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This photo of Gene Brown taken by Stephanie Klein-Davis on July 13, 2011, led prosecutors to issue a subpoena for her to testify at his trial.

Photographer Stephanie Klein-Davis has spent dozens of hours in courtrooms taking pictures during her 25-year career at The Roanoke Times.

She was in Roanoke Circuit Court again Wednesday but in unfamiliar position — on the stand as a witness subpoenaed by prosecutors to testify in the trial of Gene Anthony Brown, the man accused of killing security guard Steve Orange at the Afton Garden apartments in July 2011.

As Neil Harvey reported in his story today, Klein-Davis was summoned to testify about an encounter she had with Brown when she taking photos near the crime scene hours after Orange’s death.

Given the number of court trials and crimes we cover, it’s not unusual for one of our journalists (usually a reporter) to get subpoenaed to testify. On average, it happens once or twice a year.

However, it’s quite uncommon for one of our journalists to actually end up on the stand. In almost every case, we ask our attorney to file a motion with the court to “quash,” or dismiss, the subpoena and not compel the reporter to testify.

Why?

Over the years, numerous courts have held that reporters cannot be compelled to testify about what they learn in the course of reporting a story, or even to confirm statements that have appeared in published articles. The reasoning behind these decisions is clear: Forcing reporters — or any working journalist — to testify can severely hamper the news-gathering function of a free press as guaranteed in the First Amendment.

Said another way by our attorney, Stan Barnhill, when he was briefing us on the case this week: The newspaper can’t be seen as “an arm of the state.”

That was one the key arguments Barnhill made in a motion filed last week asking Judge Jonathan Apgar to quash the subpoena issued to Klein-Davis. While we were willing to stipulate — without testifying — about the accuracy of our published reporting and photos, we did not think any information that Klein-Davis could provide about her brief exchange with the defendant would be important to the case.

That stance changed, however, at a hearing Monday when Barnhill heard more details about the prosecution’s case. He realized that a key exception cited by courts in previous cases — that a reporter can be compelled to testify if the information sought is material and relevant to the case, essential to an underlying claim or defense, and has been sought unsuccessfully from all other possible sources — was relevant. Barnhill said it was the first time in almost 30 years of representing The Roanoke Times that he was compelled to concede that the exception applied.

We agreed to drop our motion. Klein-Davis first appeared for questioning Wednesday before the judge, but without the jury in the courtroom, so Apgar could decide if her testimony was relevant to the prosecution’s case.

Once he ruled it was, the jury was brought into the courtroom and Klein-Davis was questioned first by the prosecution and then by Brown’s defense lawyers.

Harvey reported that Klein-Davis testified that she talked with Brown and photographed him at the scene as he offered theories about the shooting that morning.

“He just seemed willing to talk to me and he was open about what he felt,” she told prosecutors during her testimony. “The tone was he felt the security guard was mean to children.”

This story, published July 26, 2011, after Brown was charged with a gun offense and investigators were trying to link him to the shooting, offers more details about the encounter Klein-Davis and reporter Jorge Valencia had with him.

“I mean, it’s sad that he was killed,” we reported Brown saying in a sidewalk interview. “But obviously he must have messed with the wrong people’s kids.”

 Brown’s trial is scheduled to conclude on Friday.

Klein-Davis