Petition — Farr v. Pitchess
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SEP 22 1875
INTHE
SUPREME COURT OF THE UNITED STATES
October Term, 1975
WILLIAM T. FARR,
Petitioner,
PETER J. PITCHESS,
SHERIFF OF LOS ANGELES COUNTY,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK HURWITZ
Attorney at Law
100 West Chapman
Orange, California 92666
Telephone: [714] 547-0997
Attorney for Petitioner
J. GALLAGHER, Printed Briefs (714) 547-6073
Oe a ae
SUBJECT INDEX
Page
Opinions Below......................445. teens 1
SUITES. «kh REO UAE iii ese hd 1
SED «6 oa cc's caccvcccsncemitewBeessdenunds 2
Questions Presented ................ ccc cence eee 3
soa 6 es Sst iie bib co osie Shee Fé tae 4
Statement of Facts ............... ccc eee eens 4
Reasons for Granting the Writ ................... 10
IG 5.5. os nba be Fe bons Oe k Canwecdewes 23
INDEX TO EXHIBITS
Exhibit A. Memorandum of Decision and Order,
United States District Court for the Central
District of California ...... ccc ccc ccc ccc eees
Exhibit B. Opinion of the United States Court of
Appeals for the Ninth Circuit.................
Exhibit C. Findings and Order Adjudging
Contempts; Sentence Pursuant to C.C.P. 1218;
Order of Commitment.......................
Exhibit D. Memorandum Decision issued by
Justice William O. Douglas, January 11, 1973 ....
Exhibit E. Order Staying Issuance of Mandate ....
Exhibit F. Code of Civil Procedure, Section 1070 ....
Exhibit G. Opinion of the California
Court of Appeal, Second Judicial District,
In Re Farr, 22 Cal.App.3d 60
TABLE OF AUTHORITIES CITED
Cases Page
Branzburg vs. Hayes, 408 U.S. 665, [1972] ....... 10, 12
Bouie vs. City of Columbia, 378 U.S. 347,
ks oe ec ese ceneareenye ens 16
Craig vs. Harney, 331 U.S. 367, 67S.Ct. 1239 ..... 12, 14
DeGregory vs. Attorney General of New Hampshire,
383 U.S. 825, 86 S.Ct. 1148 [1966] ................ 12
Farr vs. Superior Court, 22 Cal.App.3d 60,
99 Cal. Rptr. 342(1970].................. 2,3, 15, 18
Gibson vs. Florida Legislative Investment
Committee, 372 U.S. 539, 546, 83 S.Ct.
REE aa Oe Ce pa a ee 12
in Re Farr, 36 Cal.App. 3d 577[1974] ............ 3,4
In Re Pappas, 408 U.S. 665[1972] .................. 10
James vs. United States, 366 U.S. 213,
ae er a eer 16
Johnson vs. Mississippi, 403 U.S. 212,
i a eke be see at eei nes eas 21
Mayberry vs. Pennsylvania, 400 U.S. 455
SE ccc accbetot bu subesdesusceee's 21
NAACP vs. Button, 371 U.S. 415, 83 S.Ct. 328 ....... 12
Pennekemp vs. Florida, 328 U.S. 331,
co aide yee heeeeeu ese sees 12
Raley vs. The State of Ohio, 360
ee cll tied acre thadbaeeuednebewws 18
Sheppard vs. Maxwell, 384 U.S. 333 [1966] .... 10, 11, 13
United States vs. Caldwel!, 408 U.S. 665[1972]....... 10
United States vs. Meyer, 462 Fed.2d 827([1970]....... 21
STATUTES
Page
California Evidence Code,
ry 4,6,7, 15, 16, 19
United States Code, Title 28,
Section 1254[ 1]... 2... ccc cece cece cece eee eeeeees 1
United States Constitution,
First Amendment ....... 2, 3,7, 11, 15, 16, 19, 23, 25
United States Constitution,
Fourteenth Amendment ..............-500++5: 3, 19
iv.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1975
WILLIAM T. FARR, Petitioner
vs.
PETER J. PITCHESS,
SHERIFF OF LOS ANGELES COUNTY, Respondent.
Petitioner, WILLIAM T. FARR, prays thai a Writ of
Certiorari issue to review the judgment of the United
States Court of Appeals for the Ninth Circuit.
OPINIONS BELOW
The opinion of the California Court of Appeal, Second
Appellate District sustaining the contempt adjudication
is officially reported and published in 22 Cal. App. 3d 60,
December 17, 1971. The Memorandum of Decision and
Order of the Federal District Court is attached hereto
marked Exhibit “A” and is herein incorporated by
reference. The Opinion of the United States Court of
Appeals for the Ninth Circuit is attached hereto marked
Exhibit “B” and is herein incorporated by reference.
JURISDICTION
The jurisdiction of this Court is invoked under and
pursuant to 28 U.S. Code, Section 1254(1).
1
1. The Transcript reterences, contained herein are to
the Reporter's Transcript in proceedings held in the case
of People vs. Manson, et al., being Case No. A 253 156, in
the Superior Court of the County of Los Angeles, State of
California, presided over by the Honorable Charles H.
Older. However, the proceedings applicable to the
Petitioner herein were reported in four separate stages:
i) The first proceeding was conducted in chambers.
Said transcript reference will hereinafter be referred to as
in-Chambers Tr.
(ii) The hearings on the order to show cause
proceeding that gave rise to the contempt adjudication
(of which review is herein sought) were separately
reported on June 3, June 30, and July 19, 1971.
2. “The Findings and Order Adjudging Contempts;
Sentence Pursuant to C.C.P. 1218; Order of Commit-
ment’ dated August 6, 1974, is attached hereto marked
Exhibit “C” and is incorporated herein by reference.
3. The opinion of the California District Court of
Appeal, Second Judicial District, In Re Farr, 22 Cal. App.
3d 60 is attached hereto marked Exhibit “G” and is
incorporated herein by reference.
4. The Memorandum of Decision and Order of the
Federal District Court dated December 18, 1972 (Exhibit
“A”).
5. The memorandum decision issued by Justice
Willlam O. Douglas, January 11, 1973, ordering
petitioner's Release on His Own Recognizance Pending
i os
Appeal in the United States Court of Appeals is attached
hereto marked Exhibit “D” and is incorporated herein by
reference.
6. The Opinion of the United States Court of Appeals
for the Ninth Circuit dated August 7, 1975 (Exhibit B).
7. Stay of Mandate ordered by the United States Court
of Appeals for the Ninth Circuit dated August 22, 1975, is
attached hereto marked Exhibit “E” and is incorporated
herein by reference.
QUESTIONS PRESENTED
|
The order adjudging petitioner’s contempt is invalid by
virtue of the First Amendment to the United States
Constitution.
1
Petitioner's constitutional right to due process of law
and to be free from the processes of an ex post facto law
were violated by the retroactive application of an
Appellate Court’s determination in Farr vs. Superior
Court, 22 Cal.App.3d 60, 99 Cal.Rptr. 342 (1970), that the
California immunity statute was unconstitutional in the
proceedings in which it was invoked by petitioner.
il
Petitioner was denied a hearing before an impartial
court as demanded by the due process clause of the
Fourteenth Amendment.
STATUTES INVOLVED
California Evidence Code, Section 1070 (see Exhibit
“F” which is attached hereto and incorporated herein by
reference).
STATEMENT OF FACTS
Petitioner is presently released from confinement on
his own recognizance pursuant to an order of Justice
William O. Douglas (Exhibit “D”) and by virtue of an order
for a stay of mandate issued by the United States Court of
Appeals for the Ninth Circuit on August 22, 1975 (Exhibit
—?
On June 20, 1974, the Honorable William H. Levit,
Judge of the Superior Court of Los Angeles County, after
a hearing held pursuant to a decision of the California
Court of Appeal in in Re Farr, 36 Cal.App.3d 577 (1974),
issued an order terminating the coercive sentence
imposed on July 28, 1971 by Judge Older. On August 6,
1974, Judge Older issued a new Order of Commitment on
his Findings and Order Adjudging Contempts issued and
entered July 28, 1971. Petitioner was thereby sentenced
to five days in jail and a $500 fine. (A copy of this punitive
order now confronting petitioner is attached hereto
marked Exhibit “C”’.)
The July 28, 1971 contempt (the only contempt ever
found against Mr. Farr) was adjudicated as a conse-
quence of petitioner's refusal to answer thirteen various
questions propounded during hearings held pursuant to
an order to show cause issued by Judge Older on May 5,
1971. The express purpose of this order to show cause
proceeding was to enable the Court to determine if any
persons subject to a “publicity order” imposed for the
Manson murder trial had been contemptuous of that
order. It has, at all times, been conceded that petitioner
was not a party subject to this “Order Re Publicity.”
Approximately seven months earlier on October 5,
1970, a written statement by one Virginia Graham relating
confessions made to her by her celimate, Susan Atkins, a
Manson codefendant, was obtained by one of the Deputy
District Attorneys assigned to the Manson case.
Pursuant to the trial court’s order, one copy of the
statement was distributed, respectively, to each of the
attorneys of record in that criminal trial.
Petitioner, who was then a reporter for the Los Angeles
Herald Examiner and who had conducted an investigation
for approximately six months for the purpose of acquiring
facts concerning this confession, received two copies of
the Graham statement on October 7, 1970, and another
on October 8, 1970, after promising his sources of
information that he would not reveai their identity.
On October 8, 1970, before the contents of such
statements were published in the Herald Examiner, and
after being apprised by Miss Graham's attorney that
petitioner had been given a copy of the statement, Judge
Older, then presiding over the Manson trial, conducted an
in-chambers hearing to ascertain if, in fact, this was true
and, if so, the identity of the persons who had given this
material to Mr. Farr and what he intended to do with the
same. Mr. Farr acknowledged the receipt of the
statement. Judge Older then requested that Mr. Farr
voluntarily reveal his sources of information, but
carefully advised petitioner that he had a right to refuse to
respond to the Couri’s request by virtue of California
Evidence Code, Section 1070, stating:
“Another aspect, Mr. Farr, if | were to call you to
the witness stand, for example, or someone would
subpoena you to testify to these matters, you could,
of course, assert or refuse to disclose your news
under 1070, which provides that you cannot be
adjudged in contempt by a court for refusing to
disclose the source of any information procured for
publishing and published in the newspapers.
“It does not say you cannot be called.
“The point I'm making is this, while | could not
order you, that is, effectively order you to disclose
the source, there is nothing to prevent you in the
interest of justice and in aid of the administration of
justice from voluntarily revealing it without waiving
any right in the future to assert that immunity or
privilege.” (In-Chambers Tr., October 8, 1970, page
8, lines 7-28.)
Later, in that same in-chambers hearing Judge Older
further commented:
“And | assure you that there is no compulsion
whatever to do it.
“It is put on a purely voluntary basis. | won't think
any the less of you or the Herald Examiner or anyone
en ella
else if you say no. . . .” (In-Chambers Tr., October 8,
1970, page 11, lines 15-23.)
No further action was taken at that time. Petitioner
continued to invoke the First Amendment and California
Evidence Code, Section 1070 in support of his refusal to
disclose. On October 9, 1970, the day following the
aforementioned in-chambers hearing, a story based upon
the Virginia Graham statement was published in the
Herald Examiner.
On May 5, 1971, Judge Older executed the aforemen-
tioned order to show cause. No order to show cause
proceeding has ever been initiated against any party
subject to the publicity order imposed for the Manson
trial. ,
Petitioner appeared with counsel at hearings on the
order to show cause conducted on June 3, June 30, and
July 19, 1971. He revealed that he had received copies of
the Graham statement from two of the six attorneys of
record in the Manson case and one from another source
who may have been subject to the court’s “Order Re
Publicity.” He refused, however, to identify his source,
invoking, when ordered to do so, the First Amendment to
the United States Constitution, and California Evidence
Code, Section i070.
Judge Older then reversed the position that he had
earlier taken with respect to Evidence Code, Section
1070, and found that petitioner “wilfully refused” to
answer the thirteen separate questions, all of which were
designed to elicit a disclosure of the identity of those
from whom he received his information. It is this July 28,
1971 contempt adjudication for which petitioner hereby
seeks review.
Judge Older then issued a stay of execution of the
commitment Order pending appeal. This Trial Court
Judge advised on November 27, 1972, that he issued this
stay because he felt the appellate outcome on this
question, “was not free of doubt.” (November 27, 1972,
transcript, page 17, line 3.)
Petitioner sought review with the California Court of
Appeal. An alternative Writ issued and after oral
argument a written opinion of the Court of Appeal
affirmed the Judgment of Contempt. This opinion is
reported in 22 Cal.App.3d 60.
On March 20, 1972, a Petition for Hearing by the
California Supreme Court was denied. A Petition for a
Writ of Certiorari to the Court of Appeal was sought
before the United States Supreme Court.
The United States Supreme Court denied certiorari on
November 13, 1972.
On November 16, 1972, the day after a remittitur was
issued by the Supreme Court. Judge Older conducted
another hearing for the purpose of allowing Mr. Farr to
purge himself of the contempts. When he refused to do
so he was ordered to jail pursuant to the July 28, 1971,
Order of Commitment. A request for a stay pending the
filing of a Petition for Writ of Habeas Corpus or for bail
was denied by the Tria! Court and on November 16, 1972,
petitioner was incarcerated.
That same day petitioner filed a Petition for Writ of
Habeas Corpus with the California Court of Appeal. That
Court ordered Farr released on his own recognizance
pending its determination. On November 21, 1972,
habeas corpus was denied.
On November 27, 1972, Judge Older conducted another
hearing at which Farr continued to refuse to disclose his
sources. Petitioner was again ordered remanded to
custody.
IT MUST BE NOTED THAT MR. FARR WAS NOT
FOUND IN CONTEMPT FOR HIS REFUSAL TO DIS-
CLOSE THE IDENTITY OF HIS SOURCES OR FOR ANY
OTHER REASON AS A RESULT OF EITHER OF THE
NOVEMBER 1972 HEARINGS. THE ONLY CONTEMPT
THAT HAS EVER BEEN ADJUDICATED WAS THAT
FOUND BY THE COURT ON JULY 28, 1971, AS
AFORESAID.
On November 21, 1972, a Petition for Writ of Habeas
Corpus was filed with the California Supreme Court. The
same was denied on November 29, 1972.
On November 30, 1972, a Petition for Writ of Habeas
Corpus was filed in the United States District Court for
the Central District of California, Robert J. Kelleher,
Judge Presiding. Jurisdiction was invoked pursuant to 28
U.S.C., Section 2254. That Petition was denied on
December 18, 1972.
The Federal District Court, however, on December 19,
1972, issued a Certificate of Probabie Cause for appeal.
Dismissal of the petition for writ of habeas corpus by
the Federal District Court was affirmed by the Court of
Appeals on August 7, 1975. Application for rehearing was
denied on September 12, 1975.
REASONS FOR GRANTING THE WRIT
!
THE ORDER ADJUDGING PETITIONER’S CONTEMPT
IS INVALID BY VIRTUE OF THE FIRST AMENDMENT TO
THE UNITED STATES CONSTITUTION.
Both the Federal District and Ninth Circuit Court of
Appeals properly recognized that a balancing of
competing interests, consonant with Branzburg vs.
Hayes, In re Pappas, and United States vs. Caldwell, 408
U.S. 665 (1972), is required when a newsman attempts to
protect his sources of confidentially divulged informa-
tion. They. however, seriously erred in determining that
this Court’s mandate in Sheppard vs. Maxwell, 384 U.S.
333 (1966) is here in issue or that under the precise facts
of this particular proceeding a defendant's right to a fair
trial is the value against which petitioner's First
Amendment position should be balanced.
Mr. Farr’s contempt was NOT found for soliciting a
violation of the Manson court’s publicity order or for
collaborating with or in any way aiding or abetting those
who may have disobeyed that order. He was, in fact,
10
acquitted of all of those charges in a separate contempt
proceeding instituted in the Los Angeles County Superior
Court, the Honorable Bernard Jefferson, Judge Pre-
siding.'It must, at the outset, also be noted that this
newsman has never been cnarged in any legal proceeding
with either writing or in any respect participating in the
publication or dissemination of any story that had an
inflammatory or prejudicial effect upon the Manson trial
processes.
The contempt adjudication of which petitioner hereby
seeks review was found only for this individual’s refusal,
in an order to show cause proceeding brought almost two
months after the conclusion of the Manson trial, to
testify as to the identity of those who provided
information to him in possible violation of the court’s
publicity order.
An inquiry to determine “. . . where lies the paramount
interest” in weighing the relative importance of peti-
tioner's First Amendment claim (see Memorandum
Decision of the Court of Appeals, page 4) must be limited
to the conduct for which the contemnor was ordered
incarcerated. When that is accomplished and all
1. In September 1971, Judge Older executed an affidavit in support
of another order to show cause in re contempt issued against Mr.
Farr. Judge Older therein charged that Farr acted in complicity with
and promised to conceal the identity of those who violated the
“publicity order.” Mr. Farr’s acquittal of all of those charges that
have Sheppard implications was ordered in December 1971, by Judge
Jefferson.
11
misconceptions are set aside, it can readily be seen that
the true question before this Court is whether the
importance of acquiring a news reporter's testimony in a
yet-to-be instituted contempt proceeding against those
who may have violated the court’s publicity order is so
“overriding” and “compelling” as to justify an an-
tagonism of the First Amendment.
This Court, as Justice Powell noted in his concurring
opinion in Branzburg vs. Hayes, supra, has repeatedly
shown a “solicitude” for First Amendment freedoms. It
has always required a painstakingly careful showing of a
“serious and eminent,” “overriding,” “compelling,” or
“clear and present” danger before permitting an intrusion
upon the freedom of the press. Pennekemp vs. Florida,
328 U.S. 331, 90 L.Ed. 1295 (1946); Gibson vs. Florida
Legislative Investment Committee, 372 U.S. 539, 546, 83
S.Ct. 880 (1963); NAACP vs. Button, 371 U.S. 415, 83
S.Ct. 328; DeGregory vs. Attorney General of New
Hampshire, 383 U.S. 826, 86 S.Ct. 1148 (1966); Craig vs.
Harney, 331 U.S 367, 67 S.Ct. 1239.
We suggest thai particularly in light of the Court’s
reticence to “annex the news media as an investigative
arm of government” (Justice Powell’s concurring opinion
in Branzburg vs. Hayes, supra), and its sensitivity to the
notion that “without some protection for seeking out the
news, freedom of the press could be eviscerated,”
(Branzburg vs. Hayes, supra at page 681) a review of this
proceeding by our highest court is in order.
12
a
A careful analysis of this record will reveal that not
even the Manson trial judge, at a time when he was
closest to the proceeding, ever took the position that
those matters that were the subject of this Court's
concern in Sheppard vs. Maxwell, namely: (1) the
existence of unfair and prejudicial news comment, and (2)
the intrusion into the deliberative processes of such
outside prejudicial influences or any other aspect of a
defendant's right to a fair trial, were placed in issue or
jeopardized in the Manson case by virtue of petitioner's
refusal to violate his commitment of confidentiality to
news sources.
Judge Older was made aware by Mr. Farr that he had
acquired the information in question from sources whose
identity he was unwilling to disclose before an article
concerning the same was published by petitioner's
newspaper. At that time this trial judge put the entire
matter into its proper perspective when he asked Mr. Farr
if he would voluntarily reveal his sources of information,
Stating:
“And |! assure you that there is no compulsion
whatever to do it. It is put on a purely voluntary
basis. | won't think any the less of you or the Herald
Examiner or anyone else if you say no. On the other
hand, | think it would be something constructive,
because | think it is important that a deliberate and
willful violation of any court order be deait with.
That is the reason | am asking you, not out of idle
curiosity.” (In-Chambers Tr., October 8, 1970.) (Em-
phasis added.)
13
The fact that Judge Older thought that “it would be
something constructive” or that he was of the opinion
that a wilful violation of “any lawful! court order” should
be dealt with, is not sufficient to support the appellate
court's determination that petitioner's First Amendment
position must be balanced against a defendant’s right to
a fair trial. (Emphasis added.)
It is likewise respectfully submitted that the federal
trial and appellate courts’ implicit premise that if the First
Amendment is allowed to prevail in this particular
proceeding, all future publicity orders would be
ineffectua!, is an unfounded overstatement of this case.
It suggests that not only do attorneys have a proclivity for
violating court publicity orders and perjuring themselves
when they do, but also ignores the other evidentiary
avenues available to the court in a prosecution against
those contemptuous of such court orders. it must also
not be forgotten that newsmen remain subject to
prosecution if they, in a conspiratorial fashion,
collaborate with those acting in violation of court orders.
In summary, the lower courts have addressed
themselves to the prognostication of 4 danger too remote
and improbabie to justify an abrogation of the
fundamental notion that without the ability to promise
confidentiality the news gathering ability of reporters is
seriously retarded. We were warned in Craig vs. Harney,
supra, that before an impairment of press freedoms will
be tolerated, the danger established “. . . must not be
remote or even improbable; it must immediately imperil.”
(67 S.Ct. 1249. at 1255.)
14
we) EE Oe Oe ON —
PETITIONER'S CONSTITUTIONAL RIGHT TO DUE
PROCESS OF LAW AND TO BE FREE FROM THE
PROCESSES OF AN EX POST FACTO LAW WERE
VIOLATED BY THE RETROACTIVE APPLICATION OF AN
APPELLATE COURT'S DETERMINATION IN FARR VS.
SUPERIOR COURT, 22 CAL. APP.3D, 60, 99 CAL.RPTR.
342 (1970) THAT THE CALIFORNIA IMMUNITY STATUTE
WAS UNCONSTITUTIONAL IN THE PROCEEDINGS IN
WHICH IT WAS INVOKED BY PETITIONER.
On October 7 and 8, 1970, petitioner, in reliance upon
the First Amendment and California Evidence Code,
Section 1070 promised confidentiality and acquired the
Virginia Graham statement.
Judge Older, by his advice in chambers on October 8,
1970, judicially reenforced the only reasonable interpreta-
tion that could have been placed upon the then
unadulterated language of that California immunity
statute.2
2. At the time here involved, Section 1070 read: “A publisher, editor,
reporter, or other person connected with or employed upon a
newspaper, or by a press association or wire service, cannot be
adjudged in contempt by a court, the Legislature, or any
administrative body, for refusing to disclose the source of any
information procured for publication and published in a newspaper.
Nor can a radio or te'evision news reporter or other person connected
with or employed by a radio or television station be so adjudged in
contempt for refusing to disclose the source of any information
procured for and used for news or news commentary purposes on
radio or television.”
15
At the time petitioner relied upon and invoked
California Evidence Code, Section 1070 in promising
confidentiality, gathering his information and in refusing
to answer the questions that gave rise to his contempt
adjudication, he was entitled to rely on the clear and
precise wording of that legislation.
Accordingly, it is a most blatant violation of due
process for petitioner to now face imprisonment because
he did not anticipate that the appellate court would, more
than a year later, say that a statute which read, “a...
reporter. . . cannot be adjudged in contempt by a court”
(emphasis added) does not mean that at all, but it instead
means just the opposite, namely that: “a reporter will be
adjudged in contempt by a court for refusing to disclose
his sources of information.”
The unforeseeable state court interpretation of a
statute when applied retroactively so as to subject an
individual to liability for past conduct that was
permissible at the time he acted, deprives that citizen of
fair warning of the consequences of his conduct as
demanded by the due process clause of the United States
Constitution. Bouie vs. City of Columbia, 378 U.S. 347,
84 S.Ct. 1697 (1964); James vs. United States, 366 U.S.
213, 81 S.Ct. 1052.
Petitioner concedes that if, as the Federal District
Court erroneously reported, he refused to answer the
questions at issue, asserted the immunity statute and
was adjudicated to be in contempt for such refusal after
the California Appellate Court found Section 1070 to be
16
~~ ae
ad
unconstitutional, there would be no vioiation of due
process or of the prohibitions against ex post facto. This,
however, was simply not the case.
The Court of Appeals for the Ninth Circuit determined
that the District Court correctly found the record on this
issue. Petitioner, however, respectfully submits that the
federal trial court seriously erred and cornpletely
misconstrued the state of the record, the issue before it
and petitioner's position on this matter when it
commented, “. . . he was, on two occasions after his
claim of privilege and immunity had been rejected by the
California Appellate Courts, again afforded the oppor-
tunity to answer and thereby purge himself. His refusals
then constitute the contempt for which he is committed.
Petitioner presents no constitutional claim on this
issue.” (Emphasis added.)
Mr. Farr was not found in contempt after his matter had
been reviewed by the California Appellate Court. Just to
the contrary, he invoked the immunity statute, refused to
disclose his sources of information, and on July 28, 1971,
was found to be in contempt and ordered committed. It
was not until December 17, 1971, that the California
District Court of Appeal, unforeseeable and after the fact
determined that the statutory protection afforded
petitioner more than a year earlier should be cancelled
and taken from him. No new or further contempt proceed-
17
ings were thereafter instituted.3 It is no answer to say
that petitioner knows now that he may not refuse to
answer. That simply begs the issue and has no bearing
upon the July 28, 1971 contempt adjudication for which
he was, on August 4, 1974, sentenced and fined.
Any reporter who today invokes and acts in reliance
upon California Evidence Code, Section 1070 is given fair
warning of Farr vs. Superior Court, 22 Cal.App.3d 60, 99
Cal.Rptr. 342 (1970). This petitioner was not. He must not
be punished because he could not foresee that a later
appellate court ruling would completely change the
meaning of the statute or that the trial judge would
ultimately reverse his interpretation of that statute long
after publication of the material in question occurred.
This Court, in Raley vs. The State of Ohio, 360 U.S. 423
(1950) admonished that:
“To now punish for conduct which was innocent
when performed would be to sanction the most
indefensible sort of entrapment by the court. . .
convicting a citizen for exercising a privilege or a
right which the court had clearly told him was
available to him.”
3. Mr. Farr’s contempt was adjudicated on July 28, 1971, as the
result of his failure to answer certain questions during testimony that
he gave on June 3, and July 19, 1971, in an order to show cause
proceeding issued May 5, 1971. The two occasions to which the
Federai District Court referred wherein Farr was again “afforded an
opportunity to answer and thereby purge himself’ were hearings held
by Judge Older on November 16. and November 27. 1972. His
continual refusal to disclose his sources on those occasions were
not visited with additional contempt orders
18
tT
PETITIONER WAS DENIED A HEARING BEFORE AN
IMPARTIAL COURT AS DEMANDED BY THE DUE
PROCESS CLAUSE OF THE FOURTEENTH AMEND-
MENT.
A review of the entire record that has evolved in this
matter reflects that petitioner's contempt was ad-
judicated by a trial judge who became so intimately
involved in the prosecution of petitioner and as a party in
the lawsuit against him that he did not provide to the
proceedings the impartial trial judge required by the
Fourteenth Amendment.
The order to show cause proceeding was initiated and
presided over by Judge Older approximately seven
months after he questioned petitioner in his chambers
and advised him prior to publication that he had a right to
rely upon California Evidence Code, Section 1070 in
refusing to disclose his sources of information.
Less than two months after finding petitioner's
contempt in the order to show cause proceeding that he
himself instituted, this same trial judge executed an
affidavit in support of a new order to show cause in re
contempt (see footnote 1) charging petitioner with having
acted in complicity with those who violated the order.
Even though Mr. Farr was acquitted of such charges
when tried in December 1971 before the Honorable
Bernard Jefferson, as aforesaid, Judge Older thereafter
persisted in accusing him of having so acted. On
19
November 27, 1972, Jude > Older erroneously reported in
open court that Mr. Farr himself, testified that:
_. he set out deliberately to subvert the lawful
publicity order by soliciting these persons who were
subject to the order to violate it. . .” (In-Chambers
Tr., November 27, 1972, page 17, lines 16-19.)
It is felt that a reading of the transcripts of the hearings
Judge Older conducted on November 16, and November
27, 1972, and specifically the summary and angry manner
in which he ruled on various motions made by petitioner's
counsel reflects the extent to which this Judge feels that
he has been vilified by petitioner's refusal to violate his
commitment of confidentiality.
Effort was made on petitioner's behalf in the Federal
District Court to augment the record on this issue by
providing Judge Older’s testimony that, in an effort to
develop and find petitioner's contempt, he had, on
numerous occasions, from the very inception of the
entire proceeding, acted in secret collaboration with the
Deputy County Counsel representing respondent. This
County Counsel, however, objected to providing Judge
Older's testimony, representing to the Court that Judge
Older was his client and that any communications
concerning this case that had taken place between the
two of them were privileged by virtue of their
20
attorney-client relationship. The objection was sus-
tained.4
The United States Supreme Court has made” it
abundantly clear that contempt hearings, in order to
satisfy the constitutional requisite of due process, must
be heard before a judge other than the prosecuting judge,
unless an emergency situation pertaining to proceedings
immediately pending require an instant citation and
adjudication. This principle was articulated in Mayberry
vs. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499 (1971), and
Johnson vs. Mississippi, 403 U.S. 212, 29 L.Ed.2d 423
(1971).
The critical element which disqualifies a judge in
contempt proceedings and as a result of said disqualifi-
cation precludes a summary disposition of the contempt
matter is the existence of bias on the part of the judge. As
the Court recognized in United States vs. Meyer, 462
Fed.2¢ 827 (1970), it is the existence of bias and not the
source thereof which is controlling. In a well-reasoned
opinion, which will be followed closely by petitioner in
the remainder ot the argument on this point, the Court in
Meyer ohserved that a judge who adopts an adversary
4. The County Counsel (Mr. William Stewart) stipulated at a hearing
held in the within matter on December 1, 1972, in the Federal District
Court, that he and Judge Older met on several occasions prior and
subsequent to the issuance of the Findings and Order of
Commitment without the presence of petitioner or his counsel. He,
however, invoked the attorney-client privilege in refusing to disclose
the content of their conversations concerning thts proceeding.
21
posture vis-a-vis the alleged contemnor is disqualified
and summary proceedings for contempt may not be held.
The Court stated at page 841 as follows:
“The due process requirement of disposition by
an impartial judge is threatened, not only when the
contempt is of such a personal nature as to create
actual embroilment or the likelihood of perswnal
engagement of the feelings of the trial judge, but
also when the judge adopts an adversary posture
with respect to the alleged contemnor, even if he has
not been personally attacked. . .” (Emphasis added.)
It is appropriate to refocus attention on the problem as
it exists in the present case: The petitioner was a witness
at an investigative hearing. He refused to answer
questions at said investigative hearing. He was
immediately cited for contempt. However, the actual
finding of contempt and the sentence imposed did not
occur until nine days after the investigative hearing itself
was over. Under those circumstances, and given the
extent of the trial judge’s participation in the initiating
processes of the investigative hearing, the subsequent
contempt proceedings against petitioner and the posture
he maintained after learning that petitioner was no longer
a reporter on the staff of the Herald Examiner, it is
respectfully submitted that due process required that
Judge Older disqualify himself from hearing the
contempt in question. The factual questions presented,
specfically on the issue of wilfullness and the availability
of legisiative and constitutional protections, may very
22
fea Sait
well have been decided differently by a trial judge who
was nota “client” in the action.
CONCLUSION
Based upon the foregoing authorities and arguments,
it is respectfully urged that this Court issue its Writ of
Certiorari in the within matter.
Respectfully submitted,
MARK HURWITZ,
Attorney for Petitioner
23
EXHIBIT “A”
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WILLIAM T. FARR,
CIVIL NO. 72-2858-RJK
Petitioner,
Vv.
) MEMORANDUM OF
PETER J. PITCHESS, )
SHERIFF OF LOS ) DECISION
ANGELES COUNTY, )
) AND
)
Respondent. ) ORDER
This proceeding in habeas corpus, together with an
application for release of petitioner on his own
recognizance, was filed November 30, 1972, by Mark E.
Hurwitz, Esq., as attorney for petitioner.
At a conference in chambers on that date counsel for
petitioner and William F. Stewart, Esq., Deputy County
Counsel, representing respondent, agreed that there were
no disputed issues of fact. It was then stipulated by
counsel that an order issue forthwith directing respon-
24
dent, at 9:30 A.M. on December 1, 1972, to show cause
why petitioner should not be ordered discharged from the
detention and restraint by respondent.
At a hearing on December 1, 1972, on the order to show
cause and on petitoner’s application for release on his
own recognizance the respondent filed his return
comprised of points and authorities in opposition and a
copy of his Brief For Respondent In Opposition,
theretofore filed in the Supreme Court of the United
States. Counsel thereupon agreed in open court that the
matter should be determined by the Court upon a record
of certain agreed documents thereafter to be filed with
the Court, the list of such documents being noted below.
The Court thereupon denied without prejudice peti-
tioner's application for release on his own recognizance
and, agreeably to counsel, ordered that the Petition for
Writ of Habeas Corpus stand submitted upon the filing
with the Clerk of the Court, by counsel, of a joint
certificate that all documents constituting the agrecd
record had been filed.
In the course of the hearing on the Order to Show
Cause, petitioner and respondent again assured the court
that no disputed factual issues were presented, with one
possible exception. Petitioner suggested as an exception
that there might be an issue of fact as to when, where and
what meetings or conferences had occurred between
counse! for respondent and Honorable Charles H. Older,
Judge of the Superior Court of the State of California For
the County of Los Angeles, during and prior to the
25
proceedings which resulted in the Order of Commitment
which is here challenged by petitioner. Counsel for
respondent offered to stipulate, which was approved by
the Court, that there had been such meetings and
conferences but counsel for respondent deciined to
disclose the conversations which occurred in this
connection. The Court thereupon announced its reserva-
tion of ruling on the question of whether an evidentiary
hearing should be held to elicit the substance of such
conversations.
On December 4, 1972, there was filed an Amended
Petition For Writ of Habeas Corpus, to which respondent,
on December 8, 1972, filed his return in traverse of all
claims for relief. Again it is noted that no issues of fact,
with tne possible exception recited above, are raised.
The parties lodged with the Clerk of the Court the
Documents referred to above (or copies thereof deemed
authentic) and, pursuant to certificate of counsel
establishing that the record is complete, the Court is of
the understanding that the full agreed record has been
lodged; the entirety thereof has been fully reviewed by
the Court.
The agreed record is comprised of the following:
1. REPORTER'S TRANSCRIPT OF THE HEARING
BEFORE JUDGE CHARLES H. OLDER on June 30,
1971.
2. ORDER TO SHOW CAUSE and AFFIDAVIT OF
JUDGE CHARLES H. OLDER, dated September 21,
1971.
26
Leh ict ell
3. RESPONDENT'S ANSWER TO PETITION FOR
HEARING in The Supreme Court of the State of
California.
4. PETITION FOR WRIT OF CERTIORARI to the Court
of Appeal of the State of California, Second
Appellate District, Division One, in the Supreme
Court of the United States (included are Appendices
A through 1):
Appendix A - Reporter's Transcript of In-Chamber’s
Procededings of October 8, 1970;
Reporter's Transcripts of Hearings of
June 3, 1971, June 30, 1971, and July 19,
1971;
Order Re Publicity filed by the Superior
Court of the State of California For the
County of Los Angeles on December 10,
1969, and Declaration of William Farr,
executed by him on may 28, 1971.
Findings and Order Adjudging Con-
tempts; Order of Commitment;
Order to Show Cause, dated May 5, 1971;
Declaration of Donald K. Byrne and
Robert K. Steinberg; 7
The Opinion of the Court of Appeal of the
State of California, Second Appellate
District, Division One; reported at 22 Cal.
App. 3d 60 (1971);
Appendix B
Appendix C
Appendix D
Appendix E
Appendix F
27
Appendix G - Order of Court of Appeal of the State of
California, Second Appellate District,
Division One, Modifying Opinion and
Denying Petition for Rehearing, reported
at 22 Cal. App. 3d 60 (1971);
Appendix H - Order Denying Hearing - California
Supreme Court;
Appendix | - California Evidence Code § 1070.
5. PETITION FOR WRIT OF HABEAS CORPUS in the
Court of Appeal of the State of California, Second
Appellate District, Division One.
6. PETITION FOR WRIT OF HABEAS CORPUS in the
California Supreme Court;
7. SUPPLEMENTAL PETITION FOR WRIT OF HABEAS
CORPUS in the California Supreme Court.
8. RESPONDENT'S BRIEF IN OPPOSITION TO PETI-
TION FOR WRIT OF CERTIORARI in The United
States Supreme Court.
9. REPORTER’S TRANSCRIPT OF THE HEARING
BEFORE JUDGE CHARiES H. OLDER on November
17, 1972.
10. REPORTER’S TRANSCRIPT OF THE HEARING
BEFORE JUDGE CHARLES H. OLDER on November
27, 1972.
From the agreed record it appears that this petition for
writ of habeas corpus arises out of the trial in the
Superior Court of the State of California For the County
of Los Angeles of Charles Manson and his codefendanis
28
bow. CarBuatty
isi pointe .
on charges involving two sets of multiple murders. Upon
a finding by the Superior Court that “the dissemination
by any means of public communication of any out-of-
court statements’1/ relating to the Manson trial might
prejudice the Manson defendants’ right to a fair trial,
Judge William B. Keene entered an Order Re Publicity
effective December 10, 1969. In substance, “(t)he order
prohibited any attorney, court employee, attache, or
witness from releasing for public dissemination the
content or nature of the testimony that might be given at
trial or any evidence the admissibility of which might
have to be determined by the court.”2/
On October 5, 1970, a written statement by Virginia
Graham, a potential witness, relating confessions made
to her by her cellmate, Susan Atkins, a Manson
codefendant, was obtained by Stephen R. Kay, a Deputy
District Attorney assigned to the Manson case. The
statement implicated Manson and revealed purported
plans of the Manson “family” to murder several show
business personalities. Pursuant to the trial court's
order, each attorney of record and the trial court judge
received one copy of the statement. No other copies were
released.
Petitioner, who was then a reporter for the LOS
ANGELES HERALD EXAMINER received two copies of
the Graham statement on October 7, 1970. He obtained
another the following day, October 8, 1970. Upon
learning from Virginia Graham's attorney that Farr
nossessed the statements, the Honorable Charles H.
Older, who was presiding over the Manson trial, called
petitioner Farr into his chambers. Before requesting Farr
to reveal voluntarily his sources of the Graham
statement, Judge Older stated:
“Another aspect, Mr. Farr, if | were to call you to the
witness stand, for example, or someone would subpoena
you to testify to these matters, you could of course
assert, or refuse to disclose your news under 1070, which
provides that you cannot be adjudged in contempt by a
court for refusing to disclose the source of any
information procured for publication and published in
newspapers.
“It does not say you cannot be called. The point I’m
making is this, while | could not order you, that is,
effectively order you to disclose the source, there is
nothing to prevent you in the interest of justice and in aid
of the administration of justice from voluntarily revealing
it without waiving any right in the future to assert that
immunity or privilege.’3/
Petitioner advised Judge Older that he would have to
defer answering “because | feit it probably will be
something that the company (The Los Angeles Herald
Examiner) prefers that | ask the company attorney.”4/
Judge Older also requested that the Herald Examiner not
publish anything pertaining to any of the Manson
defendants as revealed in the Graham statement. Neither
request was complied with and the next day, October 9,
{
1970, a story bearing Farr’s by-line and entitled, “Liz,
Sinatra on Slay List - Tate Witness,” was published in the
Herald Examiner. Inciuded in the published articles were
portions of the Graham statement theretofore ruled by
the Court as inadmissible against the Manson defendants.
Seven months later, after judgment of guilty had been
entered in the Manson case, Judge Older issued an Order
to Show Cause on May 5, 1971, commanding petitioner to
“show cause why he should not be compeiled to disclose
which person or persons released to him the transcript of
the statement of Virginia Graham on or about October 3,
1970."5/
Petitioner, with his counsel, appeared at Hearings held
on June 3, June 30, and July 19, 1971. Farr, no longer
employed as a reporter, revealed that he had received
transcripts of the Graham statement from two of the six
attorneys of record in the Manson case and one from
another source who was subject to the Order Re
Publicity. Petitioner refused to identify by name or in any
further manner his sources. On July 28, 1971, petitioner
was found in contempt of court and was ordered
committed to the Los Angeles County jail until he agreed
to divulge his sources. Execution of the commitment
order was stayed by order of the trial court pending
appeal.
Petitioner then sought a writ of review with the
California Court of Appeal. An alternative writ issued and
31
after oral argument a written opinion of the Court of
Appeal affirmed Judge Older’s Judgment of Contempt.
The court based its affirmance upon its finding that
California Evidence Code § 1070, if applied to grant Farr
immunity, would unconstitutionally infringe upon the
inherent power of the court to control its own
proceedings.6/
On March 20,1972, a Petiiion for Hearing by the
California Supreme Court was denied.7/ On July 12,
1972, a Petition for Rehearing was denied by the
California Court of Appeal.8/ Thereafter, a Petition for
Writ of Certiorari to the Court of Appeal, Second
Appellate District, Division One, was sought before the
United States Supreme Court. On November 13, 1972,
that, too, was denied.9/
On November 14, 1972, Judge Charles H. Older issued
an order vacating the stay of execution of the Order of
Commitment and ordered Farr to appear before Judge
Older on November 17, 1972, either to purge himself of
contempt or surrender himself into custody pursuant to
the terms of the Order of Commitment. On November 16,
1972, Farr appeared, again refused to disclose his
sources of the Graham statement and was remanded into
custody. |
That same day, petitioner filed a Petition for Writ of
Habeas Corpus with the Court of Appeal for the State of
California, Second Appellate District, Division One. That
court ordered Farr released on his own recognizance
pending its determination. On November 21, 1972, Farr's
32
;
|
habeas corpus petition was denied and Farr was ordered
remanded to custody. The same day, Farr’s Petition for
Writ of Habeas Corpus was filed with the California
Supreme Court, together with a petition to release Farr on
his own recognizance pending determination of the
application for the writ; the Supreme Court took no
action on the pendente lite application. However, Judge
Older, on November 21, 1972, issued a stay of execution
of sentence a ‘ ordered Farr and the attorneys of record
in the Manson trial to appear before him on November 27,
1972. Each attorney, under oath, denied giving Farr the
Statement, each denied having exacted from Farr any
promise of confidentiality, and each expressly released
him from any such confidentiality. Thereafter, Farr again
refused to reveal his sources of the Graham statement
and he was, thereupon, remanded to custody.
On November 29, 1972, the California Supreme Court
denied Farr’s habeas corpus petition without opinion.
On November 30, 1972, Farr filed in this Court his
Petition for Writ of Habeas Corpus.
The Court has reviewed independently and in detail the
entire record and finds that petitioner has failed to
establish any right to relief here.
EXHAUSTION OF STATE REMEDIES
Before a United States District Court can act on any
Petition for Writ of Habeas Corpus it must be satisfied
that the petition, pursuant to 28 U.S.C. § 2254, is properly
before the Court.
Unquestionably, petitioner is a person in custody
pursuant to a Judgment of a State Court; also, he has
alleged that he is in custody in violation of the
Constitution of The United States of America, Addition-
ally, 28 U.S.C. § 2254 (b) requires:
“An application for a writ of habeas corpus in behalf of
a person in custody pursuant to the judgment of a State
Court shall not be granted unless it appears that the
applicant has exhausted the remedies available in the
courts of the State, or that there is either an absence of
available State corrective process or the existence of
circumstances rendering such process ineffective to
protect the rights of the prisoner.”
And, 28 U.S.C. § 2254 (c) provides:
“an applicant shall not be deemed to have exhausted
the remedies available in the courts of the State within
the meaning of this section, if he has the right under
the law of the State to raise, by any available
procedure, the question presented.”
The above requirements of 28 U.S.C. § 2254 are based
on the legislative judgment that “it would be unseemly in
our dual system of government for a federal district court
to upset a state court conviction without an opportunity
to the State courts to correct a constitutional violation.”
Darr vs. Burford, 339 U.S. 200, 204 (1950) (overruled in
other respects, Fay v. Noia, 372 U.S. 391 (1963).
Exhaustion of remedies is a doctrine of comity and not
one of jurisdiction. Giles v. Maryland, 386 U.S. 66 (1967).
34
So
The petition (and amended petition) for writ of habeas
corpus and the agreed record in this case must be sifted
to determine what issues are here presented, and of
those, which have and have not been previously raised
and determined in the State courts. Vonsiserations of
comity arise in this connection.
In his amended habeas corpus petition Farr asserts the
following four grounds for relief:
(a) The Order adjudging petitioner in contempt is void
because he was denied a fair trial before an impartial
court as required by the due process clause of the 14th
Amendment.
(b) Petitioner was deprived of his First Amendment
constitutional rights by being adjudged guilty of
contempt for refusing to provide information that was
protected by that Amendment.
(c) The record in this case reveals the most
indefensible sort of entrapment by the trial judge and a
shocking denial of due process — convicting petitioner
for invoking an immunity which the trial judge clearly
advised was available to him.
(d) Petitioner is being deprived of his liberty without
due process of law because he can no longer purge
himself by supplying the requested information, the
court no longer having the ability to prosecute for a
contempt those subject to its Order Re Publicity.
Having reviewed the record herein, the Court is
satisfied that grounds (b), (c) and (d) have been fairly
35
presented to the California State Courts so as to meet the
exhaustion prerequisite. Although it appears from the
record that ground (a) was argued on direct review in
briefs filed by amici curiae in the California Court of
Appeal and by petitioner in his Petition for a Writ of
Certiorari submitted to the United States Supreme Court,
the record reveals that petitioner has never properly
raised ground (a) before the California State Courts. In
fact, Grant Cooper, Esq. then counsel for petitioner, at
the Hearing held on June 3, 1971, expressiy waived any
challenge to Judge Older presiding over the contempt
proceedings. Moreover, the California Court of Appeal
suggested that objections by amici curiae to Judge Older
presiding over the contempt proceedings were not
properly before the court as no objection on that ground
was made in the trial court.10/
In his amended petition for writ of habeas corpus filed
with this Court petitioner asserts that ground (a) was first
raised in his petition for writ of habeas corpus filed with
the California Court of Appeal, Second Appellate District,
Division One. In that petition for writ of habeas corpus
Farr relied upon the following grounds:
“(1) Inasmuch as the Statute of Limitations now bars
a prosecution for contempt as against those persons
who were subject to the Order re Publicity which was
the purpose for which the Order to Show Cause
proceeding, with which we are herein involved, was
instituted, it is no longer in petitioner's power to
36
perform the act he was previously ordered to
perform. Consequently, petitioner's continued con-
finement is in violation of his right under the Due
Process Clause of the 14th Amendment to the United
States Constitution and the cases cited herein.
“(2) The petitioner has been incarcerated without
Due Process of Law in that the trial court was
without jurisdiction to institute contempt proceed-
ings and to thereby convict petitioner for his refusal
to answer questions that the same trial court
previously advised him he had a right to refuse to
answer.
“(3) The said William T. Farr was not at any time
during the proceedings in question nor was he at any
time during the In-Chambers Proceeding, of which
was admitted into evidence in the within proceed-
ings apprised by the trial court of his right to refuse
to testify under the California Constitution or the 5th
Amendment to the United States Constitution.”
The second ground recited above cannot be said even
remotely to equate with a contention of bias and lack of
impartiality. In fact, as the argument shows,11/ Farr was
not contending that Judge Older was biased or
prejudiced but that Farr was entrapped by Judge Older’s
statements made on October 8, 1970, that he could not be
forced to reveal his sources of the Graham Statement. In
no sense can this be considered the substantial
equivalent of a contention that the trial judge was
37
disqualified to hear and decide the contempt pro-
ceedings.
It appears that petitioner first presented the issue of
lack of impartiality in his supplemental petition for
habeas corpus filed in the California Supreme Court on
November 29, 1972. Viewing petitioner's charge of bias
and lack of impartiality most favorably to the petitioner, it
is arguable that Judge Older’s alleged bias revealed itself,
for the first time, at the November 27, 1972, Hearing
before Judge Older. Allegedly, Judge Older’s conduct at
that Hearing indicates that he had assumed an adversary
posture. In retrospect, giving this revelation and the
history of these proceedings, other supportive indica-
tions of impartiality may allegedly be gieaned from the
record.
Assuming this to be the case, it is also arguable that
Farr had no chance to raise the impartiality issue before
the California courts except in his supplemental petition
for habeas corpus filed with the Supreme Court of
California. By November 27, 1972, the California Court of
Appeal had denied Farr’s petition for habeas corpus and
Farr had filed his petition for habeas corpus with the
California Supreme Court.
Assuming all of the above to be true, since the
California Supreme Court denied Farr’s petition for
habeas corpus without an opinion on November 29, 1972,
it is obvious that that court could not have considered
Farr's allegations of impartiality filed the same day.
Assuming the lack of impartiality issue had been
considered by the California Supreme Court, the
exhaustion of State remedies stil! would not have been
satisfied. As pointed out above, the lack of impartiality
issue was first raised in Farr’s supplementary petition for
writ of habeas corpus in the California Supreme Court.
That Court denied the writ without an opinion.
California appellate courts have the discretion to refuse
to exercise jurisdiction when a habeas corpus petition
presents issues not raised in the appropriate lower court.
See In re Hiilery, 202 Cal. App. 2d 293, 294, 20 Cal.Rptr.
759 (1962). Thus, when a habeas corpus petition in the
California Supreme Court presents an issue not raised in
the California Appellate Court, as here, and the California
Supreme Couri denied the writ without an opinion, the
Federal courts must presume that the denial was
premised on the procedural deficiency and not the
merits. Rogers v. Nelson, 300 F. Supp 421, 422(N.D. Ca.
1969); See Baskerville v. Neison, 455 F. 2d 430 (9th Cir.
1972); Turner v Lloyd, 439 F.2d 138 (9th Cir. 1971).
Consequently, this issue should not properly be
considered here, even assuming that the lack of
impartiality issue was presented to the California
Supreme Court.
It is noted that petitioner asserted in these proceedings
the right to an evidentiary hearing on the question of
whether conversations between Judge Older and the
Deputy County Counsel showed a disqualifying bias on
39
the part of the judge who made the finding of contempt
and imposed the Order of Commitment. This question
having been reserved by this Court it is now ordered that
no such hearing is necessary or proper and that none be
held. For this Court to engage in a first instance inquiry
into the conduct of a State Court trial judge, where none
was requested or had in the State tribunals, would
constitute the grossest affront to the fundamentals of
comity. If there is to be such a hearing, let it be held as a
necessary part of petitioner's State remedy.
Upon a record made in the State court petitioner might
conceivably have emerged with a claim of constitutional
dimension as it relates to the alleged impartiality of the
trial judge. If so, a California tribunal should first have
had an opportunity to consider it. Thereafter, it might be
appropriate for consideration here.
Even the view most favorable to petitioner of the record
here and of the proferred showing of conversations
between Judge Older and the Deputy County Counsel
leaves him far short of such a claim. He reiies on
Mayberry v. Pennsylvania, 400 U.S. 455 (1971), and
Johnson v. Mississippi, 403 U.S. 212 (1971). They are
inopposite to the case at bar. The record here and any
presumed result of an evidentiary hearing suggests no
basis of personal embroilment or grievance on the part of
the judge; he was neither reviled nor insulted by the
contemnor. He exercised no discretion in making his
order of commitment — he applied the classic and only
40
appropriate order in a case of civil contempt. No
constitutional question is thereby presented in this
proceeding. In any event, petitioner has failed in the
required exhaustion of his State remedies on this issue.
Fay v. Noia, 372 U.S. 391 (1963).
THE ISSUES HERE CONSIDERED ON THE MERITS
The remaining issues raised by petitioner were
adequately pursued in the State courts. They are now
considered.
Petitioner's ground (b), as alleged in his Amended
Petition For Writ of Habeas Corpus, claims the protection
of the First Amendment to the United States
Constitution. In effect, petitioner asserts that as a
“newsman” he has a constitutional immunity against
compelled disclosure of his news sources. He recognized
that the Supreme Court has recently held to the contrary,
Branzburg v. Hayes, 408 U.S. 665 (1971).
He seeks to distinguish and make inapplicable here
this case by pointing out a claimed difference between
Grand Jury interrogation of a newsman’s sources and
inquiry, as here, by a Court concerning the violation of its
Order.
It appears to the Court that Branzburg applies here a
fortiori. For here we have posed the question of whether,
assuming some form of First Amendment protection for
the newsman’s source, it must not yield to a higher value,
i.e., to the due process guarantee of a fair trial to a
defendant in acriminal case.
41
Sheppard v. Maxwell, 384 U.S. 333 (1966), at 359, laid
upon State court trial judges in the most stringent terms
the obligation in a first degree murder trial “to control the
releases of leads, information and gossip to the press by
police officers. witnesses and counsel for both sides.”
The trial court’s failure to do so in Sheppard resulted, on
a habeas corpus proceeding, in reversal by the Supreme
Court twelve years after petitioner's conviction. The trial
court's failure to control the dissemination of news
presented a compelling case, the Court found, of the
defendant’s deprivation of his Fourteenth Amendment
right to a fair trial. The Supreme Court in Branzburg v.
Hayes concluded that the Grand Jury's need for a
newsman’'s testimony was essential to initiate a possible
criminal trial. How much greater is the requirment that a
trial court be able to compel a newsman’s disclosure to
insure the Court's ability to nreserve the integrity of its
own process in the conduct of an actual criminal trial in
accordance with the defendant's constitutional right to a
fair trial.
The Manson trial, involving charges of two multiple
murders, was the subject of much sensational notoriety.
The “news” as to which petitioner claims disclosure of
his source is constitutionally protected was contained in
the statement of a potential witness which recited in
substance:
“that Susan Atkins, a codefendant in the murder
prosecution, had confessed the crimes to Mrs. Graham in
42
}
}
‘
, a ; . ;
Winn ici inci. he ee Debt tha Ses
lurid detail and implicated Manson; that the defendants
planned after the murders to cross the country by bus and
in the course of their travels to murder people at random;
that Miss Atkins purportedly told Mrs. Graham that she
and her codefendants had planned to murder a series of
show business personalities each in a particularly vicious
and bizarre manner; that, inciuded in the list of intended
victims were Elizabeth Taylor whose eyes were to be
removed and mailed to her (ex)husband; Richard Burton
who was to be castrated; that Frank Sinatra was to be
skinned alive whie hanging from a meat hook, and that
Tom Jones’ throat was to be cut while he was engaged in
an act of sexual intercourse with Miss Atkins at knife
point if necessary. Steve McQueen was also mentioned
as a potential victim.”
See Farr v. Superior Court, 22 Cal.App. 3d 60, 64, 99
Cal.Rptr. 342, 344 (1971).
lf some test of “lurid details” be necessary to bring the
Manson case within the purview of Sheppard, the record
is not lacking in this regard. No case could present a
more compelling need to protect the defendant against
prejudiciai publicity. Sheppard is conclusive on peti-
tioner’s First Amendment claim. Further, as Branzburg
makes clear — "the First Amendment does not guarantee
the press a constitutional right of special access to
information not available to the public generally.”
Branzburg v. Hayes, supra, at 685 (citing cases).
Petitioner claims denial of due process in that the trial
judge entrapped him. He claims that his refusal to answer
the questions put to him was done in reliance upon a
43
newsman's privilege under the California Evidence Code,
of which Judge Older advised him.
The record discloses, aS noted above, that Judge
Older, on the day before newspaper publication of the
material obtained by Farr, advised him that under the
California Evidence Code there could be no compulsion
for him to disclose his source. However, on the occasion
some seven months later when petitioner (no longer a
newsman) refused to answer concerning his source, he
had the advice of counsel and the Court itself told
petitioner that his refusal to answer was on pain of
contempt and commitment.
The disposition of this issue by the California Court of
Appeal based on an interpretation of a California Statute,
its legislative history and the finding of non-application
to petitioner, raises no constitutional issue here. The
finding there, based on a full record, is dispositive here.
Unlike Raley v. State of Ohio, 360 U.S. 423 (1950), where
the contemnor was Clearly misled, the petitioner here was
found in contempt for refusing to answer questions as to
which he was expressly told by the Court he had no right
to refuse. He was, on two occasions after his claim of
privilege and immunity had been rejected by California
Appellate courts, again afforded the opportunity to
answer and thereby purge himself. His refusals then
constitute the contempt for which he is committed.
Petitioner presents no constitutional claim on this issue.
Petitioner claims a violation of his constitutional right
44
to due process of law in being required to answer
questions concerning violations of the Court’s Order Re
Publicity because no action can now be taken against
those who allegedly violated the Order.
This is a question exclusively within the competence of
State tribunals. It was raised by petitioner before the
California Court of Appeals in his petition for writ of
habe. s corpus and also in his similar petition before the
California Supreme Court. Treating this issue as having
been properly presented in the State courts it was there
disposed of. There is no showing here that the contempt
proceedings were or are moot or idle. It is for the
California Courts to determine whether petitioner's
responses are relevant and necessary in connection with
residual significance of the Order Re Publicity and action
with regard thereto. No constitutional question is
presented by petitioner in connection therewith.
For all of the foregoing reasons,
iT iS ORDERED that the Petition for Writ of Habeas
Corpus be and the same is hereby denied as is the
application for release of petitioner on his own
recognizance.
IT 1S FURTHER ORDERED that the Clerk of the Court
enter this Order and thereupon to serve upon counsel for
petitioner and for respondent a copy thereof.
DATED: Decmeber 18, 1972
Robert J. Kelleher
United States District Judge
45
FOOTNOTES:
1/
2/
3/
4/
5/
6/
7/
8/
ORDER RE PUBLICITY, Appendix “C”, Farr's
Petition For Certiorari in the United States Supreme
Court at p. 163.
Farr v. Superior Court, County of Los Angeles,
22 Cal.App. 3d 60, 63, 64, 99 Cal. Rptr. 342, 344
(1971), hearing denied, California Supreme Court,
March 20, 1972, cert. denied. 41 U.S.L.W. 3274
(November 13, 1972).
Reporter's In-Chamber’s Transcript, October 8,
1970, Appendix “A”, Petition of Certiorari in The
United States Supreme Court at p. 7.
Supra, at p. 8.
ORDER TO SHOW CAUSE, May 5, 1971,
Appendix “E”, Petition for Writ of Certiorari in The
United States Supreme Court at p. 200.
Farr vs. Superior Court, County of Los Angeles,
supra, 22 Cal.App.32d at 70, 71, 99 Cal. Rptr. at 348,
349, hearing denied, California Supreme Court
(March 20, 1972), cert. denied 41 U.S.L.W. 3274
(November 13, 1972).
Appendix “H”, Farr’s Petition for Writ of Cerii-
orari in The United States Supreme Court ai p. 226.
Appendix “G”, Farr’s Petition for Writ of Certiorari
in the United States Supreme Court at p. 225.
46
9/
10/
11/
Farr v. Superior Court, County of Los Angeles,
supra, 22 Cal.App.3d 60, 99 Cal. Rptr. 342 (1971),
hearing denied, California Supreme (March 20,
1972), cert. denied, 41 U.S.L.W. 3274 (1972).
Appendix “A”, Farr’s Petition for Writ of Certiorari
in The United States Supreme Court at p. 29.
Farr’s Petition for Writ of Habeas Corpus in the
Court of Appeal for the State of California, Second
Appellate District, Division One, at pp. 18.21.
47
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
:
’ A 7 FARR,
ae Pctitioner-Appellant,
vs. LNo. 72-3171
‘2 J. Prrcuess, Sheriff of Los Angeles County, OPINION
a Respondent-Appellee. ;
{ August 7, 1975}
Appeal from the United States District Court
for the Central District of California
Before: BROWNING and CHOY, Circuit Judges, and
McNICHOLS,*® District Judge
MeNICHOLS, District Judge:
i al presents the no-loager novel question regarding
P., paths yr ninaiian afforded by the First Amendment “f
press” provision to a newspaper reporter who reninta judicialls
ordered disclosure of his news sources. William 5. I arr. pd
Jant, is a newsman who was sent to jail by a California State
Court after being adjudged in contempt for refusing to name
the allegedly confidential supplicrs of certain information. Z —
cessful in obtaining relief in the state courts, he sought a rit 0
Habeas Corpus in the United States District Court. senda
tion was denied and the instant appeal ensued. Jurisdiction be 2
was based on 28 .U.S.C. §2254; our jurisdiction 1s found in
U.S.C. §1291.
The controversy initially arose against a background of -
widely publicized Los Angeles trial of Charles Manson and he
“family” for first-degree murder. The state trial judge, min c
of his obligation to take such steps as the circumstances wee gee
to insure a fair trial to the defendants, undertook to control t ;
release of prejudicial information. To avoid publication of one .
court statements, an order was promulgated prohibiting any at-
*Honorable Ray MeNichols, Chief Judge, United States District Court
for the District of Idaho, sitting by designation.
48
= a Se Se
WRREESCEOE I SEA. WS:
William 7. Farr ws.
torney, court attache, or witness from releasing for public cissem-
ination the contents or nature of proposed trial testimony or other
evidence.
Subsequent to the entry of this order, and during the early
course Of a lengthy trial, the Deputy District Attorney, having
responsibility for the prosceution, obtained the written statement
of one Virginia Graham, a potential witness. This statement pur-
ported to report a confession made to Graham by Susan Atkins, a
Manson co-defendant. The confession, as related, implicated’ Man-
son and revealed plans by Manson and others to murder, in a
most bizarre manner, several show business personalities, Pursuant
to court directives, cach attorney of record and the judge were
provided a transcript of the Graham statement. No other copies
were to be released. The court found the statements to be inad-
missible as evidence against the defendants.
Enter the petitioner-appellant, William T. Farr, then a reporter
for the Los Angeles Herald Examiner, assigned to cover the
Manson trial, A few days after the Groham statement had been
delivered to counsel and determined to be inadmissible as evidence,
Farr obtained two copies, apparently from two, separate indi-
viduals. Word of this breach of security was somehow communi
eated to the trial judge who summoned appellant to his chambers.
An extensive co!loquy ensucd, the details of which are not. rele-
vant here, in view of the disposition we make of the ease. It is
sufficient to note that. Farr rejectod the invitation ef the Judge to
disclose the name or names of these from whom he reecived COop-
ies of the Graham statement. Farr indieated that he had promised
confidentiality to the two persons involved.
The following day’s edition of the Herald Examiner carried
Farr's by-line over a story with full and lurid details curried
from the supposed confession disclosed in the Graham statement.
Seven months later, and one month after a jury verdiet against
the Manson defendants had been entered, the trial judge formally
ordered appellant to appear and show cause why he should not
he compelled to diselose the names of the persons who had sup-
plied him with copies of the Graham statement. The purpose of
this proceeding was to uncover the identity of those persons vio-
lating the publicity order. After a series of hearings at which
the then living attorneys involved cach denied, under oath, having
given the material to the newsman, and at which Farr continued
49
|
Peter J. Pitchess
to refuse to answer specific questions as to identity, appellant was
adjudged to be in contempt and ordered incarcerated until he
divulged the names.
Appellant's brief raises four separately stated constitutional
erounds for relief on each of which it is contended the trial
judge erroneously ruled. We have determined that only the First
Amendment issuc involving the construction and effect of the free
press provision merits discussion.?
Farr contends that, under the facts of this case, he had a right,
protected by the First Amendment provision regarding free press,
to refuse to disclose to the court the names of the individuals who
had furnished him newsworthy information under a promise of
confidentiality. In taking that position he concedes, as he must,
that the persons, whose identity he protects, were, to his knowl-
edge, forbidden by court order to supply the very information he
reccived. It likewise must be accepted factually that the ostensible
purpose of the court order was to protect the right of the Man-
son defendants to a fair trial, free of prejudicial publicity.
The pertinent language of the First Amendment to the Constitu-
tion of the United States provides: “Congress shall make no laws
... abridging the freedom of specch or of the press; ... .”. Until,
very recent times, it was not seriously thought by most that this
provision of the First Amendment gave any personal right to a
newspaper reporter to keep confidential his sources of informa-
tion. Historically, freedom of the press, as guaranteed by the con-
stitution, meant absence of restrained-upon publication usually
prior to publication, i.c., eensorship. Near v. Minnesota, 283 U.S.
697 (1931); Garland v. Torre, 259 F.2d 545 (2nd Cir, 1958).
A change has been in the making in more reeent times. Several
states have enacted legislation aimed at carving out a privilege
1(a) Appellant contends he was deprived of his right to a fair trial
because of the bias and prejudice of the state judge. (b) Denial of due
process is predicated on a claim that the same trial judge misled and
misinformed Farr as to the effect of an existing California State immu-
nity statute. (¢) Denial of due process is purportedly bottomed on an
argument that, because of the running of the statute of limitations, those
who furnished the information to Farr can no longer be prosecuted for
disobeving the court order against publicity, and appellant should no
lonzer be required to purge himsclf of contempt. To the extent that
these issues were properly before the district court, that court correctly
found the reeord was clearly contrary to appellant’s contentions.
50
William T. Farr vs.
against disclosure of news sources. The Congress of the United
States has flirted with such legislation. More in point, the Su-
preme Court of the United States has considered the question and
appears to have fashioned at least a partial First Amendment
shield available to newsmen who are subjected to various demands
to divulge the source of confidentially secured information.
Branzburg v. Ilayes, In re Pappas, and United States v. Cald-
well, 408 U.S. 665 (1972), form a trilogy of cases reported to-
gether and gencrally hereafter terminated Branzburg, wherein the
Supreme Court faced the question of the right of the grand jury
to require disclosure by newsmen. Justice White wrote for four
justices and the short concurrence of Justice Powell was needed
to obtain a plurality. The Branzburg court dealt precisely with
the First Amendment free press provision as it affected testimony
sought to be produced before a grand jur>v. However, the opin-
ion appears to teach broadly enough to be applied to other civil
or criminal judicial proceedings as well. Recent cases have so
held. Carey v. Hume, 492 F.2d 631 (D. C. Cir. 1974), petition
for writ of certiorari dismissed pursuant to Rule 60, 417 US.
938 (1974); United States v. Liddy, 478 F.2d 586 (D.C. Cir.
1972); cf. Bursey v. United Statcs, 466 F.2d 1059 (9th Cir. 1972)
at 1090, et seqy., on motion for rehearing.
It is clear that Branzburg recognizes some First Amendment
protection of news sources. The language of the ease likewise indi-
cates that the privilege is a limited or conditional one. The pre-
cise holding of Branzburg subordinated the right of the newsmen
to keep secret a source of information in face of the more compel-
ling requirement that a grard jery be abie to seeure factual data
relating to its investigation of serious criminal conduct.
The application of the Branzburg holding to non-grand jury
cases seems to require that the claimed First Amendment privilege
and the opposing need for disclosure be judicially weighed in light
of the surrounding facts and a balance struck to determine where
lies the paramount interest.
The trial judge accurately read Branzburq and succinctly set
the issue in his well-reasoned Memorandum of Decision and Order
(at page 183 of the Clerk’s Transcript) :
“It appears to the court that Branzburg applies here a
fortiori. For here we have posed the question of whether,
assuming some form of First Amendment protection for
51
Peter J. Pitchess
the newsman’s source, it must not yield to a higher value, e.,
te the due process guarantee of fair trial to a defendant in
@ criminal case.”
As he prepared to conduct the trial in the Manson case, the
state court judge issued an order regulating certain acts of the
attorneys and court. personnel before him. The order, in the opin-
ion of the judge, was necessary to preserve a fair trial for the
defendants charged with a capital offense. The validity of that
order was not questioned, but the order was flagrantly disobeyed.
The court, in an attempt to discover which of the proscribed per-
sons had violated the order, formally and fairly ordered the
appellant to furnish the names of the violators. He unequivocally
refused. This constituted a direct challenge to the power and
duty of the court to protect its processes and to guarantee due
process to the accused person.
Thus, the First Amendment protection announced by Branzburg
collided head-on with a compelling judicial interest in disclosure
of the identity of those persons frustrating a duly entered order
of the court. Thus, also, is presented the specific question raised
by this appeal—which of these conflicting rights is paramount?
In a criminal ease the trial judge has a duty and obligation’
to attempt to protect the right of the defendants to a fair trial,
free of adverse publicity. Where the case is a notorious one, that
burden on the court is heavy. The most practical and recom-
mended procedure to insure against dissemination of prejudicial
information is the entry of an order directing that attorneys,
court personnel, enforcement officers and witnesses refrain from
releasing any information which might interfere with the right
of the defendant to a fair trial. Sheppard v. Maxwell, 384 U.S.
333 (1966). The language of the Sheppard court is not equivocal.
The duty of the court to enter such orders and the authority for
enforcement are spelled out:
“If publicity during the proceedings threatens the fairness
of the trial, a new trial should be ordered. But we must re-
member that reversals are but palliatives; the cure lies in
those remedial measures that will prevent the prejudice at its
inception. The courts must take such steps by rule and regu-
lation that will protect their processes from prejudicial out-
side interferences. Neither prosecutors, counsel for defense,
the accused, witnesses, court staff nor enforcement officers
52
William T.. Farr vs.
coming under the jurisdiction of the court should be per-
mitted to frustrate its function. Collaboration between coun-
sel and the press as to information affecting the fairness
of a criminal trial is not only subject to regulation, but is
highly ecnsurable and worthy of diseiplinary measures.” Shep-
pard v. Marwell, supra, at 363.
As indicated, the purpose of climinating collaboration between
counsel and the press is to protect the constitutionally guaranteed
right of the ck fendants in criminal eases to due process by means
of a fair trial. That constitutional right cannot be so pro-
teeted if the authority of the court to enforce its orders is diluted.
If the newsman’s privilege against disclosure of news sources is
to serve as a bar to disclosure of the names of those who disobey
the court order, then the court is powerless to enforce this method
of eliminating encroachment on the due-process right of the de-
fendants.
The district court properly considered the factual situation, and
struck a balance between the protection afforded appellant by
the First Amendment and the necessity that the newsman’s source
be revealed so that meaning could be given to the power and duty
ot the court to enter enforceable orders to proveet the due-process
right of accused persons. The court below concluded that the
newsman’s privilege must yield to the more important and com-
pelling need for disclosure.
We hold that, under the facts presented by this record, the
paramount interest to be protected was that of the power of the
court to enforce its duty and obligation relative to the guarantee
of due process to the defendants in the on-roing trial.
Farr, therefore, was not constitutionally protected in his refusal
to identify those who violated the proper order of the court. His
ultimate decision to act on his mistaken belief and refusal to
comply with the direct and proper questions directed to him by
the court constituted contempt of a lawful order of that court.
His subsequent incarceration was not in violation of any federally
guaranteed constitutional right. The trial court did not err in
dismissing the Petition for Writ of Habeas Corpus.
Affirmed.
EXHIBIT “C”
FINDINGS AND ORDER ADJUDGING CONTEMPTS:
SENTENCE PURSUANT TOC. C. P. 1218;
ORDER OF COMMITMENT.
Superior Court of the State of
California for the County of Los Angeles.
In the Matter of William T. Farr, In Re Contempt.
No. A 253,156.
Original Filed: 8-6-74.
This matter regularly coming on for hearing on punish-
ment (Code of Civil Procedure Section 1218) before this
court on July 29, 1974, pursuant to the court's order of
June 21, 1974, and HURWITZ AND HURWITZ by MARK E.
HURWITZ appearing as attorney for WILLIAM T. FARR,
and argument, both oral and written, having been made
on behalf of William T. Farr as to why he should not be
punished for contempt and good cause appearing
therefor, the court hereby finds:
/. Upon noticed motion of this court, hearings were
held on June 3, 1971, June 30, 1971, July 19, 1971,
November 16, 1972 and November 27, 1972, for the
purpose of ascertaining the identity of the person or
persons who violated the court’s Order Re Publicity made
54
and entered in the case of People vs. Manson, et al.,
A253,156.
2. On July 19, 1971, William T. Farr in the course of the
court's inquiry, refused to answer 13 separate questions
after being directly ordered by the court to answer said
questions under penalty of contempt for failure to do so.
Said questions and William T. Farr’s statements in
refusal to answer are set forth in the Findings and Order
Adjudging Contempts made and entered by this court on
July 28, 1971 (attached hereto as Exhibit A and
incorporated herein by reference as though fully set
forth). William T. Farr was held in contempt of the court
for refusing to answer each of said thirteen (13) questions
and on July 28, 1971, the court imposed a coercive
sentence of confinement pursuant to Code of Civil
Procedure Section 1219 for the purpose of compelling the
compliance of William T. Farr to the court's order.
3. The California Court of Appeals in Farr vs. Superior
Court, 22 CA3d 60, affirmed the adjudication of contempt
for William T. Farr’s refusal to answer the aforesaid
thirteen (13) questions of the court and affirmed the
imposition of the coercive sentence imposed pursuant to
Code of Civil Procedure Section 1219.
4. Since the original affirmance of the contempt
adjudication, William T. Farr has pursued numerous
appeals. There is currently an appeal pending before the
United States Court of Appeals for the Ninth Circuit, No.
73-3171. William T. Farr served 46 days in coercive
confinement until released by Justice William O. Douglas
55
of the U. S. Supreme Court pending disposition of his
appeal before the Ninth Circuit.
5. This court's inquiry into the violation of the Order
Re Publicity is a continuing one and has not been
terminated. There presently exists a compelling and
material need for the testimony of William T. Farr
identifying the violators of the court’s order. This
Superior Court in its memorandum decision filed on June
20, 1974, found that since the Manson case is still on
appeal, any significant supplementation of the trial
record (as this court has sought to do herein by
identifying the violators of the Order Re Publicity) would
still be useful. Therefore, this court finds that its inquiry
is still relevant, material and viable.
6. The California Court of Appeal again upheld the
adjudication of contempt in the case of Farr v. Pitchess,
36 CA3d 566. In this opinion, the Appellate Court ruled
that if in a subsequent proceeding before the Superior
Court, William T. Farr could establish that his continued
incarceration pursuant to Code Civil Procedure Section
1219 would not accomplish the purpose of the order
requiring him to reveal the identity of the persons who
violated the trial court order prohibiting prejudicial
pre-trial releases, then that commitment would cease to
serve its coercive purpose.
7. On June 20, 1974, William Levit, Judge of the
Superior Court presiding in Department 21 thereof, found
that the order of commitment issued pursuant to Code of
Civil Procedure Section 1219 was no longer coercive in
nature as there was no substantial likelihood that the
confinement would produce the desired compliance. A
hearing was thereupon set for July 29, 1974, at 10:00
a.m. in Department 64 for the purpose of determining
whether William T. Farr should be punished for his
contempts pursuant to Code of Civil Procedure Section
1218.
8. Each and every question asked William T. Farr set
forth in Exhibit A is relevant and material to the issue
before the court. William T. Farr had the knowledge and
ability to answer each and every question at the time it
was asked and had knowledge of the court’s order to
answer each of said questions. William T. Farr willfully
refused to answer said questions in disobedience of said
orders.
9. That William T. Farr’s contempts in willfully
refusing to answer said questions were a!l committed in
the immediate view and presence of the court.
10. That William T. Farr by wilifully refusing to answer
said relevant and material questions of the court,
actively, knowingly, and willfully, interfered with and
obstructed the lawful proceedings of the court.
11. During the hearings conducted on November 16th
and 27th, 1972, William T. Farr was given the opportunity
to purge himself of his contempts by answering the
thirteen (13) questions during the hearing held on May
20th and 21st, 1974, before Judge Levit.
57
IT IS HEREBY ORDERED, ADJUDGED AND DECREED
that William T. Farr, having committed contempts of
court for his willful refusal to answer the thirteen (13)
questions set forth in the Findings and Order Adjudging
Contempts entered by this court on July 28, 1971, shail,
in accordance with the Code of Civil Procedure Section
1218, be punished for said contempt by imprisonment in
the County Jail of Los Angeles County for a period of five
(5)days and shall pay a fine of $500.00. In the default of
the payment of said fine of $500, William T. Farr shall be
imprisoned in the County Jail of Los Angeles County for
an additional period at the rate of one day for each $20.00
of said fine; said sentence is to run consecutive to the
five (5) day term of imprisonment heretofore imposed,
above.
IT iS FURTHER ORDERED that William T. Farr is
committed to the custody of the Sheriff cf Los Angeles
County for execution of said sentence.
DATED: August 6, 1974
/s/ Charles H. Older
CHARLES H. OLDER
Judge of the Superior Court
Findings and Order Adjudging Contempts Committed
in the Immediate View and Presence of the Judge;
Order of Commitment.
Superior Court of the State of California for the
County of Los Angeles.
In the Matter of William T. Farr, In re Contempt.
No. A 253,156.
Original Filed: 7-28-71.
Upon noticed motion of this Court, hearings were
held on June 3, June 30, and July 19, 1971, for the
purpose of ascertaining the identity of the person or
persons who committed acts in violation of the Court’s
Order Re Publicity made and entered in the case of
People vs. Manson, et al., A253,156. After considering
the evidence introduced at said hearings, affidavits filed
with the Court, and the Order Re Publicity, the Court
makes the following findings and order:
1. On December 10, 1969, the Court made and
entered an Order Re Publicity in the case of People
vs. Manson, et al., A253,156. The aforesaid order spe-
cifically prohibited any attorney for any part to that
case, court employees or attaches, or witnesses from
releasing for public dissemination the contents or na-
ture of testimony that might be given in the trial. This
order is attached hereto as Exhibit A. The Court finds
that said Order was in force at all times mentioned
herein.
2. The following named persons were attorneys of
record on October 7, 1970, in the case of People vs.
Manson, et al., A253,156, and at that time were sub-
ject to the provisions of the Order Re Publicity made
and entered in that case:
Stephen R. Kay, Deputy District Attorney
Vincent Bugliosi, Deputy District Attorney
Donald A. Musich, Deputy District Attorney
Daye Shinn, Atiorney for Susan Atkins
I. A. Kanarek, Attorney for Charles Manson
Paul J. Fitzgerald, Attorney for Patricia Krenwin-
kel
Ronald Hughes, Attorney for Leslie Van Houten
3. On October 5, 1970, a transcript of the pro-
posed testimony of Virginia Graham, a prospective wit-
ness for the prosecution in the case of People vs.
Charles Manson, A253,156, was prepared by Stephen
R. Kay, Deputy District Attorney. This transcript was
prepared prior to any testimony by Miss Graham in
open court and contained statements by Miss Graham
that would be her probable testimony in the proceed-
ing. Copies of this transcript of the complete statement
of Virginia Graham were made and distributed to cach
of the aforesaid attorneys of record in the case. Aside
from the copy given to the Court, the aforesaid attor-
neys were the only parties who received a copy of this
transcript. At the time the copies of the transcript were
distributed to the attorneys of record. the admissibility
of the statements therein had not been determined by
the Court. In fact, certain portions of said transcript
contained statements by Miss Graham that implicated
Susan Atkins and other co-defendants in the case of
People vs. Charles Manson, ct al.. A253,156. that were
not subsequently testified to by Miss Graham when
she testified in open court on October 10. 1970. The
Crder Re Publicity prohibited all of the aforesaid at.
60
torneys from revealing or releasing all or any portions
of said transcript for public dissemination.
4. It appeared to the Court after considering the
testimony of William Farr in chambers on October 8,
1970, and upen reading the affidavits of Donald Byrne
and Robert Steinberg, that the Order Re Publicity had
been violated by one or more of the attorncys in the
case subject to the Order and that good cause existed
for a further inquiry for the purpose of ascertaining the
identity of said person or persons.
On October 8, 1970, William Farr was employed as
a newspaper reporter. It was not until after the con-
clusion of the trial in People vs. Charles Manson, et al.,
that the Court learned, on or about May 5, 1971, that
William Farr was no longer employed as a newspaper
reporter but was, in fact, currently employed by the
District Attorney’s Office. It therefore appeared to the
Court that Mr. William Farr possessed relevant personal
knowledge of the identity of said person or persons
and that William Farr should be ordered to appear be-
fore the Court as a witness.
5. Upon notice duly given, hearings were held on
June 3, 1971, June 30, 1971, and july 19, 1971, for
the purpose of ascertaining the identity of the person
or persons acting in violation of the Court’s Order Re
Publicity. Mr. William Farr appeared and testified pur-
suant to Order of the Court on June 3 and July 19,
1971, and was represented by Counsel.
6. At the hearing on June 3, 1971, Mr. Farr intro-
duced into evidence a Declaration in which he stated
that prior to October 8, 1970. he obtained from con-
fidential sources a transcript of the complete testi-
mony of Virginia Graham taken on October 5. 1970.
Mr. Farr further stated in said Declaration that he
61
was no longer employed as a newspaper reporter but
was presently employed as the Press Secretary for the
District Attorney of Los Angeles County.
7. On June 3, 1971, Mr. Farr testified under oath
in court as follows:
Reporter's Transcript, page 32, lines 20-27.
Q. “Mr. Farr, by way of clarification of the
previous question, you stated in your Declaration
that you obtained from confidential sources the
transcript of Miss Virginia Graham’s testimony.
Did you receive the information from one or more
of the attorneys of record in this case?
A. “Yes, I did.”
8. On June 30, 1971, all of the aforesaid attorneys
of record in the case of People vs. Charles Manson, et
al., A253,156, with exception of Ronald Hughes, who
was deceased, appeared in court and testified under
oath in the matter. Each of said attorneys denied re-
leasing or giving to William Farr any transcript of Vir-
ginia Graham’s testimony of October 5, 1970.
9. On July 19, 1971, William Farr testified under
oath in court as follows:
Reporter's Transcript, page 13, lines 26 thru 32,
page 14, lines 1] thru 9.
QO. BY MR. STEWART: “By way of clari-
fication, then, Mr. Farr, at least two of the sources
of Virginia Graham’s transcript were attorneys of
record in the case of People versus Manson?
A. “That would be correct.
Q. “By attorney of record. are you referring
to an attorney who is actually on the record as
having made a personal appearance in this court
in the case of People versus Manson?
A. “Yes. T am.
62
THE COURT: “Specifically; are you referring
to those six attorneys I named just a few moments
2go?
A. “I am specifically referring to that group.”
Reporter's Transcript, page 16, line 24, to page
17, line 3.
Q. “And all three copies of the transcript
from the three different individuals you testified
to were received prior to the time you wrote your
article in the Herald-Examiner on October 9th?
A. “That is correct.
Q. “Which was also prior to the time that
Virginia Graham testified in open court. Is that
correct?
A. “That would be correct also.”
Reporter's Transcript, page 23, line 25, to page
24, line 2.
THE COURT: “What he asked you was wheth-
er or not the two copies you received on October
7th were received from the attorneys of record in
the case.
“Is that right, Mr. Stewart?
MR. STEWART: “That is correct.
THE WITNESS: “Yes, sir, they were.”
Reporter's Transcript, page 45.
THE COURT: “Mr. Farr, the Los Angeles
Examiner published the story regarding the Man-
son trial, and specifically based upon the state-
ments of Virginia Graham, in October of 1970.
is that true?
63
THE WITNESS: “Yes, your Honor, it is.
THE COURT: “Did you write that story?
THE WITNESS: “Yes, your Honor, I did.
THE COURT: “And was the information con-
tained in that story obtained solely by you from
the statements that were given to you by who-
ever these persons are that you have been talking
about here today?
THE WITNESS: “The story is generally based
on the transcript. There is some information in the
article that is not contained in that transcript.
MR. COOPER: “That you obtained from an-
other source.
THE WITNESS: “From another source or
sources.
THE COURT: “Well, specifically I seem to re-
call that in that Los Angcles Examiner article
there were some references to some celebrities:
Elizabeth Taylor, Frank Sinatra, and some other
people whose names I do not now recall.
“Were the namcs of these celebrities contained
in the statements that you obtained from the two
attorneys of record that you have testified to, and
this third person, whoever that might be?
THE WITNESS: “Yes, the names of Frank
Sinatra. Elizabeth Taylor, Richard Burton, Steve
McQueen and Tom Jones were included in that
transcript.
10. From the foregoing testimony and the affidavit
of William Farr, the Court finds that the Court's order
Re Publicity has been willfully violated by one or more
of the individuals subject to said Order; that William
Farr has personal knowledge of the identity of said
persons who gave him a copy of the transcript of Vir-
64
~
ginia Graham’s proposed testimony in violation of the
Order Re Publicity; and that William Farr has the pres-
ent ability to reveal to the Court the identity of said
persons.
11. On July 19, 1971, Mr. Farr testified under oath
in court as follows:
Reporter's Transcript, page 4, lines 21-27
BY MR. STEWART:
Q. “Mr. Farr, at the hearing on June 3rd,
1971, I believe you testified that you were no
longer a reporter employed by a newspaper.
A. “That is correct.
Q. “Now, is that correct today as well?
A. “That is still correct, yes.”
From the foregoing testimony of Mr. Farr, the Court
finds that at the time of the hearing on July 19, 1971,
Mr. Farr was not a newspaper reporter connected with
or employed upon a newspaper, nor was he a news-
paper reporter in any capacity.
12. On July 19, 1971, while the Court was in ses-
sion and while William Farr was being examined under
oath as a witness, the following questions were asked
Mr. Farr, and each and every question he refused to an-
swer. In each instance as indicated below, the Court
ordered Mr. Farr to answer the question and warned
him that his failure to do so would be a direct con-
tempt of the Court. Mr. Farr refused and continues to
refuse to answer said questions.
Reporter's Transcript, page 8, lines 5-25
Q. BY MR. STEWART: “Did you receive
them all at the same time?
A. “The answer is no.
65
Q. “Did you receive them all the same day?
A. “To the best of my recollection, yes.
Q. “Did the transfer take place in this build-
ing, The Hall of Justice?
A. “Ll respectfully decline to answer pursuant
to the provisions of Section 1070 of the Evidence
Code and on the further ground that it is an im-
pingement on the First Amendment.
THE COURT: ‘I order you to answer the
question, Mr. Farr, under penalty of being found
in contempt of Court for failing to do so.
MR. COOPER: “If your Honor please, I will
stipulate that the same question has in fact been
propounded to the witness again, and again, in
the light of the Court's admonition, he will still
respectfully decline to answer on the same grounds.
THE WITNESS: “That is correct.
THE COURT: “I find you in direct contempt
of Court, Mr. Farr, for failing to answer that ques-
tion—for refusing to answer that question.”
Reporter's Transcript, page 16, lines 1-18.
THE COURT:
Q. “Was the third person from whom you
received the statement also an attorney of record
in the case?
THE WITNESS: “I respectfully decline to an-
swer on the previously stated grounds.
THE COURT: “I can’t see any basis whatever
for refusing to answer that question. You already
Stated that two of them are attorneys of record.
“I order you to answer the question, Mr. Farr.
under penalty of being found in contempt of Court
for failing to do so.
66
MR. COOPER: “I will stipulate that the same
question has been propounded to the witness and
that he has declined to answer on the same
grounds, your Honor.
THE COURT: “I find you in direct contempt
of Court for failing and refusing to answer that
question.”
Reporter's Transcript, page 18, line 25, to page
19, line 25.
OQ. BY MR. STEWART: “Was the actual
transcript given you by the three sources trans-
ferred to you personally, Mr. Farr?
A. “Yes, it was.
Q. “Was it a face-to-face encounter with cach
of the three sources?
A. “In one instance it was not.
Q. “So, in two instances it was a face-to-face
encounter with the individual in question?
A. “That is correct.
Q. “In the third case was it transferred by
messenger or left—
“First, was it transferred by messenger?
A. “No, it was not.
Q. “Was it left at a place where you could
pick it up?
A. “Yes, it was.
Q. “Where was it left?
A. “I respectfully decline to answer the ques-
tion on the grounds previously stated.
THE COURT: “I order you to answer the ques-
tion, Mr. Farr, under penalty of being found in
contempt of court for failing to do so.
MR. COOPER: “If your Honor please. I will
stipulate that the question has been propeunded
67
to the witness, and he has again declined to an-
swer on the same grounds.
THE COURT: “Do you refuse to answer the
question on the same grounds?
THE WITNESS: “Yes, your Honor.
THE COURT: “All right. I find you in direct
contempt of court for failing and refusing to an-
swer that question.”
Reporter's Transcript, page 30, line 17 to page 31,
line 3.
Q. BY MR. STEWART: “Well, then, did
Mr. Fitzgerald give you a copy of the transcript
of Virginia Graham’s testimony?
A. “I respectfully decline to answer on the
same ground as previously stated.
THE COURT: “lI order you to answer the
question, Mr. Farr, under penalty of being found
in contempt of Court for failing to do so.
THE WiTNESS: “And I must again respectful-
ly decline to answer on the prevous grounds.
MR. COOPER: “If your Honor please, I will of-
fer to stipulate that the same question was pro-
pounded to him, and he gave the same answer.
THE COURT: “Very well. I find you in direct
contempt of Court for refusing and failing to an-
swer that question.”
Reporter's Transcript, page 33, line 20 to page
34, line 6
Q. BY MR. STEWART: “Mr. Farr, did you
obtain a copy of the transcript of Virginia Gra-
ham from Mr. Shinn?
68
A. “I respectfully refuse to answer that ques-
tion on the grounds previously stated.
THE COURT: “I order you to answer the
question, Mr. Farr, under penalty of being found in
contempt of Court for failing to do so.
THE WITNESS: “I repeat the refusal on the
grounds previously stated.
MR. COOPER: “I stipulate, if your Honor
please, that the same question was propounded
by the Court to the witness, and the witness again
respectfully decline to answer the question.
THE COURT: “Very well. I find you in direct
contempt of Court, Mr. Farr, for failing and refus-
ing to answer that question.”
Reporter's Transcript, page 34, lines 7-20.
Q. BY MR. STEWART: “Did you seceive
a copy of the transcript of Virginia Graham from
Mr. Kanarek?
A. “I respectfully decline to answer on the
grounds previously stated.
THE COURT: “I order you to answer that
question, Mr. Farr, under penalty of being found
‘in contempt of court for failing to do so.
THE WITNESS: “I again must respectfully
decline to answer on the grounds previously stated.
MR. COOPER: “I offer to stipulate, if your
Honor please, that the same question was in fact
propounded to the witness, and he again declined
to answer for the same reasons.
THE COURT: “Very well. I find you in di-
rect contempt of Court for failing to answer that
question, Mr. Farr.”
69
Reporter's Transcript, page 34, line 21, to page
35, lirte 6.
Q. BY MR. STEWART: “Did you obtain
a copy of the transcript from Mr. Kay, Mr. Farr?
A. “I respectfully decline to answer on the
previously stated grounds.
THE COURT: “I order you to answer the
question, Mr. Farr, under penalty of being found
in contempt of Court for failing to do so.
THE WITNESS: “I again respectfully decline
to answer on the previously stated grounds.
MR. COOPER: “TI stipulate, if your Honor
please, that the same question was again pro-
pounded to the witness, and he again respectfully
declined to answer On the same grounds.
THE COURT: “I find you in direct contempt
of Court, Mr. Farr, for failing to answer that
question.”
Reporter's Transcript, page 35, lines 7-21
Q. BY MR. STEWART: “Did you receive a
copy of the transcript of Virginia Graham’s testi-
mony from Mr. Bugliosi?
A. “I respectfully decline to answer on the
previously stated grounds.
THE COURT: “I order you to answer the
question, Mr. Farr, under penalty of being found
in contempt of Court for failing to do so.
THE WITNESS: “Your Honor, I must again
respectfully decline to answer on the previously
stated grounds.
MR. COOPER: “TI stipulate, if your Honor
please, that the same question was again pro-
70
pounded to the witness, and the witness again re-
spectfully declined to answer on the same grounds.
THE COURT: “I find you in direct contempt
of Court, Mr. Farr, for failing to answer that
question.”
Reporter's Transcript, page 35, line 22 to page 36,
line 7.
Q. BY MR. STEWART: “Did you obtain a
copy of the transcript of Virginia Graham’s testi-
mony from Mr. Musich?
A. “I respectfully decline to answer the ques-
tion on the previously stated grounds.
THE COURT: “I order you to answer the
question, Mr. Farr, under penalty of being found
in contempt of Court for failing to do so.
THE WITNESS: “I again must respectfully
decline on the previously stated grounds.
MR. COOPER: “I stipulate that the same
question was again propounded to the witness,
and the witness again respectfully declined to an-
swer for the same reasons.
THE COURT: “I find you in direct contempt
of Court, Mr. Farr, for failing to answer the ques-
tion.”
Reporter's Transcript, page 36, lines 8-23
Q. BY MR. STEWART: “Mr. Farr, who
were the parties that were the sources of the
transcripts of the testimony of Virginia Graham
that you received on October 7th and October 8th.
1970?
A. “I respectfully decline to answer on the
previously stated grounds.
71
THE COURT: “I order you answer that ques-
tion, Mr. Farr, under penalty of being found in
contempt of Court for failing to do so.
THE WITNESS: “I must again respectfully
decline to answer on the previously stated grounds.
MR. COOPER: “Stipulate that the same
question was agaii propounded to the witness,
and the witness again gave the same answer for
the same reasons.
THE COURT: “I find you in direct contempt
of Court for failing to answer that question, Mr.
Farr.”
Reporter's Transcript, page 40, line 18 to page 41,
line 22
MR. STEWART: “Let me ask you a question
that is limited directly then to the Virginia
Graham transcript incident.
Q. “Did you have a discussion with any of
the attorneys of record to the effect that if they
gave you a copy of Virginia Graham’s testimony,
you would not reveal the source of the informa-
tion?
MR. COOPER: “I would object to that, if
your Honor please, on the ground it has been
asked and answered.
“The witness has stated in connection with at
least three occasions, with three attorneys of rec-
ord, he did have such conversations.
THE COURT: “I think it’s been covered, Mr.
Stewart.
Q. BY MR. STEWART: “Which attorney
was it then, Mr. Farr?
72
A. “I respectfully decline to answer on the
grounds as previously stated.
MR. COOPER: “I think that has implicitly
been asked and answered before, if your Honor
pleasc.
THE COURT: “Well, I will order Mr. Farr to
answer that question, and I will change the ques-
tion slightly.
“Which attorney or attorneys was it?
THE WITNESS: “Again, your Honor, I must
respectfully decline to answer on the grounds pre-
viously stated.
THE COURT: “I order you to answer that
question, Mr. Farr, under penalty of being found
in contempt of Court for failing to do so.
THE WITNESS: “And I reiterate that I must
refuse or decline to answer on the grounds pre-
viously stated.
MR. COOPER: “I will stipulate that it may
be deemed that the same question has been pro-
pounded to the witness, and he has again respect-
fully declined to answer on the same grounds.
THE COURT: “I find you in direct contempt
of Court, Mr. Farr, for failing to answer that ques-
tion.”
Reporter's Transcript, page 41, line 23 to page
42, line 15.
MR. STEWART: “I have no further ques-
tions, your Honor.
MR. COOPER: “Does your Honor have any
questions?
THE COURT: “Yes I do, Mr. Cooper.
“Did you receive any of the Virginia Graham
73
statements, Mr. Farr, from someone who was an
associate of an attorney of record in the case?
MR. COOPER: “May I check—if your Honor
please.
“I think you'd better decline to answer that.
THE WITNESS: “I respectfuiiy decline to an-
swer the question on the grounds as previously
stated.
THE COURT: “I order you to answer that
question, Mr. Farr, under penalty of being founda in
contempt of Court for failing to do so.
THE WITNESS: “I repeat my declination to
answer on the previously stated grounds.
MR. COOPER: “I will stipulate, if your
Honor please, that the same question was pro-
pounded to the witness, and he again declined to
answer for the reasons heretofore stated.
THE COURT: “I find you in direct contempt
of Court, Mr. Farr, for failing to answer that
question.”
Reporter's Transcript, page 42, line 16 to page
43, line 3.
THE COURT: “Did you receive a copy of
the Virginia Graham statement from anyone in
the Office of the District Attorney of Los Angeles
County other than the attorneys of record in this
case, Mr. Bugliosi, Mr. Kay and Mr. Musich?
THE WITNESS: “I respectfully decline to an-
swer on the previously stated grounds.
THE COURT: “I order you to answer that
question, Mr. Farr, under penalty of being found
in contempt of Court for failing to do so.
74
THE WITNESS: “I again repeat my refusal on
the previously stated grounds.
MR. COOPER: “I will stipulate, if your
Honor please, that the same qucstion was put to
the witness, and he again respectfully declined to
answer for the same reasons.
THE COURT: “I find you in direct contempt of
Court for failing to answer that question, Mr.
Farr.”
The Court finds that each and every question
asked William Farr as set forth above was relevant and
material to the issue before the Court; that William
Farr had the knowledge and ability to answer each and
every question at the time it was asked; that William
Farr had knowledge of the Court’s Orders to answer
said questions; and that William Farr willfully refused
to answer said questions in disobedience of said
orders. The Court finds that at the time the above
questions were asked, Mr. Farr was not a reporter con-
nected with or employed upon a newspaper, nor a re-
porter in any capacity, and that he is not entitled to
claim immunity provided in Evidence Code Section
1070 and, further, that he is not entitled to refuse to
answer the above questions on the basis of either Evi-
dence Code Section 1070 or the First Amendment to
the United States Constitution.
13. On June 3, 1971, William Farr testified under
oath as follows:
Reporter's Transcript, page 10, line 25 to page 11,
line 17
Q. BY MR. STEWART: “Now, Mr. Farr,
were you covering the trial for the Herald-Examiner
from its very beginning?
75
A. “Yes, I did.
Q. “And you were familiar with the Order Re
Publicity issued by the Court?
A. “Yes, I was.
Q. “Did you know whether or not the source
of your information, as stated in your Declara-
tion, was subject to the Order Re Publicity at the
time he gave you the transcript?
A. “May I confer with counsel?
THE COURT: “Yes.”
(Off the record discussion between the witness
and Mr. Cooper.)
MR. COOPER: “May we have that question
re-read?
THE COURT: “Read the question.”
(Whereupon the reporter reads the pending
question. )
THE WITNESS: “I think I can answer that by
stating that I was aware that the attorneys in the
case were subject to the gag order.”
On July 19, 1971, William Farr testified under oath as
follows:
Reporter's Transcript, page 17, line 23 to page
19, line 5.
MR. STEWART: “I don’t believe I asked him
if the source of the information knew he was sub-
ject to the order. I wanted to know if Mr. Farr
knew the person was one of the parties covered
by the order.
MR. COOPER: “I would stipulate, if your Hon-
or please, that he was covered by the order.
THE WITNESS: “I misunderstood the ques-
tion. Yes, I did know that.
76
Q. BY MR. STEWART: “You know that the
third source of information was covered by the
Court’s Order Re Publicity? |
A. “I presume so. Yes, I did have knowledge.”
Reporter's Transcript, page 20, lines 3-15.
Q. “In any of the three cases, three instances
where you received a copy of the transcript, did
you initially contact the source and request a copy
of the transcript, or did the source first contact
you?
MR. COOPER: “Pardon me, if your Honor
please, I think I want to state this on the record
with your permission.
“I have instructed the witness that he could de-
cline to answer this question on the ground that
his testimony might tend to incriminate him, but
he decided to waive that. I shouldn’t say waive it,
but he is not going to urge that ground.
THE WITNESS: “In all three instances, I made
the initial approach.”
Reporter's Transcript, page 9, line 11 to page 10,
line 12.
Q. BY MR. STEWART: “Mr. Farr, in your
Declaration that you filed on May 28th, 1971,
you stated that you gave your explicit promise
to said sources that ‘I would never divulge the
source of my information, and, implicitly, the
promise of my said newspaper.”
“Is that statement correct?
A. “Yes, it is.
77
Q. “Did you give this exclusive promise face
to face with the source of the information?
A. “The answer would not be the same to all
parties involved.
Q. “Well, to any of the parties involved, was
your promise made face to face with that person?
A. “Yes, it was.
Q. “As to how many of those parties was your
promise made face to face?
A. “Two of the three.
Q. “And was the third one made by telephone
or some means of communication?
A. “This was made by telephone.
Q. “And were these promises made prior to
the receipt of the transcript of Virginia Graham?
A. “Either prior to or—
MR. COOPER: “—contemporaneously?
THE WITNESS: “—contemporaneously. I don’t
specifically recall, but certainly within a very short
period of time.
Q. BY MR. STEWART: “But as to all
three of the sources of your transcript, you did
make an explicit promise not to reveal the
source?
A. “Yes, sir, that is correct.”
Reporter's Transcript, page 24, line 28 to page
25, line 9. |
Q. “When you received the copies from the
source or sources, rather from all three sources,
was it with the understanding between you and
the source that you would make a copy of that
transcript and return the original to the party?
A. “Yes, it was.
78
Q. “Did all three sources insist on that as a
condition for giving you the transcript?
A. “I don’t believe so. I think I simply sug-
gested that that would be the best method.”
14. From the foregoing testimony of William Farr,
as well as from the testimony set forth elsewhere in this
Order, the Court finds that William Farr at all times
had knowledge that each of the parties from whom he
received the transcript of Virginia Graham’s testimony
of October 5, 1970, were subject to the Order Re Pub-
licity and had knowledge that by giving him said tran-
script said parties willfully violated the Order Re Pub-
licity in contempt of the Court. The Court further finds
that William Farr, with full knowledge that each of
the parties that released to him a copy of the tran-
script was subject to the Order Re Publicity and was
specifically prohibited by said Order from releasing or
revealing to him the contents of said transcript, ac-
tively solicited and requested each of said parties to
give him a copy of said transcript in violation of said
Order Re Publicity. The Court further finds that Wil-
liam Farr entered into an explicit agreement with each
of said parties wherein he promised each of them that
he would, if they gave him a copy of the transcript of
Virginia Graham’s testimony, refuse to reveal the
source of said transcripts and would conceal the iden-
tity of each of said persons acting in willful violation
of the Court’s lawful Order Re Publicity. By so doing,
the Court finds that William Farr, knowingly and will-
fully, actively aided, assisted, abetted and participated
with each of said parties in procuring the copies of
said transcript in violation of the Court’s Order Re
Publicity.
15. The Court finds that William Farr, by soliciting
the transcripts as aforesaid and by assisting and par-
ticipating with said persons subject to the Order Re
Publicity who were committing acts in violation of
said Lawful Order, willfully and knowingly interfered
with the proceedings and lawful orders of the Court
which the Court finds in each instance interfered with
the due administration of justice.
16. The Court finds that William Farr, by commit-
ting the acts as set forth above, and by soliciting a
willful violation of a lawful court order, and by as-
sisting and participating with three parties subject to
the lawful Order of the Court in willfully violating said
Order, may not now refuse to disclose the identities of
said parties when ordered to do so by the Court and is
not entitled to refuse to answer said questions or to
claim or be entitled to an immunity pursuant to the
provisions of Evidence Code Section 1070 regardless
of his status as a reporter on the date he received the
transcripts or any other date and time mentioned in
these Findings and Order.
17. THE COURT HEREBY FINDS AND IT IS
ORDERED, ADJUDGED AND DECREED | that
William Farr, by his willful refusal to answer
each of the aforesaid questions set forth in para-
graph 12 herein in disobedience of the Court's
orders to do so and with full knowledge of said orders,
committed as to each question that he refused to
answer a separate, direct contempt of the Court in the
immediate view and presence of the judge; William
Farr is hereby held to be in direct contempt of the
Court for cach and every question that he willfully
refused to answer as set forth in paragraph 12 herein.
80
18. The Court finds that William Farr has the pres-
ent ability and power to perform the act, or acts, of
answering each of the aforesaid questions that he has
refused to answer; that since each of said contempts
by William Farr consists of an omission to perform an
act which is yet in the power of William Farr to perform,
it is THEREFORE ORDERED, ADJUDGED AND
DECREED that William Farr be imprisoned until he
shal! consent to appear in court and to answer under
oath each and every question specifically set forth
below, and as specifically set forth in the following
Order of Ccmmitment.
}
CONTEMPT FINDING NUMBER ONE
Q. Did the transfer (of the transcripts you re-
ceived from the parties subject to the Order Re Pub-
licity) take place in this building, The Hall of Justice?
CONTEMPT FINDING NUMBER TWO
Q. Was the third person from whom you received
the statement (transcript of Virginia Graham’s testi-
mony on October 5, 1970) also an attorney of record
in the case?
CONTEMPT FINDING NUMBER THREE
Q. Where was the copy of the transcript of Vir-
ginia Graham’s testimony of October 5, 1971, that was
not personally given to you by the source, left for you
to pick up?
CONTEMPT FINDING NUMBER FOUR
Q. Did Mr. Fitzgerald give you a copy of the tran-
script of Virginia Graham's testimony?
81
CONTEMPT FINDING NUMBER FIVE
Q. Did you obtain a copy of the transcript of Vir-
ginia Graham from Mr. Shinn?
CONTEMPT FINDING NUMBER SIX
Q. Did you receive a copy of the transcript of
Virginia Graham from Mr. Kanarek?
CONTEMPT FINDING NUMBER SEVEN
Q. Did you obtain a copy of the transcript from
Mr. Kay?
CONTEMPT FINDING NUMBER EIGHT
Q. Did you receive a copy of the transcript of
Virginia Graham’s testimony from Mr. Bugliosi?
CONTEMPT FINDING NUMBER NINE
Q. Did you obtain a copy of the transcript of Vir-
ginia Graham’s testimony from Mr. Musich?
CONTEMPT FINDING NUMBER TEN
Q. Who were the parties that were the sources of
the transcripts of the testimony of Virginia Graham
that you received on October 7th and October 8th,
1970?
CONTEMPT FINDING NUMBER ELEVEN
Q. Which attorney or attorneys of record was it
that you told that you would not reveal the source if
they gave you a copy of the transcript of Virginia Gra-
ham’s testimony?
CONTEMPT FINDING NUMBER TWELVE
Q. Did you receive any of the Virginia Graham
statements from someone who was an associate of an
attorney of record in the case?
82
CONTEMPT FINDING NUMBER THIRTEEN
Q. Did you receive a copy of the Virginia Graham
statement from anyone in the Office of the District
Attorney of Los Angeles County other than the at.
torneys of record in this case, Mr. Bugliosi, Mr. Kay
or Mr. Musich?
DATED: 7-28-71.
CHARLES H. OLDER
Judge of the Superior Court
19. Pursuant to the foregoing Findings and Orders,
the Court hereby makes and issues the following Order
of Commitment:
ORDER OF COMMITMENT
The People of the State of California to the Sheriff
of Los Angeles County:
WHEREAS on July 19, 1971, during a hearing set
by the Court and in the immediate view and presence
of the Court, and while the Court was in session,
William Farr was duly sworn as a witness and, while
being examined as a witness, he refused to answer
each of the material and relevant questions set forth
in paragraph 12 herein, notwithstanding he was then
and there ordered by the Court to answer said ques-
tions, and he still willfully refuses to answer said ques-
tions, and
WHEREAS the Court, by these Findings and Or-
ders, has adjudged and decreed that William Farr is
guilty of a separate, direct contempt of the Court on
each and every instance that he willfully refused to
answer the questions set forth herein and has ordered
that William Farr be imprisoned, pursuant to CCP
83
$1219, in the County Jail of Los Angeles County until
he consents to appear in court and answer under oath
each and every question set forth below.
QUESTION NUMBER ONE
Did the transfer (of the transcripts you received
from the parties subject to the Order Re Publicity) take
place in this building, The Hall of Justice?
QUESTION NUMBER TWO
Was the third person from whom you received the
Statement (transcript of Virginia Graham's testimony
on October 5, 1970) also an attorney of record in the
case?
QUESTION NUMBER THREE
Where was the copy of the transcript of Virginia
Graham's testimony of October 5, 1971, that was not
personally given to you by the source, left for you to
pick up?
QUESTION NUMBER FOUR
Did Mr. Fitzgerald give you a copy of the transcript
of Virginia Graham’s testimony?
QUESTION NUMBER FIVE
Did you obtain a copy of the transcript of Virginia
Graham from Mr. Shinn?
QUESTION NUMBER SIX
Did you receive a copy of the transcript of Virginia
Graham from Mr. Kanarek?
QUESTION NUMBER SEVEN
Did you obtain a copy of the “transcript from Mr.
Kay?
QUESTION NUMBER EIGHT
Did you receive a copy of the transcript of Virginia
Graham’s testimony from Mr. Bugliosi?
84
QUESTION NUMBER NINE
Did you obtain a copy of the transcript of Virginia
Graham's testimony from Mr. Musich?
QUESTION NUMBER TEN
Who were the parties that were the sources of the
transcripts of the testimony of Virginia Graham that
you received on October 7th and October 8th, 1970?
QUFSTION NUMBER ELEVEN
Which attorney or attorneys of record was it that
you told that you would not reveal the source if they
gave you a copy of the transcript of Virginia Graham's
testimony?
QUESTION NUMBER TWELVE
Did you receive any of the Virginia Graham state-
ments from someone who was an associate of an attor-
ney of record in the case?
QUESTION NUMBER THIRTEEN
Did you receive a copy of the Virginia Graham
statement from anyone in the Office of the District
Attorney of Los Angeles County other than the attor-
neys of record in this case, Mr. Bugliosi, Mr. Kay or
Mr. Musich?
Now, therefore, you are required and commanded
to forthwith attach the said William Farr and commit
him to the Los Angeles County Jail and detain him
there until he consents to appear in court and answer
under oath each and every question set forth above or
until he is discharged according to law.
The Court, on this 28th day of July, 1971, hereby
signs and orders entered the foregoing FINDINGS
AND ORDER ADJUDGING CG'NTEMPTS COM-
MITTED IN THE IMMEDIATE VIEW AND PRES-
ENCE OF THE JUDGE; ORDFR OF COMMIT-
MENT.
CHARLES H. OLDER
Judge of the Superior Court
85
Order Re Publicity.
Superior Court of the State of California for the
County of Los Angeles.
People of the State of California, Plaintiffs, vs.
Charles Manson, et al., Defendants. No. A 253156.
Filed: Dec. 10, 1969.
It is apparent, and this Court is going to take ju-
dicial notice of the fact, that this case has received ex-
tensive news media coverage as a direct result of its
apparent public interest; further, it is equally apparent
to this Court by reading various newspapers and weekly
periodicals that this news media coverage is not limited
to the County of Los Angeles, but has been extcnsive
not only in the entire State of California but in the
Nation as well, and of this fact the Court now takes
judicial notice. This Court is of the firm conviction
that the impossible task of attempting to choose be-
tween the constitutional guarantees of a free press and
fair trial nced not be made. but that they are com-
patible with some reasonable restrictions imposcd upon
pretrial publicity. It further appears to the Court that
the dissemination by any means of public communica-
tion of any out-of-court statements relating to this
case may interfere with the constitutional right of the
defendants to a fair trial and disrupt the proper ad-
ministration of justice. Some of the defendants now
being for the first time before this Court, this Court
now exercises its jurisdiction and assumes its duty to
do everything within its constitutional powers to make
certain that cach defendant docs receive a fair trial,
and now issues the following orders, a violation of
which will be considered as a contempt of this Court
86
and will result in appropriate action to punish for such
contempt.
It is the order of this Court that no party to this
action, nor any attorney connected with this case as de-
fense counsel or as prosecutor, nor any other attorney
associated with this case, nor any judicial attache or
employee, nor any public official now holding office,
including but not limited to any chief of police or any
sheriff, who has obtained information related to this ac-
tion, which information has not previously been dis-
scminated to the public, nor any agent, deputy, or em-
ployee of any such persons, nor any grand juror, nor
any witness having appeared before the Grand Jury in
this matter, nor any person subpoenaed to testify at the
trial of this matter, shall release or authorize the re-
lease for public dissemination of any purported extra
judicial statement of the defendant relating to this case,
nor shall any such persons release or authorize the re-
lease of any documents, exhibits, or any evidence, the
admissibility of which may have to be determined by
the Court, nor shall any such person make any state-
ment for public dissemination as to the existence or
possible existence of any document, exhibit, or any
other evidence, the admissibility of which may have to
be determined by the Court. Nor shall any such persons
express outside of court an opinion or make any com-
ment for public dissemination as to the weight, value,
or effect of any evidence as tending to establish guilt
or innocence. Nor shall any such persons make any
statement outside of court for public dissemination as
to the weight, value, or effect of any testimony that
has been given. Nor shall any such persons issue
any statement for public dissemination as to the identity
of any prospective witness. or his probable. testimony,
87
or the effect thereof. Nor shall any such person make
any out-of-court statement for public dissemination as
to the weight, value, source, or effect of any purported
evidence alleged to have been accumulated as a result
of the investigation of this matter. Nor shall any such
person make any statement for public dissemination as
to the content, nature, substance, or effect of any testi-
mony which may be given in any proceeding related
to this matter, except that a witness may discuss any
matter with any attorney of record or agent thereof.
This does not include any of the following:
1. Factual statements of the accused person's
name, age, residence, occupation, and family
Status.
2. The circumstances of the arrest, namely,
the time and place of the arrest, the identity of
the arresting and investigating officers and agen-
cies, and the length of the investigation.
3. The nature, substance, and text of the
charge, including a brief description of the of-
fenses charged.
4. Quotations from, or any reference without
comment to, public records of the Court in the
case, or to other public records or communications
heretofore disseminated to the public.
5. The scheduling and result of any stage of
the judicial proceeding held in open court in an
open or public session.
6. A request for assistance in obtaining evi-
dence.
7. Any information as to any person not in
custody who is sought as a possible suspect or
witness. nor any statement aimed at warning the
88
public of any possible danger as to such person
not in custody. /
8. A request for assistance in the obtaining of
evidence or the names of possible witnesses.
Further, this order is not intended to preclude any
witness from discussing any matter in connection with
the case with any of the attorneys representing the de-
fendant or the People, or any representative of such.
attorneys.
It is further the order of the Court that the Grand
Jury transcripts in this case not be disclosed to any
person (other than those specifically mentioned in Penal
Code Section 938.1) until 10 days after a copy thereof
has been delivered by this Court to cach defendant
named in the indictment; provided, however, that if any
defendant, during such time, shall move the Court that
such transcript, or any portion thereof, nct be available
for public inspection pending trial, such time shall be
extended subject to the Court’s ruling on such motion.
It is further ordered that a copy of this order be at-
tached to any subpoena served on any witness in this
matter, and that the return of service of the subpoena
shall also include the fact of service of a copy of this
order
This order shall be in force until this matter has
been disposed of or until further order of Court.
Dated: December 10, 1969.
/s/ William B. Keene
William B. Keene
Judge of the Superior Court
Exhibit D
SUPREME COURT OF THE UNITED STATES—
= No. A-705
William T. Farr, ) Application for Release on
v. Own Recognizance or Bail
Peter J. Pitchess, Sheriff of} Pending Appeal in United
Los Angeles County, States Court of Appeals
California. | for the Ninth Circuit.
{January 11, 1973]
Mr. Justice Dovetas, Circuit Justice.
Petitioner Farr was a reporter for the Los Angeles
Herald Examiner and published stories about the Manson
trial, which was greatly publicized during the trial. The
trial judge in the case had issued orders barring the liti-
gants and their lawyers from giving certain information
to the press. When the Manson trial was ended. the
trial judge summoned Farr and asked him what the
sources of his information were. Farr acknowledged that
he had received the news story from two of the six at-
torneys of record in the Manson case and some of it from
another. individual who was subject to the order con-
cerning publicity but who was not an attorney. Farr
refused to disclose the naines and was committed to
prison for civil contempt. He obtained no relief in the
state courts’ and then brought federal habeas corpus
which the Distriet Court denied and, pending his appeal
to the Ninth Circuit Court of Appeals, he has applied to
me for bail or release on personal recognizance.
! The opimon of the Califorma Court of Appeals, Second Appellate
District, 1s reported in 22 Cal. App. 3d 60. The Supreme Court of
Calforma demed a hearing on March 27, 1972. This Court denied
certiorars on November 13, 1972 408 U.S. —
90
FARR » PITCHESS
Like the three cases decided in Branzburg v. Hayes,
408 U.S. 465, the present case involves civil. not criminal,
contempt. Branzburg, however, involved refusal of a
reporter to testify before a grand jury and reveal the
sources of his news stories. The federal rule is that just
as the power of Congress to commit a recalcitrant wit-
ness for civil contempt ends with the adjournment of that
Congress, Anderson v. Dann, 6 Wheat. 204, 231. so does
the power of the grand jury. Shillitani v. United States,
384 U. 8. 364, 370-372.
What rule obtains in California is not clear; but it is
intimated that theoretically at least imprisonment for
civil contempt could be for life.
The commitment is defended on the ground that the
trial court, armed with power to keep the trial free from
prejudicial publicity, Sheppard v. Marwell, 384 U. S.
333, has authority to discipline those who violated its
order barring release of publicity. The necessity to
make Farr talk was therefore held to be compelling.
California has a statute protecting a newsman from
disclosing his sources of news and barring a court from
holding him in contempt for refusal to disclose.? But
the Court of Appeals held that it was inapplicable to the
instant case because, while Farr was a newsman at the
time he wrote the story, he had left that employment
when he was questioned by the trial judge.
It is argued. in return, that the remedy of criminal
contempt against those subject to the trial court's pub-
* Calif. Fvid. Code § 1070 provides:
“A publisher, editor, reporter. or other person connected with or
employed upon a newspaper, or by a press association or wire sery-
ice, cannot be adjudged in contempt by a Court, the legislature, or
any administrative body, for refusing to disclose the source of any
information procured for publication and published in a newspaper.
Nor can a radio or television news reporter or other person con-
nected with or employed by a radio or television station be xo ad-
judged m contempt for refusing to disclose the source of any infor-
mation procured for and used or news commentary purposes on
radio or television.”
91
FARK » PITCHESS
licity order is now out of reach because of the running
of the statute of limitations on criminal contempt * and
therefore that the present civil contempt proceedings
against Farr serve no legitimate state interest, I have
received a response from respondent which says that this
is “purely a matter of state concern’—that “there is no
statute of limitations” in California for civil contempts,
Whether this means that Farr could be imprisoned for
life is not clear,
What the merita of the case may be is not in my
province at this stage, The only question is whether
the issue presented is a substantial one, Our Branaburg
decision plainly does not cover it, Our denial of cer-
tiorari imparts no implication or inference concerning
the Court's view of the merits, as Mr, Justice Frank-
furter made clear in Maryland v, Baltimore Rodeo Show
Tne,, 3388 U, 8, 012, 919,
The question, so far as I can tell, is not covered by
any of our prior decisions, The case is a recurring one
where the interests of a fair trial sometimes collide with
the requirements of a free preas, A fair trial requires
that a jury be insulated from the barrage of prejudicial
news stories that is sometimes laid down on the court-
room, It is said that in the present case the Manson
jury was sequestered and so not subject to the kind of
influence we condemned in Sheppard v, Maxwell,
The issue is not free from doubt, Yet since the pre-
cise question is a new one not covered by our prior
decisions, I have coneluded in the interest of justice to
release Farr on his personal recognizance pending de-
cision of his habeas corpus case by the Court of Appeals,
a el
‘Calif, Pen, Code § 166 provides that willful disohedianee of a
lawfully iaeued court order ie a misdemeanor, Calif Pen, Code § 801
provides a one year period of limitation from the commieion of
the erime to the filyng of the indictment, information, or complaint,
92
EXHIBIT “E"
ORDER STAYING ISSUANCE OF MANDATE
United States Court of Appeals for the Ninth Circuit.
William T, Farr, Petitioner-Appeliant, ve. Peter J.
Pitchess, Sheriff of Los Angeles County, Appeliee. No.
72-3171, OC# 72-2858,
Filed: 8-22-75,
Upon application of Mark Hurwitz, Esq. counsel for the
Appellant, and good cause appearing, IT IS ORDERED
that the issuance, under Rule 41(a) of the Federal Rules
of Appellate Procedure, of the certified copy of the
judgment of this Court in the above cause be and hereby
is Stayed pending the filing, consideration and disposi-
tion by the Supreme Court of the United States of a
petition for writ of certiorari to be made by the Apnoliant
herein, provided such petition is filed in the Clerk's Office
of the Supreme Court of the United States on or before
September 19, 1975.
In the event the petition for writ of certiorari is granted,
then this stay is to continue pending the final disposition
of the case by the Supreme Court of the United States.
/s/ Ray MeNichols
RAY MC NICHOLS
United States District Judge
DATED: SAN FRANCISCO, CALIF,
93
“Newsman's refusal to disclose news source, A pubs
lisher, editor, reporter, or other person connected with
or employed upon a newspaper, or by a press associa:
tion or wire service, cannot be adjudged in contempt by
a court, the Legislature, or any administrative body,
for refusing to disclose the source of any information
procured for publication and published in a news:
paper,
Nor can a radio or television news reporter or other
person connected with or employed by a radio or tele-
vision station be so adjudged in contempt for refusing
to disclose the source of any information procured
for and used for news or news commentary purposes
on radio or television,”
California Evidence Code, Section 1070,
94
EXHIBIT “GQ”
Opinion of the Court of Appeal,
In the Court of Appeal of the State of California,
Second Appellate District, Division One.
William T, Farr, Petitioner, v. The Superior Court
of the State of California, County of Los Angeles,
Respondent, 2d Civ, No, 38961,
Filed: Dee, 17, 1971,
PROCEEDING to review an order of the Superior
Court of Los Angeles County, Order affirmed,
Cooper and Nelson and Grant B, Cooper for Peti-
tioner,
John D, Maharg, County Counsel, and William F,
Stewart, Deputy County Counsel, for Respondent,
Robert C, Lobdell, Gibson, Dunn & Crutcher, and
Robert S, Warren, for Amicus Curiae The Times Mir-
ror Company,
Dean Lesher for Amicus Curiae Californian News.
paper Publishers Association,
George R, Johnson for Amicus Curiue Twin Coast
Newspapers, Inc,
Flint & Mac Kay, Edward L. Compton and Edwin
Freston for Amicus Curiae Hearst Corporation,
Jack B. Purcell, William Whitsett, MeCutchen,
Black, Verleger & Shea, and Howard J, Privett for
Amicus Curiae Columbia Broadcasting System, Ine,
Bodle, Fogel, Julber & Reinhardt, George E, Bodle,
Daniel Fogel and Stephen Reinhardt for Amicus
Curiae Newspaper Guild, AFL-CLO, CLC,
Earl Klein for Amicus Curiae Sigma Delta Chi,
This is a petition for writ of review of an order of
respondent court adjudging petitioner Farr to be in con-
95
tempt for failing to answer questions put to him. We
conclude that the trial court properly found petitioner
to be in contempt of court.
The matter at bench is an outgrowth of the trial of
Charles Manson and his codefendants for two sets of
multiple murders, The crimes themselves and the en
suing trial were the subjects of much sensational no-
toriety, Early in the proceedings the superior court
entered an Order re Publicity, That order prohibited
any attorney, court employee, attache, or witness from
releasing for public dissemination the content or nature
of any testimony that might be given at trial or any
evidence the admissibility of which might have to be
determined by the court, The order became effective
December 10, 1969, and remained in effect throughout
the trial,
On October 5, 1970, during the course of the trial,
Stephen R. Kay, one of the deputy district attorneys
assigned to the prosecution of the Manson case, ob-
tained a written statement from Mrs, Virginia Gra.
ham, a potential witness, The statement recites that
Susan Atkins, a codefendant in the murder prosecu-
tion, had confessed the crimes to Mrs. Graham in lurid
detail and implicated Manson, It states that the de-
fendants planned after the murders to cross the coun-
try by bus and in the course of their travels to murder
people at random, Miss Atkins purportedly told Mrs.
Graham that she and her codefendants had planned to
murder a series of show business personalities cach in
a particularly vicious and bizarre manner, Included in
the list of intended victims were Elizabeth Taylor whose
eyes were to be removed and mailed to an ex-
husband, Richard Burton who was to be castrated,
Frank Sinatra who was to be skinned alive while hang:
ing from a meat hook, and Tom Jones whose throat
was to be cut while he was engaged in an act of
sexual intercourse with Miss Atkins at knife point if
necessary, Steve McQueen was also mentioned as a
potential victim.
Copies of the Virginia Graham statement were pre-
pared by the prosecution and at the court's instruction
were delivered one to each attorney then appearing for
the defense and one to the trial court, No other copies
of the statement were released, The statement was
edited to exclude inadmissible matter in preparation
for Mrs, Graham's testimony, In October 1970, peti-
tioner Farr was a reporter for the Los Angeles Herald
Examiner, a daily newspaper, He learned of the Gra-
ham statement, Although aware of the content of the
December 10, 1969, Order re Publicity he contacted
three persons subject to the court order secking a copy
of the statement, Farr told his potential sources of
the statement that he would keep confidential the iden-
tity of the source, He received two copies of the state-
ment on October 7, each from an attorney of record
in the murder trial and one copy on the morning of
October 8 from a person subject to the Order re Pub-
licity who may or may not have been an attorney of
record,
On October 8, 1970, Robert Steinberg, an attorney
representing Mrs, Graham, told the trial court that it
had come to his attention “that one of the defense
lawyers” had released the Graham statement to Farr,
At an in-chambers hearing, Judge Older, presiding
over the Manson trial, asked Farr if the Herald Exam-
iner intended to print a story based upon the statement.
He also sought the identity of the persons who had
given a copy to Farr, While informing the court that he
97
had copies of the Graham statement, Farr refused to
disclose the sources of it, asserting the immunity from
contempt granted to newspapermen by Evidence Code
section 1070, On October 9, Farr's story bearing his
by-line and headlined “Liz, Sinatra on Slay List-—Tate
Witness” appeared in the Herald Examiner, The story
repeated the sensational, gory details of planned mur-
ders contained in the Graham statement as well as ma-
terial in the statements implicating Manson in the
murders already committed, Mrs, Graham testified in
the Manson trial on October 10, Much of the matter
contained in the statement given by her to Kay and
printed in the Herald Examiner story was not permitted
in evidence,
Manson, Miss Atkins, and their codefendants were
found guilty of the counts of murder charged against
them and were sentenced to death, An automatic ap
peal to the Supreme Court is now pending, After judg-
ment in the Manson case the trial court, on May 19,
1971, convened a hearing to determine the source of
the Herald Examiner story recounting the Graham state-
ment, At the outset, the trial court announced that the
purpose of its hearing was to determine whether there
had been a violation of its Order re Publicity which
had jeopardized a fair trial for the defendants in the
Manson case,
By May 19, Farr had terminated his position with the
Herald Examiner and accepted employment as press
secretary to the Lis Angeles District Attorney, the prose-
cutor in the Manson trial, Farr was called as the
first witness at the hearing, He stated that with knowl-
edge of the order prohibiting the disclosure he had ob-
tained copies of the Graham statement from two of the
attorneys of record in the Manson trial and identified
the members of the group to which those two be-
longed as Mr. Bugliosi, Mr. Musich, and Mr. Kay, all
deputy district attorneys, and Mr. Kanarek, Mr. Shinn,
and Mr. Fitzgerald, counsel for various of the de-
fendants.' Having received that information, the trial
court recessed the hearing to permit interrogation of
the attorneys designated by Farr.
Messrs. Bugliosi, Musich, Kay, Kanarek, Shinn, and
Fitzgerald were subpoenaed. Each testified under oath in
effect denying that he had directly or indirectly fur-
nished the Graham statement to Farr. Members of the
prosecutorial team strongly intimated that the state-
ments must have come from one or more of defense
counsel. The attorneys for the defense intimated with
equal strength that the source was ‘the prosecution.
The trial court again recessed the hearing to permit fur-
ther questioning of Farr.
The hearing resumed, and a series of questions was
asked of Farr. He acknowledged that he had obtained
three copies of the Graham statement, two from at-
torneys of record, members of the previously identified
group of six, and one from a person subject to the
court order but whom Farr refused to disclose as either
included or excluded from the group of six. He refused
to answer a series of questions asking the identity of
the persoiis who had furnished the Graham statement
to him including specific interrogation naming each
lawyer in the group of six previously disclosed. Farr
similarly refused to answer questions seeking to ascer-
tain the places where he had obtained the copies of
the statements, the attorneys of record approached by
‘Ronald Hughes. counsel for one of the defendants in the
Manson trial died during the trial. Farr acknowledged that Mr.
Hughes was not a source of the Graham statement.
99
him to obtain the statement and to whom he had given
a promise of confidentiality of source, a question
asking whether a source of the statement was an as-
sociate of an attorney of record, and a question asking
whether a copy of the statement had been obtained
from the office of the district attorney. Farr justified his
refusal to answer by reference to Evidence Code section
1070. In each instance of a refusal to answer the court
ordered an answer on penalty of contempt. After a
further refusal the court held Farr to be in direct con-
tempt. It ordered him incarcerated in the county jail
until he answered the questions but stayed its order to
permit Farr to pursue this writ of review.
In this proceeding, petitioner Farr contends: (1)
the judgments of guilt entered in the Manson trial and
the automatic appeal of those judgments to the Su-
preme Court deprived the trial court of jurisdiction
over the trial so as to render it powerless after judg-
ment to conduct a hearing into the circumstances of the
purported breach of the Order re Publicity; (2) peti-
tioner Farr is granted immunity from punishment for
contempt by Evidence Code section 1070 because he
was a “newspaperman” when he solicited and received
the Graham statements although he was no longer a
“newspaperman” at the time of the hearing; and (3)
the sources of the Graham statements are protected
from disclosure by a First Amendment privilege. Amici
curiae who have filed briefs in support of petitioner’s
position contend, in addition, that the Order re Pub-
licity is void because it constitutes an unconstitutional
restriction upon freedom of the press. We conclude
that the judgment of contempt is valid.
100
Jurisdiction of Trial Court
Petitioner contends that the trial court was without
jurisdiction to proceed with its inquiry into possible
violations of its Order re Publicity. He argues that the
trial of the Manson matter had ended before the in-
quiry commenced and concludes that by reason of the
end of the principal action the court, if it desired to in-
Stitute punishment for contempt of an order made in
the course of the trial, was limited to «eferring the mat-
ter to the city attorney for appropriate action.
A contention identical with that made by peti.ioner
here has been made to the Court of Appeal in an earlier
case and rejected by it. There a dissatisfied litigant
had accused the court reporter of tampering with the
record and one of the counsel in the case with unethical
solicitation of litigation. The trial out of which the
complaint arose had been terminated by a voluntary
dismissal. The trial court nevertheless conducted a hear-
ing to determine the validity of the charges. Two wit-
nesses called at the hearing refused to testify and were
held in contempt. On review of the contempt adjudica-
tion the witnesses contended that jurisdiction of the
trial court over the principal action having terminated,
it no longer could proceed with the hearing on the al-
legations of- misconduct by the reporter and counsel.
They argued that the sole remedy lay in a criminal
contempt prosecution instituted by the district attorney.
The Court of Appeal rejected the contention holding
that the trial court had power to proceed and that the
witnesses were in contempt of the court for refusing to
answer questions put to them in the course of the hear-
ing. It said: “It may be conceded that if an unverified
complaint were presented against a person who had no
connection with the court or with any adjourned or
pending proceeding before it the judge might be war-
101
ranted in declining to file and consider it. Ordinarily,
complaints charging crime are filed in the justice or
municipal court. . . . However, the same does not hold
truc as to a court reporter, who is an adjunct of the
court. . . . Neither docs it apply to counsel who have
conducted a trial or other hearing before the superior
court. And the court’s power does not end with the
right to control ‘its ministerial officers and all other per-
sons in any manner connected with a judicial pro-
ceeding,’ but also in furtherance of justice it may ‘com-
pel the attendance of persons to testify in an action
or proceeding pending therein.’” (Whitlow v. Superior
Court, 87 Cal.App.2d 175, 182 [196 P.2d 590]; hear.
den.) Our Supreme Court has recently cited Whitlow
with approval in a decision upholding the proposition
that a trial court retains the power to punish for con-
tempt occurring in an action although the principal
action itself has terminated. (Morelli v. Superior Court,
1 Cal.3d 328, 332 [82 Cal.Rptr. 375, 461 P.2d 655].)
In the case at bench the trial court was faced with
information that two of the six trial counsel who had
conducted a case before it was guilty of serious mis-
conduct. It was both empowered and duty bound to
inquire into the validity of the information. Significant-
ly, in the early stages of its inquiry it became apparent
that the prosecution in the principal case was asserting
the position that the Graham statements had been given
to Farr by defense counsel while the attorneys for the
defense implied equally that the statements had ema-
nated from the prosecution. Judge Older couid not, if
he recognized his duty as a judicial officer, blind him-
self to the likely possibility that the question of prej-
udicial publicity would be an issue on appeal of the
principal case. Rather, he was required to do as he
102
did—risk the disapproval of the powerful press and
mass electronic communication media to ascertain at an
early date facts which could assist the resolution of that
issue on appeal and determine the complicity of the
officers of his court in violations of an order which
would have prevented the issue from arising. If the
members of the prosecution team Icaked the Graham
statements to Farr the issue of the prejudicial nature of
those statements may merit serious consideration on
appeal. (Sheppard v. Maxwell, 384 U.S. 333, 360-
361 [16 L.Ed.2d 600, 86 S.Ct. 1507]; People v. Brom-
mel, 56 Cal.2d 629 [15 Cal.Rptr. 909, 364 P.2d
845|.) If the leak emanated from counse! for the de-
fense the situation is materially different. The necessity
for inquiry into Farr’s sources of the statement is partic-
ularly acute in the matter at bench. There is the in-
escapable need to dispel or confirm the inferences flow-
ing from the tender by the prosecution of an important
position to Farr shortly after the leak and publication
of the sensational and inflammatory story containing
the Graham statement.
We thus conclude that the inquiry conducted by the
trial court was necessary to its duty to control its own
officers, counsel appearing before it. We conclude, also,
that in the peculiar facts of the matter at bench the
inquiry was necessary to discharge the duty of the trial
court to perfect a record pertaining to an issue likely
to arise on appeal and an equally important duty to
protect the integrity of the very process of prosecution
and defense of the principal case, the Manson trial.
The necessity of the inquiry impels the ultimate con-
clusion that the trial court was empowered to require
the attendance of witnesses and compel their testimony
pertinent to the objects of the hearing.
103
Evidence Code Section 1070
Petitioner contends that the adjudication of con-
tempt must be annulled because of the immunity from
contempt provided in Evidence Code section 1070. That
section states: “A publisher, editor, reporter, or other
person connected with or employed upon a newspaper,
or by a press association or wire service, cannot be
adjudged in contempt by a court, the Legislature, or
any administrative body, for refusing to disclose the
source of any information procured for publication and
published in 2 newspaper. Nor can a radio or television
news reporter or other person connected with or em-
ployed by a radio or television station be so adjudged
in contempt for refusing to disclose the course of any
information procured for and used for news or news
commentary purposes on radio or television.”
Section 1070 read strictly docs not include petitioner
within the scope of its immunity. At the time of the
hearing at which he refused to answer questions he was
not a person described in the section. Petitioner argues
that section 1070 must be construed broadly to include
within its immunity a person who occupied a described
status at the time he acquired the information whose
source is sought although he no longer occupies the
status when disclosure is required. He contends that
otherwise the underlying purpose of the statute, the en-
couragement of free flow of information to the public,
will be impaired by the reluctance of persons to com-
municate with reporters because of the possibility of the
revelation of their identity if the reporter’s status
changes. Respondent counters with the argument that
Evidence Code section 1070 is considerably less than
an all embracing effort to aid the flow of information
by protecting sources. Thus, respondent notes that the
104
section, while immunizing persons connected with news-
papers, radio, and television from contempt for failure
to reveal a source does not protect persons connected
with magazines, free lance authors, lecturers, or pam-
phicteers. (/n re Cepeda, 233 F.Supp. 465, 473: cf.
Cu nment, 6 Harv. Civil Rights—Civil Liberties L.Rev.
119, 130.)
On the narrow facts of the case at bench we do not
reach the issue of construction of Evidence Code sec-
tion 1070 as protecting former members of the news-
paper, radio, and television profession from liability
to the sanction of contempt. To construe the statute
as granting immunity to petitioner, Farr, in the face
of the facts here present would be to countenance an
unconstitutional interference by the legislative branch
with an inherent and vital power of the court to control
its own proceedings and officers.
The power of contempt possessed by the courts is
inherent in their constitutional status. While the Legisla-
ture can impose reasonable restrictions upon the ex-
ercise of that power or the procedures by which it may
be exercised (/n re McKinney, 70 Cal.2d 8 [73 Cal.
Rptr. 580, 447 P. 2d 972]), it “cannot declare that
certain acts shall not constitute a. . . contempt.” (In
re San Francisco Chronicle, 1 Cal.2d 630, 635 |36
P.2d 369].) Thus, former subdivision 13 of Code of
Civil Procedure section 1209 which provided: “|N]o
speech or publication reflecting upon or concerning any
court or officer thereof shall be treated or punished as °
a contempt of court unless made in the immediate
presence of such court while in session and in such a
manner as to actually interfere with its proceedings”
was held unconstitutional by our Supreme Court as an
105
invalid legislative effort to abridge the inherent power
of the court, (/n re San Francisco Chronicle, supra.)
If Evidence Code section 1070 were to be applied
to the matter at bench to immunize petitioner from
liability, that application would violate the principle of
separation of powers established by our Supreme Court,
That application would severely impair the trial court's
discharge of a constitutionally compelled duty to con-
trol its own officers, The trial court was enjoined by
controlling precedent of the United States Supreme Court
to take reasonable action to protect the defendants in
the Manson case from the effects of prejudicial pub-
licity, (Sheppard v. Maxwell, 384 U.S, 333 [16 L.Ed.
2d 600, 86 S.Ct, 1507|,) It performed its duty by is.
suing the Order re Publicity, By
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