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Ruling on Reporter's Testimony Will Test 'Shield Law'

September 30, 1987|PHILIP HAGER | Times Staff Writer

SAN FRANCISCO — In an unusual test of the state's "shield law" for journalists, the California Supreme Court refused Tuesday to prevent a newspaper reporter from being called to testify about unpublished portions of a jail interview with the defendant in a capital murder case.

The court, in a brief order, left intact a ruling by a Contra Costa Superior Court judge that a reporter's right to refuse to divulge unpublished information must yield to a defendant's right to a fair trial--particularly in a case involving the death penalty.

As a result, Erin Hallisy, a reporter for the Contra Costa Times, could be held in contempt if she refuses to testify and produce notes of the interview when she appears at a Municipal Court hearing set for today.

The high court's order, however, leaves open the possibility that the justices could reconsider Hallisy's claims to constitutional protection at a later point in the case.

Protected From Contempt

A provision of the state Constitution enacted in 1980 protects reporters from contempt for refusing to disclose confidential sources or unpublished information they acquire while gathering news.

The case at issue represents what lawyers say is the first test of the scope of the shield law against competing legal claims by a defendant facing the gas chamber.

Hallisy last year conducted an interview with John Sapp, a 34-year old Concord man charged with killing three people--two of them in a murder for hire. The interview quoted Sapp as admitting those three killings, along with several others.

Sapp's attorney, contending that investigators say Sapp could not have committed the other killings, argued that the confessions he made earlier to police are unreliable. To support that theory, he asked a municipal judge to order Hallisy to testify about parts of the interview that did not appear in her story and to turn over her notes of what Sapp told her.

Municipal Judge Mark B. Simons refused to issue such an order, but on appeal, Superior Judge Norman Spellberg overturned the decision, holding that in a criminal case--especially one in which the death penalty could be imposed--the defendant's right to such information outweighed any claim to protection by a reporter. Lawyers for the newspaper, citing the state shield law along with the First Amendment to the U.S. Constitution, appealed Spellberg's ruling to the justices and asked them to block the order.

The paper argued that if reporters can be forced to testify in such circumstances, they will have to forgo interviews with criminal defendants, depriving those defendants of an opportunity to be heard.

The lawyers also contended that it appeared that Sapp was "attempting to manipulate" Hallisy by giving her a different story than he gave authorities, thus discrediting the confessions he made to police.

Hallisy is scheduled to appear this afternoon before Simons. The newspaper's attorneys declined to say what the reporter would do if ordered to testify or be held in contempt. It also is uncertain whether in such an instance the judge would immediately order Hallisy to jail or first allow the paper to bring the matter back to the state Supreme Court.

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