Back in December, I was preparing to cover the indecent exposure trial of William Turner, who had been linked by authorities to a number of troubling interactions with kids at Berkeley tot lots. I was surprised when I began getting calls and emails, as well as a message on my personal Facebook account, from the Alameda County public defender’s office. It turned out they wanted me to testify in the case.
I was not inclined to participate. I hadn’t witnessed anything firsthand. But I had conducted an exclusive interview with the main witness in the case. When an investigator from the public defender’s office showed up at my door with a subpoena, I was even more taken aback.
The investigator told me I might be asked to testify about statements the witness made to me. The public defender in the case later told the judge he intended to use my testimony to impeach the witness, or call her statements or credibility into question.
As far as I’m concerned, that’s not a role reporters should play. Sure, people’s statements can always be used against them, or used to raise questions. But those questions are best asked of whoever made the statements to begin with. Bringing reporters into the courtroom to cast doubt on firsthand testimony strikes me as a slippery slope.
As soon as I got the subpoena, I pinged my fellow alumni at the UC Berkeley Graduate School of Journalism to find others who had been in my position. And I asked them what to do. People immediately directed me to California’s shield law. Reporters in California are lucky because state law protects, in most cases, our confidential sources and our unpublished information.
But my situation fell into a gray area: when attorneys for defendants in criminal cases are seeking information. The law allows a judge in those cases to consider what’s called a “balancing test” to determine whether the rights of a defendant to a fair trial outweigh the protections of the shield law.
That didn’t offer me much comfort.
I was also pointed to the First Amendment Coalition in San Rafael, a nonprofit that does significant work, under its Subpoena Defense Initiative, on behalf of reporters who find themselves in situations like mine. The First Amendment Coalition quickly set me up with pro bono legal representation. My attorneys, Karl Olson and Zachary Colbeth from Cannata O’Toole Fickes & Almazan of San Francisco, then filed a motion to have my subpoena thrown out.
They argued, first, that the shield law protected any of my unpublished information, aside from the balancing test I noted above. They also wrote that interview subjects might be hesitant to speak with me in the future if they felt I could be called into court to testify against them.
“Subpoena enforcement here would essentially set a precedent of turning professional reporters, particularly reporters like Raguso who cover community crime stories, into professional witnesses who may be called upon at any point to testify about their journalistic endeavors and to impeach the testimony of the very sources upon which they depend to effectively do their job,” they wrote. “This would set a dangerous precedent as a matter of public policy and in many ways constitute an assault on the fundamental role that professional reporters serve in our democracy.”
My attorneys also wrote that my participation on the stand would limit my ability to cover a case I had been closely following for six months and was uniquely qualified to write about, which would have a detrimental impact on community news. Not only would my access be limited — because witnesses are excluded from the courtroom until after they have testified — but my objectivity could be impacted because I had become part of the case.
In fact, the judge waited to rule on my subpoena until after the main witness in the case testified, so I was not allowed to hear her or see what questions were asked of her. When the young woman was done, the defendant’s attorney told the judge he would not call me as a witness; I understood that to be because she had said what he needed her to say. I was able to sit in on the rest of the trial. The next week, I wrote about it on Berkeleyside.
The First Amendment Coalition declared the outcome a win, and the Oakland-based group U.S. Press Freedom Tracker interviewed me about what had taken place. KQED ran a brief mention on its morning news round-up. The incident attracted attention because it’s a relatively rare occurrence for reporters to be subpoenaed and because it raises so many other thorny issues in the context of how we do our work.
After the case was over, Oakland branch supervisor Michael Wilson of the Alameda County public defender’s office agreed to answer some questions about my subpoena. Wilson oversees misdemeanor cases in Northern Alameda County.
He said his office had not been seeking my confidential notes or sources. As my attorney told Press Freedom Tracker, however, the subpoena I got “was not in any way limited to just published material.” And, if I’d ended up on the stand, my attorney felt there could be a temptation to tread into problematic areas protected by the shield law.
The public defender’s office was unable to provide data on the frequency of reporter subpoenas but, from what I was able to gather, it’s pretty rare. Press Freedom Tracker has begun to compile a list but there’s no indication it’s comprehensive.
Wilson also told me that — based on my initial story about the incident that prompted the trial — I had “heard and reported certain statements made by a chief prosecution witness” in the case. (It was never clear to me what those statements were.) As such, I would have been called as an impeachment witness, he said.
Wilson said the use of impeachment witnesses is “utterly commonplace,” and helps “a jury gets closer to the truth.”
“The declaration filed by Ms. Raguso’s attorney argued the subpoena might have a ‘chilling effect’ on future reporting,” he wrote, in a brief response to some questions I posed to him. “But if that indistinct prospect is weighed against our client’s immediate interest not to be locked in a metal cage — for us, as public defenders, that’s not even a close call.”
I absolutely respect any attorney’s right to use the law to fight for a client’s innocence. But I don’t believe journalists should be dragged lightly into that fight.
In this case, the public defender’s office ultimately didn’t use my testimony, but its tactic kept me out of the courtroom for a key piece of the trial. That means that part of the story will never be told. Not to mention the time, effort and stress the subpoena caused for numerous individuals.
In the end, because I had access to excellent support and legal counsel, thanks to the Berkeleyside team, the First Amendment Coalition and the attorneys from Cannata O’Toole Fickes & Almazan, those were the only costs. But it’s still not an experience I’m anxious to have again.
Emilie Raguso is senior reporter at Berkeleyside. She was named Journalist of the Year by SPJ NorCal in 2017.