Newspaper ordered to comply with subpoena for jailhouse interview notes

The Bakersfield Californian reported that it turned over a reporter’s previously unpublished interview questions and notes on Nov. 15, 2023, in compliance with an order from the state’s 5th District Court of Appeal. The newspaper also published the newsgathering materials on its website.

The dispute began after reporter Ishani Desai interviewed Sebastian Parra for an article published by the Californian on Feb. 26. Parra was a key witness in the murder indictment of another inmate, Robert Pernell Roberts, but was himself subsequently indicted as a co-defendant.

The newspaper was subpoenaed twice seeking recordings from Desai’s interview or her questions and notes. While the first subpoena was quashed, the Californian was ultimately given one week to turn over the materials and was found in contempt when it refused to do so.

The appellate court ruled on Nov. 7 that though the lower court was incorrect in holding the Californian in contempt — citing procedural errors — the threat to the defendant’s right to a fair trial overcame the protections of the state shield law. It ordered Desai’s recordings and notes be given to Roberts’ attorney.

The Californian’s attorney, Thomas Burke, told the newspaper that the ruling was disappointing and set a dangerous precedent.

“The decision overlooked the newspaper’s substantial showing that the public defender has ample alternative sources for the same information it claimed to need from the newspaper, and sets the bar a defendant must meet to compel disclosure dangerously low,” Burke said.

The Californian reported that though the ruling will have a chilling effect on criminal defendants and journalists alike, it would not appeal the ruling, citing the high legal costs of taking a case to the California Supreme Court. Californian Executive Editor Christine Peterson said they must prioritize maintaining the outlet’s ability to provide local news coverage.

“In an age of diminished newsroom resources — experienced by newsrooms across the country — we were compelled to make a practical decision,” Peterson said.

The newspaper will instead seek “de-publication” of the appellate court’s decision — meaning that the case can not be used as a legal precedent for future shield law cases.

A California Court of Appeal overturned contempt charges against The Bakersfield Californian on Nov. 7, 2023, but affirmed a lower court’s decision requiring the newspaper to turn over a reporter’s newsgathering materials.

The Californian was first subpoenaed in March after publishing an article by reporter Ishani Desai. The story included information from a jailhouse interview with a key witness who was subsequently indicted as a co-defendant in a murder case.

The subpoena was quashed on April 4, but a nearly identical one was issued the same day. On May 10, a Kern County Superior Court judge denied the Californian’s motion to quash, giving the newspaper one week to turn over Desai’s interview questions and notes.

The newspaper refused and was found in contempt on May 24. The Californian appealed the decision to the state’s 5th District Court of Appeal, which heard oral arguments in October.

In its Nov. 7 order, the three-judge panel ruled that the lower court was incorrect in holding the Californian in contempt. The judges cited multiple procedural errors, including that no punishment was specified in the order and that it was never made clear whether the newspaper could produce the requested materials.

The ruling, however, did affirm the lower court’s order that the newspaper turn over Desai’s interview questions and notes, having found that the defense attorney in the underlying murder case had successfully shown that the documents would assist in her client’s defense.

Justice Rosendo Peña Jr. overruled the Californian’s arguments that the materials were protected by the state’s shield law, writing that such protections can be overcome when they jeopardize a defendant’s right to a fair trial.

Desai did not respond to a request for comment, and when reached by email the Californian’s attorney, Thomas Burke, said that he is still discussing next steps with his clients.

Meanwhile, the murder trial has been placed on hold pending the resolution of the Californian’s subpoena and a separate subpoena ordering Desai to provide trial testimony, Courthouse News reported.

A California judge held The Bakersfield Californian in contempt on May 24, 2023, for refusing to comply with a subpoena seeking unpublished materials from its reporter’s interview with a criminal defendant. The reporter, Ishani Desai, told the U.S. Press Freedom Tracker via email that the judge paused any potential penalties against the outlet for 10 days so it could again petition the Court of Appeals.

The Californian was issued two subpoenas seeking a recording, notes and interview questions from Desai’s February interview. While the first subpoena was quashed by a judge, the newspaper was instructed on May 10 to comply with the second subpoena and turn over the materials by May 17.

The newspaper filed an emergency appeal on May 15 requesting a stay, or temporary stoppage, of the order compelling Desai to turn over her notes. The Court of Appeals declined to review the request before a contempt order was first issued.