Student editor wins battle over records

Wednesday, April 12, 2000

A California student editor has won a six-month court battle to block a defense attorney’s effort to obtain unpublished photographs and records from his college newspaper.

“This is a very good day for journalism,” said David Sommers, editor in chief of The State Hornet at California State University-Sacramento. Sommers commented last week after Sacramento County Superior Court Judge Gerald S. Bakarich granted his motion to quash a subpoena seeking records from the newspaper.

Lisa Franco, the attorney for a man arrested last September at a campus football game, had sought from the Hornet witness contact information and “all news-clips, films, videos, photographs, or other documents pertaining to” her client’s arrest.

Bakarich denied Sommers’ original motion to quash Franco’s subpoena last December. The judge also found Sommers in contempt later that month after he refused to hand over the material. In February, a three-judge panel of the appellate division of the Sacramento County Superior Court denied Sommers’ petition to review the contempt ruling.

Sommers’ attorneys renewed their motion to quash the subpoena last month after learning that Franco had received broadcast video footage of her client’s arrest from local television stations. Sommers’ lawyers, husband and wife team Matthew Roberts and Jacqueline Kinney, argued that Franco could attain the information she was seeking from other sources and did not need the Hornet’s records.

After reviewing the Hornet’s records privately, Bakarich ruled April 7 that the paper’s material would duplicate information Franco already had or could obtain. He also said Franco had not exhausted other avenues for gathering the information.

“One of the requirements (of the state shield law) is (that) you make efforts to obtain the information on your own,” Bakarich told Franco during the April 7 hearing, as quoted in The Sacramento Bee. “It seems to me you haven’t done that,” he said.

Bakarich chided Franco after Roberts and Kinney alerted the court that Franco had not contacted a witness who was quoted in a Hornet story about her client’s arrest.

Kinney said Bakarich’s ruling was a clear triumph for the state shield law.

“If journalists have to continue to be hauled into court to defend their constitutional rights, that continues to be an enormous burden,” she said. “We would hope that litigants would realize from [Bakarich's] ruling that you can’t go to the press first, that you have to look to other sources for information.”

But Franco says she will continue to seek the Hornet’s records.

“If he (Sommers) thinks it’s over, he’s wrong,” Franco said.

Franco has maintained that the Hornet’s records, particularly the photos, are key to her defense of client Gustavo Chavez because they might prove that the officers used excessive force while arresting him and that he is not guilty of the charges against him.

Chavez was charged with resisting arrest and with battery of a police officer for an incident at the Causeway Classic football game on Sept. 18, 1999. The Hornet ran a front-page story about his arrest, along with a photo of a police officer placing him in a chokehold, in its Oct. 6 issue. Chavez is scheduled to go to trial on May 15.

During the April 7 hearing, Bakarich also threw out Franco’s subpoena for unaired video footage from several Sacramento television stations that were filming at the football game where Chavez was arrested, including KCRA, the local NBC affiliate.

The Associated Press contributed to this story.