The Bakersfield Californian v. Superior Court, No. F086308 (D5 Nov. 7, 2023)
A guy is found murdered in a Target parking lot in Bakersfield. After reviewing a bunch of security footage, and a weird text message to an unconnected person that said, “I just killed someone! Turn on the news!” the police narrow their case down to two suspects. They appear to be two random, somewhat down-on-their luck-guys who just met for the first time in the parking lot and decided to do some drinkin’. Then yadda, yadda, yadda, someone murders a Target customer.
Guy #1—who is first approached by the cops, IDs then fingers Guy #2—from whose cell phone the super incriminating text message was sent. He tells a meandering story that ends with Guy #2 shooting the victim in some kind of failed robbery. Guy #2 picks up a murder charge with a special circumstance.
At Guy #2’s prelim, Guy #1 tells his story. It doesn’t totally add up to what he originally told the cops. A bunch of the details change. On cross, it comes out that Guy #1 owns and has registered a gun that matches the 9mm caliber of the bullets found in the victim. But he says he gave that gun to an out-of-town buddy for safekeeping several months beforehand. The following day, however, #2’s lawyer produced the aforementioned buddy at the ongoing prelim. Buddy apparently drove a long way to get there. Buddy says he hasn’t had any contact with Guy #1 for more than a year. And he is definitely not holding #1’s 9.
This all gets Guy #1 indicted for the same murder. The two cases are consolidated. While in custody, Guy #1 gives an interview to a jailhouse reporter. He tells another version of the story. This time he has the gun. It’s in his backpack. The similar drinking and hanging around goes on. He hears #2 shoot the victim. But he doesn’t make a big deal of it because he’s scared. They hang out some more. Only the following day does he realize his gun was missing from his backpack. The reporter’s newspaper prints a story on it.
At this point, you may be asking yourself, “what does this have to do with civil procedure?” Here’s what. #2’s attorney drops a subpoena on the newspaper, demanding any unpublished material from the interview. Guy #1’s story shifted around so much that it seems like the notes might have more impeachment material. Newspaper moves to quash, citing California’s shield law, Evidence Code § 1070. The trial court ultimately denied it, finding that the privilege had to yield to the rights of accused Guy #2.
Newspaper filed a writ petition to challenge the ruling. But there’s a problem with that. The shield law is not actually an evidentiary privilege. It is an immunity from being held in contempt for refusing to reveal a source or to disclose unpublished material. Since the newspaper had not been held to be in contempt, the Court of Appeal denied the writ, noting that the trial court could enter a contempt order, if so warranted, and then stay it to give the newspaper time to seek another writ.
Back in the trial court, newspaper basically consents to being put in contempt, with the aforementioned stay entered. That happens, and the newspaper takes another writ. The Court of Appeal—in an unpublished part of the opinion—takes issue with that too. After a lengthy review of the procedures for which a conviction for civil contempt is to be secured, the Court finds that the trial court failed to follow that process. Although the trial court seemed to do what the order denying the first writ said, apparently the court was supposed to follow all the writ procedures (even though newspaper consented to contempt), enter a judgment of contempt (including a punishment) and then stay the execution of the punishment. Regardless, having spent many pages walking through this in a part of the order that will be unciteable by anyone else, the Court of Appeal decides it will get to the merits anyway for prudential reasons. So now two guys who will potentially spend the rest of their lives in prison have been adequately educated by a bunch of dicta about indirect civil contempt.
In an opinion that reads a lot like a Cal. Supreme Court opinion from the 90s—that is, a long recitation of prior case law preceding any actual analysis—the Court gets to applying the Shield law test around page 40. (FWIW, test has been settled law for more than 30 years.) Basically:
(1) The party invoking the privilege needs to show it facially applies. That is, that the claimant is a journalist who wants to withhold a source or unpublished information.
(2) If so, the party demanding the information (usually, like Guy #2, a criminal defendant) then must make a threshold showing that there is a reasonable possibility that the withheld information could be helpful to his case.
(3) And if so, the court balances four factors to decide whether the information should be disclosed: (a) whether the unpublished information is confidential or sensitive; (b) whether the interests sought to be protected by the shield law will be thwarted by disclosure; (c) the importance of the information to the defendant; and (d) whether there is an alternative source for the information.
Newspaper clearly meets the first element.
As to Guy #2, the burden to show that something you can’t see potentially contains information that could be helpful to your case is a tricky one that turns on the difference between “reasonable possibility” (enough) and “mere speculation” (not enough). Here, although obviously Guy #2 doesn’t know what’s in the reporter’s notes, the contents of the article circumstantially suggest that the reporter talked to Guy #1 about a number of issues that might either incuplate Guy #1 or exculpate Guy #2. That also includes material that might impeach Guy #1’s testimony. For instance, the contents of the article showed that the reporter spoke to Guy #1 about, among other things, the use of the gun, Guy #2’s cell phone, from which the incriminating text was sent, and various other issues where #1’s version of the timeline shifted over time. This was good enough to say, at least, that the trial court didn’t abuse its discretion when it found #2 met his initial burden.
On the factors:
Confidential or Sensitive: #1 gave an on-the-record jailhouse interview to a reporter, so there is little reason to believe the notes contain anything confidential or sensitive. (Notably the newspaper resisted in camera review, which could have given the court a basis to make a contrary determination).
Interests Protected by the Shield Law: Again, Guy #1 isn’t exactly Deep Throat. There’s no indication that he gave information to the reporter as a confidential source, demanded things remain off the record, or that he gave some info on background. When a witness gives information readily and without limitation for a reporter to use however that reporter deems fit, the interests implicated by the shield law are not strongly called into play.
Need for the Information: As one might expect, this factor overlaps a good bit with the threshold burden. The Court elaborates that while the chance that the info would be really valuable was low, the potential was quite high, particularly given that Guy #2 “is facing LWOP.” (For the civilly inclined, that’s Life Without an Opportunity for Parole.)
Alternative Source: This one, as often is the case in the law, turns on the level of generality. Guy #2 says the reporter’s notes are the only source of what Guy #1 told to the reporter. The newspaper, on the other hand, argues that we’re just talking more generally about material that can impeach Guy #1, and there’s already tons of that floating around, between the interviews with the cops, the prelim, etc. The court says the newspaper’s argument is “not persuasive.” So there was no alternative source in the way the test is meant to apply.
A Final Word on in Camera Review: Finally, the Court notes that a lot of the uncertainty in this case could have been avoided if the court held an in camera hearing. The criminal subpoena statute, Penal Code § 1326, specifically authorizes a criminal court to hold an in camera hearing about whether a defendant is entitled to subpoenaed documents. On one hand, at an in camera hearing, Guy #2 could have explained his theory of relevance in more detail, without spilling the beans to the DA as to his defense theory. On the other hand, newspaper really had confidentiality concerns, it could have shown the notes to the court to prove why that was the case. Quoting another case, the court explains that “the better policy is to encourage parties to allow disputed materials to be examined by the trial court in camera, because the court’s review may resolve the matter expeditiously and short of a contempt adjudication.”
Writ granted, but only to the extent that the trial court judged the newspaper to be in contempt. Otherwise denied.
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