Judge Nixes Lawyer’s Subpoena for Voice of OC Photographs

An Orange County Superior Court judge Friday quashed a subpoena issued by the county public defender's office for unpublished photographs taken by Voice of OC journalists during the riot that broke out in Anaheim on July 24 after protesters were barred from a City Council meeting.

Voice of OC covered the riot and its aftermath extensively, publishing several articles that were accompanied by photographs.

Senior Deputy Public Defender Frank Bittar had sought access to all of the nonprofit news organization's unpublished photographs from the riot scene as part of his defense of Luis Rodriguez, who was arrested that night and charged with assaulting a police officer.

In a quick decision, Judge James Rogan denied Bittar's subpoena under the California Shield Law, which protects journalists seeking to maintain the confidentiality of unnamed sources and unpublished information obtained during news gathering.

Rogan, a former congressman who was one of several House mangers during President Bill Clinton's impeachment trial in 1998, directly quoted from the 1974 California Senate judiciary analysis of the shield law:

“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.”

Bittar argued to Rogan that because Voice of OC reporters and photographers were in the midst of the riot scene taking photographs, he believed there was a good chance they held valuable information that could affect his client’s trial.

“I just want to know if there’s exculpatory evidence,” Bittar argued, stressing that his client’s right to a fair trial outweighed journalistic privacy protections in the state constitution.

While Rogan noted “this court has to be mindful of the balancing act,” he ultimately agreed with Voice of OC that Bittar couldn’t show specifically how the news organization's photos could free his client.

Voice of OC Editor-in-Chief Norberto Santana Jr. applauded Rogan's decision.

“Judge Rogan stood up for the free press today, and we salute his understanding of California’s Shield Law. Investigative journalists must steadfastly defend their rights to protect confidential sources and unpublished information, and we remain committed to aggressively stand up and defend those rights whenever challenged,” Santana said.

Voice of OC special counsel Kelly Aviles underlined that Rogan's ruling upheld the vital importance of a free press. "The judge had an excellent understanding of the shield law and correctly applied it given the circumstances of this case," Aviles said.

Terry Francke, CalAware general counsel and an open records consultant for Voice of OC, said the state’s Supreme Court has consistently ruled that there’s a very high threshold for criminal defendants seeking to use journalist’s notebooks or sources during their trials.

In court documents, Aviles argued, “criminal defendants have consistently been unsuccessful in meeting this threshold.”

Francke notes that “while the California Supreme Court 22 years ago, in Delaney v. Superior Court (Kopetman) (1990), 50 Cal.3d, 268 Cal. Rptr. 753, set forth circumstantial standards under which a criminal defendant’s Sixth Amendment fair trial rights might outweigh the journalist’s shield law protection, all four published appellate cases on this issue since then—three from the Supreme Court itself—have found defendants’ argued need for the information unpersuasive.”


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