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WOSTER: Reporters can't plead the First

Terry Woster

The time a circuit judge called me out of the audience to testify during a live trial might have been the weirdest experience of my newspaper reporting life.

It happened in April of 1991 in the Tripp County Courthouse in Winner. Judge Max A. Gors presided over a hearing involving a disputed $12.4 million winning lottery ticket, the first big jackpot winner sold in South Dakota's history with legal lottery gaming. I was on hand for the newspaper, covering the proceedings.

For most of the hearing late on a Friday afternoon in Winner, the legal issue was going along the way dozens and dozens of others had during my decades as a newspaper reporter. Witnesses testified, lawyers asked questions, the judge issued rulings and the reporter sat in the crowd scribbling notes and thinking about what elements might make the best lead for the story and in what order to organize the facts and details of the case. Things seemed to be winding down when Larry Piersol, then a Sioux Falls lawyer representing one of the parties, said of some piece of evidence:

"There's a statement here which isn't a press release; it's a statement from Terry Wooster (sorry, I'm quoting the transcript supplied to me years later by the Honorable Judge Gors) from the Argus Leader on Friday and if there is going to be a question on that, it seems to me Mr. Wooster should be the one to be questioned as to what somebody told him.''

Judge Gors looked out into the crowd (that isn't in the transcript) and said, "Well, he's here if somebody wants to call him.''

I was startled to hear that, but I shook it off. Nobody calls a reporter out of the audience to testify in a trial, right? The lawyers went back to questioning witnesses.

Just when things were wrapping up with the last witness, the lawyer doing the questioning said, "I was going to say, your Honor, that I don't have anything further. Well, yes, I do. I want to call Mr. Wooster.''

Judge Gors said we'd do that after a short break.

So, there I was, about to be called to testify in a case I'd been covering as a reporter. Everybody in the building seemed to have a lawyer except me. I called one in Sioux Falls who did legal work for the newspaper. He gave me some advice and told me to be on my toes.

As I waited for court to resume, I thought of my options.

I could flee the jurisdiction of the court, maybe, but who'd want to take off in the middle of the night for the Nebraska border?

I could plead conflict of interest. Many years earlier, a young lawyer named Max Gors drafted a will for a young reporter named Terry Woster. Perhaps I could take the stand and say, "Judge, this isn't going to work. You're my lawyer.'' On reflection, I hadn't had any legal work with that young lawyer for more than 20 years. I'm not trained in the law, but that seemed rather a flimsy out.

On the stand, I swore to be honest and all that, and then I asked if I could invoke "a conditional First Amendment privilege unless there is a compelling need for my testimony in this matter.''

Be honest with me here. That doesn't sound so bad, does it? At six o'clock on a Friday evening in a courtroom in Winner, that seems like it might have a chance?

Not so much, no. Judge Gors considered my request, and I don't think he was trying not to laugh. I don't think. Then he said, "Well, the First Amendment is freedom of speech, not freedom of quiet, so we will have to see what the questions are before we would do that.''

Rats! I knew I should have gone to law school.

Long story short, I escaped with my life. The questions weren't that bad. My answers, read in the cold, black type of a court transcript, were disjointed, too long and often way off the mark.

Being on the witness stand isn't as easy as it looks on television.