Reporters Facing Greater Pressure to Reveal Sources

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laws, California is in the midst of a spate of media cases in which judges are trying to force journalists to disclose unpublished information, or, in Crews’ case, confidential sources.

Subpoenas for unpublished material are “going through the roof” in California, said University of Minnesota professor Jane Kirtley, who teaches media, law and ethics.

A Northern California judge this year found a Sacramento college newspaper editor in contempt for refusing to turn over unpublished notes in a misdemeanor criminal case.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Also this year, a Marin County judge fined a reporter $1,000 a day for defying a court order to testify about unpublished information in a murder case.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law in 1980 as a constitutional amendment to protect journalists from contempt convictions for refusing to reveal unpublished material or confidential sources.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 The court said that defendants may obtain unpublished materials they vitally need for their defense.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 The unanimous decision said journalists could not be jailed for failing to turn over notes or other unpublished items to prosecutors in a criminal case.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.

The prosecution, however, tried to elicit information about additional aspects of Fost’s interview with a criminal witness during cross-examination. The prosecutor wanted to know, for instance, whether other people were present during the interview.

Chun T. Wright, an attorney for the Independent Journal, said she had not tried to prevent Fost’s being called by the defense because it clearly wanted only to verify the information already published.

Besides, she said, “In our view [the] Miller [case] was very clear.”

Prosecutors have told an appellate court that Fost waived his shield law protections by testifying about such unpublished matters as his general journalistic practices in quoting sources.

The contempt conviction showed the danger of allowing reporters to testify at all, even just to affirm they had written a story and interviewed the subjects, media lawyers said.

“We are going to have to rethink our approach to every aspect of responding to a subpoena,” said Kenyon, the lawyer who represented the media in the Miller case.

Although he won that case before the state high court, Kenyon is still fighting in Superior Court to keep the Sacramento television station that the decision involved from having to turn over its outtakes.

In the ongoing murder trial, prosecutor Klishevich now wants to introduce footage of the jailhouse confession that was broadcast. In response, the defendant’s lawyer said he should be able to introduce some outtakes to put the broadcast in context if the prosecutor introduces it. A decision by the trial judge is pending.

San Francisco media lawyer Roger Myers says the subpoena of a reporter is “becoming a first alternative rather than a last.” Most trial judges, however, still allow most litigants to question reporters only about published information, he said.

“It is only in rare cases that something goes wrong,” Myers said. “At the moment there seems to be a number of those cases where something has gone wrong.”

Journalist Crews’ case was among them. He left jail last week after serving five days behind bars. Publisher, editor and chief reporter and photographer for the Sacramento Valley Mirror, a 2,600-circulation paper published twice a week, Crews was jailed for refusing to reveal confidential law enforcement sources to a defendant in a criminal trial.

Unlike in the Supreme Court case that opened reporters’ notebooks to some criminal defendants, Crews was trying to protect confidential sources who probably would have lost their jobs if he revealed their identities.

The California Supreme Court declined to block Crews’ jailing or to order a Court of Appeal to review his case. A federal trial judge also refused to intervene. The U.S. 9th Circuit Court of Appeals would not stop his incarceration but agreed to consider issues in the case.

The Los Angeles Times joined scores of other media in supporting Crews in friend of the court arguments. The Times also has joined in legal arguments on behalf of the Marin Independent Journal.

Crews’ newspaper regularly investigates wrongdoing in Tehama and Glenn counties, about 220 miles northeast of San Francisco. The day before he went to jail, Crews published a story that said two local judges, including the jurist who sentenced him, carried concealed guns without permits.

In a telephone interview from the Tehama County Jail, Crews, 57, said most of the inmates referred to him as “Mr. Crews” because of his age. He slept on a cramped bunk in a barracks with 31 other inmates, most of them confined for drug offenses, drunk driving and other nonviolent offenses.

He said the food was horrible, the reading material dismal, so he spent most of his time interviewing other inmates and smuggled out a story and an editorial.

“Imprisonment, even in the relative gentility of the Tehama County Jail, means far more than loss of liberty,” Crews wrote in the Mirror.

“Of the casualties to the human spirit, the loss of dignity is the first and most profound. Two strip searches in as many hours communicate most plainly that jail, even county jail, is designed to punish.”

Crews estimates that his legal bills will reach $70,000, even though some 1st Amendment lawyers are working on the case without pay.

His incarceration does not preclude him from being called to testify and being jailed again. The defendant who wants to know his sources is a former California Highway Patrol officer charged with gun theft.

“It’s almost like holding his head under water and pulling him up every now and then and saying, ‘Are you ready to talk?’ ” said Thomas Newton, general counsel of the California Newspaper Publishers Assn. “The powers of contempt are very broad.”