AG backs off subpoenas over inmates' allegations

Chad Livengood
Detroit News Lansing Bureau

Lansing — Attorney General Bill Schuette's office ordered and then withdrew three subpoenas of journalists reporting on a juvenile prisoner abuse lawsuit against the state, including one seeking a reporter's notes from interviewing inmates inside two state prisons.

The sudden about-face Monday came after Schuette's office was at the center of a brief firestorm of criticism on social media following Huffington Post reporter Dana Liebelson's disclosure of how she was served two subpoenas last week for handwritten notes obtained "during a reporting trip on juvenile prison conditions."

Schuette's office also withdrew a separate subpoena issued Monday to Michigan Radio that demanded the public radio station turn over copies of "complete and unedited" audio and video recordings of a March 3 interview of an Ann Arbor attorney representing inmates who are suing the state for alleged sexual and physical abuse sustained as juveniles.

All three subpoenas were related to an ongoing class-action lawsuit that seven unnamed inmates have brought against the Michigan Department of Corrections over allegations that state officials failed to protect male teenage inmates from sexual and physical abuse by adult prisoners and guards.

The subpoenas to journalists are "quite uncommon" and may draw more attention to the lawsuit, said Peter Henning, a Wayne State University law professor.

"I'm a little baffled as to what they hope to get out of it," said Henning, a former federal prosecutor.

"It's not clear what information the journalist would have that's not already available through the normal litigation process, especially if these are plaintiffs," he said. "They are subject to being deposed."

Schuette spokeswoman Andrea Bitely said a civil service attorney with the Attorney General's Office "followed a common legal procedure of subpoenaing information from individuals entering Michigan prisons to speak to prisoners who are suing state taxpayers."

"However, after further review, Attorney General Schuette has determined that information necessary to defending the state of Michigan can be obtained in other ways and will direct department attorneys to withdraw the subpoenas," Bitely said in a statement.

Deborah LaBelle, the lead attorney in the prisoner abuse lawsuit, said the subpoenas of journalists mirror the state's other legal tactics to derail her year-old lawsuit.

"They've taken scorched-earth tactics on this case," said LaBelle, citing more than a dozen appeals by Schuette's office. "This seems a little bit beyond the pale and I don't think it was appropriate."

High court intervenes

The Michigan Supreme Court intervened in the lawsuit late last week, freezing proceedings until the Court of Appeals determines whether the case can proceed as a class-action lawsuit, possibly affecting hundreds of people.

Inmates, mostly ages 16 or 17, say they were forced to engage in sex acts with adult prisoners and staff. The alleged incidents occurred over a three-year period before all males younger than 18 were assigned to a prison in Lapeer, away from adult inmates, in August 2013. The department denies allegations that it looked the other way.

A Washtenaw County judge hearing the case has made several favorable decisions for the inmates, including a class-action certification last fall. A state attorney called the judge's ruling an "overbroad and ill-defined class."

"One sentence — with no analysis — answering this monumental issue. This decision cannot stand," wrote Assistant Solicitor General Ann Sherman, representing the Department of Corrections.

Sherman said there are a "handful of isolated tort claims attempting to shoehorn themselves" into civil rights claims.

In a unanimous order Friday, the Supreme Court told the appeals court to take the state's appeal.

2 subpoenas served

Liebelson, a Washington, D.C.-based political reporter with the liberal-leaning Huffington Post news website, announced on her Twitter account Monday morning that she was served two subpoenas.

One subpoena, which Liebelson provided to The Detroit News, demanded she turn over her "interview notes" and any other records given to her by representatives of the inmates she interviewed.

Liebelson was authorized to interview two inmates Thursday at the Michigan Reformatory Prison in Ionia and another inmate Friday at the Thumb Correctional Facility in Lapeer, said Chris Gautz, Department of Corrections spokesman.

Liebelson said her first interview at the Ionia prison with an inmate and his attorney was interrupted by an agent of the Attorney General's Office, who pulled her out of an open-air visiting room to serve her a subpoena.

The same agent was waiting for Liebelson the next day at the juvenile prison in Lapeer to serve the second subpoena, which Liebelson said was "intimidating."

"He didn't really provide me an explanation," Liebelson told The News. "I'm worried if my notes are obtained, they'll be used by state officials against the inmates that I was speaking with."

Gautz referred all questions about the subpoenas to Schuette's office.

Move called 'intimidating'

The two inmates Liebelson interviewed are among seven John Does listed in the December 2013 lawsuit against the department and the state of Michigan, according to LaBelle of Ann Arbor.

LaBelle said attorneys from her office were with their clients when the representative from the Attorney General's Office showed up at both prisons. "I've never seen them pull a reporter out of the visiting room in such an intimidating matter, both to my client and the reporter," LaBelle said.

The subpoena for Michigan Radio's audio recording was for an interview LaBelle did with host Cynthia Canty, host of the "Stateside" program, on March 3. That subpoena, which the radio station received Monday morning, was withdrawn by day's end, Bitely said.

"We were surprised to get the subpoena just in that it came completely out of the blue," said Vincent Duffy, news director of Michigan Radio. "We didn't think this interview would result in a subpoena."

No additional subpoenas "related to this lawsuit" were issued to journalists, Bitely said.

Corrections officials routinely allow reporters to interview prisoners, though journalists are not allowed to use audio or video recording devices, Gautz said.

Most journalists interview inmates in the same meeting room where families visit their incarcerated loved ones.

"Prisoners have every right to talk to reporters," Gautz said. "We have a very open door policy."

Associated Press contributed.