Utah prosecutor wants ABC reporter to testify in skull-drilling case

Thursday, October 5, 2000

A Utah prosecutor has urged a state judge to force an ABC News
reporter to testify about a unique New Age skull-drilling technique he
witnessed while filming a news story.

Iron County Attorney Scott Burns, in a hearing Oct. 2 before the 5th
District Court in Parawon, told Judge Philip Eves that he needed ABC’s Chris
Cuomo to testify because he was the only definitive witness to the procedure.
Burns has also demanded the raw footage from the broadcast.

Eves said he plans to rule on the motion soon. A trial is scheduled
for Jan. 17.

Two men, Peter Evan Halverson and William E. Lyons, face charges of
practicing medicine without a license after authorities caught their
demonstration of trepanation — a procedure where a hole is drilled into a
person’s head — on the national television show “20/20.” Their attorneys
explained in preliminary hearings that the program only showed a dramatization
of trepanation, and so, they claim, no crime was committed.

But the key evidence in the case, the footage from the “20/20″ story,
showed the surgery with a superimposed, blurry dot over the women’s head,
making it difficult for viewers to determine if the two men actually drilled
into her head.

Burns did not return calls this week seeking comment. Both Steve
Kuhnhausen, attorney for defendant Halverson, and Ken Yates, a Salt Lake City
attorney who is representing ABC News, declined to comment about the case or
the videotape.

But in court, Yates said that Iron County law enforcement officers had
not exhausted efforts to find other witnesses to any alleged crime. Yates said
compelling Cuomo to testify before such a search had been completed amounted to
pushing the First Amendment aside.

Press experts agree.

“Certainly they should not turn over the unbroadcast tape without
putting up one hell of a fight,” said Lucy Dalglish, executive director of the
Reporters Committee for the Freedom of the Press. “We would advocate that they
would take it up to the wall.”

Jane Kirtley, a professor at the University of Minnesota School of
Journalism and Mass Communication, said Utah doesn’t have a shield law and has
a short history of cases, all in federal court, where reporters were granted
privilege. But she said that doesn’t mean prosecutors should seek the work of
reporters for evidence.

“My argument is that it isn’t up to the media to build the case for
them,” Kirtley said.

But reporters aren’t completely exempt from testifying. The U.S.
Supreme Court in its 1972 decision in Branzburg v.
said that the First Amendment does not exempt reporters
from “performing the citizen’s normal duty of appearing and furnishing
information relevant to the grand jury’s task.”

The high court rejected the claim from a Kentucky reporter who had
unveiled a drug-making operation that the flow of information available to the
press would be seriously curtailed if reporters were forced to release the
names of confidential sources for use in a government investigation.

But Kirtley and Dalglish said the prosecutors haven’t exhausted all
avenues of investigation in this case, which doesn’t appear to have a real
victim. In a statement to the court, the woman said she drilled into her own

“A case like this can be a dangerous threat on journalists’
independence,” Dalglish said. “It turns journalists into agents of the state
and that’s a situation as a journalist you want to avoid at all costs.”

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