Va. prosecutor apologizes for seizing photos from JMU newspaper

A Virginia prosecutor has apologized for obtaining a search warrant and seizing 962 unpublished digital photos from The Breeze, the student newspaper at James Madison University, in April, according to documents released by both sides Tuesday.

Most of the photos were from Springfest, an April 10 block party near campus that attracted thousands of people and erupted into violence. Harrisonburg Commonwealth's Attorney Marsha L. Garst said in a statement that her office and police officers wanted to review the photos to identify more individuals who "were involved in extremely violent attacks on various individuals."

Within hours of the raid, open records advocates and journalism organizations admonished Garst for using a search warrant to obtain the photos from the student paper, instead of following the traditional practice of subpoenaing the photos.

The two disks containing the digital photos have been returned to The Breeze, and the involved law enforcement parties have agreed to reimburse the newspaper $10,000 for legal expenses, according to the settlement agreement. In exchange, The Breeze agreed to post 20 photos on its Web site from eight specific events being investigated by the police and prosecutors.

In a statement Garst apologized "for the fear and concern that I caused the Breeze and its staff. The discussions that have occurred have enhanced my understanding and re-enforced the role of a free press in our democracy." Garst said that in the future, when seeking information and documents from news organizations, including student media, she will do so through the subpoena process.

Breeze Editor-in-Chief Katie Thisdell said in a statement that while the newspaper could sue various officials who were involved, "we have strongly preferred to resolve this matter informally through discussions with the Commonwealth's Attorney."

The settlement ends a month-and-a-half long debate over the photos, which began when someone from the prosecutor's office called the student newspaper a few days after the riot and asked for copies of unpublished photos.

The Breeze staff declined to do so, citing the journalist's privilege under the First Amendment, the Virginia Constitution and common law, according to the settlement. The prosecutor's office also contacted the university's director of judicial affairs and general counsel, who declined to intervene, according to Garst's statement.

The next day, Garst received a search warrant for "all electronic devices" that are "on the premises or possessed or owned or leased or used by 'The Breeze' or by any of its employees, agents or members," so they could obtain photos, videos or other images recorded that weekend, according to a copy of the warrant.

Garst and a number of plainclothes officers then executed the warrant. Again, Thisdell and other newspaper officials stated that the seizure violated laws protecting journalists and their unpublished work. When Garst threatened to take all of the newspaper's equipment, which would prevent them from publishing, Thisdell agreed to help the officers copy 962 images onto two disks.

When controversy broke out over the seizure, Garst agreed to let a third-party hold onto the disks until the matter could be resolved. At that point, law enforcement officials had not reviewed or copied the "sealed disks," according to the settlement. The newspaper's adviser, Professor Roger Soenksen, then took custody of the disks.

On May 3, Garst narrowed her request for images to just eight specific events during Springfest, and notified the newspaper that she would ask for those images through a subpoena.

The newspaper staff consulted their attorney and decided to release 20 photos that a judge might later require them to release. The Breeze agreed to post these photos on their website, where they will be available for all to view.



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