Prosecutor’s “due process” right does not overcome privilege

A former journalist, who now teaches social studies to seventh-graders, does not have to satisfy a prosecutor’s demand and a trial judge’s order to reveal the identity of a confidential source, a state appellate court in San Bernardino ruled in late April.

A three-judge panel of the appellate court balanced a prosecutor’s interest in obtaining evidence against a reporter’s right under the state shield law to be immune from contempt of court for protecting a source’s identity. The panel concluded that “the People’s due process right” to prosecute criminal activity provided for in the state constitution generally is subordinate to a reporter’s right to protect sources under the shield law and the state constitution.

The panel also rejected the proposition that the prosecutor’s due process right under the state constitution and general need to obtain evidence rises to the level of a criminal defendant’s federal constitutional right to a fair trial, which has been found by certain courts to outweigh a reporter’s shield law protections.

The reporter, John Rezendes-Herrick, covered a story about a landfill plan in 1995 for the Inland Valley Daily Bulletin in Ontario that became the subject of a San Bernardino County grand jury investigation. The grand jury investigated accusations against Waste Management Inc., the nation’s largest waste-removal firm, involving stock fraud, wiretapping, and illegal use of trade secrets, and returned a 23-count indictment in October 1998.

In the process of that indictment, the prosecution demanded that Rezendes-Herrick reveal a confidential source it believed would aid its prosecution. Rezendes-Herrick appeared before the grand jury in early October 1998 but asserted the state shield law’s protections and refused to answer questions about the identity of his source.

A San Bernardino trial judge ordered Rezendes-Herrick to spend five days in jail in November 1998 for refusing to identify the source. That order, however, was stayed pending appeal.

The appellate panel did not hold that a prosecutor never could obtain material protected under the shield law, but stated that “it is clear that the Legislature has not contemplated a routine evaporation of the shield law whenever the [prosecution argues] that a newsperson possesses some information which might be useful in a criminal prosecution.”

The panel specifically found that because Rezendes-Herrick’s source sought anonymity, “the purposes of the shield law would be adversely affected by disclosure.”

The prosecution, the panel determined, failed to establish a compelling need for the source’s identity because it had failed to show that the source could not be identified by alternative means, and because it had not established that the source’s identity was critical for prosecution, or that the gravity of the offenses being prosecuted required disclosure.

A number of media organizations, including The Reporters Committee for Freedom of the Press, filed a friend-of-the-court brief in support of Rezendes-Herrick. The appellate panel’s decision is not designated for publication, and the parties can still request additional oral arguments by early May. If no additional oral arguments are requested, the ruling becomes final as written. (Media Counsel: James Manning, Jr., Riverside)