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Kansas Attorney General Demands A Reporter’s Notes In Floyd Bledsoe Wrongful Imprisonment Case

Elle Moxley
Floyd Bledsoe, left, spent nearly 16 years in prison for a murder his brother committed. His lawyer, Russell Ainsworth, announced a lawsuit against Jefferson County, Kansas, law enforcement officers in May 2016.

Kansas has a shield law that gives journalists limited protection against being forced to identify anonymous sources or disclose information they haven’t published or aired. But because Bledsoe sued in federal court, the shield law doesn’t apply.

Updated: July 30, 2021 at 2:44 PM CDT
After this story was updated to note that the Kansas Attorney General's office had withdrawn the subpoena, KCUR received the following email from John P. Milburn, a spokesman for the office:

"Last week, an assistant attorney general filed a notice of intent to issue a subpoena in this case. No subpoena has been issued. That notice was filed without Attorney General Schmidt’s knowledge or approval. 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learning of it this morning, Attorney General Schmidt expressed his disapproval and has directed that the notice be withdrawn and the subpoena not be issued."
Updated: July 30, 2021 at 1:43 PM CDT
Shortly after this story was published, the Kansas Attorney General's office filed a notice in court that it intends to withdraw the subpoena.

Kansas Attorney General Derek Schmidt has subpoenaed the notes of a former Topeka Capital-Journal reporter who wrote a book on Floyd Bledsoe, a Kansas man who served 16 years in prison for a rape and murder he did not commit.

Schmidt’s office is defending Jefferson County officials in a civil rights lawsuit filed by Bledsoe. The subpoena seeks “any and all” materials the reporter, Justin Wingerter, prepared or used in writing the book, “Four Shots in Oskie,” as well as “any news article related to the claims in this lawsuit.”

The subpoena was issued Friday and orders Wingerter to produce the materials on Aug. 23.

Wingerter is now a political reporter at The Denver Post. He said in a telephone interview that he intends to fight the subpoena.

“I’m confident we’re going to win,” Wingerter said. “And I think we need to win. I don’t think the press is free if the government can take a reporter’s notes. That would mean revealing my sources and it would mean revealing documents that were leaked to me. It would mean losing the confidence of people who put a lot of trust in me.”

Schmidt’s office did not return calls seeking comment.

Sarah Matthews, a lawyer with the Reporters Committee for Freedom of the Press who represents Wingerter, called the subpoena “a classic example of a fishing expedition, where an attorney sends a broad request … trying to get everything under the sun in the hopes of finding some helpful evidence.”

Kansas has a shield law that gives journalists limited protection against being forced to identify anonymous sources or disclose information they haven’t published or aired. But because Bledsoe sued in federal court, the shield law doesn’t apply, according to First Amendment lawyers.

“The Kansas shield law is a state law that governs state privileges,” said Bernie Rhodes, a Kansas City media attorney not involved in the case. “It does not create a federal privilege.”

Rhodes said, however, that the federal circuit that includes Kansas has embraced a so-called common law reporter’s privilege. That grants journalists a qualified privilege under the First Amendment against revealing news sources and confidential information.

He also noted that because the state is a party to the case, “public policy in federal court would still suggest that the subpoena should be quashed because, after all, it was issued by the state and the state has decided we need a (reporter’s) privilege.”

Matthews, Wingerter’s attorney, called subpoenas like the one issued to the reporter “a real threat to press freedom.”

“It’s problematic because if litigants can compel a journalist to reveal their confidential sources in connection with their reporting, that has a chilling effect on the free flow of information to the public,” she said.

Bledsoe was convicted in 2000 of the November 1999 kidnapping, rape and murder of 14-year-old Camille Arfmann in Oskaloosa, Kansas, even though his brother, Tom Bledsoe, had confessed to the crimes. Bledsoe, who was 23 at the time, was sentenced to life in prison.

He was released in December 2015 after DNA testing and a suicide note left by his brother revealed he was not the perpetrator. In the suicide note, Tom Bledsoe confessed to the crimes, saying in part, “I sent an innocent man to prison. The Jefferson County police and county attorney Jim Vanderbilt made me do it.”

Tom Bledsoe had led authorities to Afrmann’s body and turned over the murder weapon to police. He was initially charged with murder but Vanderbilt dropped the charge days later and charged Floyd Bledsoe instead.

In May 2019, Schmidt’s office announced a $1 million settlement with Bledsoe for his wrongful conviction and imprisonment.

Bledsoe filed his lawsuit against Vanderbilt and other Jefferson County officials in May 2016, alleging they violated his constitutional rights by engaging in misconduct and withholding evidence. U.S. District Judge Daniel Crabtree declined to dismiss the case last year.

Earlier, a federal appeals court rejected Vanderbilt’s claim of absolute immunity in the case. Vanderbilt’s law license was suspended in 2005 and again in 2011 for ethical violations in other cases.

Wingerter covered the murder case and Bledsoe’s subsequent exoneration for The Topeka Capital-Journal. His book, which was published in March, bears the same title as a three-part series he wrote for the newspaper and expands on that work.

The subpoena demanding that he turn over his notes was issued on behalf of two defendants in Bledsoe’s lawsuit, Terry Morgan and Jim Woods, both now-retired agents for the Kansas Bureau of Investigation. The attorney general’s office is defending them because they were formerly state employees.

In its report, “Press Freedoms in the United States 2020,” the Reporters Committee for Freedom of the Press said 2020 was the third year in a row that subpoenas of reporters had increased. It noted that while some courts had quashed the subpoenas, others issued orders upholding them where non-confidential information was at stake.

In at least four cases, the report said, journalists and news outlets covering the protests provoked by the killing of George Floyd in Minneapolis received subpoenas for their testimony, photos and video recordings.

As a reporter covering breaking news and legal affairs, I want to demystify often-complex legal issues in order to expose the visible and invisible ways they affect people’s lives. I cover issues of justice and equity, and seek to ensure that significant and often under-covered developments get the attention they deserve so that KCUR listeners and readers are equipped with the knowledge they need to act as better informed citizens. Email me at dan@kcur.org.
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