Student editor wins subpoena battle

Judge rules defense failed to exhaust other means of finding information

CALIFORNIA -- After several months of legal battles, a Sacramento County Superior Court judge quashed a subpoena asking a student editor to turn over unpublished photos taken during a fight at a football game.

Judge Gerald S. Bakarich ruled in April that David Sommers, editor of The State Hornet, the student newspaper at California State University at Sacramento, would not be held in contempt for refusing to hand over pictures of the arrest of Gustavo Chavez at a football game in September. Sommers was facing a possible jail sentence for refusing to surrender the film.

"I did not want to turn over those materials because I was afraid of what it would do to our ability to continue to gather the news," Sommers said. "If the public knew that we had turned over photos and witness names in the past, then why would they want to be interviewed by us in the future?"

Jacqueline R. Kinney and Matthew D. Roberts, Sommers' attorneys, claimed that California's shield law protected their client's right to withhold the photographs. Shield laws are designed to legally protect journalists who refuse to reveal sources or hand over unpublished material gathered in reporting.

In October, Lisa Franco, Chavez's attorney, subpoenaed copies of film negatives and notes reporters had taken during the football game -- just one week after her client was arrested on two counts of resisting an officer.

In addition to the material gathered by journalists at the football game, Franco asked for photo negatives and notes taken during protests by the university Latino community after a picture of Chavez's arrest was published on the front page of The State Hornet.

In December, a superior court judge partially quashed the subpoena, only allowing Chavez's defense to ask for the film negatives and a list of witnesses compiled by State Hornet staff reporters.

Under California's shield law, a defense attorney must meet a high burden of proof in order to be granted access to unpublished material gathered by a reporter.

Attorneys must demonstrate that their clients would be deprived of their right to a fair trial without the otherwise protected information. The defense must also show that it exhausted all alternate sources for information before it can ask for material protected by the shield law.

Sommers' attorneys argued that Franco did not meet this threshold because she issued the subpoena a week after the newspaper published the photograph.

"A subpoena issued one week after the publication does not seem, to me, like they have exhausted very many alternative sources at all," Kinney said at Sommers' first appeal hearing in December. "It's kind of a fishing expedition that the U.S. Supreme Court has said is not allowed under the First Amendment."

In the final appeal, Sommers' attorneys again argued that Franco had not exhausted all other sources. Before the court date, Sommers' attorneys discovered that Franco never contacted the only witness to the arrest who was named in a published article by The State Hornet.

According to Sommers, Mike Jaime was listed in the phone book but was never contacted by the defense. Sommers said Jaime was a season ticket holder who attended with his family the game where Chavez was arrested and sat with the same crowd of people he sat with at every football game. Jaime could have given the defense a dozen more witnesses, Sommers said.

At the final hearing for Sommers' appeal, Judge Bakarich agreed with Sommers' attorneys, ruling that the defense had failed to look to other sources before seeking information from the press.

"The judge was very upset by [this] because the only reason why the judge said that the materials were needed in the first place was because the defense had filled their burden in searching for witnesses, and obviously they did not," Sommers said.

After reviewing the film negatives in his chambers, Bakarich ruled that the information in the unpublished photographs did not reveal any new information that could not be found in published photographs and stories or from alternative sources.

"This is a victory for the press, but it comes at a price," Kinney said. "The whole process of being dragged into court is a burden the press should not have to bear. Ultimately, it is the public that suffers when a journalist's time and resources are diverted to fighting off subpoenas for unpublished information."

Sommers, who received the James Madison Freedom of Information Award for College Journalism by the Northern Californian Chapter of the Society of Professional Journalists for his refusal to release the material, said he is glad to return to his job as editor of The State Hornet.

"I've been wrapped up in this for the last six months of my life," Sommers said. "At 20 years old, I never imagined I would be involved in something this important and big. I think it is important that we won because it didn't set a bad precedent in the state of California."

"We can only hope that this decision will deter other litigants from going to the press before seeking information from alternative sources not protected by the shield law," Kinney said.    

reports, Spring 2000