(CN) — A California Court of Appeal found Tuesday that a local newspaper should not have been held in contempt for refusing to produce a reporter’s notes, but ultimately ruled against the Bakersfield Californian’s attempts to keep the notes out of court proceedings.
A Kern County judge first held The Bakersfield Californian in contempt in May 2023 after it refused to hand over one of its reporter’s notes and other unpublished material from a jailhouse interview of Sebastian Parra, indicted alongside Robert Pernell Roberts for the fatal shooting of corrections counselor Benny Alcala Jr. in 2022.
Tuesday’s ruling lifts the order holding the newspaper in contempt — with the appeals court citing multiple procedural errors made by the parties and the Kern County Superior Court in issuing the order — but upholds Roberts' petition for the reporter’s notes on his codefendant.
Justice Rosendo Peña Jr. determined in Tuesday’s ruling that the contempt order by the Superior Court of Kern County was procedurally invalid, writing that, “in the parties’ haste to initiate this writ proceeding, several mistakes were made.”
Despite doing away with the contempt order, Peña, with Justices Jennifer Detjen and Kathleen Meehan concurring, affirmed a Kern County judge’s decision to deny the newspaper’s motion to quash a subpoena for Bakersfield Californian reporter Ishani Desai’s unpublished notes on her interview with Parra.
The paper, which serves Bakersfield and Kern County, was pulled into the case after publishing a story on Parra, who had been charged in Acala’s death after testifying for the prosecution as a witness. Desai’s story presented Parra as having been wrongfully arrested to cast doubt on Roberts’ role in the shooting.
Roberts’ attorney subpoenaed the California following the story for Desai’s notes, saying that the notes could be necessary for the defense. The newspaper pushed back and refused to hand over the notes, citing California’s Shield Law, which protects journalists from contempt citations if they decline to name confidential sources or produce unpublished materials.
Reporters Committee for Freedom of the Press, along with 22 media organizations, have intervened in the case, filing a brief in support for the Californian.
According to Peña, since the newspaper prematurely attempted to petition for relief, Roberts did not seek or obtain an order to show cause, and the Superior Court itself failed to specify a punishment in the order, the order was technically invalid.
“The party subject to the subpoena and compliance order was not the reporter whose personal notes were sought; it was the newspaper,” Peña wrote. “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, in the same ruling, also addressed the subpoena and the paper’s attempt to quash it and agreed with the superior court’s denial. He writes that California’s shield law does provide journalists with immunity from contempt but should not infringe on a criminal defendant’s right to a fair trial.
“It is reasonably possible the reporter’s notes reflect unpublished statements by Parra concerning pivotal elements of Roberts’s defense case,” Peña wrote. “One reason is because many of the published statements attributed to Parra directly contradict his preliminary hearing testimony.”
Peña also calls out the Californian’s reluctance to conduct a private in camera review of the notes.
“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,” he wrote. “We would add that 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.”
Trial court proceedings in Roberts and Parra’s homicide case, originally scheduled for June 2023, have been stayed pending the Californian issue is resolved.
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