Tuesday, July 3, 2007

Public Defender subpoenas photos


Photographs taken by Santa Barbara Daily Sound Co-Publisher Charles Swegles on March 14 after a gang brawl on State Street that left a 15-year-old Santa Barbara boy dead and a 14-year-old charged with murder, have been subpoenaed by Deputy Public Defender Karen Atkins.

The subpoena orders all photographs taken by Swegles between the hours of 12:30 p.m. and 11 p.m. on March 14 be handed over to the court on July 5 at 1:30 p.m. The date coincides with the next court appearance of Ricardo “Ricky” Juarez, who has been charged by District Attorney Christie Stanley with the murder of Luis Angel Linares.

Atkins, who threatened to file a gag order against the Daily Sound in mid June after seeing a picture of Juarez in handcuffs on page two of that paper, said in an affidavit that that she believes the pictures will “show people and circumstances not recorded in other media and will therefore assist in preparation of Ricardo Juarez’s defense.”

When asked by a reporter from the Daily Sound about the subpoena last Friday, Atkins said: “I just think there’s relevant evidence on those photographs. I need to see them. I don’t want to disclose my entire theory of the defense, but it’s very important that I see what’s on those photographs.”

Daily Sound Editor and Publisher Jeramy Gordon questioned the subpoena’s legitimacy since it was addressed to Swegles and not the Daily Sound. Swegles is currently on vacation and has not yet been served with the subpoena.

Gordon also said the photographs are not Swegles’ to give up, since all photographs and stories — published and unpublished — are the property of the Daily Sound.

“[Swegles] doesn’t own the photos, the Daily Sound does,” Gordon said. “Subpoenaing him won’t do much good because they’re not his pictures. He couldn’t turn them over if he wanted to.”

Gordon said Atkins’ actions serve one purpose: “to destroy the paper’s credibility.”

Gordon noted the historical importance of newspapers to protect all sources and said subpoenas, whether for pictures or notes, bring a paper’s credibility into question.

“This isn’t just about the photos,” Gordon said. “If we can’t protect our sources, then we can never consider ourselves a reliable news source.”

But Atkins believes the defense’s reasons for obtaining the photos outweigh the Daily Sound’s reasons for keeping them.

“…The defendant’s interest in the information sought outweighs the subpoenaed party’s right to prevent its disclosure,” Atkins’ affidavit says.

The subpoena also raises First Amendment issues, which Gordon said he will vehemently protect.

“[Atkins] is an attorney, she knows the First Amendment, she knows what she’s doing is wrong,” Gordon said. “She’s only doing this out of spite. She’s mad that we published her client’s picture [on June 15 and on June 29] and now she is retaliating. It’s a scare tactic and it backfired.”

Senior Deputy District Attorney Hilary Dozer, who is the prosecutor in the case, said he’s going to wait and see what the court orders and see “how that battle shapes up before I’m in the middle of it.”

“My feeling is you have the right to photograph whatever you want to photograph,” Dozer said. “If you have photographs that are somehow important evidence in the case, I certainly hope we do get them. I’m certainly not going to ignore any photographs [the Daily Sound] may have.”

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, said the First Amendment implications of subpoenas are vast.

“Newspapers can’t be part of legal proceedings for or against either side,” Wheaton said. “To do their job they must always be neutral observers and those principles have been recognized by the voters of California who put into the California constitution strong protections to protect journalists from ever being subpoenaed.”

Gordon seems to agree with Wheaton’s take on the matter.

“This is not something we take lightly,” Gordon said. “A newspaper’s records have to remain confidential. We guard quite zealously our role as a member of a free and independent press and believe quite passionately that, consistent with the principles embodied in the First Amendment, it is not the role of the newspaper or its reporters or photographers to submit to such matters even where it may otherwise serve our particular interests in a particular case to do so.”

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