The Austin American-Statesman
Austin American-Statesman (Texas)
November 3, 1999, Wednesday
SECTION: Metro/State; Pg. B4
LENGTH: 501 words
HEADLINE: Jasper trial judge finds TV producer in contempt again
BYLINE: Bryson Hull
BODY:
JASPER -- A judge again ordered a CBS News producer jailed Tuesday after finding her in contempt for failing to hand over videotape outtakes of an interview with Shawn Allen Berry, who is accused of murder in the dragging death of James Byrd Jr.
State District Judge Joe Bob Golden postponed the effective date of his ruling until after Thursday, when an appellate court considers an earlier contempt ruling against CBS producer Mary Mapes.
It was the second time in five days that Golden ha d ordered the producer jailed for not turning over materials related to the Berry interview.
Mapes' attorneys argued unsuccessfully that she never had possession or control of the videotapes of an interview between anchor Dan Rather and Berry, which aired Sept. 28 on "60 Minutes II."
"You could relieve yourself of ever having to come back to Jasper if your employers would let go of what they seem to have some kind of grip on," Golden told Mapes.
On Friday, Golden held Mapes in contempt for failing to produce a transcript of the complete interview, which she testified she had at her Dallas home. The 9th Texas Court of Appeals issued a temporary stay to that order, pending arguments from both sides on Thursday.
Charles Babcock, Mapes' attorney, said he was considering a second appeal to the Beaumont appeals court on the videotape issue.
"The issue today was whether or not . . . under Texas law she can be held in contempt for failing to produce something she does not have and has never had. I think the law is clear," Babcock said.
Jasper County District Attorney Guy James Gray characterized Mapes' testimony Tuesday and last week as evasive.
"There is absolutely no doubt there has been a clear pattern of contempt for this trial, for Jasper County and for this particular court," Gray said.
The Mapes issue has taken center stage in the Berry trial. Jury selection continued Tuesday, and testimony is expected to begin next week.
Prosecutors want to compare Berry's statements to Rather with others he gave during the investigation into Byrd's death on June 7, 1998 . Mapes' attorneys have argued that compelling the network to provide unaired material violates First Amendment protections for the media and could compromise journalists' ability to report the news. They have also accused the prosecution of "fishing" for evidence.
Gray countered that jurors should be able to hear the interviews when deciding between life and death for Berry.
"This is a question of character, of what's right and wrong. This is a capital murder case. It's as serious as a heart attack, and everybody ought to try and do what is right," Gray said.
Berry is the third and final defendant charged with Byrd's murder. Berry's co-defendants, John W. King and Lawrence Brewer, were convicted and given death sentences in separate trials earlier this year. All three are white, and Byrd, 49, was black.
If convicted, Berry faces either a life sentence or death by injection.
The Associated Press State & Local Wire
October 25, 1999, Monday, AM cycle
SECTION: State and Regional
LENGTH: 499 words
HEADLINE: Prosecutors subpoena CBS interview tapes
BYLINE: By C. BRYSON HULL, Associated Press Writer
DATELINE: JASPER, Texas
BODY:
Lawyers for the producer of a "60 Minutes II" interview with dragging death defendant Shawn Allen Berry on Monday fought a prosecution subpoena demanding copies of the segment, including the unedited outtakes.
A pretrial hearing over the subpoena followed the start of jury selection in Berry's capital murder trial for the June 7, 1998, killing of James Byrd Jr.
Berry, 24, is the third white man charged with beating Byrd before chaining him to the bumper of a pickup truck and dragging him to his death over three miles of bumpy country road. The other co-defendants, avowed white supremacists John William King, 24, and Lawrence Russell Brewer, 32, have already been convicted and sentenced to death.
In the 18-minute broadcast, aired on Sept. 28, Berry told CBS anchor Dan Rather his version of Byrd's killing.
Berry admitted being out on the logging road where Byrd was chained to the bumper of Berry's pickup truck, but said he was unable to stop King and Brewer from beating Byrd, 49. He stopped when King threatened him.
"I wish I'd been able to help him," he said of Byrd. "I wish I wouldn't have chickened out."
Prosecutors want all of the tape from the three-hour interview, at which producer Mary Mapes was present along with Rather and Berry.
At the pretrial hearing, Lawyers for Ms. Mapes branded the subpoena a "fishing expedition," which they said violates the First Amendment and the reporter's privilege to protect his or her work product. The prosecution also erred procedurally, Ms. Mapes' lawyer said.
"It was served on the wrong party, with respect to the tapes," said Mike Raiff. "Ms. Mapes does not have custody or control of the tapes."
Raiff called the prosecution's subpoena an attempt to circumvent the legal necessity of serving the subpoena on CBS News at its headquarters in New York City.
Brit Featherston, an assistant United States Attorney working with state prosecutors, said Ms. Mapes had custody of the tapes when she left Jasper, and it was therefore correct to serve her.
"She is not merely a custodian of the records, she is a material eyewitness to statement by the defendant," Featherston said. "This is purely an obstruction of justice on the part of CBS."
Featherston said the state wants the unedited tape because the broadcast version has portions where Rather repeats or paraphrases Berry's statements, and that is hearsay and therefore inadmissible at trial.
"The other goal is to make sure the questions and answers are flowing as they actually occurred in the interview," he said.
Jasper County District Attorney Guy James Gray told potential jurors today that Berry has given differing versions of the crime to authorities and to reporters.
Ms. Mapes, though subpoenaed, was not present at the hearing. Raiff said she "took a wrong turn," on her way to Jasper.
State District Judge Joe Bob Golden ordered her to appear Friday at 8 a.m. with copies of the outtakes in her possession. Golden said he will rule then.
LOAD-DATE: October 25, 1999