Virginian-Pilot reporter subpoenaed to testify in councilman's forgery trial

Virginian-Pilot reporter Scott Daugherty was subpoenaed on March 1, 2018 to testify in the trial of Mark Whitaker, a councilman for the city of Portsmouth, Virginia. The trial was later postponed until July, freeing Daugherty from the initial subpoena to testify. However, it is possible that the prosecutor could attempt to subpoena him again.

The subpoena ordered Daugherty to appear and testify in Circuit Court for the City of Portsmouth between March 21 and March 23. Daugherty told Freedom of the Press foundation that he thinks he could have been required to be present in court all three days, but more likely, he would have been told to return close to the specific time when he would have been needed. 

On March 20, Daugherty’s attorney Conrad Shumadine filed a motion to quash the subpoena.

“The trial subpoena issued to Mr. Daugherty raises serious First Amendment issues,” the motion to quash states. “The Virginian-Pilot and Mr. Daugherty respectfully assert that a prosecutor must have some factual basis to subpoena a reporter for testimony and there has to be some reasonable expectancy that the reporter would be called as a witness.” 

Portsmouth Councilman Mark Whitaker was charged with 20 felonies, including identity fraud and forgery, in April 2017. At that time, the Virginian-Pilot reported that Whitaker and his attorneys claimed that the case was biased or politically motivated. 

In October 2017, Scott Daugherty wrote an article for the Virginian-Pilot about the fact that two of Mark Whitaker’s alleged fraud victims claimed he did nothing wrong. For the piece, he interviewed Mark Whitaker.

“I'm not really sure what the special prosecutor wanted to ask me, except it probably had to do with that one story,” Daugherty told Freedom of the Press Foundation. “Quite frankly, this isn't a case where I'd really expect the prosecution to want to ask me any questions on the stand. The councilman has never said anything to me indicating he is guilty. To the contrary, he has been pretty adamant from the beginning that this case is politically motivated and that he will be vindicated.”

Commonwealth Attorney Andrew Robbins declined to discuss what questions he intended to ask Daugherty or confirm that he would refrain from asking about unpublished information.

In a March 20 affidavit, Daugherty wrote, “If Mark Whitaker had provided me with any information suggesting or tending to the effect that he was guilty of the offenses, I would have included it in the article I wrote about the interview since any such admission would have been highly newsworthy.” 

On March 20, the prosecution and defense agreed to postpone Whitaker’s fraud trial until July so that a discovery order could be entered and a hearing on an unspecified motion scheduled. 

“At the moment, I am not under subpoena,” Daugherty said on March 30. “I believe the special prosecutor will have to subpoena me again if he wants me to testify during [the] new trial.” 

When asked if he intends to subpoena Daugherty again to testify in Whitaker’s trial in July, Commonwealth Attorney Andrew Robbins said it would depend on how the evidence progresses between now and then. 

“Anyone, reporter or anyone else, who takes a statement from a criminal defendant risks being called as a witness,” he told Freedom of the Press Foundation.  

Although Daugherty has extensively covered the case since Whitaker was first indicted in April 2017, he would not have been able to report on the trial if the subpoena had proceeded.

"It would have prevented me from covering the trial, both ethically and physically," he said. "As a witness, I would have probably been barred from the courtroom until it was my time to testify. We probably would have had to have another reporter cover the trial… a reporter who knew the basics of the case, but not all of the details.” 

“Without even getting to the stress a subpoena places on the relationship between a reporter and his sources, getting [subpoenaed] can effectively prevent a reporter from doing his or her job,” he added. “If you can't enter a courtroom, you can't cover a trial.”