Tampa Bay Times files appeal to shield reporter Jeff Testerman from testifying in Navy Veterans court case

An appeal has been filed in the Second District Court of Appeals challenging a Florida circuit judge’s ruling ordering former Tampa Bay Times reporter Jeff Testerman to testify in the Ohio Attorney General’s case against a con-man who bilked donors out of millions of dollars using a fake Navy veterans charity.

Testerman, represented by Allison Steele, an attorney on retainer to the Times Publishing Co., has appealed a ruling by Circuit Court Judge Daniel Perry ordering Testerman to comply with a subpoena to appear at the criminal trial in Ohio to testify for the prosecution concerning information he obtained in the course of his newsgathering and reporting for the Times.

On Monday, Steele filed her reply brief in response to the Florida Attorney General’s answer brief. Both documents can be read in their entirety below.

For any other reporter, the story of this prolific con-man who set up the Navy Veterans Association as part of a scheme to siphon millions of dollars, while routinely rubbing elbows with prominent Republican politicians, would have been the high-water mark of their career.

Yet for the Tampa Bay Times‘ Jeff Testerman, his amazing work unmasking the problems behind the U.S. Navy Veterans Association is just the tip of a 30-year reporting career, according to the Times‘ media critic Eric Deggans, who notes that Testerman was the reporter who nailed swindler Matthew B. Cox and former Tampa housing authority chief Steve LaBrake, among many others.

Although Testerman last reported about the Navy Veterans scam in late 2010 and retired from the Times in 2011, his involvement in the saga continues — not as a reporter, but a potential witness for the prosecution.

After a two-year manhunt, Thompson was arrested on April 30, 2012 at a boarding house in Portland, where he was posing as a retired Canadian mountie, ABC News reported.

Authorities later revealed that they believe “Bobby Thompson” is actually a former military intelligence officer named John Donald Cody.

Thompson/Cody is currently awaiting trial in Ohio on charges of identity theft, fraud, and money laundering. Key to prosecuting the case, contends the Ohio Attorney General’s office is the testimony of Testerman. But Testerman and his newspaper have resisted answering a subpoena for Testerman’s testimony.

The Ohio AG’s office is most interested in the information Testerman gathered for a section of a story published in 2010. Titled, “Face to face, once”, the section recounted Testerman’s only face-to-face encounter with Thompson/Cody.

Mr. Testerman reported a telephone conversation with Thompson in August 2009, wherein the journalist asked about the political contribution to Kevin White, and Mr. Thompson stated it had been made from his personal account. 

The next day, on the sidewalk outside an Ybor City duplex, Mr. Testerman encountered a person speaking on the phone with an individual and stating “That’s right, the U.S. Navy Veteran’s Association. Send it to my attention, Commander Bobby Thompson.” 

The individual then directed Mr. Testerman to get a copy of the cancelled check from Kevin White.  When asked about the results of a background check Mr. Testerman had performed, the individual stated he was one-sixteenth Choctaw but that the individual found in the background check was not him, merely a relative, and that his credit information had been corrupted. 

Although not asked, the individual then went on to state that he was not involved in casino gambling and had never discussed it with Kevin White. 

Further, he denied USNVA had ever made a political contribution. Asked about his Navy service, the individual stated, “Lt. Commander, Navy Reserves” then entered the duplex.  The next day an individual telephoned the journalist to state he had misspoken, that the White contribution was in the form of a money order and White’s campaign had mistakenly reported it as coming from USNVA.   

The knowledge gleaned from this interaction with Thompson/Cody made him a “material and necessary witnesses.” Testerman had direct contact with the individual known as Bobby Thompson at Bobby Thompson’s place of residence, argued the Ohio AG’s office. 

In a hearing to determine why Testerman should not be made to respond the Ohio AG’s subpoena, counsel for Testerman and the Times argued that Ohio’s submissions did not meet the “material” and “necessity” requirements of Chapter 942 of the Florida Statutes, and that requiring Testerman to surrender his strong protections as a journalist to go testify in Ohio was an undue hardship. Ohio argued that Testerman was material and necessary as a witness and that no journalist’s privilege applied because the information sought was not confidential, and because Testerman was an “eyewitness to a crime.”

“In this instance, the primary determination in this case,” argued an attorney for the Ohio’s AG’s office. (The key factor that must be determined is the identification of the defendant as Bobby Thompson, and as Bobby Thompson, he ran the United States Navy Veteran’s Association. … Mr. Testerman had a direct conversation with him.”

Eventually, Judge Perry dismissed Testerman’s and the Times’ argument that Testerman’s testimony was neither material nor necessary and that compelling him to testify at the trial in Ohio presented an undue hardship.  The court reasoned that compelling a person with a potential privilege to travel out of state to testify does not present an undue hardship.

In February of 2013, Testerman and the Times filed a notice of appeal of Perry’s decision with the Second District Court of Appeal. The crux of the appeal is based on Testerman and the Times’ assertion that Testerman is not a necessary and material witness, as there are other witnesses able to identify Cody as Bobby Thompson. 

Moreoever, Steele’s appeal makes the argument that Florida’s respect of journalistic privilege is different, if not stronger, than that of Ohio’s. “For more than thirty years, as matters of constitutional, common law and state statute, Florida courts, both state and federal, have recognized a strong privilege protecting journalists from compelled testimony about their newsgathering,” Steele’s brief stated.

In 1998, the journalist’s privilege was codified as part of Florida’s Evidence Code, providing, like our longstanding constitutional and common law, that “A professional journalist has a qualified privilege not to be a witness concerning, and not to disclose the information, including the identity of any source, that the professional journalist has obtained while actively gathering news.”

The information protected includes “information or eyewitness observations obtained within the normal scope of employment,” the only exceptions being physical evidence, eyewitness observations or visual or audio recordings of crimes. 

In other words, eyewitness observations of non-criminal activity are expressly covered by the privilege. Steele’s brief goes on to ask an interesting question: What, if any, journalistic work would be protected by the First Amendment, common law, and statutory privilege if everything to which a journalist was an “eyewitness” (or an “ear-witness”) was excluded from the privilege?

The answer would be nothing.  If personally observing a matter made every journalist a “witness” for subpoena purposes, journalists would in fact be little more than roving investigators for the government, criminal defendants, and private litigants — a result our courts have repeatedly urged one another to guard against.

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