    Is there any easier way to claim a confidentiality privilege other than getting an MD or a Law License?

    in trying to find my own answers I learned that Mike Pence pushed “reporters privilege” legislation in the house back in ’04…

    • BJ

      They couldn’t really report on it and still claim privilege, I wouldn’t think.

      • jon

        There would be no privilege on published material, but on unpublished material they sure could have privilege.

        “Who was your anonymous source?” – privileged.
        “Present the court with the complete top secret document that you obtained to get the information in your article.” – privileged.
        “Did you write this article?” – not privileged unless it’s under a pseudonym.
        “Is the information in the article accurate?” – Not privileged.
        “please confirm that the top secret information you published was on the top secret document you obtained.” – not privileged.

  • Guest

    Lazy prosecutor. Instead of call the elected officials they break down a fundamental aspect of our democracy.