The SFR v. Gov. Susana Martinez trial began today in state District Court with the governor’s high-powered, contract defense lawyer attacking the credibility of the journalists who filed the lawsuit, suggesting they were not precise, not knowledgable, not prepared and not invested in the profession.
“How long have you been in the journalism racket now?” lawyer Paul Kennedy asked former Santa Fe Reporter staff writer Joey Peters, prompting chuckles in the courtroom. It was the second time Kennedy had used the word "racket."
Kennedy also pushed Peters to reveal where he was storing a recording he made of a brief 2013 phone call with the governor that’s been mentioned in the case. As part of a tense exchange, Peters said he was uncomfortable answering questions about where his notes and recordings are located.
Kennedy jumped in, “I don’t care if you’re uncomfortable. Answer the question.”
Judge Sarah Singleton eventually ruled that SFR's legal team must produce the recording tomorrow, “no matter where you get it from.” She did not compel Peters to reveal where he kept the recording.
During the call, Peters told Martinez that her spokesman wouldn’t reply to his requests for comment. She replied: “I wonder why.” The comment, Peters said, was sarcastic. And it could point to a deliberate stonewalling of SFR.
The governor's recalcitrance and tone in the call signaled to SFR's staff that its increasingly frosty relationship with the Martinez administration — brought on, the newspaper contends in its lawsuit, by critical coverage of the administration — could not be salvaged. So the newspaper filed suit, alleging that the governor had committed serial violations of the New Mexico Inspection of Public Records Act, and that her administration had violated SFR's free expression rights under the state Constitution.
In court Wednesday, Kennedy also successfully fought to exclude an audio recording of Martinez' chief of staff, Keith Gardner, saying he never used his state email because he didn’t want to go to "court or jail."
“I never email on my state email anything that can come back to bite me in the ass," Gardner said in the recorded conversation. "It’s all done off-line. I never — shit, I never use my state email, because — it’s all done on different stuff, ‘cause I don’t want to go to court or jail.”
SFR filed its lawsuit more than three years ago, saying the Governor’s Office blacklisted the paper after SFR covered the Martinez administration’s use of private email.
Current and former SFR journalists testified Wednesday. Gardner and other Martinez staffers, past and present, are expected to take the stand Thursday and Friday.
SFR was known as an investigative newspaper and aimed to get at the “why” behind a story, as opposed to simply covering the news of the day, former editor Alexa Schirtzinger said from the witness stand. The paper’s policy was to always ask for comment on any story that pertained to Gov. Martinez’ administration and officials’ activities. Journalists would ask by phone and by email, she said.
Responses to those requests came consistently through the early part of Schirtzinger's term as editor, even if Martinez' officials got back to journalists with a “no comment.” But then the paper published a year-end cover story in 2012 under the headline “The Year In Closed Government,” emphasizing the hypocrisy of the administration’s secrecy. “Our purpose is to serve the governed, not the governor,” Schirtzinger said in court.
After that article called out Martinez’ campaign-trail promises to run a transparent government, SFR stopped getting any response at all, Schirtzinger testified. “We certainly had the feeling that we were being completely cut off.” This not only contributed to an erosion of the paper’s credibility, but “readers weren’t able to get as full of a story that we wanted to get to them,” Schirtzinger said.
In his cross-examination of Schirtzinger, Kennedy opened by asking “You’re out of the journalism racket now, right?”
“I wouldn’t call it a racket, but yes, I’m out of it,” Schirtzinger replied.
Kennedy asked whether SFR is primarily an arts and culture publication. Schirtzinger replied that it’s a news publication. He asked whether she was sure of its circulation and quizzed her on the population of the larger Santa Fe County.
He also eventually asked whether she had plotted with her staff to trap the governor into noncompliance with the state’s open records law by requesting documents SFR knew existed. She said there were no plots or traps.
Kennedy later asked reporter Justin Horwath, a former SFR staff writer, numerous times to recall comments the Governor’s Office gave other media outlets without providing similar information to SFR. Since it was three years ago, Horwath said, he couldn’t recall the specifics.
Before he left the stand, Horwath testified that he’s expecting retaliation, and he’s experienced it before, during his time at the Santa Fe Reporter, and since.
Marisa Demarco is covering the trial jointly for KUNM, and for the Santa Fe Reporter as an independent journalist. SFR contributing editor Jeff Proctor is supervising her coverage for SFR.