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Does California Shield Law Protect Recordings of DA?

Under California’s shield laws, journalists cannot be held in contempt of court orders for refusing to disclose unpublished information or the source of information they obtain in gathering news for the public.  See Cal. Const., art. I, § 2, subd. ((b); California Evid. Code § 1070.  “Unpublished information” includes footage not shown to the public.  
The shield law, it should be noted, applies whether or not the information was provided in confidence.  Delaney v. Superior Court (1990) 50 Cal. 3d 785.

However, when the information gathered is of such “fundamental value to defendant’s federal constitutional right to a fair trial” in a criminal case, defendant can “pierce the shield” and obtain such information if the judge assigned to the case finds defendant has met certain threshold standards as set forth in Delaney, supra. at 805 - 811.

In Delaney, the California Supreme Court explained that the shield law may be overcome only “on a showing that nondisclosure would deprive the defendant of his federal constitutional right to a fair trial.”  Id., at 805.  To overcome the shield law, defendant must make a threshold showing that there is a reasonable possibility that the information sought will materially assist with the defense.  Id. at 808.

The showing “need not be detailed or specific, but it must rest on more than mere speculation.”  Id., at 809.  If defendant overcomes the threshold showing, the judge then balances four factors to evaluate disclosure, including: (1) whether the unpublished information is confidential or sensitive; (2) whether the interests sought to be protected by the shield law will be thwarted by disclosure; (3) the importance of the information to defendant; and (4) whether there is an alternative source for the information. Id. at 810-811.

This law is rarely litigated.  However, in the May 19, 2022, ruling in People v. Calvin Lamont Parker, the California Supreme Court evaluated Mr. Parker’s appellate claim (among dozens) that his right to a fair trial was violated by the California shield law because he was unable to view certain video tapes recorded by a journalist who documented the district attorneys working on his case.

In reviewing the facts of the case, Parker had every reason to argue for a new trial because in 2002 he was convicted of murder and sentenced to death.

A brief recitation of the facts is helpful to understanding the landscape for his claim that the trial court judge erred in not ordering disclosure of a recording of the prosecutors working on his case.

Calvin Lamont Parker and Patricia Gallego were roommates who met in 1997 in San Diego while she was dating Parker’s former roommate.  Gallego was a Brazilian citizen who had moved to the United States in 1996.  In 1998, after Gallego had dated Parker’s roommate for a few months, Gallego offered Parker $5,000 if he would marry her, apparently for immigration purposes only.

Gallego and Parker’s roommate then broke up and Gallego returned to Brazil, but she later returned to the United States in late 1999.  Parker then agreed to marry Gallego and they agreed to live together to make the marriage survive immigration scrutiny.

The marriage apparently never took place and shortly thereafter, a maintenance worker was looking through dumpsters behind a PetSmart and found several fingertips, which appeared to be feminine.  The San Diego Police Department were called and found a total of eight fingertips.  Their investigation then linked the fingertips to a body found in a duct-taped wrapped trashcan found in Carlsbad.  The officers were able to identify the body as that of Gallego.

The trail rather quickly led back to Mr. Parker, who was ultimately charged and found guilty of first degree murder in violation of Penal Code § 187.  The jury found true the special circumstance of lying-in-wait (Penal Code § 190.2(a)(15)) as well as the special circumstance that Parker killed Gallego for financial gain (Penal Code § 190.2(a)(1)) and while in the commission or attempted commission of rape (Penal Code § 190.2(a)(17)).  After the penalty trial, the jury then reached a verdict of death.

During the trial, Trial & Error Productions (TEP) filmed the district attorneys assigned to the case for a documentary-style reality television show about district attorneys preparing for and trying cases.  The videos were never broadcast. 
Five months before the guilt phase of Parker’s trial, his counsel sought disclosure of the video footage.  TEP’s counsel argued that under the California Constitution and Evidence Code § 1070, the footage was protected from disclosure.  The trial court judge ordered TEP to release the footage to the court so it could conduct an in camera review.

Four tapes were reviewed by the judge and the judge, using the Delaney factors, ruled that Parker would receive a copy of one of the tapes, but the other three would be sealed and remain with the court. 

On Parker’s direct appeal of the verdict and sentence to the California Supreme Court, Parker’s appellate counsel stated she did not necessarily plan to use the video in her pleadings.  The California Supreme denied Parker’s appeal on this ground, noting that the content of the tape was not related to Parker’s guilt or innocence anyways.  Moreover, Parker failed to provide specific, nonspeculative reasons why the recordings would aid his defense on appeal.  The Supreme Court, lastly, found that the trial court judge correctly applied the Delaney factors to the tapes when Parker’s counsel first requested the production of the tapes.

For more information about the First Amendment in general, please click on the following articles:
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