Court won’t review contempt order over murder confession subpoena

From the Summer 2000 issue of The News Media & The Law, page 17.

The state Supreme Court refused to hear the appeal of a San Diego Union-Tribune reporter ordered to testify in a criminal trial, but the trial judge accepted a “declaration” of unpublished statements in place of testimony.

Lawyers for a defendant facing the death penalty subpoenaed statements the defendant had made to reporter J. Harry Jones.

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San Diego Union-Tribune reporter J. Harry Jones interviewed Jacob Henderson after Henderson was arrested for assault in July 1999. Upon his arrest, Henderson confessed to authorities that he had killed three men earlier in the decade.

During the course of a later interview with Jones, Henderson said that he had lied about his responsibility for the triple murder so he would be eligible for the death penalty instead of facing life in prison as a result of California’s “three strikes” law. Jones reported Henderson’s recanting of his confession in a story printed in the Union-Tribune.

Once the story had been published, Henderson’s attorney subpoenaed the statements Henderson made to Jones during the course of the interview. Jones refused to comply with the subpoena. He was then ordered by San Diego Superior Court Judge John Thompson to turn over to the court “statements made by Mr. Henderson that did not appear in the news article.” When asked by Jones’ co-counsel Harold Fuson whether “statements” meant Jones’ notes from his interview with Henderson, Thompson replied, “to the extent I said notes in general, that’s not what I intend. I intend only statements by this criminal defendant made to this gentleman with regard to this criminal case . . . If Mr. Jones types out a statement to me and says these were the additional statements made, those are the statements that were made.”

Jones was held in contempt of court by Thompson on June 14, and given until June 27 to turn over the demanded statements. If, at that time, Jones refused to comply with the Court’s order, Thompson said he would have Jones held in jail for the duration of the trial, or until Jones complied with his order.

Jones and the Union-Tribune appealed Jones’ case to the California Supreme Court, which has held that in some instances, the reporter’s privilege does give way to a criminal defendant’s Sixth Amendment right to a fair trial. But Jones’ appeal was denied by the Supreme Court without comment.

On the morning of June 27, Jones handed over to Thompson what Jones termed a “declaration.” Jones disclosed previously unpublished statements made to him by Henderson during the course of their interview. The court accepted Jones’ declaration and entered it into the record as fulfilling the requirements of the subpoena.