Bisbee Blogger Battles County Attorney’s Push to Unpublish Grand Jury Transcript

David Morgan of the Cochise County Record publishes "serious local news." Sometimes, it gets him in trouble.
David Morgan of the Cochise County Record publishes "serious local news." Sometimes, it gets him in trouble. Stephen Lemons
Cochise County newshound David Morgan has fought the law, and so far, he’s won.

Since 2017, acting as his own attorney, the 69-year-old owner of the currently inactive Cochise County Record website has thwarted attempts by County Attorney Brian McIntyre to force Morgan to unpublish a grand jury transcript pertaining to a local homicide on Morgan’s Facebook page, “Cochise County Courts, Crime, Jail, Justice & Politics.”

Morgan won round one on March 2, 2018, when Superior Court Judge Thomas Fink (a Santa Cruz County judge who was in Bisbee for this specific case) denied McIntyre’s request for a preliminary injunction ordering Morgan to take down links to the full, unredacted transcript, which the feisty publisher appended to an October 8, 2017, news article critical of the county attorney’s office.

McIntyre also wanted the court to order Morgan “not to post any other materials like those at issue in these proceedings.”

But Fink shot down the county attorney, ruling that Morgan had obtained the transcript legally and that his right to publish it is “core First Amendment speech.” McIntyre has appealed, arguing that by disseminating the document, Morgan is in violation of both Arizona law and the larger principle of grand jury secrecy that prosecutors rely upon in bringing indictments.

The Arizona Court of Appeals has accepted the case, and Morgan, who has no legal training, is again representing himself. But this time, he has allies: specifically, the American Civil Liberties Union of Arizona and the First Amendment Clinic at Arizona State University’s Sandra Day O’Connor College of Law.

Jointly, these two entities have filed an amicus brief in support of Morgan on behalf of the ACLU, the Society of Professional Journalists, and the Reporters’ Committee for Freedom of the Press. The brief argues that a “takedown order” of the kind McIntyre is seeking would violate both the First Amendment and the Arizona Constitution’s free speech provisions.

In a recent interview with Phoenix New Times, Morgan, a self-described “news guy,” whose muckraking Facebook page boasts more than 10,000 followers, seemed astonished that his defiance of the county attorney’s office had reached such legal heights.

“Truthfully, I didn’t know how big a fight this would be,” he explained. “Though I knew it would cause some turmoil.”

Morgan has asked the appeals court to hear oral arguments, but it has yet to respond, and the court could decide to rule from the pleadings in the case.

New Times contacted McIntyre’s office for this story and emailed questions to him, but he did not reply.

Unsurprisingly, this isn’t Morgan’s first tussle with Cochise County’s power brokers. Morgan, an affable but sad-eyed man, lives a stone’s throw away from the Bisbee courthouse, where he obsessively observes trials of note and takes to vexing Cochise County’s legal community like a gluttonous horsefly to a gelding’s backside.

His most infamous journalistic act to date was his decision to publish crime scene photos from the single-vehicle, drunk driving crash that killed Cochise County Sheriff Larry Dever in 2012. Dever’s autopsy revealed that his blood-alcohol level had been .29 at the time of the accident, more than three times Arizona’s legal limit.

Morgan published photos showing open containers of alcohol at the crash site and one photo of Dever’s corpse from behind, his body slumped over in the Chevy pickup he’d been driving on a dirt road at an estimated speed of 62 mph when the truck flipped.

Outrage over Morgan’s publication of these pics was one reason the State Legislature changed Arizona’s public records law in 2014 that requires the withholding of medical examiner photos from public records requests unless a court orders them released. However, the photos of Dever at the crash scene were from the sheriff’s office report, not the medical examiner's office.

He picked the photos to illustrate that Cochise County’s “white hat sheriff” was no angel.

Part of McIntyre’s appeal rests on another Arizona statute that bars the release of any image of a victim by a law enforcement agency.

That’s because one of the exhibits attached to the grand jury transcript at issue is of murder victim Jose “JD” Daniel Arvizu. Roger Wilson, a Sierra Vista man, stands accused of Arvizu’s 2017 shooting death. The photo is of a deceased Arvizu on a gurney, a shotgun wound on his side.

McIntyre’s office contends that Morgan is in violation of this statute as well as yet another that prohibits the release of grand juror names, since a list of the grand jurors involved is part of the transcript.

However, neither of these statutes is criminal, and Judge Fink stated in his March 2018 ruling that these laws generally apply to the keeper of records, not to a person who legally obtains those records.

Instead, the main legal battle is over the interpretation of Arizona’s grand jury secrecy statute, a Class One misdemeanor, with a potential punishment of six months in the slammer.

The law states that unlawful grand jury disclosure occurs when a person “knowingly discloses to another the nature or substance of any grand jury testimony or any decision, result or other matter” regarding a grand jury proceeding.

Regular readers of the Phoenix New Times will recall that it was this same statute that the founders of the paper, Michael Lacey and Jim Larkin, were accused of transgressing after they were arrested in 2007 by Maricopa County sheriff’s deputies for publishing a cover story revealing the existence of grand jury subpoenas seeking information on New Times’ online readership. Charges were dropped less than 24 hours later, and the pair sued the county, eventually scoring a $3.75 million settlement that they donated to various Latino groups.

Morgan says he opted to publish the entire document because it supported the arguments of Tucson defense attorney David Wilkison, who was representing Wilson at the time, and who claimed in his remand motion that the county attorney’s office had “cherry-picked” information presented to the grand jury.

“Without the transcript, all I’ve got is a story that says the county attorney’s office is screwing up,” said Morgan. “With the transcript, you can read the story, Wilkison’s motion to remand and the transcript, and realize he’s right.”

Before Fink's ruling in 2018, and following a two-day hearing in Bisbee where Morgan testified and cross-examined witnesses on his own, Judge Fink found that Morgan had obtained the grand jury transcript legally when Wilkison emailed it to him.

Wilkison testified that he did know Morgan was a reporter, but he didn’t know Morgan was going to publish the document. The lawyer said he sent the transcript to Morgan because Morgan had promised to give it to the defendant, with whom Morgan was friendly.

Fink said no law prevented Wilkison from sharing the transcript with his client or with Morgan.

“The toothpaste is out of the tube, and there is no way to claw it back,” Fink told the county attorney.

The First Amendment protects Morgan, Fink said. It was up to the county attorney to keep such documents under wraps. If necessary, this could be done in the future by having defense lawyers sign nondisclosure agreements that would limit who sees the transcript, he noted.

Fink added that if he interpreted the grand jury statute to apply to Morgan, as the county attorney wished, it potentially could apply to anyone who saw or linked to the transcript, which by now could be 100,000 people or more.

Neither Morgan nor the ACLU amicus brief argues that Arizona’s grand jury secrecy law is unconstitutional.

Gregg Leslie, executive director of the ASU law school’s First Amendment Clinic, told New Times that there are good reasons that grand juries must operate in secret, but these do not trump the First Amendment.

“The U.S. Supreme Court has held that once information is out there, a journalist has a right to publish it without being subject to an automatic restraint on publication,” Leslie said.

In First Amendment law, such a restriction is referred to as “prior restraint.” The most famous case involving prior restraint was the so-called Pentagon Papers case, the subject of the 2017 film, The Post, starring Tom Hanks as the Washington Post’s irascible, Watergate-era editor, Ben Bradlee. The film tells how the Post came to publish excerpts of the Pentagon Papers, a secret history of the Vietnam War, and the 1971 U.S. Supreme Court case that inevitably resulted.

At one point in the film, Hanks’ Bradlee growls, “The only way to assert the right to publish is to publish.”

It’s a motto that Morgan certainly has put into practice in Cochise County, a benighted patch of southeastern Arizona with 130,000 souls and little in the way of news coverage.

Just as he was prior to the 2018 hearing where he whupped McIntyre, Morgan is unusually confident of victory before the appeals court judges.

“I can’t imagine how they could not rule in my favor,” he said.
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Stephen is a former staff writer and columnist at Phoenix New Times.
Contact: Stephen Lemons