Orange County’s public defender today will ask an Orange County Superior Court judge to compel Voice of OC to release unpublished photos from the July 24 riot scene in Anaheim in an attempt to defend a man accused of throwing rocks at police.

Senior Deputy Public Defender Frank Bittar is seeking the records in the case of Luis Rodriguez, who was arrested during the July 24 riot and stands accused of assaulting an Anaheim police officer.

Voice of OC published three investigative news packages in the wake of the riot that featured photos taken by Voice of OC reporters in the field. Bittar is seeking access to unpublished photos from those story packages.

Voice of OC has refused to provide the unpublished work and filed a motion to quash the subpoena.

“While we appreciate that the Orange County public defender is trying to protect Mr. Rodriguez’s rights to a fair trial, this subpoena threatens the viability of our free press, and we stand ready to vigorously defend our rights in court,” said Voice of OC Editor-in-Chief Norberto Santana Jr.

“California’s Shield Law is very clear. Journalists can’t be cited for contempt for refusing to disclose a confidential source or unpublished information,” Santana said.

In the motion to quash, Voice of OC special counsel Kelly Aviles further argued: “Alternative sources of information undoubtedly exist to show what information is sought in the unpublished photographs. Hundreds of other people were present during the protests and can give eyewitness accounts as to the circumstances of the protest if called by the defense or prosecution. Many of those other witnesses may also have video or photos of the incident.”

Bittar argues that his client’s constitutional rights to a fair trial supercede First Amendment protections for the working press.

“It’s the due process rights for a criminal defendant butting up against the First Amendment rights of the press,” Bittar said, “and I feel a person’s liberty interests should trump the press’s right to keep confidential information.”

Bittar indicated that he could potentially seek similar action against other news outlets that had photographers on the riot scene in Anaheim that day, such as the Los Angeles Times and The Orange County Register.

In court documents, Aviles argues that to allow this type of access to unpublished documents would have a chilling effect on a free press.

Quoting from the 1974 California Senate Judiciary Committee analysis of the state’s shield law, Aviles noted:

“The possibility that a reporter’s work product will be subject to subpoena will curtail courageous investigative reporting since the reporters and their newspaper (or other communications media) … will constantly be exposed to the expense and loss of time incurred when required to appear as a witness. …This will result in a chilling of the constitutional right of a free press.”

Terry Francke, CalAware general counsel and an open records consultant for Voice of OC, said the state Supreme Court has consistently ruled that there’s a very high threshold for the situation that Bittar is alleging.

“Criminal defendants have consistently been unsuccessful in meeting this threshold,” Aviles argued in the motion.


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