Court orders reporter to give up notes, drawing criticism

Ishani Desai was just doing her job. As a reporter on a murder case, she needed information she felt she could get from only one person: the man who was behind bars.

“I went to the source,” said Desai, a former reporter for the Bakersfield Californian.

She couldn’t have known at the time that the notes from her jailhouse interview would spur a court order that, legal experts say, could threaten freedom of the press in California.

The suspect, Sebastian Parra, was in custody on suspicion of his alleged role in the Aug. 24, 2022, death of 43-year-old Benny Alcala Jr., a counselor for the California Department of Corrections and Rehabilitation.

Alcala was fatally shot at an electric vehicle charging station outside a Target store in Bakersfield. Witnesses reported seeing two men flee the area of the shooting. One was identified as Robert Pernell Roberts, who was arrested on suspicion of murder, and the second was Parra, who denied involvement in the shooting and, initially, was not arrested.

Parra testified at Roberts’ preliminary hearing, as did law enforcement. Roberts’ attorney, Lexi Blythe of the Kern County Public Defender’s Office, pointed out inconsistencies between Parra’s testimony and that of law enforcement.

Parra was subsequently indicted by a grand jury. Like Roberts, he has pleaded not guilty to murder.

Blythe then filed a subpoena for Parra’s February jailhouse interview with Desai — which consisted solely of Desai’s handwritten notes — saying it was necessary for her defense of Roberts.

The Californian challenged Blythe’s subpoena, citing the 1st Amendment as well as California’s shield law, a section of the state constitution that protects news organizations from being held in contempt of court for withholding sources and unpublished information, including interview notes.

The Kern County Superior Court ruled the newspaper was in contempt of court and ordered the notes be turned over, as they were “reasonably necessary” for Roberts’ defense and his constitutional right to a fair trial.

The Californian appealed the decision to the California 5th Circuit Court of Appeal, which upheld the lower court’s decision but reversed the contempt-of-court ruling.

As a result, the Californian handed over the unpublished notes to the Kern County Public Defender’s Office on Nov. 15. The news outlet also published the notes online.

Desai, now a reporter at the Sacramento Bee, said in an emailed statement to The Times that she had decided to interview Parra to answer a question she faced while covering the murder case.

“No one would tell me why the man who was once the prosecution’s star witness now faced an egregious murder charge,” Desai, 25, said. “So, I went to the source.”

Desai said, however, that there was nothing significant that she wrote down that day at the jail that wasn’t also included in her Feb. 26 story in the Californian.

The Californian’s own story on the appellate decision states the newspaper will not pursue an appeal at the California Supreme Court because the case would be unlikely to be reviewed and because of the outsize expense. The news outlet cited legal expenditures “exceeding $100,000” in the case so far.

The paper, however, does seek to make the ruling unpublished, a legal process that would make the opinion unusable in future cases. Though the opinion remains public record, unpublishing it would render the case unusable as a citation and limit the precedent it sets in similar cases for California news organizations.

Even if the decision is unpublished, the ruling is viewed as a worrying setback by advocates of press freedom, who fear it could affect the ability of journalists to do their job in the Golden State.

David Loy, the legal director of the First Amendment Coalition, worries this decision could be chilling for journalists reporting on criminal cases.

“It, in effect, makes the bar lower than it should be to pierce the reporter’s shield,” said Loy, whose organization filed an amicus brief in the case. He called the appellate court decision disappointing.

Although California’s shield law remains strong, he said the ruling makes it easier for attorneys to use the only exception under which journalists must turn over unpublished material: when a criminal defendant seeks such information. In such cases, the California Supreme Court has established a balancing test to weigh the rights of a reporter against those of the defendant.

Loy said this test has for decades found that only in an “extraordinarily compelling situation” would a journalist have to turn over their notes, something he didn’t see in this case.

“The function of the court is to balance the interests,” Loy said. “It seems like that balance has been somewhat skewed by this opinion.”

Loy said he’s worried the ruling could make reporters and editors hesitate when considering whether to interview someone in jail or a witness to a crime — interviews that he called a cornerstone of good journalism.

“If that cost and risk is too high, that’s going to be a deterrent to report that story in that way,” Loy said, noting the potential legal fees. “It’s going to make reporters, and, I assume, editors and publishers, risk-averse.”

Another organization that filed an amicus brief in the case was the Reporters Committee for Freedom of the Press. Lisa Zycherman, the organization’s deputy legal director and policy counsel, said the chilling effect of the ruling would affect not just journalists but also potential sources.

“Forcing a journalist to betray a promise of confidentiality could make sources think twice, or they might just not come forward,” Zycherman said. “That chills the free flow of information to the public, and it compromises the ability of journalists to do their jobs.”

Christine Peterson, the Californian’s executive editor, said that since the legal battle over the notes began, she had already had a colleague walk away from an interview with an incarcerated source.

“He decided that, for the kind of story it was, that it wasn’t critical,” Peterson said. “That’s not to say we won’t continue to interview criminal defendants who agree to it and are in custody, but I think it’s fair to say this gave him pause.”

Desai, however, said her determination had only grown after the ruling.

“Many reporters — including myself — wonder if our work and sources are safe,” she wrote in her statement to The Times. “But the alternative is to shirk my duty, letting our community go uninformed and unaware of the powerful criminal justice system. That option is untenable for me and I refuse to back down when encountering threats to my work’s sanctity.”