Public Defender drops student subpoena

BY COLBY FRAZIER
DAILY SOUND STAFF WRITER

A subpoena seeking unpublished photographs from the Daily Nexus newspaper was dropped yesterday evening by a Santa Barbara County Deputy Public Defender, who had insisted the material was pertinent to the defense of her client.
It was the second time in the past month that a public defender issued a subpoena for unpublished material at the UC Santa Barbara student newspaper, and quickly withdrew the request after being contacted by an attorney representing the paper.


“I’m elated,” said Daily Nexus Editor in Chief Nick Durnhofer. “This is possibly one of the best ways this could have ended. I don’t have to go to court and they won’t force me to bend on any of my principles as a journalist.”
However, Michael Cooney, a local attorney who specializes in First Amendment law, said he wouldn’t be surprised if the subpoena is refiled. He said the subpoena, which was served on Monday, did not allot the mandated five-day notice that is required prior to a court date, and therefore was likely not withdrawn because the defender’s office decided it did not have a right to the material.
“I think the clear position and repeated effort on the part of the public defender is they have the right to ask for any photographs at any time if it relates to criminal defense,” he said. “
The most recent subpoena sought all unpublished photos of a Feb. 12 anti-war rally held on the campus.
Prior to the subpoena’s withdrawal, Durnhofer said he planned to fight it. He said such broad request for unpublished information would tarnish a newspaper’s ability to remain objective.
“It doesn’t matter which side you’re helping, you’re still helping one side more than the other and we’re not supposed to be helping anyone,” Durnhofer said. “It doesn’t seem very fair for a journalist to be aiding anyone’s case.”
The subpoena was issued by Kathy Schwinghammer, a deputy public defender. Schwinghammer told Durnhofer she believed the photos could show her client, Michael Howard Miller, was not resisting arrest when he was taken into custody during the protest.
Phone calls made to Schwinghammer for comment yesterday were not immediately returned.
In mid-April Durnhofer and another editor at the paper were subpoenaed by Deputy Public Defender Deedrea Edgar. Edgar’s request went beyond photographs and sought a reporter’s notes and sources.
In this instance, the notes pertained to a story that came directly from police reports. Once the paper’s attorney informed Edgar of this, the subpoena was dropped.
“We’re the first stop for all cases now, it seems like,” Durnhofer said.
Had the subpoenas stuck, or if they are refiled, Durnhofer said the newspaper will argue the material is protected under the California Journalist Shield Law. The Shield Law prevents unpublished material from being turned over and protects journalists from being held in contempt of court when they fail to comply with a subpoena. But some narrow exceptions exist. One of those exceptions can be met if the party seeking the material shows it is crucial to the defense and cannot be obtained anywhere else.
Cooney said this has not been the case in recent instances of subpoenas on newspapers in Santa Barbara County.
“I don’t think it’s a last resort,” he said. “In fact the practice of the Public Defender’s Office is that they’re going to ask for that as a matter of routine and that’s what’s bothersome about this.”
The two subpoenas are the latest in a recent string of such demands, all by the Public Defender’s Office, seeking unpublished material from local newspapers.
Last year, Deputy Public Defender Karen Atkins subpoenaed the Daily Sound, Santa Barbara Independent and Santa Barbara News-Press for unpublished photographs from a March 14, 2007 gang brawl. Atkins represents a 15-year-old boy who was charged with murdering another boy during the fight.
The Daily Sound and the Independent fought the subpoenas, but were ordered by Superior Court Judge Brian Hill to turn over the unpublished material or be held in contempt of court. The Independent appealed the case all the way to the California Supreme Court, which declined to hear the case, effectively ruling in favor of disclosure.
Cooney represented the Daily Sound and the Independent in their legal battles. He said the most recent subpoenas involving the Daily Nexus are exactly what he feared would occur as a result of the earlier rulings.
“There is no end to it,” he said. “That’s the concern that I tried to make clear. [The court] really has initiated an area of inquiry that will incentivise defense counsel to seek information.”
Santa Barbara County’s Chief Public Defender Gregory Paraskou denied his office was reaching out to the press as a first resort, and explained why he believes it’s sometimes necessary to subpoena a newspaper.
“I understand and appreciate the tensions that sometimes arise between the First Amendment issues for the press and an individual’s right to have a fair trial,” he said. “Our obligation as counsel for the accused is to do everything in the bounds of the law, to raise any issues and present any defense that may exist. Part of that obligation is to gather any evidence that’s pertinent in the case.”
Paraskou said the outcome of the Daily Sound and Independent’s court cases shows there are times when it’s appropriate to subpoena a newspaper
When asked if he knew about the subpoena for the Daily Nexus reporters’ notes, Paraskou said he did not, and that in such an instance the court should handle each subpoena on a case-by-case basis.
“I think to some extent that changes the analyses of where a court may come down in measuring those balances,” he said of the subpoena for notes.
There have now been at least five subpoenas on local newspapers in the past six months – a statistic that seems to confirm Cooney’s fear that a precedent has been set.
Prior to Atkins’ subpoena on the Daily Sound last year, Cooney said he’s not sure such a request has ever occurred in Santa Barbara.
“I’m alarmed by the developments but I really am not expecting anything else,” Cooney said. “I think it’s only a matter of time before they enforce a subpoena against a reporter for his or her unpunished notes.
“This is not the end of the trail, this is the beginning.”