Student editor told to hand over records

Thursday, December 9, 1999

(Editor’s note: David Sommers was found in contempt of court on Dec. 17 after refusing to turn over unpublished photos and witness contact information. Judge Gerald S. Bakarich, however, delayed punishment pending the results of an appeal, which Sommers’ attorneys must file by Jan. 14.)

A state judge has ordered a California State University, Sacramento, newspaper editor to turn over records and photographs regarding an arrest at a campus football game.

Sacramento County Superior Court Judge Gerald S. Bakarich ordered David Sommers, editor in chief of The State Hornet, to hand over the names of people interviewed and all unpublished photos pertaining to the Sept. 18 arrest of Gustavo Chavez.

“If we turn over the material now, what is there to prevent sources from thinking we wouldn’t do it again?” Sommers was quoted as saying in The Sacramento Bee.

Bakarich issued his ruling Dec. 3 at a hearing in People v. Gustavo Chavez.

Controversial photo from State Hornet Web site shows Gustavo Chavez being arrested at football game Sept. 18. Posted by permission.

Chavez was charged with resisting arrest and battery upon a police officer for an incident at the Causeway Classic football game.

The State Hornet ran a front-page story about Chavez’s arrest, along with a photo of a police officer placing Chavez in a chokehold, in its Oct. 6 issue. The photo outraged members of the Latino community, who marched through campus Oct. 7, accusing the paper of stereotyping minorities.

Lisa Franco, Chavez’s lawyer, had subpoenaed from the Hornet “all news-clips, films, videos, photographs, or other documents pertaining to [Chavez's] arrest” and the campus protest.

Jacqueline Kinney, one of Sommers’ lawyers, argued that the state shield law protected the Hornet from having to release the information.

“You should not be allowed under the shield law to go to the press and have the press do your investigating for you,” Kinney said.

California’s shield law in most cases protects reporters from being held in contempt for refusing to disclose confidential sources or unpublished material. In 1990, the state Supreme Court ruled in Delaney v. Superior Court that reporters must turn over such evidence to the defense if it is vital to the case of a criminal defendant, who has a constitutional right to a fair trial.

Franco says the records, particularly the photos, are key to Chavez’s defense because they might prove that the officers used excessive force and that Chavez is not guilty of the charges against him.

“Without the evidence that we are seeking from the State Hornet, [Chavez] won’t have a fair trial,” Franco said. “Photographs are very compelling. … We’re going to have testimony, but everyone recalls things differently. Photos are not biased.”

She says neither she nor an investigator has been able to obtain the needed information from any other source. “The judge found that we have done enough and exhausted all alternative sources,” she said.

Bakarich ruled that the paper’s witness information and photos were not confidential. However, only material pertaining to the arrest — not the campus protest — should be released, he said.

Sommers could request that the judge privately review the photos to decide if they supply essential evidence. Kinney said Sommers most likely wouldn’t request such a review.

Sommers has until Dec. 17 to comply with the judge’s order, refuse to comply or file an appeal.

“It’s very clear that David wants to do the right thing with protecting the rights of the newsgathering process as guaranteed under the shield law,” Kinney said. But, she says, Sommers has not decided whether to appeal the ruling.