Reporters’ subpoenas issued in error, says Fresno Attorney. Could it happen again?
The Fresno City Attorney’s Office made a mistake when it subpoenaed local journalists as part of its prosecution of a homeless man, the head of that department told The Fresno Bee on Monday.
But that doesn’t mean the city is done calling upon reporters to testify in cases it’s prosecuting, Fresno City Attorney Andrew Janz added. In the future, his office will begin by asking reporters to testify.
“It’s always best, if you want to have someone take the stand, to just gain their cooperation without a subpoena,” Janz said. “That’s what should have happened here.”
And that’s what he said will happen if the city believes the success of a prosecution requires reporters to authenticate stories they write. Media attorneys contacted by The Bee on Monday called the city’s intent to continue to get reporters on the stand as part of its prosecutions “very troubling.”
Subpoenas to journalists issued in ‘error,’ city attorney says
As Janz’s office attempted to prosecute homeless man Wickey Two Hands under the city’s no-camping ordinance, the assigned prosecutors subpoenaed Bee reporter Thaddeus Miller and Fresnoland reporter Pablo Orihuela, both of whom previously covered the case.
Both reporters were attempted to be served initially April 4. Miller was served a subpoena, signed by deputy city attorney Daniel Cisneros, last Tuesday. Orihuela was served Thursday in the courtroom where Cisneros was set to prosecute Two Hands before a Fresno County judge threw the case out on the grounds that the city violated the defendant’s speedy trial rights.
After the case was dismissed, Janz told a Bee editor on Thursday evening that he did not review or authorize the subpoenas and that they were issued outside of proper City Attorney’s Office protocols.
On Monday, Janz said his office issues subpoenas often, and they rarely rise to the level of the City Attorney. In this instance, he said the subpoenas should have come before him before they were issued because “any communication with media or journalists has to be run through the City Attorney.
“And that didn’t happen,” Janz said. “It was an error on the part of the assigned prosecutor.”
He also revealed that he did not know about the subpoenas until he read about them in a Fresnoland article about the hearing Thursday. He said he did not immediately address the blunder because he needed to “do my due diligence and collect all the facts.”
Janz said the prosecutors subpoenaed the Bee reporter because they believed it was “potentially necessary, for impeachment purposes, to have Thaddeus Miller’s story into evidence in the event that the defendant took the stand and changed what he told Thaddeus in his interview.”
City Attorney to subpoena reporters in future
Having reporters take the stand is necessary, Janz said, because not all judges will simply accept the presentation of a news article as evidence. But instead of issuing subpoenas, he said, his office should have just “asked” the reporters to testify that they actually wrote the articles the prosecution wanted to enter into evidence.
And going forward, he said reporters should expect calls from the Fresno City Attorney’s Office if that office thinks it needs them to testify that they wrote a story waiting to be entered into evidence.
“That’ll be the practice going forward,” said Janz, adding that it’s not uncommon to have reporters testify to stories they have already published. “It’s perfectly legal.”
If a reporter refused to testify after being asked, “then that’s what the subpoena is for,” Janz said.
Media attorneys contest subpoenas
David Loy, legal director of the First Amendment Coalition, told The Bee that California’s shield law does not prohibit subpoenas for reporters to testify to published information.
But getting a reporter to do that is unnecessary because the California Evidence Code establishes that news articles are self-authenticating, said Loy, who was prepared to legally contest the subpoena of the Fresnoland journalist last week.
“Whether they ask or send subpoenas, it’s immaterial,” Loy said. “It’s unnecessary, superfluous and compromises the independence and neutrality of the press. People aren’t going to be able to trust reporters if they see reporters on the stand testifying to the government.”
Karl Olson, the attorney who was prepared to contest the subpoena of the Bee reporter, said it is not common for journalists to take the stand to authenticate stories they have written.
“I’ve been doing media a lot for about 40 years,” Olson said. “It definitely doesn’t happen often, and it definitely shouldn’t happen often.”
