Newspaper ordered to comply with subpoena for jailhouse interview notes

A California judge has ordered The Bakersfield Californian to comply with a subpoena seeking unpublished materials from a jailhouse interview conducted by one of the newspaper’s reporters. The newspaper and its reporter, Ishani Desai, were instructed on May 10, 2023, to turn over the materials by May 17, but they have refused and now face possible contempt charges.

The dispute began after Desai conducted a jailhouse interview in February with Sebastian Parra. Parra was a key witness in the murder indictment of another inmate, Robert Pernell Roberts, but was subsequently indicted as a co-defendant.

The Californian published Desai’s article about Parra on Feb. 26. On March 3, the public defender representing Roberts, Alexandria Blythe, subpoenaed the newspaper seeking any audio or video recordings of the interview or, if no recording exists, a copy of Desai’s notes and interview questions. The Tracker has documented that subpoena here.

While the first subpoena was quashed on April 4, a nearly identical subpoena was issued the same day and served to The Californian on April 10.

An attorney representing the newspaper, Thomas Burke, filed a motion to quash the second subpoena on April 25, according to court filings reviewed by the Tracker.

“In a civil case, the protections for these materials would be absolute; but even criminal defendants like Roberts are not entitled to subject newsgatherers to compelled discovery unless strict conditions are met,” Burke wrote. “Defendant Roberts still cannot begin to satisfy those conditions — he’s simply trying for a second time.”

During a hearing before Kern County Superior Court Judge Elizabet Rodriguez on May 10, Blythe argued that because Parra’s statements to The Californian differed from his sworn testimony it was possible he made other claims that would support Roberts’ defense, according to a transcript reviewed by the Tracker.

Kern County Superior Court Judge Elizabet Rodriguez sided with Blythe during the hearing, ruling that unlike with the first subpoena, Blythe had successfully shown that the documents would assist in Roberts’ defense.

“Clearly Ms. Blythe does not know what’s in the reporter’s notes since they have not been disclosed,” Rodriguez said, according to the hearing transcript. “There is no requirement that she in fact prove that the notes will be helpful. The requirement is just to make a showing that the information will materially assist his defense.”

Rodriguez ordered the newspaper and Desai to turn over the interview questions and notes by 5 p.m. local time on May 17. According to the transcript, Blythe also intends to call Desai as a witness at the trial, which is scheduled to begin on May 24.

Burke told the Tracker that one of the most alarming aspects was how the judge’s decision might encourage similar demands for reporters’ notes in future.

“She announced it in a courtroom where I counted at least five prominent criminal defense attorneys who were really listening, as she said how frankly easy it is for a criminal defendant to get notes from a reporter who interviews them,” Burke said. “That’s not a good development. Absent a reversal by the Court of Appeals, that’s like a blueprint for every criminal defendant that the newspaper interviews.”

The Californian filed an emergency appeal on May 15 requesting a stay of the order compelling Desai to turn over her notes. The Court of Appeals determined that the request was premature, and that a newsperson must be held in contempt before the appellate court can intercede.

Burke confirmed to the Tracker that The Californian would not turn over the materials, and Desai said she and the newspaper plan to continue fighting the order.

“We are doing this because we don’t believe that my notes, my unpublished materials, should be seized by any government agency in order for them to use them for their purposes,” Desai said. “A news organization is independent, we don’t help the government do its job.”