A state appeals panel has agreed a murder suspect’s right to a fair trial overrides a journalist’s First Amendment protections against being compelled to turn over their notes and other reporting materials.
The Nov. 7 opinion from the California Fifth Appellate District is the latest development in a lengthy legal dispute arising from murder charges stemming from a fatal shooting outside a Target in August 2022.
In May, Kern County Superior Court Judge Elizabet Rodriguez ordered former Bakersfield Californian reporter Ishani Desai to produce unpublished notes and transcripts from a jailhouse interview conducted with Sebastian Parra, one of two men accused in the shooting. The other, Robert Roberts, argued the information Desai collected might lead to his partial exoneration.
According to an online professional bio, Desai is now employed by the Sacramento Bee news organization.
Justice Rosendo Peña wrote the panel’s opinion; Justices Jennifer Detjen and Kathleen Meehan concurred.
According to court background, the state’s case against Roberts relies significantly on allegations Parra made while testifying at Roberts’ preliminary hearing. At the time, Parra was an uncharged government witness. After prosecutors obtained a murder indictment against Parra, the court consolidated the cases.
When the Californian published Desai’s story on Parra, Roberts — through Public Defender Peter Kang and Deputy Alexandria Blythe — filed a subpoena for all unpublished material. Court records show Desai maintained she didn’t record video or audio of her interview with Parra and that all she could produce were notes or drafts, which the paper said meets the legal definition of “unpublished, confidential journalistic work product” subject to Shield Law protections.
The Californian successfully quashed Roberts’ first attempt at mandatory disclosure in early April, but Roberts bolstered his position by alleging Parra falsely accused him of committing the murder and further claiming Parra fired the gun. The newspaper failed to quash that motion. It then asked Kern County Superior Court Judge Tiffany Organ-Bowles to issue a contempt ruling and withhold sanctions as a prerequisite for elevating the issue of Judge Rodriguez’s ruling to the appeals court.
Peña said the dispute must be viewed in light of a 1990 California Supreme Court opinion, Delaney v. Superior Court, which established the state Shield Law protecting reporters “must yield to a criminal defendant’s constitutional right to a fair trial” when certain thresholds are met. Although the panel agreed the contempt ruling was invalid, it said the reasons were unrelated to the merits of a ruling on the motion to quash the subpoena.
“The contempt order is defective in its failure to specify the punishment to be imposed,” Peña wrote. Further, “the party subject to the subpoena and compliance order was not the reporter whose personal notes were sought; it was the newspaper. Although the existence of the notes was certainly implied at various times, the newspaper’s ability to produce them was never actually alleged or adjudicated in the contempt proceedings.”
Peña further explained the published portion of the panel’s opinion explains why Rodriguez ruled correctly and noted remanding the case for proper entering of a contempt judgment would serve no purpose. The panel said getting around the Shield Law requires a showing a reasonable possibility the information sought will materially assist in a criminal defense, then a court balances four factors: if the unpublished information is confidential or sensitive, whether disclosure undermines the Shield Law’s protected interests, the importance of the information to the defendant and if an alternative source is available.
“Where defendants often have difficulty is in showing that the prospect of the information making a difference in their case is not entirely speculative,” Peña wrote, later adding that “Although Roberts’ attorney is unwilling to disclose the finer points of the anticipated defense case, key aspects are readily inferable from our record.”
One key aspect of the case, the panel noted, is a text message from a number associated with Roberts claiming to have killed a person. The panel said it would appear Roberts’ team plans to accuse Parra of sending that message, and even evidence that only supports that theory might materially help Roberts impeach Parra’s prior testimony on the events of the evening in question.
“It is reasonably possible the reporter’s notes reflect unpublished statements by Parra concerning pivotal elements of Roberts’s defense case,” Peña wrote, saying the published article “all but confirms” Desai spoke with Parra about that message, along with other indications Desai and Parra discussed the theory he pulled the trigger and whether a gun Parra owned was the murder weapon. “Many of the published statements attributed to Parra directly contradict his preliminary hearing testimony.”
The panel further said the Californian made several arguments that “either misstate or misconstrue” case law regarding the degree of specificity Roberts should have to meet in order to compel disclosure, stressing that Judge Rodriguez didn’t abuse discretion in determining Roberts met the standard to prove his point. It further agreed Rodriguez properly weighed the four factors of the competing interests between newspaper and criminal defendant.
According to Peña, the newspaper didn’t show Desai’s information was confidential or sensitive to the degree its disclosure would chill future reporting efforts. The panel also said Parra made no conditions or stipulations regarding his interview, so anything he told Desai would presumably have been on the record.
“Furthermore, indulging the presumption that criminal defendants keep abreast of legal developments in this area, this class of potential interviewees is already aware that reporters can be compelled to testify about statements attributed to a criminal defendant in a published article,” Peña wrote. “The newspaper fails to explain why a defendant who is otherwise willing to grant an interview without any promise or expectation of content control — and is thus without knowledge of what information the newsperson will choose to publish — would make a different choice because of the possibility the journalist’s unpublished notes might be discoverable.”
Although the article says police interviewed Parra a second time, Peña said, the record doesn’t confirm that assertion. While Judge Rodriguez could’ve factored the existence of such an interview when balancing the factors, the earlier determination Desai’s notes weren’t confidential or sensitive allowed reduced weight on the factor o a potential alternative source.
Finally, the panel said this is a circumstance where the judge would’ve been correct to order a personal review of the contested material in order to form an opinion on whether to grant the subpoena. Rodriguez ultimately denied Roberts’ request for such a view, perhaps moved by the Californian’s strong opposition.
“In its briefing on the motion to quash, the newspaper described the subpoenaed material as both ‘extremely sensitive’ and ‘confidential.’ If the newspaper genuinely held this belief, it should have been arguing for rather than against in camera review of the material,” Peña wrote. “Parties who invoke the Shield Law should not be allowed to blow hot and cold on the issues of confidentiality/sensitivity and the propriety of in camera review.”
The panel tossed the May 24 contempt order, but otherwise denied the newspaper’s petition. All parties will pay their own court costs.
Representing the Californian are Thomas Burke and Sarah Burns, of Davis Wright Tremaine.
In July, Katie Townsend, of the Reporters Committee for Freedom of the Press, filed a support brief on behalf of 22 media organizations, asking the court to side with Desai and the Bakersfield Californian.
The Reporters Committee for Freedom of the Press did not reply to a request for comment from The Southern California Record following the ruling.
Kern County District Attorney Cynthia Zimmer and Deputy John Allen also filed an appearance asserting their right to help deliver a speedy trial.