LOS ANGELES (CN) – A journalist called to testify in the upcoming obstruction trial of former LA County Sheriff Leroy Baca is not entitled to constitutional protections that shield news reporters and the court should deny his motion to have a subpoena thrown out, prosecutors have argued.
At a hearing in U.S. District Judge Percy Anderson’s courtroom before Thanksgiving, an attorney for former Los Angeles Times journalist Robert Faturechi said her client would cite the reporter’s privilege under the First Amendment to avoid taking the stand as a witness for the government.
At the very least, Faturechi – now an investigative journalist for ProPublica – should only have to give testimony about a Los Angeles Times article that was published on Sept. 29, 2011, Davis Wright attorney Kelli Sager said.
Faturechi left the Los Angeles Times in 2014, after writing several investigative pieces on the Los Angeles County Sheriff’s Department. He now writes about campaign finance at ProPublica.
In his motion to quash, Faturechi said that by appearing on the stand as a government witness he risks compromising his journalistic work.
“If sources view me as a potential investigative tool for the government, criminal defendants or private litigants, they may decline to provide information to me, impeding my ability to gather and provide information to the public about matters of significant public concern,” Faturechi says in a declaration. “I am concerned that if I am compelled to testify in this case, my ability to do my job in the future will be severely hampered because it could create the appearance of bias.”
He calls the government’s subpoena a “serious infringement” of his constitutional rights.
But in a response filed on Monday, federal prosecutors said Faturechi is asking Judge Anderson to “enforce a privilege that simply does not exist” and that reporters, like citizens, do not get special treatment if they can give relevant testimony in criminal trials.
“This is not a case where a member of the media seeks to protect confidential sources or unpublished material. Instead, Mr. Faturechi simply wants to show that he is independent from the government,” prosecutor Brandon Fox wrote. “He has done that by this filing. There will be no public confusion or misconception that he is an interested party aligning himself with the government. The court should order him to do what any other citizen must: comply with the subpoena and provide relevant testimony at trial.”
The government said Faturechi’s testimony is relevant to charges that Baca obstructed an FBI investigation into jailhouse abuses, citing statements the retired official made to Faturechi when he was still sheriff in 2011.
Baca is accused of conspiring to hide informant-inmate Anthony Brown from investigators after jailers discovered an FBI phone was smuggled into Men’s Central Jail by jailer Gilbert Michel.
In August 2011, Baca asked his second-in-command, convicted Undersheriff Paul Tanaka, to investigate how the phone ended up with Brown. The next month, Baca instructed officials to “do everything but put handcuffs” on FBI investigator Leah Marx, according to the government.
At a 2013 meeting with prosecutors, Baca maintained he did not know that the FBI was investigating the jails, that he was not involved in any effort to keep agents away from Brown, and that he knew nothing about the plan for officials to corner Marx outside her home – a plan that was carried out and immortalized on video by the department.
But in Faturechi’s September 2011 Times article titled “L.A. County Sheriff Lee Baca gives details of FBI sting,” Baca is quoted as saying the department was “investigating a crime.”
Faturechi wrote in the article: “Baca said the agent directed questions to her supervisor. He dismissed any suggestion that the visit was intended to intimidate the agent. The FBI’s home visit to his deputy wrapped up in the sting, Baca argued, involved ‘substantially more intimidating tactics.'”
The journalist says in his motion to quash that Baca made the comments after a press conference.
In February 2016, after Baca was charged with making a false statement to prosecutors, Faturechi gave an interview to National Public Radio affiliate KCRW in which he spoke about the contradictions between comments that Baca had made for the Times article and his answers to prosecutors in 2013.
“You know, what’s interesting is when we first broke this story, he actually told me, he acknowledged, that he was aware and he sent these deputies to this FBI agent’s home,” Faturechi said in his interview for the radio show “Olney in L.A.”
In its response, the government says Baca’s statements in the Times article show two motives for sending investigators to Marx’s home: first, to intimidate the agent and second, to retaliate against the FBI for approaching Deputy Michel to try to persuade him to become an informant.
The prosecution says it wants Faturechi to testify only about what is already publicly available, and has urged the court not to limit testimony to so-called “unpublished statements.” The government says it not clear why the court should treat the radio interview as unpublished and that the “law makes no distinction in published versus unpublished material when it relates to federal criminal investigations and trials.”
A hearing on Faturechi’s motion to quash is scheduled for Friday in Judge Anderson’s new downtown courtroom.