Kansas AG subpoenas reporter’s notes from book on wrongful murder conviction

by Sherman Smith, Kansas Reflector

Topeka — The Kansas Attorney General’s Office issued a notice of subpoena commanding a journalist to turn over information he gathered while writing a book and news stories about a Jefferson County man who served 16 years in prison for a murder he didn’t commit.

After Kansas Reflector published this story, the attorney general’s office filed a notice with the court to withdraw the subpoena. A spokesman for Attorney General Derek Schmidt blamed an assistant for issuing the subpoena without his knowledge or approval.

Justin Wingerter is a reporter for the Denver Post and author of “Four Shots in Oskie.” (Submitted)

Justin Wingerter, who wrote about Floyd Bledsoe’s wrongful conviction as a reporter for the Topeka Capital-Journal and in a book, “Four Shots in Oskie,” published earlier this year, said he wouldn’t have complied with the unconstitutional demand to turn over his notes.

Bledsoe was convicted in the 1999 sexual abuse and murder of a 14-year-old girl, a crime actually committed by his brother. A DNA test helped exonerate him in 2016, and the state paid $1 million to settle a wrongful conviction lawsuit three years later.

A separate, federal lawsuit filed by Bledsoe accuses county and state law enforcement officers and others of conspiring to frame him, despite a confession from his brother. They fabricated evidence “to bolster their flimsy case,” the lawsuit contends. He is asking for unspecified punitive damages.

Defendants include Kansas Bureau of Investigation agents Terry Morgan and Jim Woods, who are represented by Attorney General Derek Schmidt’s office.

Assistant attorney general Shon Qualseth filed a subpoena on July 22 that commanded Wingerter to produce “any and all notes, audio recordings, video recordings, memoranda, reports, correspondence, and any other materials which were prepared and/or maintained by you which relate in any way to the authorship of the book ‘Four Shots in Oskie’ or any news article related to the claims in this lawsuit.”

The subpoena ordered Wingerter to deliver the materials to Schmidt’s office by 9:30 a.m. Aug. 23.

“It’s everything,” Wingerter said. “That would mean turning over confidential sources, people who leaked information to me, people who put a lot of trust in me to feel very confident, because I told them they can feel confident that this was never going to come back to bite them. So I’m not going to comply. I consider this unconstitutional.”

“Four Shots in Oskie,” by Justin Wingerter, detailed the wrongful conviction of Floyd Bledsoe. (Submitted)

Wingerter, now a reporter for the Denver Post, is represented by attorneys with the Reporters Committee for Freedom of the Press. Based on interviews, court documents and confidential police reports, his book explains how powerful individuals in the small town of Oskaloosa carried out an injustice against Bledsoe.

Wingerter said he discovered the subpoena because he periodically checks for new filings in the federal lawsuit.

“I was looking at another case, thought I would take a quick look at the Bledsoe case, see if anything’s new, and, ‘Oh, a subpoena’s been filed. That’s interesting. Who’s going to be subpoenaed this time? Oh, that’s my name,’ ” Wingerter said.

Federal courts have determined the First Amendment to the U.S. Constitution protects newsgatherers from being forced to reveal news sources and confidential information. Kansas law also makes it clear that a journalist can’t be compelled to turn over information.

The Kansas Press Association in a statement said Schmidt’s office would have a “tall task ahead of it” in trying to obtain an author’s notes under the Kansas Shield Law.

“The A.G.’s decision to subpoena the notes is particularly interesting given that Derek Schmidt, as a legislator, was instrumental in passing the law precisely to protect journalists from this type of legal quandary,” the KPA statement said. “The shield law has protected journalists from disclosing sources in civil cases for over a decade, and there is no reason to believe it will cease being effective now.”

The subpoena was scheduled to be delivered on Friday, but wasn’t served before Schmidt’s office retracted it.

Kansas Reflector asked the attorney general’s office for comment at 9:36 a.m. and published the original version of this story at 11:15 a.m. John Milburn, a spokesman for Schmidt, sent a statement at 2:31 p.m.

“That notice was filed without Attorney General Schmidt’s knowledge or approval,” Milburn said. “After learning of it this morning, Attorney General Schmidt expressed his disapproval and has directed that the notice be withdrawn and the subpoena not be issued.”

The Press Freedom Tracker has documented an increase in the number of subpoenas for reporter records in recent years. In 2017, just eight subpoenas like this were reported nationwide, but the number increased to 26, 29 and 31 in the past three years. A report from the Press Freedom Tracker said the subpoenas undermine the independence of journalists by giving the impression they are an arm of law enforcement.

Sarah Mathews, an attorney representing Wingerter through the Reporters Committee for Freedom of the Press, said the subpoena from the attorney general’s office represents “a real threat to press freedom.” Sources who fear retaliation are unlikely to speak to a reporter if they know they could be identified, she said.

“This would really have a chilling effect on the free flow of information, and ultimately would hurt the public’s right to know about what is happening and how, for example, law enforcement is handling a case like this one,” Mathews said. “That’s really important information that the public needs to know in order to hold their public officials accountable.”

Kansas Reflector stories, at https://kansasreflector.com/, may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0.
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Judge strikes down Kansas COVID-19 emergency powers law, rejects challenge to school mask rule

by Kyle Palmer, Shawnee Mission Post and Kansas News Service

If the ruling stands, local governments would have more power to enact rules in response to a pandemic.

A Johnson County judge has ruled that a law passed this spring to curtail local governments’ emergency powers during the COVID-19 pandemic is unconstitutional.

In the same ruling, Judge David Hauber sided with the Shawnee Mission School District in dismissing two parents’ complaints over not being given public hearings under the law to challenge the district’s mask rules last school year.

Hauber ruled that the law’s accelerated process for allowing citizens to raise grievances against COVID-19 policies deprives local governments — including school districts — of due process and violates the separation of powers between the legislative and judicial branches.

A spokesperson for Attorney General Derek Schmidt said his office plans to appeal the decision.

The ruling comes as COVID-19 case numbers are again rising in Kansas, the Kansas City area and beyond, driven by a surge caused by the more contagious Delta variant.

Local school districts are deciding what, if any, pandemic protocols will be in place when students return to in-person classes next month, including mask rules.

While other Johnson County public school districts have already said they plan to make masks optional, SMSD has yet to finalize its policy for next school year.

In responding to the judge’s request for a brief in the case, Schmidt contended that SB 40 is now moot, following the expiration of the statewide disaster emergency on June 15, and a ruling on its constitutionality was not needed.

But Hauber rejected that reasoning, in part, because he said some of the law’s provisions could be used again if another disaster emergency, whether pandemic-related or not, is issued in the future.

Hauber explicitly mentioned the Delta variant in his decision, suggesting a sudden increase in case numbers could lead to a new state of emergency, in which some of SB 40’s provisions could be in play again.

For these reasons, Hauber said SB 40 still raised “significant due process issues.”

Most critically, Hauber said SB 40’s truncated process for allowing citizen grievances violated local governments’ due process rights.

“Under the guise of giving local governments the authority to address specific pandemic issues, SB 40 actually hobbled local pandemic measures by ensuring that lawsuits would be filed, aided by swift court action. Many local units of government simply capitulated under the pressure, Hauber wrote.

He noted that SB 40 required local governmental bodies, like school boards, to take up citizens’ challenges within 72 hours and then gave them seven days to reach a decision.

Similarly short timeframes governed how quickly local courts had to hear appeals to local governments’ decisions to such challenges.

Hauber said this “hurry up and decide” method essentially gave the advantage to complaining citizens and “dangles default (judgment) as the ultimate stick.”

Schmidt admitted as much in his brief defending SB 40, contending that if a school board was not able to justify its COVID-19 restrictions within the timeframe laid out by SB 40, then “judgment should be entered in favor of school children.”

But Hauber sided with local governments in dismissing that notion, citing SMSD’s own brief, which argued that SB 40 never addressed the “best interests of students” but solely focused on “adult, political concerns.”

Ultimately, Hauber said SB 40 is “unenforceable” because of the quick timeframe laid out in its provisions.

Hauber also sided with SMSD against two parents who had brought suit against the district for not giving them a public hearing under SB 40 in order to challenge the rule that masks be worn inside school buildings at all times last school year.

The judge noted that neither parent was harmed by the district’s mask policy.

One parent received a medical exemption for her child. And the second parent chose not to obtain an exemption, Hauber said, “preferring to attack the mask policy” instead.

“The Court is not critical of any parent who feels strongly that government action might be regarded as arbitrary or even harmful to one’s child,” Hauber wrote. “But there are existing legal procedures to address such potential violations.”

What happens next: Schmidt’s office says it plans to appeal Hauber’s ruling.

In a statement Thursday, Clint Blaes, the director of communications for the attorney general’s office, said:

“On its own volition, the district court created a controversy about the statute where none exists now that the state of emergency has ended. Attorney General Schmidt strongly disagrees with the ruling in this case. We plan to appeal to defend the validity of the statute as it was enacted by the Legislature and signed into law by Governor Kelly.”

SMSD also did not immediately return a request for comment on how the ruling could impact the school board’s upcoming deliberations on COVID-19 protocols going into the new school year.

Read the judge’s full ruling:
This story was originally published on the Shawnee Mission Post.

The Kansas News Service is a collaboration of KCUR, Kansas Public Radio, KMUW and High Plains Public Radio focused on health, the social determinants of health and their connection to public policy. Kansas News Service stories and photos may be republished by news media at no cost with proper attribution and a link to ksnewsservice.org.

Kansas Supreme Court upholds murder conviction

The Kansas Supreme Court today affirmed MonDale Le’on Douglas’ convictions on three counts of first-degree premeditated murder.

A Wyandotte County District Court jury in 2020 found Douglas, age 31, guilty of the deaths of Edward Rawlins, David Rawlins and Addrin Coats. The three were killed at an apartment on April 2, 2018, in the 1100 block of Tenny Avenue in Kansas City, Kansas.

According to court documents, one of the victims was shot four times, with two shots to the head and two of the shots within five feet; another victim was shot four times, including once in the back of the head; and a third victim was shot six times, including three shots to the head.

Douglas was shown on surveillance video entering and leaving the apartment building at night around the time of the murders, court documents stated. A neighbor testified she heard what sounded like an argument, loud voices and screaming about five minutes before the gunshots.

Douglas also was seen on a video buying a rare type of ammunition that was used in the murder. The ammunition sale took place at Cabelas at 3:45 p.m. on the day of the murder, according to court documents. Police recovered the shell casings at the scene.

According to today’s Supreme Court opinion written by Justice Dan Biles, the court rejected Douglas’ trial error claims, including an argument that Wyandotte County District Court committed reversible error by failing to instruct the jury on both second-degree intentional murder and voluntary manslaughter as a lesser included offense, and his argument that the prosecutor committed reversible error when he used the rhetorical phrase “we know” during the closing argument.

On the instructional claim, the court stated that given the overwhelming evidence presented at trial, Douglas failed to convince the court that the lower court’s failure was not reversible error.

With regard to the prosecutorial error claim, the Supreme Court found the prosecutor erred when he used “we know” in conveying his personal opinion about who killed the victims, but ultimately concluded that error was harmless as the strong evidence supported his convictions.