Six weeks in advance of  the criminal trial of Wisconsin farmer Vernon Hershberger, pre-trial maneuvering moved into high gear Tuesday. 

Some seven lawyers gathered  in the Baraboo courtroom of Sauk County Judge Guy Reynolds, and for three hours argued about the highly unusual effort of Wisconsin prosecutors to subpoena three local journalists to testify for the prosecution. Three of those lawyers were from the state–two from the office of the Wisconsin Attorney General and one from the Department of Agriculture, Trade and Consumer Protection (DATCP). Two others were representing Hershberger, and two were representing the journalists. 

The prosecution effort is unusual because journalists  are rarely called to testify in criminal cases, since they invariably resist and even refuse to testify altogether. So prosecutors and defense lawyers generally avoid calling journalists, unless they are seen to have access to confidential sources and information that could be pivotal to the outcome of a very serious case, like a murder case or a case involving national security.

Journalists relying on confidential sources are especially loathe to testify, since they don’t want to break promises to sources to keep their identities secret. (For an eloquent explanation of the journalistic tradition of reporters refusing to testify, here is a New York Times editorial written when one of its reporters, Judith Miller, was sent to jail for refusing to testify before a grand jury in a national security case.) But even when they don’t possess confidential information, journalists don’t want to alienate sources of any kind, nor do they want to be seen as government lackeys, by testifying in criminal proceedings.

Because of the protections afforded journalists under the U.S. Constitution’s First Amendment and the resulting messiness of getting them to testify, some 40 states, including Wisconsin, have passed so-called “shield” laws to limit the circumstances under which journalists can be called to testify in criminal proceedings. What makes the effort of Wisconsin prosecutors noteworthy is that none of  the journalists sought appears to possess any confidential information. 

A lawyer for one of the journalists, working for a Wisconsin NBC television station, argued that the subpoena shouldn’t be issued since the reporter’s “testimony is not relevant, let  alone ‘highly relevant,’ because he did not observe the purported crime.” The lawyer, Drew Shenkman, with a Washington, DC, firm, added,  “Moreover, the State has failed  to show that  the  information  sought ‘is not  obtainable from  any alternative source,’…as the continued sale of  raw milk products can be shown through countless other sources.” 

Shenkman said there were “many untapped alternative sources…available to the state…” including members of Hershberger’s private food club and current  and former employees. 

One of the Wisconsin prosecutors, Eric Defort, rebutted that the reporter  with  the NBC affiliate could have important testimony about  a key  event  in  the Hershberger case–his breaking of the DATCP seals, placed on coolers June 2, 2010, and intended  to prevent the  farmer from distributing products to his club members. Since  the  reporter  was at  the  farm on June 3,  2010, filming  a  report, his “observation that  they  were broken on June 3, 2010…is highly  relevant as to when the seals were broken by Mr. Hershberger…” 

The reality  is that there is no disagreement about  what  happened with  the seals. Hershberger has admitted any number of times that he broke the seals. Which begs  the  question: Why is DATCP making a major issue out  of forcing journalists  to testify for  the prosecution,  in  defiance of all  convention? 

Well, here’s some speculation from one journalist who would be very put off as well if he were called to testify. Maybe  the prosecution  is having  difficulty finding members of Hershberger’s  club  who would  be  sympathetic to the  prosecution cause and is going after the Wisconsin reporters out of desperation.

Or possibly  the state  wants  to  intimidate journalists from  covering  other cases  involving small  farmers being bullied  by the  state. Journalists  don’t want that  kind of  hassle, not to mention  the expense  of hiring lawyers.

Or maybe the state is simply trying to show how seriously it takes this case, that it is unwilling to leave any stone unturned in its long-term mission to convict a farmer of supplying raw milk and other food to members of a private food club.

Desperation, intimidation, aggressiveness–none of it makes  much  difference. The  state isn’t portraying an image of confidence. Just the opposite. The judge  has  promised  to  rule Thursday.

UPDATE: “The motion is denied at this time,” Judge Guy Reynolds ruled late Thursday afternoon.

He added, “The State has not shown and I am not persuaded that the information is not obtainable from other sources”.

The judge left open the possibility that he could re-visit the matter as the trial opens, but given his comments today, it doesn’t seem likely that the prosecution would want to irritate the judge any further.