Tuesday, November 20, 2007

Indy will fight photo decision


A day after being ordered by a Superior Court judge to turn over to the court hundreds photos taken of a March 14 crime scene, an attorney for the Santa Barbara Independent yesterday said the weekly publication plans to appeal the ruling to a higher court.
“The decision has been made to seek appellate review of that decision,” said Michael Cooney, an attorney representing the Independent.

The Independent has until Nov. 28 to hand over the photos. If that date passes, a contempt hearing will be held on Nov. 29, where the paper’s photographer, Paul Wellman, will be held in contempt of court.
Cooney said this hearing would have to occur before appellate review can be sought.
“We’re going to ask the judge to conduct the hearing and we’ll go from there,” Cooney said.
The Independent was subpoenaed in mid October to turn over its 350 photos of the crime scene by Deputy Public Defender Karen Atkins, who is representing Ricardo “Ricky” Juarez, 14. Juarez has been charged with murdering 15-year-old Luis Angel Linares during a massive gang brawl at the intersection of State and Carrillo Streets in March. He has pleaded innocent to the charge.
Atkins has stated in affidavits that she believes photos from local media outlets could show people and circumstances not recorded by police or other media, and are therefore materially relevant to the preparation of Juarez’s defense.
But Cooney argued Monday that the photos fall under the protection of California’s Report’s Shield Law, which protects subpoenaed journalists from being held in contempt of court for not obeying a judge’s orders.
Cooney said there are slim exceptions when a journalist could be ordered to forfeit unpublished material, but that condition has not been met by Atkins.
He made similar arguments when Atkins subpoenaed the Daily Sound in July, but the outcome was identical up to this point, with Judge Brian Hill ruling in favor of the defense. Daily Sound Editor and Publisher Jeramy Gordon opted not to appeal Hill’s ruling and complied with the subpoena.
Photographs of the crime scene taken by the Santa Barbara News-Press were subpoenaed at the same time as the Independent’s and the paper turned them over without legal discussions.
Hill seemed polished discussing the case law surrounding the issues on Monday – so much so that the defense didn’t have to make any of its own arguments.
“A picture may be worth a thousand words,” Hill said before making his ruling. “That could be the case with any single photo.”
In the context of what Atkins is looking for, it’s anything that could potentially prove Juarez was not responsible for Linares’s death.
Or as Hill noted on Monday, the Independent’s photos, which were taken about an hour after many of the Daily Sound’s, could show aspects of the case that could “impeach” the manner in which the police investigation was conducted.
But Cooney believes Hill’s rulings have broader implications on the First Amendment and the ability of news gatherers to do their jobs without fear of aiding a criminal investigation, for the defense or prosecution.
“That’s the exciting part of it for this issue, which I think is relevant way beyond this case,” Cooney said. “We’ll have some guidance from the appellate court.”

If the case does go before the appellate court, it won’t be Cooney’s first time there.
In 1990, Cooney won a case called New York Times v. Superior Court, in which he represented the News-Press when The Times owned it.
According to a legal brief that Cooney filed with the court, in which he cited The New York Times case, the appellate court ruled that the unpublished photos in the possession of the News-Press were entitled to absolute protection from subpoena under article 1, section 2(b) (the state’s Shield Law) and the photographer could not be held in contempt for declining to produce them.

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