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Reporters Facing Greater Pressure to Reveal Sources

Courts: The recent jailing of a journalist on contempt charges is part of a spate of cases in which judges have tried to force the news media to turn over unpublished information or names.

March 10, 2000|MAURA DOLAN | TIMES LEGAL AFFAIRS WRITER

When Northern California journalist Tim Crews entered a jail Feb. 26 for refusing to reveal the names of confidential sources, he called out to the reporters covering his incarceration: "You'll be next."

Judging by recent events, the burly, white-bearded journalist could be on target.

Despite having one of the nation's strongest shield laws, California is in the midst of a spate of media cases in which judges are trying to force journalists to disclose unpublished information, or, in Crews' case, confidential sources.

Subpoenas for unpublished material are "going through the roof" in California, said University of Minnesota professor Jane Kirtley, who teaches media, law and ethics.

A Northern California judge this year found a Sacramento college newspaper editor in contempt for refusing to turn over unpublished notes in a misdemeanor criminal case. The editor, who has filed an appeal, faces a jail sentence.

Also this year, a Marin County judge fined a reporter $1,000 a day for defying a court order to testify about unpublished information in a murder case. The fines are on hold pending an appeal.

Attorneys who handle media cases offer various explanations for the surge of subpoenas, from heavy-handed judges to copycat behavior. But no one is really sure why the media are under such pressure.

The cases are particularly vexing to 1st Amendment lawyers because they come on the heels of a November ruling by the California Supreme Court that was viewed as a strong affirmation of the state's shield law.

Voters approved the shield law in 1980 as a constitutional amendment to protect journalists from contempt convictions for refusing to reveal unpublished material or confidential sources.

Over the years, lawyers have repeatedly challenged its scope. In one successful challenge, the state Supreme Court carved out an exception for criminal defendants, who also have a constitutional right to a fair trial. The court said that defendants may obtain unpublished materials they vitally need for their defense.

Although a balancing test is supposed to be applied, media lawyers complain that defense lawyers and some judges now interpret the ruling as broadly favoring defendants.

In November, the high court refused to give prosecutors similar access to the media. The unanimous decision said journalists could not be jailed for failing to turn over notes or other unpublished items to prosecutors in a criminal case.

The media victory, however, has failed to stop efforts to pierce the shield.

"I have never known of a time when so many journalists seemed to be teetering on the brink of being incarcerated," said Sacramento 1st Amendment lawyer Charity Kenyon.

The subpoenas can mean crushing legal costs for small newspapers. A reporter also may have to be pulled off a story if required to testify as a witness about it.

Journalists argue that future sources may be more reluctant to disclose sensitive information for fear they might be identified or the reporter's notes might be used against them in a trial.

Some litigants counter that the media's protections are excessive.

"The absoluteness of the wording of the shield law is creating some situations that are not just," said San Joaquin County Deputy Dist. Atty. Dorothy B. Klishevich.

If the media do not want to be hauled into court, reporters should refrain from gathering sensitive material in criminal cases, she said.

"I don't know why it is that the news media should be talking to suspects anyway," she said. "I don't think they should have this sort of unfettered access. . . . If you don't want to be privy to the information, then don't gather it."

Klishevich sought unsuccessfully to force a Sacramento news station to turn over unaired footage of a jailhouse interview with a murder suspect she is prosecuting in San Joaquin County.

Her efforts led to the November Supreme Court ruling that denied prosecutors access to unpublished material from the media. The decision, called Miller vs. Superior Court, was written by Justice Stanley Mosk.

Two months later, a Marin County Superior Court judge held reporter Dan Fost in contempt for refusing to answer prosecution questions during a murder trial about information not included in an article in the Marin Independent Journal.

The judge said the Miller decision did not apply because Marin prosecutors sought information from the journalist during cross-examination, not, as in the Miller case, by calling the journalist to the stand themselves.

Fost, now a reporter at the San Francisco Chronicle, did not fight a defense subpoena to appear as a witness to testify about what was in the article. The shield law does not prevent reporters from being called to verify that they wrote or produced a story and interviewed the subjects.

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