By Donald R. Winslow
COLUMBIA, MO – A judge has ruled that the Columbia Daily Tribune has 10 days to turn over 604 unpublished photographs shot by staff photojournalist Jenna Isaacson of a University of Missouri strength-and-conditioning football training session where a 19-year-old player, Aaron O’Neal, struggled, collapsed, and then later died. Lawyers for the O’Neal family have pursued the pictures as part of a wrongful death lawsuit filed by the dead player’s family.
The Tribune’s managing editor, Jim Robertson, told News Photographer magazine today, "We have to make a decision within 10 days about what's next. We're disappointed in the judge's decision, but we understood we didn't have much law on our side. At this point, we've gone through a process at our expense that would be similar to those set out in shield laws. We not only have to be mindful of costs, but an unsuccessful appeal could make the ruling legal precedent and could have effects beyond this particular case."
"It's a hard time for those who believe in protecting confidential sources," Indiana University professor of law and public service Patrick L. Baude told News Photographer after the Missouri ruling. "In general, fueled by scandal in Washington, it seems likely that new and better shield laws are coming soon. But photojournalists may well continue to get the short end of the stick. Superficially, a photograph seems like an 'object' to the legal mind, and courts are not accustomed to protecting 'objects' rather than communications. This ruling is not surprising from a trial court and demonstrates the need for a reassessment of the whole question of protecting sources, both by appellate courts and by legislatures."
New York attorney and journalist Mickey Osterreicher agrees with editor Robertson. "I am concerned that if they do decide to appeal, this may not be the right case to make the argument with, considering the judge appears to have made his decision using a press shield standard." Osterreicher, who for 30 years worked as a broadcast and print journalist, is a frequent author of legal stories regarding press freedom and First Amendment issues. "I think that Missouri journalists will be damned if the paper appeals and the paper will be damned if they don't appeal. Not a good position for anyone," Osterreicher said.
News of the ruling came three days after the third hearing on the matter in the last two months. Lawyers for the family of the freshman redshirt football player have repeatedly asked the court to order the Tribune to release the images.
Boone County Circuit Court Judge Gary Oxenhandler’s ruling to turn over the photographs said “the record is absolutely clear” that no promise existed between Isaacson and the University of Missouri that the photos would be confidential. A lawyer for the Tribune, Jean Maneke, argued on Monday that by being invited to a private practice the Tribune’s reporter and photographer were entering into a “confidentiality agreement,” and that the pictures would be used only in the newspaper and unpublished pictures would be confidential.
“I think this really points out the need for a shield law,” Robertson said. Missouri has no law to protect reporters and photographers from court requests for documents, including reporters’ notes and unpublished photographs. Chris Bauman, an attorney for the O’Neal family, said in Monday’s third hearing on the matter, “The law has not changed since our first hearing. There is no statutory privilege for reporters.”
“This underscores the need for press shield laws,” attorney Kurt Wimmer of the Washington, DC, law firm of Covington & Burling told News Photographer today. “I hope the Missouri legislature will bring up again the proposal for such a law, like one that did not pass this year.” In April, Missouri’s Judiciary and Civil and Criminal Jurisprudence Committee was considering a shield law that would make it more difficult for courts to compel journalists to testify about their sources or turn over material, but killed the idea after deciding the bill was “too complex” and that it needed “more thought and consideration.”
There are 31 states with press shield laws. Press organizations, including NPPA, have repeatedly called for a national press shield law.
Isaacson could not be reached for comment after the ruling against her paper. She is in Kashmir participating in a VII Photo Agency workshop led by Gary Knight. Plans for her trip were made four months ago, long before the recent court hearing dates were set.
Isaacson photographed O’Neal and other football players for the Tribune in July 2005 as they took part in a voluntary one-hour workout. The photographer noticed O’Neal struggling as the session progressed and photographed him as he collapsed and was then helped from the field. Hours later he died at University Hospital on the University of Missouri campus in Columbia.
In late August 2005 the Boone County medical examiner ruled that O’Neal died as the result of viral meningitis.
The day of the medical examiner’s ruling O’Neal’s father, Lonnie O’Neal, filed a $300,000 wrongful death lawsuit naming members of MU’s athletic training staff, the strength and conditioning staff, and the school’s athletic director. The suit claims that O’Neal died as a result of “neglect” by university staff and that “university officials were callous and fell far short of any reasonable standard.”
Oxenhandler also said that the unpublished photographs are critical to the O’Neal’s case. “The photos provide a time-sequenced record of a critical portion of the events described in the lawsuit, including the identification of unidentified witnesses and equipment of all kinds and description," the judge wrote in his ruling. Oxenhandler also agreed with lawyers representing the O’Neal family who had claimed that “the photos provide a literal photographic point of view that cannot be duplicated from any other source, known or unknown.”