Court of Appeal:
Newspaper Must Surrender Notes of Jailhouse Interview
Opinion Says Murder Defendant’s Sixth Amendment Right of Access to What His Co-Defendant Told a Reporter Trumps Bakersfield Californian’s Right Under the Shield Law in California Constitution and in Evidence Code
By a MetNews Staff Writer
The Fifth District Court of Appeal has declined to grant a writ ordering that a subpoena served by a murder defendant who seeks the notes of an interview with his co-defendant who inculpated him be quashed, but has relieved The Bakersfield Californian of a contempt adjudication based on its refusal to turn over those notes, doing so on procedural grounds.
Justice Rosendo Peña Jr. authored the opinion, filed Tuesday. The portion rejecting the contention that the subpoena should be blocked was ordered published but the part invalidating the contempt finding was not deemed to meet the criteria for publication.
Kern Superior Court Judge Elizabet Rodriguez ordered release of the notes and Kern Superior Court Judge Tiffany Organ-Bowles held the newspaper in contempt.
Constitutional Provision, Statute
The newspaper relied on Art. I, §2(b) of the California Constitution and Evidence Code §1070.
The constitutional provision says, in relevant part:
“A publisher, editor, reporter, or other person connected with or employed upon a newspaper…shall not be adjudged in contempt by a judicial…body having the power to issue subpoenas, for…refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.”
The statute’s wording is virtually identical.
However, Peña pointed out, “[a]lthough this case presents a novel fact pattern, the California Supreme Court declared in 1990”—in Delaney v. Superior Court—“that ‘a newsperson’s protection under the shield law must yield to a criminal defendant’s constitutional right to a fair trial when the newsperson’s refusal to disclose information would unduly infringe on that right.’ ”
That opinion, by Justice David Eagleson (since deceased), spells out:
“In order to compel disclosure of information covered by the shield law, the defendant must make a threshold showing of a reasonable possibility that the information will materially assist his defense. The showing need not be detailed or specific, but it must rest on more than mere speculation….If the threshold showing is made, the court then balances various factors in determining whether to compel disclosure of the information.”
The notes are sought by Robert Pernell Roberts who is awaiting trial for murder with special circumstances. Those notes were taken by reporter Ishani Desai during a jailhouse interview last Feb. 23 with codefendant Sebastian Parra.
Parra had testified for the prosecution at Roberts’s preliminary hearing in October 2022. At that time, he had not yet been charged.
Roberts and Parra each contends that the other committed the fatal shooting last year of Benny Alcala Jr.
“It is reasonably possible the reporter’s notes reflect unpublished statements by Parra concerning pivotal elements of Roberts’s defense case,” Peña wrote, adding:
“The conclusion rests on more than ‘mere speculation.’ ”
He said the article suggests that a discussion took place as the theory that Parras was the shooter and some of the statements quoted contradict the interviewee’s testimony at Roberts’s preliminary hearing, indicating, Peña reasoned, a possibility that the notes could be of use to Roberts at his trial.
A text message was sent from Roberts’s cell phone saying:
“I just killed somebody.”
Peña noted that Parras told Desai he left Roberts that night while Roberts was asleep.
“This could explain how Parra might have gained access to Roberts’s phone and sent the ‘I just killed somebody’ text message without Roberts’s knowledge,” he said.
In Camera Hearing
Peña recited that the newspaper “was adamantly opposed to any in camera proceedings.” He expressed the view that “in camera proceedings can resolve the problem of having to guess what the unpublished information may or may not reveal,” adding:
“Where defendants often have difficulty is in showing that the prospect of the information making a difference in their case is not entirely speculative.”
He went on to comment:
“In its briefing on the motion to quash, the Newspaper described the subpoenaed material as both ‘extremely sensitive’ and ‘confidential.’ If the Newspaper genuinely held this belief, it should have been arguing for rather than against in camera review of the material. The Delaney opinion emphasizes ‘that a trial court need not waste its valuable resources for an in camera hearing based on a specious claim of confidentiality or sensitivity.’…We would add that parties who invoke the shield law should not be allowed to blow hot and cold on the issues of confidentiality/sensitivity and the propriety of in camera review.
“The superior court was not required to review the Newspaper’s unpublished material in camera, but it had discretion to do so….Production of the material for that purpose would not have waived any protections of the shield law.”
The newspaper argued that Roberts did not explain why it “would not have published critical statements” by Parra if he had made them. Peña responded:
“The explanation is rather obvious. What a reporter and her editors see fit to include in an article written for the general public does not necessarily encompass all information an experienced defense attorney would recognize as materially helpful to her client’s case.”
The Bakersfield Californian—a newspaper founded in 1866—also maintained:
“If codefendants routinely can obtain material that a journalist chose not to include in an edited report, including notes from interviews, potential sources are likely to refuse to be interviewed at all, to avoid having their unguarded comments become the subject of a fishing expedition into any potential avenue for impeachment.”
“Reporters and sources routinely come to agreements about which information the reporter can publish, and which information the source is providing on background or off the record.”
No Conditions Imposed
Peña said: “But here there is no evidence or allegation that Parra’s interview was granted with conditions or stipulations, that he asked for any statements to be considered ‘off the record,’ or that he otherwise had any expectation of confidentiality. We agree with Roberts’s observation that defendants who are willing to grant jailhouse interviews without conditions are presumably aware that whatever they say ‘is fair game to be published.’ Unless the interviewee makes statements ‘off the record’ or negotiates some form of content control, the interviewee does not know what information will be selected for publication.
“Furthermore, indulging the presumption that criminal defendants keep abreast of legal developments in this area, this class of potential interviewees is already aware that reporters can be compelled to testify about statements attributed to a criminal defendant in a published article.”
Invalid Contempt Order
In declaring the contempt order to be infirm, Peña wrote:
“An affidavit or declaration and personal service of the order to show cause upon the alleged contemner are jurisdictional prerequisites….Roberts presented a declaration but evidently did not seek or obtain an order to show cause….
“We are unaware of any authority for obtaining an indirect contempt judgment without the issuance of a warrant of attachment or an order to show cause….Furthermore, the declaration/affidavit was served upon the Newspaper’s attorney via e-mail, and it is unclear whether inadequate service was, or even could be, waived by the Newspaper’s subsequent participation through counsel.”
“Apart from the issues discussed above, the contempt order is defective in its failure to specify the punishment to be imposed….In addition, a valid judgment of indirect contempt must address the contemner’s ability to comply with the subject order and the contemner’s willful disobedience….While this may seem like a technicality, the party subject to the subpoena and compliance order was not the reporter whose personal notes were sought; it was the Newspaper. Although the existence of the notes was certainly implied at various times, the Newspaper’s ability to produce them was never actually alleged or adjudicated in the contempt proceedings.”
The case is The Bakersfield Californian v. Superior Court (Roberts), 2023 S.O.S. 4030.
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