Paper must turn over photos

BY COLBY FRAZIER
DAILY SOUND STAFF WRITER

The Santa Barbara Daily Sound must turn over to the Public Defender’s Office 144 photographs taken on March 14 shortly after a 15-year-old was stabbed to death on State Street, or face being held in contempt of court, a Superior Court Judge ordered yesterday.
In his ruling, Judge Brian Hill said the possibility of the photographs aiding either the prosecution or the defense in their cases outweighs the Daily Sound’s desire to retain sole possession of the photographs.
“Every bit of evidence that sheds light on what took place [on March 14] is important,” Hill said. “This is a search for justice and truth. All the factors weigh in favor of disclosure.”
Michael Cooney, the Daily Sound’s attorney, called Hill’s decision “a significant intrusion,” and told Hill it could have a “chilling effect” on members of the media who report on and take pictures of crime scenes.


In his written argument submitted to the court, Cooney said the California Supreme Court established a “narrow exception” to the California Journalist Shield Law, which goes into effect only when “the defendant’s fair trial rights under the Sixth Amendment of the United States Constitution [are] impinged.”
Before a news outlet can be ordered by the court to release unpublished material, Cooney said the Supreme Court has said a “reasonable possibility that the unpublished information will materially assist his defense,” must be shown. Cooney also said the reasons for the release of unpublished material must be based on more than speculation.
“They [the defense] don’t know what’s in the photographs. They’re just speculating,” Cooney said. “If it’s speculative they don’t get it.
“I don’t think the defendant is entitled to the unpublished information just because it might be helpful. I think they need to be more specific about why it might be helpful.”
Hill said he doesn’t think his decision will have a chilling effect on the media and said he believes the narrow exception, as defined by the California Supreme Court, has been met.
Cooney said Hill’s decision has broader First Amendment implications and will create an “open season” on obtaining unpublished material.
“I really think it [the decision] operates to stifle the press from taking photographs of crime scenes if what they think they’re doing is preparing testimony for parties in a criminal case,” Cooney said. “The losers are the public because the public is going to have less access to information about some of the crimes we’re most concerned about.”
Yesterday’s decision stems from two subpoenas that were served by Deputy Public Defender Karen Atkins in early July on Daily Sound Editor and Publisher Jeramy Gordon and the paper’s Co-Publisher Charles Swegles.
Atkins’ client, 14-year-old Ricardo “Ricky” Juarez, has been charged with murder in the stabbing death of 15-year-old Luis Angel Linares.
Santa Barbara County District Attorney Christie Stanley opted to try Juarez as an adult. Juarez has entered a plea of not guilty.
After receiving the subpoenas, Gordon said Atkins was retaliating against the Daily Sound for publishing Juarez’s picture, which shows the defendant sitting on the curb along State Street in handcuffs with several other boys and young men.
During an interview with Atkins shortly after the subpoenas were served, she called Gordon’s retaliation claim “ridiculous.”
Part of Gordon’s claim was based on the fact that Atkins has not issued subpoenas to any other local media outlets, most of which arrived on the scene around the same time the Daily Sound did.
After yesterday’s hearing, Atkins could be heard inside Hill’s Department 2 courtroom telling Juarez’s family: “We won this one.”
Atkins lauded Hill’s decision, calling it “scholarly analyses.”
“I’m pleased with the court’s ruling, it made sense, the judge was well prepared,” Atkins said. “I hope the [Daily Sound] turns over the pictures.”
When asked if he thinks anything new will be revealed in the Daily Sound photographs that isn’t already available in police photos, Senior Deputy District Attorney Hilary Dozer, the prosecutor in the case, said “I would think that they’re going to be all the same.”
In his 25 years as a deputy district attorney, Dozer said he’s never seen a judge order photos taken by newspaper be turned over.
Dozer said any time a court order is given to a newspaper asking it to do something it would otherwise not do, there is a chilling effect.
Hill said the Daily Sound has until Friday at 4 p.m. to hand over the photos or be held in contempt of court. If the Daily Sound refuses to provide the photos, a contempt hearing will be held on Monday at 8:30 a.m., nearly two hours before the preliminary hearing for Juarez is set to begin.
At one point during yesterday’s hearing, Hill said if he is not able to hold the Daily Sound, Swegles, or Gordon in contempt of court due to the Journalist Shield Law, he would bar reporters from that paper access to his courtroom during any hearings involving Juarez.
“If I can’t hold a member of the news media in contempt,” Hill said. “There has to be other sanctions employed to punish a member of the news media that doesn’t comply with a court order.”
Gordon deferred all comments about Hill’s decision to Cooney, who said Gordon plans to take his time to consider all of his options.
Jim Wheaton, founder and senior counsel of The First Amendment Project, a non-profit law firm in Oakland and professor of journalism and law at Stanford and UC Berkeley, reiterated Cooney’s earlier statements about the wide reaching implications Hill’s decision has on the First Amendment.
“It’s an unfortunate day when a newspaper photographer who is supposed to be a neutral observer of events gets turned into an investigator for one side in a courtroom battle,” Wheaton said. “And the danger isn’t to the newspaper it’s to the public because we want photographers and TV stations to go out and film public events without people there thinking that they’re an arm to the police or lawyers or anyone else.”
If nothing else, Cooney said the mere fact the Daily Sound has had to spend time and money fighting the subpoenas is intimidating and acts as the chilling effect.
Not only does Cooney believe the Daily Sound should not have to turn over its photos, he said small news gatherers with limited resources should be protected at the highest level.
“It’s really news gathering that’s at risk here. I think the more news gathering in a democracy the better,” Cooney said. “These are the kinds of publications that ought to receive the most protections from the courts if we want to truly have a free press.”