Willon, In re

Decision Date25 July 1996
Docket NumberNo. H015032,H015032
Citation47 Cal.App.4th 1080,55 Cal.Rptr.2d 245
CourtCalifornia Court of Appeals Court of Appeals
Parties, 24 Media L. Rep. 2121, 96 Cal. Daily Op. Serv. 5564, 96 Daily Journal D.A.R. 9041 In re Beth WILLON, et al., on Habeas Corpus.

O'Donnell, Rice Davis, Alexander & Granneman, and Edward P. Davis, Jr., Judy Alexander, Suzanne A. Heinrich, and James M. Chadwick, San Jose, for Petitioners.

Steinhart & Falconer, and James F. Brelsford, Roger R. Myers and Nicole A. Wong, San Francisco, for Amici Curiae in support of Petitioners.

Steven M. Woodside, County Counsel, Ann Miller Ravel, Chief Assistant County Counsel, Linda Deacon and Susan Konecny Branch and Susan Swain, Deputy County Counsel, Sacramento, for Respondent and Real Parties in Interest.

ELIA, Associate Justice.

In this writ proceeding, a reporter and news director of a local television station seek relief from contempt after they refused to disclose the identity of a person who provided information about a pending criminal prosecution in violation of a protective ("gag") order. Petitioners contend that California's shield law, California Constitution, article I, section 2, subdivision (b) (hereafter, article I, section (2)(b)), immunizes them from contempt under these circumstances. Respondent, the Santa Clara County Superior Court, maintains that the contempt order was necessary to deter future violations and thereby protect the defendant's right to a fair trial. We hold that the shield law protects the news media from contempt absent a specific showing that nondisclosure of the source will create a substantial probability of injury to the criminal defendant's right to a fair trial. Accordingly, we will grant petitioners' request for a writ of habeas corpus or certiorari and annul the judgment of contempt.


Petitioner Beth Willon is a news reporter for KNTV Channel 11 in San Jose. Petitioner Terrence McElhatton is the news director of KNTV. On February 14, 1996, jury selection began in the trial of Richard Allen Davis, who was accused of the kidnapping and murder of 12-year-old Polly Klaas. Polly's disappearance from her Petaluma home and the subsequent arrest of Davis had generated widespread publicity and extensive local community involvement. Although the preliminary hearing was open to the public, the Sonoma County Superior Court closed some of the pretrial proceedings and issued a protective order prohibiting court staff, participants and witnesses from discussing what had transpired at those hearings. Nevertheless, due to the magnitude of public attention to the case in Sonoma County, the court was unable to obtain an impartial jury, and eventually it granted a motion for a change of venue to Santa Clara County.

On January 10, 1996, the superior court in Santa Clara County expressed its concern that selection of an unbiased jury would be frustrated if facts were disclosed about the upcoming trial. The court observed that the case was "one of considerable public interest which may result in substantial publicity and that there is a reasonable likelihood that public dissemination by any means of extrajudicial statements relating to this case may interfere with a fair trial, and may otherwise prejudice the due administration of justice." Accordingly, the court issued another protective order which prohibited court officers, law enforcement officers and other public officials, and prospective trial witnesses from releasing to the public any evidence that had not yet been ruled admissible by the court, as well as any comments about the evidence gathered, testimony already heard or expected, and the identity of prospective witnesses. Subsequently, the trial court denied a request by representatives of the news media to make transcripts of the prior closed hearings available to the public before a jury was seated, citing its duty to protect the defendant's right to a fair trial.

On February 14, 1996, the first day of jury selection, KNTV broadcast a report prepared by petitioner Beth Willon. During the 6:00 p.m. newscast, anchor Doug Moore stated, "KNTV news has learned the entire videotaped confession of accused killer Richard Allen Davis will be used as evidence in the Polly Klaas murder trial." Co-anchor Maggi Scura added, "This development comes from a source close to the investigation." Willon then related the details of the events to which Davis had confessed, as described by "a source close to the case." The "source" also told Willon that there were no witnesses to two stops the defendant had made after kidnapping Polly, and that Davis was not asked about sexual assault when his confession was taped. Willon commented that "because Polly Klaas' body was so badly decomposed, it will probably never be known if she was sexually assaulted." Scura and Willon added that most of the contents of the statement had already been made public; the new information was that the entire statement would be admitted into evidence at trial.

Later that day, during the 11 p.m. newscast, Doug Moore repeated that Davis's confession would be used as evidence in the trial. Willon again related details of the kidnapping and murder as described in Davis's statement, punctuated by introductory phrases such as "Our source says ..." and "Our source tells us...." At the conclusion of Willon's report, Moore added, "And our source says it will likely never be known if Polly Klaas was still alive when the deputies stopped Davis on Pithian Road. Along with the kidnap and murder charges, Davis is charged with lewd and lascivious conduct, but because Polly Klaas' body was so badly decomposed, it will probably never be known if she was sexually assaulted. Our source tells us there were no questions about sexual assault when Davis' confession was taped."

The following day, February 15, 1996, the trial court played a videotape of the newscasts and asked the parties to address its concern that the contents of the KNTV newscasts might have been obtained in violation of the court's protective order. The district attorney believed that all of the information reported was available from the preliminary hearing transcript and from other media coverage. The court noted, however, that several of the statements were prefaced by references to their "source close to the case." If these statements were in fact obtained from a person subject to the order, the reporter involved would have "no privilege to refuse to disclose this so-called confidential source." The court had an "obligation" to discover who had violated the protective order; otherwise, "a court order means nothing." The court added that the timing of the broadcast "could not be worse," since jury selection had just begun; in the court's view it appeared to be an attempt to contaminate the jury pool in Santa Clara County and "ensure that the parties don't receive a fair trial." 1

On February 21, 1996, the trial court issued subpoenas ordering petitioners to appear in court the following week. On February 28, 1996, petitioners appeared with counsel. The court commenced the hearing by stating it had a "mandatory duty" to protect defendants from the effects of prejudicial publicity "by censuring and disciplining those who violate protective orders." The court expressed "significant concerns" that the material in the KNTV newscasts was obtained from a person subject to the existing protective order, "and that this information could have the reasonable likelihood of tainting the potential jurors and depriving this defendant of his right to a fair trial."

The court identified several statements by KNTV that it believed were derived from material encompassed within the protective order: (1) the announcement that the defendant's confession would be used as evidence at trial; (2) the narration of Davis's confession in detail; (3) the statement that there were no witnesses to either of the stops Davis made after kidnapping Polly; (4) the statement that Davis was not asked about sexual assault when his confession was taped; and (5) the comment that the body was so badly decomposed it probably will never be known if she was sexually assaulted.

Each of these statements, the court found, was a violation of the previous orders sealing records and prohibiting comment or disclosure regarding the case. The court emphasized the importance of ascertaining who had violated its protective orders, not only to punish the violation, but "to ensure that no future violations occur." The court reminded the parties that "[t]he need to prevent the dissemination of prejudicial publicity during jury selection is not only paramount, but goes to the heart of the right of this defendant to receive a fair trial in Santa Clara County." In the court's view, "this is exactly the type of prejudicial pre-trial publicity which taints the jury pools."

The trial court recognized the protection afforded news reporters under article I, section (2)(b), but it opined that the protection was of a limited immunity which was outweighed by the defendant's right to a fair trial. In order to protect that right, the court reasoned, it was "both bound and empowered" to explore the violations of the protective order as an exercise of its "preeminent federal constitutionally compelled duty to control its own officers," and thereby to forestall additional pretrial publicity. The court also found that questioning up to 1500 individuals who were subject to the order would entail a needless delay of the trial and therefore was "not a reasonable alternative."

Through county counsel the trial court proceeded to question petitioners individually regarding the identity of their source. On each occasion the court admonished them that the question was "constitutionally permissible" and ordered them to answer. To every question but one, petitioners declined to answer, citing the shield law...

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