In re Thompson

309 A.3d 51

260 Md.App. 286

IN RE: Interstate Subpoena for Jamie Leigh THOMPSON

No. 1545, Sept. Term, 2023

Appellate Court of Maryland.

January 31, 2024

Circuit Court for Montgomery County, Case No. C-15-CV-23-003039, James A. Bonifant, Judge.

Argued by Lin Weeks (Lisa Zycherman, Reporters Committee for Freedom of the Press, Washington, DC, on brief), for Appellant

Argued by Cristin Treaster, Asst. Atty. Gen. (Anthony G. Brown, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Appellee

Argued Beforer: Nazarian, Arthur, James R. Eyler (Senior Judge, Specially Assigned), J J.^*

Arthur, J.

This is an expedited appeal from an order compelling Jamie Leigh Thompson, a journalist who currently resides in Maryland, to attend and testify at a criminal trial in Dallas, Texas. We heard oral argument on January 8, 2024. On the following day, we issued an order affirming the judgment of the circuit court and the mandate. This opinion explains the reasons for our ruling.

Background

Jamie Leigh Thompson has been working as a journalist since 1997. Although her reporting has covered a wide array of topics, a major focus of her work has been crime and law enforcement. Before moving to Maryland in 2018, Thompson lived in Dallas, Texas, where she worked as a contributing editor for D Magazine, a monthly publication in the Dallas-Fort Worth area. In addition, she taught journalism at the University of Dallas.

In the fall of 2016, while she was living and working in Texas, Thompson began reporting on the criminal investigation of the murder of Ira Tobolowsky, a Dallas lawyer who was doused with gasoline and set on fire as he was getting into his car to go to work on, the morning of May 13, 2016. While writing the article, Thompson communicated with Steven Aubrey, a suspect in Ira Tobolowsky’s death. Tobolowsky had represented Aubrey’s mother in a series of highly contentious lawsuits that Aubrey brought against her.

On May 1, 2017, D Magazine published Thompson’s article, which was titled "A Place Where Something Evil Happened." The article contains the following passage:

Aubrey declined an interview for this story but did respond to questions over email. "[Dallas Police Detective] Ermatinger is a lying sack of shit," he wrote. Aubrey says his arms were not red when detectives picked him up.¹ Heoffered a list of Ira’s adversaries, asking why those people were never pursued by police. His only connection to Ira, Aubrey says, was a string of lawsuits—just words, no threats. As for the emails to his mother, he says he only threatened to expose her behavior. "I did not say I would physically harm her or anybody," Aubrey wrote. Aubrey says he was not hiding from police after the fire, that he was at the second apartment, and he says the equipment that police found—the drill, plumbing supplies, gas containers—was left over from when he did maintenance on his house in Austin.

"I did not kill Ira, nor do I know who did," Aubrey wrote.²

This is the only passage in Thompson’s article that quotes Aubrey or refers to her communications with him.

After the publication of the article, Tobolowsky’s son, Michael, asked Thompson for all of her email communications with Aubrey. Thompson responded that her practice was to destroy all materials for a piece after its completion. Michael Tobolowsky asked if he could have all of the emails from Aubrey. Thompson gave him a "number of" Aubrey’s emails.

On or about April 27, 2022, the State of Texas initiated an arrest warrant against Aubrey for the murder of Ira Tobolowsky. The affidavit that accompanied the arrest warrant stated:

Also on May 19th, 2016, the Tobolowsky family found a hole drilled in their fence on the back of the property. The hole was drilled then painted over to look like a natural knot in the wood. The hole was in a location that someone could look from the alley and have a direct line of sight at the Tobolowsky garage. The location of the hole was in close proximity, to the gate where you could gain access to the backyard and garage. It is believed the hole was created to watch Mr. Tobolowsky and learn his daily routine. The height of the hole was never released.

* * *

Det. Filingim discovered an email thread between Suspect Aubrey and the author of the D Magazine article, Jamie Thompson, while she was gathering information for her story. During the exchange, Suspect Aubrey made a reference to the height of the hole in the fence. Suspect Aubrey was familiar with the height even though it had never been released publicly in any form.

On July 27, 2023, Thompson received an email from an Assistant District Attorney for Dallas County, Texas, asking if, she would agree to testify at trial in State of Texas v. Aubrey. Thompson declined to testify.

Under the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, which has been enacted in every American state, as well as the District of Columbia and the U.S. Virgin Islands,³ a state may obtain the testimony of an out-of-state witness. To obtain the testimony, a judge in the court in which the prosecution is pending must certify under seal that a criminal prosecution is pending in that court, that the out-of-state witness is a material witness in the prosecution, and that the witness’s presence will be required for a specified number of days. Md. Code (1974, 2020 Repl. Vol.), § 9-302(a) of the Courts & Judicial Proceedings Article ("CJP").

Upon the presentation of this certificate to a judge of a court of record in the county in which the witness is found, that judge must schedule a hearing and must order the witness to appear for the hearing. Id. If the judge "determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify" in the proceeding in the other state, "and that the laws of the state in which the prosecution is pending … and of any other state through which the witness may be required to pass by ordinary course of travel, will give to the witness protection from arrest and the service of civil and criminal process," the judge must "issue ,a summons, with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending[.]" CJP § 9-302(b).

On August 3, 2023, Judge Hector Garza of the 195th District Court in Dallas County, Texas, issued a certificate to secure Thompson’s presence at Aubrey’s criminal trial, which was scheduled to begin on September 26, 2023. The certificate asserted that Thompson had given some of the emails that she had exchanged with Aubrey to Michael Tobolowsky and that Michael Tobolowsky had given those emails to the State of Texas. The certificate also asserted that the State of Texas intended to offer the emails as evidence at Aubrey’s trial. According to the certificate, Thompson’s appearance and testimony were "necessary to authenticate the messages and to fill in the gaps that might exist." The certificate went on to assert that the testimony sought from Thompson "was not available from other sources" and was "central to the prosecution of this matter." The certificate added that Thompson’s attendance and testimony would "not cause undue hardship" to her; that the laws of the State of Texas protected her from arrest or service of civil or criminal process arising from any acts committed before she entered the state; and that Texas would arrange and pay for her travel, meals, and lodging expenses.

On August 8, 2023, the State’s Attorney for Montgomery County filed a petition with the Circuit Court for Montgomery County on behalf of the State of Texas. In accordance with the Uniform Act, the petition requested an order summoning Thompson to appear and testify at Aubrey’s criminal trial, which was scheduled to begin in Dallas on September 26, 2023. The certificate from the Texas court supported the petition.

On August 28, 2023, Thompson filed an opposition to the petition.

On September 7, 2023, the Circuit Court for Montgomery County held a hearing regarding the request for the order directing Thompson to testify in the Texas trial, At the hearing, Thompson argued that, before compelling her to attend and testify at the trial in Texas, the court should determine whether she had a privilege not to testify under the Maryland or Texas press shield law. Following this Court’s decision in In re State of California for the County of Los Angeles, Grand Jury Investigation, 57 Md. App. 804, 471 A.2d 1141 (1984) ("L.A. Grand Jury"), the circuit court ruled that Thompson must present her privilege claims to the Texas court. Accordingly, the court issued an order compelling Thompson to appear and testify at the trial in Texas v. Aubrey, beginning September 26, 2023.⁴

On October 6, 2023, Thompson noted an appeal. On October 21, 2023, the parties agreed to file a joint notice of expedited appeal, pursuant to Maryland Rule 8-207(b).

Meanwhile, in late September 2023, the trial in Texas v. Aubrey was postponed until January 29, 2024. On October 20, 2023, the State’s Attorney for Montgomery County filed a new petition for an order summoning Thompson to appear and testify on the new trial date. The petition was accompanied by another certificate and motion from Texas.

On January 9, 2024, after oral argument in this case but before this Court had issued the mandate affirming the judgment, the circuit court compelled Thompson to appear and testify at the trial in Texas v. Aubrey, beginning January 29, 2024.

This Court affirmed the judgment on January 9, 2024. On that same day, the mandate was issued.

Three days later, on January 12, 2024, the State of Texas moved to dismiss the criminal case against Aubrey "for further investigation." The motion stated that the prosecution was "unable to make a prima facie case at this time." The Texas court granted the motion on that same day.

Question Presented

Thompson raises a single issue on appeal: "Whether the...