The GRIP subpoenaed to produce investigative records, including confidential sources, in federal case

8.31.17 The GRIP Subpeonaed

The subpoena received by The GRIP demands for production, “Any investigative notes, records, recordings, text messages, documents, emails and things, including, but not limited to any articles published electronically or otherwise by The GRIP pertaining to The GRIP’s investigations into Spalding County Sheriff’s Office, former Sheriff Wendell Beam, Sheriff Darrell Dix, former Capt. David Gibson, Jessica Kelly, Catherine Lewis, Karen Law, Misty Piper, Kimberly Barnett, Melanie Bowen and/or Susan Bohannon.” The GRIP will not be providing the confidential records demanded.

SHEILA A. MATHEWS :::

The GRIP has received a subpoena demanding numerous confidential materials – including those involving confidential sources – be produced in a federal civil rights law suit.

The subpoena was issued as part of Civil Action No. 3-15-CV-163-TCB – Jessica Kelley, et al. v. Captain David Gibson, in his individual and official capacities, et al.

This is the civil rights law suit filed by six women including Kelley, Karen Law, Kimberly Barnett, Melanie Bowen, Misty Parker-Piper and Susan Bohannan, with each alleging they suffered various types of abuse at the hands of Gibson, who, over the course of his 27-year career, rose to the rank of captain of the Spalding County Sheriff’s Office Uniform Patrol Division.

Also named in the law suit are the Spalding County Sheriff’s Office; Wendell Beam, who in November 2016 lost his bid for reelection as sheriff; Spalding County; and current Spalding County Sheriff Darrell Dix.

The information is being sought by Legare, Attwood & Wolfe LLC, the plaintiff’s attorneys.

According to the legal documents, this case’s plaintiffs seek to compel The GRIP to produce, “Any investigative notes, records, recordings, text messages, documents, emails and things, including but not limited to any articles published electronically or otherwise by The GRIP, pertaining to The GRIP’s investigations into Spalding County Sheriff’s Office, Former Sheriff Wendell Beam, Sheriff Darrell Dix, former Captain David Gibson, Jessica Kelly, Catherine Lewis, Karen Law, Misty Piper, Kimberly Barnett, Melanie Bowen and/or Susan Bohannon.”

The state of Georgia is among 49 nationwide that have enacted legislation that extends privilege to journalist to protect them from being forced to provide information to the government or private entities. Wyoming is the lone state that has not yet afforded journalists such protections.

Georgia’s code, which can be found at OCGA § 24-9-30, states, “Persons, companies, or other entities engaged in gathering or dissemination of news for the public through a newspaper, book, magazine, or radio or television broadcast shall have a qualified privilege against disclosure of any information, document, or item obtained or prepared in the gathering or dissemination of news in any proceeding where the one asserting the privilege is not a party, unless it is shown that this privilege has been waived or that what is sought: (1) Is material and relevant; (2) Cannot be reasonably obtained by alternate means; and (3) Is necessary to the proper preparation or presentation of the case of a party seeking the information, document, or item.”

There is no federal journalist shield law.

Former Sheriff Wendell Beam on May 22, 2015, issued a press release stating Gibson had retired in lieu of termination on May 21. Beam said an Internal Affairs investigation was being conducted on Gibson at the time of his retirement. The allegations involved in that IA investigation included sexual harassment, creating a hostile work environment, conduct unbecoming a deputy, improper use of the Internet and violating his oath of office.

That investigation, which was conducted by Lt. Ronald Brainard, of the Houston County Sheriff’s Office, was later sealed when Superior Court Judge Robert M. Crawford issued a temporary protective order on behalf of Ruby King, a Sheriff’s Office employee. King was represented in that proceeding by Johnnie Caldwell, who had previously resigned from his office as a Superior Court judge in the Griffin Judicial Circuit after a formal complaint against him alleging sexual misconduct was filed with the Judicial Qualifications Commission. In his current capacity as a state legislator, Caldwell was instrumental in successful efforts to do away with the Judicial Qualifications Commission.

That temporary protective order, which was used to deny the Open Records Act release of the Internal Affairs investigative case file, was lifted only after The GRIP uncovered another unsealed avenue to obtain the Internal Affairs case file.

Although Beam used the findings of that IA investigation – the findings of which were legally limited to administrative actions – to secure Gibson’s retirement, he did not request the GBI conduct a criminal investigation.

Beam did turn the IA file over to Scott Ballard, then the district attorney for the Griffin Judicial Circuit.

Ballard, who was also legally precluded from using any information contained within that case file as the basis of criminal charges, opted in late June to conduct an internal investigation in his office.

More than one month passed before Ballard announced he had requested a GBI criminal investigation.

That investigation resulted in Gibson’s Sept. 10, 2015, arrest on charges of aggravated assault, two counts of aggravated sexual battery, influencing witnesses, stalking, public indecency, sexual battery, two counts of simple battery and violating his oath of office.

Just over one year later, on Sept. 15, 2016, a grand jury handed down a 14-count indictment against Gibson, including one count of aggravated assault, two counts of aggravated sexual battery, one count of public indecency, one count of sexual battery, one count of simple battery and one count of violating his oath of office. Gibson was also charged with seven additional counts of violating his oath of office, with each of those seven counts related to the aforementioned criminal charges.

Ballard stated he anticipated bringing Gibson to trial in the fall of 2016, but that did not occur.

Meanwhile, Ballard was elected to serve as a Superior Court judge in this circuit.

Ben Coker, who had served as Ballard’s senior assistant district attorney, was in November 2016 elected to succeed Ballard.

Gibson on June 8, 2017, appeared before Judge Crawford, entering a blind plea to two counts of violating his oath of office, which means his guilty plea was entered without prior knowledge of the sentence Crawford would impose.

Crawford handed down a combined sentence of 10 years, with three to serve in prison followed by seven years probation.

Gibson was granted first offender status.

Prior to Gibson entering the blind plea, Coker had agreed to dismiss all other charges the grand jury had handed down in its indictment.

The GRIP has reported extensively on all these developments and many others.

During its coverage, The GRIP was suspected of receiving improperly “leaked” information from the Sheriff’s Office. This suspicion led Beam to request a formal GBI criminal investigation, which found that no illegal “leak” existed.

Beam also later requested a formal GBI criminal investigation to identify source of The GRIP’s information. The GBI declined to conduct that investigation.

It has always been, and steadfastly remains, The GRIP’s policy that all communications will be protected, and that all confidential sources will remain just that – confidential.

In keeping with that principle, The GRIP will not be producing the information demanded in this subpoena.

Additional documentation provided with the subpoena relates information pertaining to The GRIP’s position of refusal to honor the demand for confidential information.

The Federal Rules of Civil Procedures 45(g) states, “The court for the district where compliance is required – and also, after a motion is transferred, the issuing court – may hold in contempt a person who, having been served, fails without adequate excuse to to obey the subpoena or an order related to it.”

While the state of Georgia does have a journalism shield law, there is no such protection in the federal code.

 

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