Attorney General Marty Jackley is forcing journalist Dana Ferguson to testify in his prosecution of marijuana entrepreneur Eric Hagen, who goes to trial in Flandreau on May 22. Ferguson’s employer finds the subpoena of its reporter troubling:
“Commanding our reporter to testify in this case is not only troubling but unnecessary,” Argus Leader Media news director Cory Myers said. “There are multiple avenues for the attorney general to get testimony about the tour, including from any of the five elected officials present, without compromising our reporter’s role as a independent observer” [Jonathan Ellis, “State Prosecutor Orders Reporter to Testify in Flandreau Marijuana Case,” that Sioux Falls paper, 2017.05.13]
The five legislators who visited the soon-shuttered tribal marijuana resort at Royal River Casino in October 2015 were Mathew Wollmann, Scott Parsley, Spence Hawley, Elizabeth May, and Paula Hawks. I can understand why the Attorney General would want to keep fatuous intern-boinker Mathew Wollmann off the stand—Republican candidates like Jackley probably don’t want to be seen in any court room, dining room, or motel room with the disgraced former legislator for the next few decades. (Besides, Wollmann told AP in 2015 that the Flandreau tour “kind of blew my mind,” suggesting his memory might be faulty.)
But why not call Parsley, Hawley, Hawks, or May to testify? They are as reliable as witnesses as anyone else on the tour. The Attorney General may not want to give three Democrats or a maverick Republican any time in the spotlight that his Flandreau exertions will draw, but he seems to have plenty of people he could call to court before entangling a journalist in the proceedings.
South Dakota has no journalist shield law stopping law enforcement from demanding that journalists surrender their confidential sources, but our courts have recognized some journalist privilege from testifying. If a South Dakota court can decline to require testimony from a propaganda blogger concerning confidential sources, the judge in the Hagen trial should afford the same privilege to a real reporter like Ferguson.