Oceanside Reporter Cleared of Contempt Charge

An Oceanside newspaper reporter ordered to jail for refusing to name confidential sources he used in an article on an alleged murder-for-hire plot was cleared Friday by the Fourth District Court of Appeal.

Writing for the three-member court, Justice Edward T. Butler held in a four-page decision that the defense attorney seeking the identity of the sources “did not present any facts to support this assertion.”

“There is nothing to show whether the defense attempted to pursue (leads) nor how (the reporter) might have known of them to the exclusion of the investigating agencies,” Butler wrote. Court of Appeal Justices Jerald Brown and Don R. Work concurred in the ruling.

Bob McPhail, a police and courts reporter for the Oceanside Blade-Tribune, was cited for contempt of court and ordered to jail in November after he refused to reveal anonymous sources used in an article about the slaying of Marine Staff Sgt. Carlos G. Troiani. An initial appeal of the charge to North County Superior Court in Vista failed, prompting McPhail’s bid to the Court of Appeal.

The reporter, who once faced an indefinite jail sentence for defending the right to keep secret the identity of his sources, was elated with the decision.

“I’m personally delighted and I’m gratified because the decision upholds an important safeguard for the free press,” said McPhail, 33. “I also am grateful to the publisher and editors of the Blade-Tribune for backing me on the issue.”

Terry Francke, an attorney for the California Newspaper Publishing Assn. in Sacramento, called the ruling “very welcome news.”

“If a defendant in a criminal case is permitted to bring in a journalist and strip the secrecy from confidential sources upon no better showing than what was provided in this case--namely, the postulation that the journalist knows something that the attorneys don’t know--then there is no such thing as a truly confidential source,” Francke said.

“If that were true, then the public’s awareness of how a crime is being investigated and subsequently prosecuted would have to depend on official sources and on an after-the-fact version of what happened,” he said.

Until Friday’s ruling, judges had held that a reporter’s right to protect confidential sources under California’s so-called newsman’s shield law is overridden by a defendant’s right to a fair trial.

Court Disagreed

But the Court of Appeal disagreed.

“When the claim of privilege is raised . . . the party seeking to avoid the privilege (must) show the evidence sought is relevant to his case, is necessary to his case and cannot be obtained from a source less intrusive upon privilege,” Butler wrote. “In addition, the party must show a reasonable possibility the evidence sought might result in his exoneration.

“Here, there is no such showing.”

Francke said that McPhail’s case marks the first time the shield law has been significantly tested in a criminal case since voters approved the amendment to the state Constitution in 1980.

McPhail’s saga began in October, when he wrote an article detailing the Aug. 10 slaying of Troiani and relying heavily on unidentified “sources close to the investigation.”

Defense Objected

Prosecutors in the case have charged that the victim’s wife, Laura Troiani, plotted to murder her husband and paid five Marines $500 each to get the job done. Deputy Dist. Atty. Larry Burns, who is handling the case, charged that Troiani wanted her husband dead to cash in on his $35,000 military life insurance policy.

Daniel Cronin, a defense attorney in the case, objected to the article, saying McPhail “knows more than I do” about the case. He then subpoenaed the reporter and his notes. Cronin had argued successfully that because McPhail might have uncovered information of use to his client, the First Amendment guarantee given reporters was outweighed by the defendant’s Sixth Amendment right to due process.

Cronin called the information particularly critical because the district attorney is seeking the death penalty against four of the defendants.

‘Lack of Familiarity’

But Burns, charging that Cronin’s attack on the reporter’s story reflects a “lack of familiarity with the case,” argued that McPhail’s article contained nothing more than information already available in police reports or in the D.A.’s own investigation.

Nick Sauer, McPhail’s attorney, argued that the defense attorney had “failed to prove, as the law requires, that the information in the article is both central to the defense and unavailable from a less intrusive source.”

On Friday, Sauer said the ruling “means that now when a reporter says, ‘Let’s go off the record’ or in other ways agrees to keep something confidential, then it means something.”