On Wednesday, an attorney for one of the cops charged with lying about the Laquan McDonald shooting dropped his effort to force independent journalist Jamie Kalven to testify in his trial, but held on to the possibility he would call Kalven’s longtime work partner to the stand.
Kalven was the first to report that McDonald was shot 16 times, and the first to report on the existence of a dashcam video that contradicted the dominant police narrative of the shooting. He did so with the help of a confidential tip passed on by University of Chicago law professor Craig Futterman.
Now, Officer Thomas Gaffney, former Officer Joseph Walsh, and ex-Detective David March are charged with obstruction of justice, official misconduct, and conspiracy to commit those offenses. Their trial started Tuesday, and comes about two months after officer Jason Van Dyke was convicted of second-degree murder for the 2014 shooting.
March’s attorney, James McKay, filed a subpoena for Kalven and Futterman. He told the judge Tuesday that he might want to question the two men about their interactions with a witness to the McDonald shooting.
Attorneys for Futterman and Kalven objected, saying forcing them to testify would violate the Illinois Reporters’ Privilege law, which protects journalists from revealing sources.
On Tuesday, Judge Domenica Stephenson put off deciding on whether they would be forced to take the stand. In delaying the decision, Stephenson also ruled that Kalven was still a potential witness, and therefore couldn’t sit in the courtroom during the trial.
Kalven was there Tuesday. Stephenson ordered him to leave, over the objections of Kalven’s attorney Matt Topic.
“He’s here as a reporter to cover this trial, and that order excludes him from doing that,” Topic said to the judge.
“Correct,” Stephenson replied. “Your objection is noted but overruled.”
Topic was planning to file an emergency appeal Wednesday to get Kalven back in the courtroom, but McKay withdrew his subpoena of Kalven, and Kalven was back with the spectators for the second day of trial.
However, McKay said he is persisting in his subpoena of Futterman. He argued Tuesday that Futterman is not a journalist and is not protected by the Illinois law.
Topic responded that even if Futterman is not a reporter by profession, he was committing an act of journalism when he passed the tip on to Kalven.
Beyond that, Topic said Futterman had never had any interactions with the witnesses to the McDonald shooting.
Stephenson will not rule on whether Futterman should be forced to testify until-and-if McKay decides to call him to the stand.
Patrick Smith reports on criminal justice for WBEZ. Follow him @pksmid.