“We’re fighting this because it’s so important for people to know we are not an arm of any government agency,” Ishani Desai, a 24-year-old journalist covering Kern County courts and public safety for the Californian, said in an interview with The Times. “We want to protect our independence.”
Earlier this month, Kern County Superior Court Judge Elizabet Rodriguez ruled that Desai must provide her notes from an interview with one of the co-defendants in a murder case to the other co-defendant. According to the Californian’s reporting on the decision, Rodriguez determined that “there is a possibility” Desai’s unpublished notes could help the other man’s defense.
But Desai and the newspaper’s attorney, Thomas R. Burke with the firm Davis Wright Tremaine, said the possibility of useful information in her notes does not meet the standard required by the state’s shield law for a journalist to turn over documentation to a criminal defendant.
“You need to show a probability that [the notes are] going to be beneficial to the defense,” Burke said. “All we heard was speculation. … You’ve got to have something … or you’re going to invade the privilege [of journalists].”
Davis Wright Tremaine also provides regular legal counsel for The Times.
California’s shield law protects reporters from having to fulfill any subpoenas related to civil cases or from prosecutors in criminal cases. However, if a subpoena comes from a criminal defendant — like in this case — case law has found that protection must be balanced with a defendant’s right to a fair trial, and certain requirements must be met to issue such subpoenas.
“It just can’t be enough that the defense is just fishing for potential” information, said David Loy, legal director for the First Amendment Coalition. “That’s not how the shield law factors work.”
Desai has been reporting for months on the 2022 killing of a state prison counselor, in which two men — 23-year-old Sebastian Parra and Robert Roberts, 29 — have been charged.
Desai published an article in February based on a jailhouse interview with Parra. Afterward, Roberts’ attorney, Deputy Public Defender Alexandria Blythe, sought a subpoena seeking notes of the conversation.
Blythe did not return requests for comment Wednesday.
“Everything of consequence is in the story, everything you might need to know is in the story,” Desai said.
Anything published is not protected by the state’s shield law, Burke said, noting that, “The article is there to be had.”
Burke said he requested late Wednesday that the 5th District Court of Appeal grant an immediate stay on the lower court’s ruling and grant their motion to quash the subpoena.
Burke said he expects a decision from the appeals court to come quickly, as the murder trial is scheduled for early June.
“You want reporters doing what they’re supposed to be doing, which is covering trials, not being a part of them,” Burke said.
Loy pointed out that protecting reporters from revealing their unpublished notes or transcripts is important not just for how the public perceives journalists, but also as a practical matter.
“If I’m a reporter and I’m going to talk to people and interview them … they may be more reluctant to talk to me if they know my notes from this conversation can be subpoenaed in court,” Loy said.
Desai said she respects why the trial court ruled the way it did — and understands the gravity of the case in question — but said she’s concerned about the implications.
“We’re just trying to do our jobs, we’re just trying to inform the public,” Desai said. “We’re not interested in going to jail, we’re not interested in being fined, even just being held in contempt … but we feel like we have to do this in order to stand up for what’s right and what’s important for the future of news in this community.”