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Press advocates welcome new California subpoena law

By Phillip Taylor
Special to
The Freedom Forum Online


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Press advocates cheered a new California law requiring that journalists be granted a five-day grace period before being forced to testify under subpoena. The law also requires judges to offer certain findings of fact before citing journalists for contempt.

"What this will do is make the judge go through a few more hoops and actually put the findings in the record," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. "I hope this will make judges not be so quick to cite journalists for contempt."

Dalglish and other media experts say that California judges often order journalists to appear before the court and bring all of their material within 24 hours.

"This should give journalists time to react and to get the subpoenas quashed," Dalglish said in a telephone interview.

Assemblywoman Carole Migden, D-San Francisco, introduced the bill early in the General Session in response to several cases in which journalists were jailed or threatened with jail for refusing to testify about confidential sources or unpublished information.

The bill was approved 73-0 in the Assembly and 38-0 in the Senate. Gov. Gray Davis signed the bill into law on Sept. 12.

The new law, which goes into effect Jan. 1, 2001, says that a journalist's testimony under subpoena doesn't constitute a waiver of his or her rights under the state shield law. The law requires the court, except in extreme circumstances, to provide at least five days' notice to a subpoenaed journalist.

The new law also requires the judge to detail the importance of the information and explain why alternative sources are insufficient to satisfy the defendant's right to a fair trial.

Tom Newton, general counsel for the California Newspaper Publishers Association, said judges too often ignored the state's shield law, which gives journalists certain privileges in keeping sources confidential and not revealing unpublished material in court.

"We found the judges not even considering this," Newton said. "If the defendant wants it, the defendant gets it. Now a judge has to have his reasons on the record why the shield law should be pierced."

Several recent press cases sparked the new law.

Earlier this year, Tim Crews, editor and publisher of the Sacramento Valley Mirror in Glenn County, spent five days in jail after he refused to reveal his confidential sources for a story involving the sale of an allegedly stolen firearm. The attorney for the state police officer charged in the case said Crews' sources would help the defense.

The trial court agreed, determining that the officer's right to a fair trial outweighed Crews' protection under the shield law. The charges against Crews were later dismissed only after some of the charges against the officer were dismissed.

Newton said the new law would have forced the judge in Crews' case to make a complete record of the subpoena request and explain why such information wasn't available elsewhere. And information was available elsewhere, Newton said, but the prosecutor in the case did not subpoena Crews' likely sources, a handful of law enforcement officials privy to details of the case.

In another case, a reporter for the Marin Independent Journal refused to answer a prosecutor's questions during a trial and was hit with a contempt order and a $5,000 fine.

Dan Fost testified in a court case but only to verify articles he had written involving the case and to confirm general journalistic practices. He asserted his reporter's privilege under the shield law when asked about other matters.

The state attorney general said Fost forfeited his rights when he agreed to answer questions on the stand. Last May, a state appeals court threw out the contempt-of-court ruling against Fost.

In yet another case, David Sommers, editor of the California State University-Sacramento State Hornet, and others were subpoenaed to provide testimony or evidence other than that published in the newspaper. An attorney for a man arrested at a campus football game had sought witness contact information and "all news-clips, films, videos, photographs, or other documents pertaining to" her client's arrest. Last April, a Sacramento County Superior Court judge granted Sommers' motion to quash the subpoena.

"We wanted journalists to have the ability to meet with their employers and, hopefully, legal counsel qualified to advise them on shield-law issues," Newton said. "If they have less than 24 hours, they are often not prepared."

He said the new law should protect California journalists from appearing to be agents of government or criminal defendants and "having to waste their precious resources doing these non-job-related activities."


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