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The Pennsylvania Supreme Court has agreed to hear a case regarding whether an interest in protecting the confidentiality of the grand jury process outweighs a journalist’s right not to disclose sources under state Shield Laws. The court granted allocatur Wednesday in Castellani and Corcoran v. The Scranton Times. Randall A. Castellani and Joseph J. Corcoran, Democratic majority commissioners in Lackawanna County, sued then-named The Scranton Times and one of its reporters for defamation after an article in the paper alleged that the pair was “considerably less than cooperative” during grand jury testimony in another case, according to court papers. The article cited an unnamed source, and after a court investigation into the leak did not produce a source name, Castellani and Corcoran filed a defamation suit. The latest ruling in the case by the Superior Court had overturned Lackawanna County Common Pleas Judge Robert A. Mazzoni’s ruling in favor of Castellani and Corcoran. In a June 2005 opinion, Mazzoni argued that although the Pennsylvania Shield Law contains virtually no exceptions, “the public interest is better served by maintaining and enforcing the secret and confidential operation of the grand jury system.” The Superior Court said, however, that only the General Assembly could carve out such an exception. Stephen R. Kurens of Sprague & Sprague represents Castellani and Corcoran, and said the court has agreed to address an issue that he doesn’t think has been ruled on anywhere in the country. Castellani and Corcoran’s argument, Kurens said, will focus on the fact that the paper and the reporter are trying to “get a degree of privilege” that does not exist in any other profession. W. Thomas McGough Jr. of Reed Smith in Pittsburgh represents The Times-Tribune – the current name of The Scranton Times – and he said he wasn’t surprised that the case was granted allocatur. “It’s an issue that’s been in the headlines a lot lately, and therefore was likely from the get-go to grab their attention,” McGough said of the Supreme Court’s interest in the case. While he said he understands the trial court’s frustration in the leak of grand jury testimony, McGough said the statute is clear that a reporter cannot be required to divulge a source. The Superior Court noted that the only relevant exception to the Shield Law – enunciated by the state Supreme Court in its 1987 decision in Hatchard v. Westinghouse Broadcasting Co. – allows media defamation plaintiffs to demand discovery of unpublished information, and even then only if the source is not personally identified. “While we are both mindful of and sympathetic to the concerns of the learned trial court regarding possible criminal violations of the grand jury process vis-�-vis the Shield Law privilege, we, like the trial court, are forbidden from reading into the Shield Law an exception neither enacted by the General Assembly nor found by the Supreme Court as a result of the developing body of law,” Senior Judge Zoran Popovich wrote in the Superior Court opinion. An article that ran in the Times quoted an anonymous source who characterized the commissioners’ testimony before the grand jury as “considerably less than cooperative” and “vague, evasive and less than candid,” according to court documents. The article also quoted the source as saying: “The testimony really irritated the jurors. They were ready to throw them out. After months of hearing all kinds of detailed, specific information and testimony, they just had no tolerance for that kind of crap.” Following an investigation into the leak, a September 2004 report found the assertions in the article did not match the testimony transcripts and found the source must not have been privy to the grand jury proceedings. The commissioners then filed the suit, claiming the assertions must have been false and defamatory. Interpreting state case precedent on the Shield Law, Mazzoni found that the underlying purpose of the statute is to “promote the free flow of information to the media.” Still, he said, the Pennsylvania Supreme Court has regarded “the state interest in grand jury secrecy to be so important as to outweigh other competing constitutional or statutory rights.” When the purpose of the Shield Law “clashes with the need to enforce and protect the foundation of the grand jury purpose, the Shield Law should relinquish its priority,” Mazzoni wrote. “Affording the grand jury process its respect will empower the courts to protect the wide variety of interests that are expected to be safeguarded by the process.” Unlike other cases in which the anonymous source’s identity was protected, Mazzoni reasoned, Castellani does not involve reporter-source communications discussing a crime; rather, the communication itself is the crime. But the Superior Court panel said that even revelations of a crime being committed do not warrant a piercing of the Shield Law. “The fact that a crime may have occurred by virtue of the alleged disclosure of certain grand jury testimony does not necessitate or empower this court to craft a new exception to the Shield Law,” Popovich wrote.

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