Judge denies gag order

BY COLBY FRAZIER
DAILY SOUND STAFF WRITER

The fallout from Santa Barbara Daily Sound stories and photographs dealing with a March 14 gang stabbing that left a 15-year-old dead and a 14-year-old charged with murder continued yesterday in Superior Court where Deputy Public Defender Karen Atkins asked Judge Brian Hill for a gag order that would force all attorneys and law enforcement investigators to not discuss the case with journalists.
Atkins’ request for the gag order was spurred by a June 29 story in the Daily Sound that quoted several local law enforcement officers, including Santa Barbara Police Chief Cam Sanchez.
Many of those who were interviewed in that story commented on the pending case against Ricardo “Ricky” Juarez, who has been charged with murder in the stabbing death of Luis Angel Linares.


“The request appears to be based upon the defense’s displeasure with an article in the Daily Sound,” said Senior Deputy District Attorney Hilary Dozer. “They appear not to be happy with the photograph and they also don’t appear to be happy with the comments by law enforcement.”
Atkins declined to comment on the subpoenas or the gag order and told a Daily Sound reporter in a phone interview that commenting on the case would not serve her client’s interests.
Judge Brian Hill said the court is not ready to issue a gag order due to the early stage in the case.
Atkins requested a temporary gag order until a more permanent stance could be taken, but Hill declined.
“It seems to me that the defense has an uphill battle to get this court to issue a restraining order given the status of the case,” Hill said.
Atkins did say she filed a notice with City Attorney Stephen Wiley, who would be responsible for complying or contesting the gag order on the city’s behalf.
Hill set July 30 as the date to discuss the gag order as well as the subpoenaed Daily Sound photos.
Since last Thursday, Atkins has issued subpoenas to Daily Sound Co-Publisher Charles Swegles, who took the the March 14 photographs; Publisher and Editor Jeramy Gordon and Staff Photographer Janelle Holcombe.
In an affidavit attached to Swegles and Gordon’s subpoenas, Atkins says she believes the photographs “show people and circumstances not recorded in other media and will therefore assist in preparation of Ricardo Juarez’s defense.”
In her affidavit Atkins also says: “Law enforcement has used cellphone photographs and digital photographs taken by passersby to identify participants in and witnesses to the confusing scene on the afternoon of the homicide.”
In previous Daily Sound stories about the subpoena, Gordon has cited the California Shield Law, which provides protections for journalists in the event a subpoena is issued that demands unpublished material be released. The Shield Law reduces the likelihood that a journalist can be held in contempt of court if the subpoena is not obeyed.
According to the California Constitution, article one, section 2b of the Declaration of Rights: “A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication... shall not be adjudged in contempt by a judicial, legislative, or administrative body, or any other body having the power to issue subpoenas, for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper... or for refusing to disclose any unpublished information obtained or prepared... for communication to the public.”
Hill, admitting he hasn’t researched the topic thoroughly yet, asked Daily Sound attorney Michael Cooney why the paper would not be interested in turning over the photographs if there use was restricted to the attorneys.
In this case Hill said the Daily Sound’s pictures would not be disseminated by anyone and Juarez’s right to due process and an effective defense -- if the photos were to reveal something law enforcement doesn’t already know -- would both be served.
“That would seem to make sense to me without having researched it,” Hill said. “So why not something like that or have you considered that?”
“The court was called upon by the California constitution to make a determination and it’s not based on just turing [the pictures] over and protecting them from general circulation,” Cooney said. “It’s actually the concept that the requirement of turning them over in the first place is protected by the California Constitution and the only way [that can occur] is under very specific circumstances.”
Hill asked Cooney to file written briefs before the July 30 hearing.
Cooney told the Daily Sound after the hearing that there are currently very few, if any similar subpoena cases in California courts.
He said shield law protections aren’t as stringent, or are non existent at the federal level. One example of this was the San Francisco Chronicle reporters who were jailed for not revealing a source that leaked transcripts from a grand jury testimony during an investigation of steroids in Major League Baseball.
Cooney echoed some of Gordon’s prior statements about the subpoenas and their wider reaching impacts on journalist’s need to be objective news gatherers.
“The more you require a news gatherer or reporter to testify... the more you jeopardize the ability of that person to get objective information,” Cooney said. “Unless [the Daily Sound has] a piece of evidence that can’t be obtained any place else and is important material to a defense, you just can’t take it.”
Gordon, who said he felt Hill acted accordingly by deferring judgment until he can research the laws said “if the defense had just done that in the first place, we could have avoided this all together.”
“If the Daily Sound did have in its possession a photograph that could in anyway exonerate Juarez, I would print it in a second, making that photo public record. I’m not an attorney, but I am a journalist and if I could, in any way, prove Juarez’ innocence, I would in a heartbeat,” Gordon said. “The issue of the photos may seem like a petty one, but it’s all about principle.
“If we hand over the photos, what will they ask for next? Our notes?”