Ruling Clarifies Shield Law for News Reporters : Media: Journalists may be required to testify in criminal cases when a defendant’s right to a fair trial is at stake, high court rules.

The state Supreme Court held unanimously Thursday that news reporters may be required to testify in criminal cases when a defendant’s right to a fair trial is at stake.

The high court, ruling in a widely watched test of the California news media shield law, sought to strike a balance between competing constitutional rights. Both sides in the case claimed qualified victory.

The justices held for the first time that reporters may refuse to disclose not only their confidential notes and tapes but also their eyewitness observations and other non-confidential but unpublished information they obtain on the job. Some appellate courts had ruled previously that the law protected only confidential sources and information.

But, the high court added, the shield must yield when there is a “reasonable possibility” that reporters’ testimony would “materially assist” a defendant in presenting his case.

The court upheld a finding of contempt against a Los Angeles Times reporter and photographer who had refused requests by both the defense and prosecution to testify about an arrest they witnessed while accompanying Long Beach police on patrol.

The justices noted that in this case, the journalists’ testimony would not “even remotely” restrict their ability to gather news. “All that is being required of them is to accept the civic responsibility imposed on all persons who witness alleged criminal conduct,” Justice David N. Eagleson wrote for the court.

The court left open the question of whether prosecutors, like the defense, could assert a constitutional claim sufficient to overcome the protections of the shield law.

The ruling drew mixed reaction. Rex S. Heinke, a lawyer for The Times, said the court’s complicated legal test for determining when a defendant’s right prevails could result in considerable litigation in individual cases.

“But the ruling is very important because it squarely holds the shield law protects eyewitness observations,” he said. “And that is a substantial victory for reporters.”

Heinke added that while not addressing the issue in detail, the decision implies that a criminal defendant would have to meet “a more stringent” test when confidential sources or information are involved. Journalists not involved in either side of a civil suit also appear protected against compelled testimony, he said.

Los Angeles Deputy Public Defender Albert J. Menaster said the ruling “makes sense” in balancing rights of the press with those of a defendant.

“Where the evidence is not important to the outcome of the case, the shield will protect reporters,” Menaster said. “Where the evidence is important, the shield will give way.”

The case began in September, 1987, when Times reporter Roxana Kopetman and photographer Roberto Santiago Bertero witnessed a police search and arrest of Sean Patrick Delaney, who was charged with unlawful possession of brass knuckles.

Delaney contended in court that he had not consented to the search, while the prosecution argued that he had consented. Both sides asked Kopetman and Bertero to testify, but they refused, citing the shield law. The law, placed in the state Constitution in 1980, provides that a journalist shall not be held in contempt “for refusing to disclose the source of any information” or “any unpublished information” obtained on the job.

A Long Beach Municipal Court judge found both journalists in contempt and Kopetman spent six hours in jail before winning release from a Superior Court judge. Later, a state Court of Appeal upheld the contempt finding. The journalists took the case to the high court, warning that if the ruling were upheld, reporters would be called frequently into court for one side or the other and that the public’s perception of them as objective sources of news would be jeopardized.

The justices on Thursday rejected contentions by the defense and prosecution that the shield law protected only unpublished information obtained by journalists in confidence. “Any” information means just that, Eagleson noted in the court’s opinion.

But the state constitutional protections of the press may be overcome by a defendant’s federal constitutional right to a fair trial, the justice continued.

The court rejected The Times’ contention that the information at issue must be at the “heart of the case” and not available from alternative sources. Instead, the justices adopted a less-stringent balancing test, requiring defendants to show only a “reasonable possibility” the testimony would help their case. Defendants would not have to show that such information would exonerate them, the court said.

Judges making such a determination should consider a number of factors, the court said, including whether the information is “confidential or sensitive,” the relative importance of the information, alternative sources of information and the journalists’ interests in refusing to testify. Judges were to weigh such factors on a case-by-case basis, the justices said.

In this case, the court concluded, Delaney was clearly entitled to the journalists’ testimony. There was no claim that the information at issue was received in confidence or was sensitive for the journalists, nor was there any suggestion their testimony would hamper their news-gathering ability, the justices said.

The court ordered that the contempt finding against the journalists be reinstated. Some attorneys in the case said it was not immediately clear what further action would take place against the journalists. The Long Beach prosecutor in the case could not be reached.

Eagleson’s opinion was joined by Justices Edward A. Panelli and Joyce L. Kennard and Appellate Justice Daniel J. Kremer of San Diego, sitting by special assignment. Chief Justice Malcolm M. Lucas joined in part of Eagleson’s opinion. Justices Stanley Mosk and Allen E. Broussard filed separate concurring opinions.

In other action Thursday, the high court:

* Ruled that a parole officer may be held liable for allegedly assuring a Santa Clara County woman she was in no danger from a parolee who subsequently shot her to death. Survivors of the victim sued the state of California and the officer, contending that the officer lulled the woman into a “false sense of security” despite threats on her life by the parolee.

The justices, in a 4-3 decision, said the family could sue for “negligent representation” if it is shown that the death resulted from the woman’s reliance on the officer’s alleged statements. The victim, Grace Morales, 23, was kidnaped and fatally shot by her former boyfriend, Napoleon Johnson Jr., in San Jose in April, 1986.

* By a vote of 5 to 2, upheld the death penalty for Michael Dee Mattson, now 36, a La Mirada man whose previous capital sentence for the rape and murder of two girls 12 years ago was overturned by the high court in 1984.

The justices had held in 1984 that confessions were illegally obtained from Mattson by police in Nevada after he asserted his right to remain silent. At a subsequent retrial, authorities presented further testimony that Mattson had initiated the interrogation that led to the confessions. The statements were admitted as evidence again and Mattson was convicted and sentenced to death.

* Formally removed Beverly Hills Municipal Judge Charles D. Boags from office after his misdemeanor conviction for conspiring to obstruct justice by dismissing fines for parking tickets issued to his son and the boy’s school friends. Under state law, judges must be removed when a conviction for a misdemeanor involving “moral turpitude” becomes final. Boags, 60, had been suspended from office since January, 1989.