The Mercer County Prosecutor's Office has agreed not to compel New Jersey 101.5 to hand over a reporter's emails after the station's lawyers argued that the information was protected from disclosure under state law.

Lawrence police this month served station management with a grand jury subpoena requested by prosecutors after a Republican candidate for Assembly accused a former campaign worker of engaging in revenge porn by providing New Jersey 101.5 with screenshots of text messages he had sent her. The messages included one with a picture of his erect penis. New Jersey 101.5 published a pixelated version of that screenshot.

Michael Silvestri, of Trenton, acknowledged that he had sent Caitlin Koether the text messages and the explicit photograph but argued that the two had been having a consensual sexual relationship during his unsuccessful campaign for the Mercer County Freeholder Board this fall.

Koether, of Ewing, denied being in a relationship with Silvestri and accused him of sexual harassment, including unwanted kissing and touching.

New Jersey 101.5 first detailed Koether's complaints this month, including her charge that the Mercer County Republican Committee fired her without payment before the election after she complained about Silvestri's behavior. She also accused Silvestri's freeholder campaign manager, David Henderson, of harassment for not stopping Silvestri's misconduct.

Silvestri's running mate, Mary Walker, also accused Silvestri of acting inappropriately with women during the campaign.

After New Jersey 101.5's report, Silvestri accused Koether of engaging in revenge porn and sought a temporary restraining order against Koether.

In investigating Silvestri's complaint, prosecutors tried to subpoena New Jersey 101.5.

But lawyers for the station pointed to the state's court rules, which protect journalists and their sources from prosecutors. The state's Shield Law is considered among the strongest in the country and is broad enough that it covers independent bloggers.

According to New Jersey Rule of Evidence 508 — which defines the "Newsperson's Privilege" — journalists have "a privilege to refuse to disclose, in any legal or quasilegal proceeding or before any investigative body, including, but not limited to, any court, grand jury, petit jury, administrative agency, the Legislature or legislative committee, or elsewhere" their sources or any news or information, whether or not it was published.

A narrow exception allows defense attorneys to subpoena journalists only when the information is essential to the defense and there are no other means of obtaining it. No exceptions are granted to prosecutors.

"As such, while the state has subpoenaed certain information in the custody and control of your client, we acknowledge that the privilege is absolute in this case and your client's to assert," Mercer County Assistant Prosecutor Mary Sparkman said Thursday in a letter to attorney Robert Balin, of the Manhattan firm Davis White Tremaine.

"In light of those concerns, which are legitimate given the case law we've discussed, you may consider the subpoena withdrawn."

 

New Jersey 101.5 is WPG Talk Radio 104.1's sister radio station.

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