Journalists can be called to testify in San Bernardino County corruption case, judge rules

A San Bernardino County judge Tuesday ruled that prosecutors can call numerous journalists to testify in the ongoing public corruption trials of a former county supervisor and others.

However, attorneys in the case reached an agreement that would allow at least one journalist to avoid taking the stand.

Duffy Carolan, an attorney for the journalists, said she was hopeful similar agreements could be reached for the remaining reporters. 

Ten Southern California journalists had been fighting an effort by prosecutors to compel them to take the witness stand in the trials.

Prosecutors want the reporters to testify about 56 statements contained in numerous articles published starting in 2005, as the corruption scandal unfolded. 

Attorneys representing the journalists had argued they were protected from testifying by California's Shield Law. That law, a provision of the state constitution, provides legal protections for journalists who seek to keep from disclosing sources and unpublished information that is obtained while gathering news. 

The attorneys accused the government of overreaching when they called such a large number of reporters and said prosecutors were trying to use the resources of the press to prove their case. They had asked the judge to reject the subpoenas or to strictly limit questioning of the reporters to certain published statements.

On Tuesday, Superior Court Judge Michael Smith said the journalists could be asked about the statements, which were published in articles in the Riverside Press-Enterprise, San Bernardino Sun and other local newspapers.

He said prosecutors would have to establish, through questioning, whether a statement was made directly to a reporter. If it was not, he said, that would end the inquiry. 

However, prosecutors and defense attorneys agreed that statements in articles written by former San Bernardino Sun reporter Jeff Horwitz could be entered into the record without him taking the stand.

Horwitz was one of the key reporters covering the scandal. 

Carolan said the agreement was a good indication that the same treatment would apply to the other reporters. Carolan had argued that the judge should strictly limit the journalists' testimony only to statements in quotes and in articles where a single reporter was the author, arguing that going beyond that would force the reporters to divulge unpublished information, in violation of the journalists' constitutional protections. 

The judge declined to make that distinction. 

In explaining his decision, Smith said the law is clear that unpublished information and confidential sources and material are “immune from being elicited.” However, he said, “it is equally clear” that when it comes to published information a reporter can be called to testify.  

Prosecutors had argued that the information they sought did not fall under the protections of the Shield Law.  

Subpoenas were issued to Horwitz, along with Southern California News Group Executive Editor Frank Pine, Sun reporter Joe Nelson and Press-Enterprise reporters Imran Ghori and Mark Muckenfuss. Muckenfuss was later released from the subpoena. 

In addition, subpoenas were also issued to former Press-Enterprise reporters Cassie MacDuff, Sharon McNary and Jim Miller, former Inland Valley Daily Bulletin reporter Mason Stockstill and former Sun reporter Guy McCarthy.  

Southern California News Group includes those three publications as well as the Los Angeles Daily News, the Orange County Register and other newspapers. 

Prosecutors sought the testimony to bolster their case in the public corruption trials of developer Jeff Burum, former Supervisor Paul Biane and former county officials James Erwin and Mark Kirk, which got underway this month. The case is being jointly prosecuted by county prosecutors and the state attorney general’s office.

The four were indicted in 2011 on multiple charges stemming from a land dispute between the county and Rancho Cucamonga-based investor group Colonies Partners LP.

Prosecutors have alleged that they participated in a bribery scheme designed to settle the matter in favor of the company. In 2006, county supervisors agreed to a $102-million settlement with Colonies, over the objection of county legal staff. 

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