Thursday, November 29, 2007

Indy, photographer held in contempt

Santa Barbara Independent photographer Paul Wellman,
center, sits beside the paper's executive editor Nick Welsh
in court Thursday as Judge Brian Hill rules that the paper
and Wellman will be held in contempt for refusing to turn
over unpublished photos.


The battle by the Santa Barbara Independent to retain possession of 350 photos of a March crime scene heated up yesterday, when the weekly tabloid refused to hand over the photos and was held in contempt of court.
The Independent’s decision to withhold the photos was no mystery, as it had vowed to protect its unpublished material and appeal Judge Brian Hill’s Nov. 19 order to hand the photos over. The big question yesterday was what penalty Hill would hand down with his ruling of contempt.

The answer: a $1,000 fine, which won’t have to be paid until the Sixth District Court of Appeal in Ventura has its say.
Michael Cooney, an attorney representing the Independent, argued for the third time yesterday that he believes Karen Atkins, legal counsel for 14-year-old Ricardo “Ricky” Juarez, who has been charged with murdering a 15-year-old during a March 14 downtown gang brawl, has not met the legal burden to force a news outlet to turn over unpublished material.
Atkins subpoenaed the Independent for its photos in October and has said she believes the photos “are likely” to show people and circumstances that are materially relevant to the preparation of her client’s defense.
Atkins has already received photos from the Santa Barbara News-Press, which was subpoenaed at the same time as the Independent, and the Daily Sound. Cooney represented the Daily Sound in July when Atkins subpoenaed its photos, but Hill ruled in favor of the defense and Daily Sound Editor and Publisher Jeramy Gordon opted not to appeal the ruling and comply with the subpoena. The News-Press handed over its photos without legal discussion.
Cooney maintains that the ability of the news media to function properly and collect news without fear of aiding any side of a dispute could be at stake as a result of the ruling.
“It is a matter of such importance and that is the reason that we’re here today,” Cooney told Hill yesterday. “Our concern is that we are on a slippery slope.”
Cooney said the “slippery slope” has to do with the potential precedent set by Hill’s ruling, which he said could at some point mandate reporters to turn over all of their unpublished material if requested by a governmental agency.
While Cooney’s assessment may seem extreme, he said Hill has ordered the Independent, and before them the Daily Sound, to turn over unpublished material without proper justification from Atkins.
“That burden is on the defense to be more specific,” Cooney said. “She has to meet a threshold. She just said [the photos] ‘could’ [aid the defense] and that’s the key here.”
The burden Cooney says Atkins has to meet was established in a case called Delaney v. Superior Court (1990), in which four bench marks were set that must be met before unpublished material can be ordered turned over.
But according to a legal brief submitted to the court by Cooney, before the four bench marks can be weighed, the defense, or subpoenaing party, must demonstrate that there is a “reasonable possibility that the unpublished information will materially assist his defense,” and while doing so must base the argument on “more than mere speculation.”
If this is done, which Cooney says in this case has not; the four considerations can be weighed. The first, according to Cooney’s brief is whether the unpublished information is confidential or sensitive; the second deals with the interest sought by a publication to be protected by the Shield Law; the third is the importance of the information to the defendant and the fourth is whether there is an alternative source for the unpublished information.
Hill said yesterday – more elaborately than he has to date – that these four standards have been met.
“It seems to me that all of those factors weigh in favor of turning over the photos,” Hill said. “The importance of the information is extremely important.”
Hill justified yesterday’s decision to hold the Independent and its photographer Paul Wellman in contempt by noting that he can’t force Atkins to divulge the defense of her client, and even if he sifted through the hundreds of photos and more than 1,300 pages of police reports, still wouldn’t have a grasp of what Atkins believes the photos possess.
“I can’t get into her mind or into her client’s mind and se what the defense is going to be,” Hill said. “Can I really require her to expose what the defense is going to be?”
Cooney said after the hearing that it’s not Hill’s job to discover why the photos may or may not be pertinent to Juarez’s defense. That, he said, is Atkins’ responsibility.
Hill did say he understood the possible implications his ruling could have in regards to the First Amendment and the California Journalist Shield Law, which protects reporters from being held in contempt of court when subpoenas are not obeyed.
“There is an interest on behalf of the media and I recognize that,” Hill said. “I understand that that’s kind of a concern in setting a precedent.”
Wellman did turn over seven photos that the Independent has published since the March incident. During the hearing Atkins opened the manila envelope and told the court the seven photos reaffirmed her need for the remaining 343.
“It reaffirms my belief that the body of photos Mr. Wellman took will be important to the preparation of our case,” she said.
Cooney said he will submit a “written judgment” to the appellate court sometime next week, which will enable the court to either hear the case, or dismiss it.
Atkins raised the question of what would occur if the appellate court rules against the Independent. Her concern was that the Independent would merely have to fork out the $1,000 and not have to turn over the photos.
But Hill said if that occurs, jail time for Wellman won’t be out of the question.
“Jail time might be appropriate,” Hill said, adding “I’m not going to threaten or suggest jail time at this point.”

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