For starters, kudos to Jason Anderson for landing Katina Powell’s attorney on yesterday’s show. Anderson is a pro, and his questions were both insightful and challenging. While Larry Wilder is to be commended for putting his client in the best light possible, his interview left me with a couple of questions.
When Wilder was pressed about why he chose to take Katina Powell to Bristol, CT and then on to “The View”. For the most part I thought Wilder’s answers were plausible, if not completely believable. The folks in Connecticut would get the story out, the Louisville media would not… Blah, blah, blah. Here was the interesting part; when Jason asked about Powell giving Carte’ Blanche to ESPN’s Outside the Lines, Wilder leaned on journalistic privilege, in his answer. This, in my opinion, was a failing argument.
Journalistic Immunity
First, in Kentucky there is a “shield law” which grants journalist some layer of protection from revealing their sources. The statute is KRS 421.100 and it states as follows:
Sec. 421.100. Newspaper, radio or television broadcasting station personnel need not disclose source of information
“No person shall be compelled to disclose in any legal proceeding or trial before any court, or before any grand or petit jury, or before the presiding officer of any tribunal, or his agent or agents, or before the general assembly, or any committee thereof, or before any city or county legislative body, or any committee thereof, or elsewhere, the source of any information procured or obtained by him, and published in a newspaper or by a radio or television broadcasting station by which he is engaged or employed, or with which he is connected.”
What is of importance is that the only thing the journalist is protected from revealing is his or her source. Not the information itself. In this case, we all know who the source is, (Katina Powell) it is the information that everyone is after. Dick Cady isn’t protected by this statute, ESPN is not protected by it, nor would anyone else in a journalistic endeavor be protected by this statute. If these journalists have evidence of criminal activity in their possession, then they can be compelled to produce it.
(An example of the shield statute would be with respect to the anonymous players who have come forward… Their identity cannot be compelled, but there information can be.)
So the answer makes no sense legally speaking. Which, is understandable from fans, lay people, media and the like, but it makes no sense coming from Powell’s lawyer.
The next thing that jumped out to me as being inconsistent was this; if you are going to lean on some journalistic privilege, that doesn’t really exist, why only share the evidence with the national media? Wouldn’t the local media enjoy the same journalistic privileges? Wilder wasn’t directly pressed on that portion of his client’s disclosure and that was what I really wanted to hear. It may be understandable to get the story out, and to attempt to sell books on a broader stage, but now, with all the dust settling, why not open up the records to the local media?
One can only assume that local media, the NCAA and the University of Louisville’s investigators may have some more hard hitting questions about the allegations in Powell’s book and the “proof” that she has put forth. For his part, Wilder has indicated that his client will not provide any additional information without the grant of immunity from all prosecution. As Mark Blankenbaker indicated in his earlier post, that is never going to happen.
Criminal Immunity
Grants of immunity in criminal prosecutions are rare. Although prosecutors will sometimes enter into agreements with co-defendants or jail house snitches, it is almost always in exchange for a reduced sentence on a charge that is already pending. In this case, Powell is not asking for a reduced charge. She is asking for no charges. By the way, she wants complete immunity from any and all criminal activity engaged in surrounding the events detailed in her book. Lastly, she wants it from everyone who may have the ability to prosecute her.
This demand for immunity in exchange for cooperation with the NCAA and the University of Louisville is ridiculous on a couple of levels. First, immunity isn’t offered in exchange for cooperation with a non-governmental investigation such as the NCAA. Second, the NCAA and U of L aren’t in a position to encourage or discourage such offers in the first place. There are two entities that would need to be consulted, and who would have to sign off on such a deal. For charges at the state level, Powell would look to the Commonwealth Attorney’s office. In this case, Tom Wine’s office. At the federal level, it would be the U.S. Attorney’s Office. Neither have addressed the issue publicly, but I for one cannot see either of them granting such a request. It is important to note that there are literally thousands of charges that the government has at its disposal. Charges concerning tax evasion, prostitution, human trafficking, are just the tip of the iceberg. To write Katina Powell a “blank check” on any criminal activity she was involved in so the NCAA can determine if any rules were broken by a basketball team would be horrific public policy.
Civil Immunity
The question was posed about civil immunity from law suit. This would not apply. There are statutory schemes which allow for immunity from civil suit. (Sovereign Immunity, where you cannot sue the government comes to mind.) However, there is no immunity available for Powell, or IBJ for publication of information if it turns out that the information is untrue. The only person who could extend any lenience toward Powell would be the defamed party. (McGee, Russ Smith, etc…) Folks may choose not to pursue a civil action against Powell, but it won’t be an immunity reason.
Conclusion
Upon hearing from Wilder, it is apparent that Powell will not cooperate further with NCAA or U of L investigators. The lingering question remains then, what will the fall out of this entire fiasco be? I am on record as saying I don’t believe criminal charges will be brought in this matter. I’m not really certain that a viable civil case will be brought either. It appears there may be enough truth in the book to make it impossible to differentiate the truth from the fiction. In the end, we will await a flawed outcome to a flawed story, with very flawed participants on all sides. I take this opportunity today to disagree with John Ramsey. “It is NOT a great day to be a Cardinal” but it WILL BE AGAIN, the only question is when.
Keith Poynter
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