Student photographer beats subpoena, keeps unpublished pictures

CALIFORNIA — The free press rights of student journalists have benefited from a short-lived legal battle over the unpublished photographs of a crime scene.

Soren Hemilla, photo editor for the Contra Costa College Advocate, was named in an October subpoena that would have forced him to give certain pictures to the San Pablo police for use in a criminal investigation.

The bid for the photographer’s pictures has since been withdrawn, thanks largely to Hemmila’s willingness to stand up for his own First Amendment rights, according to the newspaper’s adviser.

The pictures were taken by Hemilla soon after another student, Christopher Robinson, was fatally shot on campus in September. Hemilla arrived at the scene within minutes and took pictures for about an hour. Three male suspects were charged with what the local media called a gang-related, execution-style murder.

According to court documents, the prosecutor in the case, Deputy District Attorney William Clark, first asked California Superior Court Judge John Minney to issue a subpoena for the pictures because Hemmila refused to turn them over to the police. The subpoena stated that when a police detective asked Hemmila if he had taken pictures of the scene, Hemmila answered that he had taken photographs, that the pictures were his “personal property,” and that they were not taken on behalf of The Advocate. Hemilla told the Report he did not say those things. Hemmila said he never told the police the pictures he took were his own, nor did he deny taking the pictures for publication in the student newspaper.

Nevertheless, Judge Minney issued the subpoena on October 9 and a hearing was set for Oct. 30. The adviser to the Advocate, Paul De Bolt, said that when he first heard of the subpoena, he was afraid of what the police might do.

“We weren’t sure if the cops were going to [get a subpoena to] come search the newsroom” he said. De Bolt said when the subpoena did arrive, he and Hemilla contacted an attorney to discuss their legal options. Attorney James Wagstaffe agreed to represent Hemilla and filed a motion to quash the subpoena on his behalf.

In the subpoena, Wagstaffe argued that both the state and federal constitutions shield newspersons such as Hemilla from becoming involved as witnesses or in producing unpublished notes or photographs.

In a surprising move, Deputy District Attorney Clark withdrew the bid for Hemilla’s photographs on the day of the court hearing. Clark later told reporters the DA’s office decided not to pursue the subpoena because he “was under the impression, basically mistaken, that [Hemilla] took [the pictures] before the police arrived” at the scene of the crime. Clark also told a local newspaper that not having Hemilla’s photographs would not hurt the prosecution’s case.

De Bolt said he felt that as a student journalist who is protected under California’s shield law, Hemilla had a strong case and would have won had it gone before the judge. De Bolt emphasized that the paper fought the subpoena to maintain the distinction between law enforcement and a free press.

Both De Bolt and Hemilla agreed that although it was a strong case, if Hemilla had not stood up for himself, he could have had his legal protections subverted. “Every time you forfeit your rights,” said De Bolt, “you lose them.”

Wagstaffe said he was happy the subpoena was withdrawn. He said the judge “understood and appreciated the fact that press rights apply to [Hemmila].” But Wagstaffe said Hemmila’s case shows how important it is for students to stand up for their rights. He commented that, although some may view students as “just kids, the First Amendment doesn’t have an age barrier.”

Ingrid Perez, the newspaper’s editor, said she and the staff of the Advocate supported Hemmila from the beginning. Perez said the subpoena was “definitely” an infringement on the First Amendment rights of the student press. “We’re not by law required to give our sources out,” Perez said, “it’s kind of like reading a writer’s notes.”

“We have to learn our rights and responsibilities as journalists,” said Hemilla, “because we’re still held to the same standards as [professionals]. The professionals started the same way we are, and this dealt with their rights just like mine” Hemilla said.

Despite Clark’s statement that not having Hemilla’s photographs would not hurt the prosecution’s case, Clark later said the district attorney’s office would retain the option of pressing for the pictures.

“If I learned that [Hemmila] did have photographs taken before the police arrived, I’d get another subpoena” said Clark.

reports, Winter 1996-97