As a last resort, habeas petitions can keep journalists out of jail

From the Summer 2000 issue of The News Media & The Law, page 14.

When a reporter loses a bid to have a state trial court quash a subpoena to testify, the first step is to appeal to a higher court. But when those appeals are not successful, there is one other option to be used as a last resort — filing a writ of habeas corpus asking a federal court to order release.

The procedure can be complicated, and chances of success are not high. A habeas petition did not save a California reporter who eventually served five days in jail, but two reporters in Texas and Florida have had the threat of a jail term removed in recent years after filing habeas petitions.

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Journalist Tim Crews was jailed in late February for refusing to comply with a contempt of court ruling ordering that he reveal confidential sources. (See NM&L, Winter 2000)

Crews had reported in his newspaper, the Sacramento Valley Mirror, that former California Highway Patrol Officer Dewey Anderson had stolen a gun from Tehama County Interagency Drug Enforcement Unit evidence.

Crews was later subpoenaed by the defense to testify at Anderson’s criminal trial to name the officers who had given Crews his information, but Crews refused to comply. When Crews was ordered by the court to reveal his sources, he invoked the California shield law privilege, which allows reporters to withhold unpublished information at trial and protects them from being held in contempt of court.

Determining that Anderson’s right to a fair trial under the Sixth Amendment superceded Crews’ privilege, Tehama County Superior Court Judge Noel Watkins held Crews in contempt and sentenced him to five days in jail.

Crews appealed the ruling, but the Third District Court of Appeals and the state Supreme Court refused to hear his appeal. He then filed a habeas corpus petition in federal court in Sacramento, but the judge denied the motion on Feb. 25. Crews immediately appealed to the U.S. Court of Appeals in San Francisco (9th Cir.), but the federal appellate court did not stay the decision and Crews reported to the Tehama County Jail. (Crews v. Superior Court of California)

Crews had argued that his case had never been actually reviewed on its merits by any lower court, that his First Amendment rights were violated by the contempt of court ruling and were not subservient to Anderson’s fair trial Sixth Amendment rights because the information Anderson was seeking was obtainable through other means, and that irreparable harm would be done to Crews by forcing him to either name his sources or to go to jail for invoking his First Amendment and California shield law rights.

San Francisco attorney Thomas Burke headed up the effort to obtain habeas review. He said that Crews’ habeas appeal was “the first time in my memory there had been a habeas petition brought [on behalf of a reporter]. The next earliest was 40 years ago. They are not the norm here; it’s very much the exception in California. . . .Unless you’re already in jail, it’s not much help for you.”

Burke’s sentiments were echoed by Joel White, who kept Houston Chronicle reporter Jennifer Lenhart from going to jail through a habeas appeal in 1996. Lenhart had been subpoenaed to testify by the Harris County District Attorney after she reported that grand jurors said a local police officer had not been indicted by the grand jury because one of the jurors was “politically connected” and was unwilling to indict a police officer. (See NM&L, Winter 1996)

White said that in the last decade he has only had to file two habeas appeals on behalf of journalists — Lenhart’s appeal and an appeal on behalf of Houston Chronicle reporter James Campbell in 1991.

“It’s rare for prosecutors to go to those extremes” to threaten a reporter with jail time, White said. As a result, it is also rare to file a habeas appeal on behalf of a reporter, “although, if the reporter’s going to fight [a court’s contempt order and threatened jail time], it’s the only way to do it. Reporters choose [their] battles wisely; they don’t want to go to jail. We’ve done it when we’ve known we were right.”

As White said, “It’s a complicated procedure to even file the appeal. It’s a last minute thing.” In Texas, because the state does not recognize a reporter’s privilege under state law, a case first has to make its way “to Texas’ Criminal Court of Appeals, Texas’ supreme court in criminal matters, before it can go to federal court,” White explained.

“We jumped from one court to the next” in filing Crews’ habeas appeal in California, Burke said. “In order to initiate a habeas petition in federal court, you must exhaust [all] the state court remedies.”

Burke noted that under the habeas rules, the District Court’s record is “locked in,” and that is what upper courts then base their decisions upon.

In addition, “there must be a fundamental federal issue involved” for a federal court to grant a habeas appeal, Burke said.

“Reporters, and their lawyers, have got to state their First Amendment rights in the trial court to succeed in federal court,” Burke stressed. “In federal court you’re saying ignore the [state court], ignore state law, look at the First Amendment law only . . . Don’t make the misstep of not asserting your First Amendment rights and state rights to preserve the record, because you never know when you might end up in federal court.”

Crews served five days in jail after his habeas attempt failed.

But in Lenhart’s case, a federal judge in Houston initially stayed the state order sending her to jail just before she was supposed to turn herself in. The same court later set aside the contempt order, holding that a qualified First Amendment privilege applied. (Lenhart v. Thomas)

Miami Herald reporter David Kidwell, however, may be the reporter who has benefitted the most from a habeas action. Kidwell had been found in contempt of court by a state judge in October 1996 for refusing to testify about his jailhouse interview with a man on trial for the murder of his step-daughter. An initial state appeal was unsuccessful, and Kidwell went to jail. He served two weeks of a 70-day term before a federal judge ordered that he be released. (Kidwell v. Florida) (See NM&L, Winter 1997)

The federal judge’s decision was a temporary release, and the judge said he would not decide the matter finally until the state courts had fully considered his appeal. The state Supreme Court finally decided — more than two years after Kidwell was sent to prison — that a reporter’s privilege exists, but that Kidwell’s interview may constitute direct evidence of a crime. After the state Supreme Court’s ruling, Kidwell’s sentence was reduced to time already served — 15 days — because the accused murderer had already been convicted.