Journalists Can Withhold Notes, Tapes, Court Rules

In a victory for press freedom, the California Supreme Court decided unanimously Monday that prosecutors may not compel the news media to turn over notes and other unpublished information in a criminal case.

The decision overturned rulings by two lower courts that could have led to jail time for a Sacramento television news director who refused to hand over unaired footage of a murder suspect’s videotaped confession.

Prosecutors had argued that Proposition 115, a 1990 crime-victims’ initiative, established a new constitutional right that entitled a prosecutor to reporters’ notes or unaired tapes in some situations.

But in an opinion written by Justice Stanley Mosk, the court said the initiative did not repeal any part of the state’s 1980 media shield law, which protects reporters who refuse to reveal sources, notes and unaired footage.

“The threat to the autonomy of the press is posed as much by a criminal prosecutor as by other litigants,” Mosk wrote for the court.

Press Freedom Backers Pleased

The decision came as a relief for press freedom advocates, who had feared that a string of lower court rulings against the press might erode the shield law.

Terry Francke, general counsel of the California First Amendment Coalition, called the decision “great news.”

“The shield law wouldn’t really mean very much . . . if any prosecutor could establish that there was a serious need for going through a journalist’s notes or unbroadcast film,” Francke said.

A statewide prosecutors’ group had urged the court to give law enforcement the same access and right to reporters’ unpublished material that some criminal defendants now have.

The state high court in 1990 ruled that criminal defendants in limited situations may compel the media to turn over unpublished material because suspects have a federal, constitutional right to a fair trial.

“When you have a murderer who confesses and in a taped session, as a prosecutor you don’t want half the tape, you want the whole tape,” said George Palmer, head of the appellate division of the Los Angeles district attorney’s office and the lawyer for the prosecutors’ association in the case.

“We don’t know what was in those portions that were edited out, nor do we know why they were edited out.”

Prosecutors based their case on a provision in Proposition 115 that gave the people, represented by the prosecution, “the right to due process of the law.” Called the Crime Victims Justice Reform Act, the initiative was intended to help prosecutors secure criminal convictions.

Charity Kenyon, an attorney who represented the Sacramento television station, said the initiative raised concerns because it created a new, “undefined” constitutional right for government, and some trial courts had begun ordering media disclosure.

Monday’s decision “will settle a lot of questions that have been bothering a lot of news media for a long time in California,” she said.

The case stemmed from a videotaped 1996 interview by KOVR-TV in Sacramento with murder suspect Anthony Lee DeSoto, 18, a California Youth Authority inmate.

The station sought the interview after learning that DeSoto had told sheriff investigators that he had killed his cellmate, Timoteo Silva, 22, in their CYA cell.

Portions of the interview aired on March 19 and March 20, 1996, including a confession by DeSoto to the murder. Reporter Tom Layson reported that DeSoto also had told him that he and the victim had consensual sex and that he carved a symbol on Silva’s chest several hours after killing him.

San Joaquin County prosecutors demanded the unaired footage, and a Superior Court judge in Stockton viewed it in chambers. He ordered the station to give it to the prosecution after finding a “reasonable possibility” that the outtakes would help its case.

The trial judge held Ellen Miller, the station’s news director, in contempt for refusing to hand over the unaired footage and ordered her to jail until she produced it. A Court of Appeal in Sacramento upheld the citation. Miller, however, was spared jail time as long as the case was on appeal.

In overturning the lower court decisions, the California Supreme Court said Proposition 115 did not even address the shield law, which voters had added to the state Constitution 10 years earlier. The shield law gives journalists absolute immunity from contempt for refusing to furnish unpublished information.

“The fact that the assertion of this immunity might lead to the inability of the prosecution to gain access to all the evidence it desires does not mean that a prosecutor’s right to due process is violated,” Mosk wrote for the court.

DeSoto’s murder trial has been put on hold pending resolution of the media case. He now will face charges of first-degree murder with special circumstances of sodomy and torture in a trial due to begin on April 11.

Ruling Dismays Prosecutor

San Joaquin Dist. Atty. Dorothy Klishevich, whose office will prosecute DeSoto, said she was disappointed and frustrated that prosecutors will never be able to see a tape that could tip the balance toward the death penalty.

“In terms of the death penalty, the answers probably aren’t on that tape, but by gosh, they could be,” Klishevich said. “Something he said or the way he said things could make jurors respond a certain way, and in a penalty phase [of the trial] we are going for jurors’ emotions, which is something we can’t do in the guilt phase.”

She said the unaired footage may contain statements that conflict with what DeSoto told sheriff’s investigators and could be used to impeach DeSoto when he testifies.

DeSoto was arrested on suspicion of armed robbery when he was 13 and has been incarcerated ever since, Klishevich said. He killed his cellmate “for notoriety so he would have a lot of status when he went to prison,” she said.

Miller, who now works as a news director for a CBS affiliate in Charlotte, N.C., said the decision is important in protecting the news gathering process from outside interference.

Television journalists are regularly “barraged” with subpoenas from attorneys on stories ranging from car accidents to capital crimes, Miller said.

In this case, she said, the interview was done over a jailhouse telephone in front of a window with the inmate on one side and the reporter on the other.

“The jailers could have listened . . ., “ Miller said. “They should not be using journalists to do their job.”

Miller called Monday’s decision a “victory for journalists, certainly in California, and perhaps throughout the country.”

“We want the public to know they can tell us something [without it being turned over to the government],” she said. “We can’t do that if we are always forced to turn over the things we don’t publish or put on the air.”

A spokesman for California Atty. Gen. Bill Lockyer said his office was reviewing the decision and had not yet decided whether to ask the state high court to reconsider. Because there is no federal issue involved, the case is unlikely to go to the U.S. Supreme Court.

The case is Miller vs. Superior Court, SO73888.