Opposition Brief — Farr v. Pitchess

Supreme Court of the Anited States

October Term 1975

No. 75-444

WILLIAM T. FARR,

Petitioner,

vs.

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

BRIEF FOR RESPONDENT IN OPPOSITION

JOHN H. LARSON,

County Counsel

WILLIAM F. STEWART,

Principal Deputy County Counsel

648 Hall of Administration

500 West T: e Street

Los Angeles, 90012

(213) 974-1821

Attorneys for Respondent :

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TOPICAL INDEX

Page

SN i SRR RN Te

SS MeN ART, RRO OTD

Statement of Facts 2

Reasons For Denying the Petition S 4

The Larger Problem ....... 4

I The Petitioner’s First Amendment Rights

Have Not Been Violated 6

II Petitioner’s Contempt Citation Does Not

Violate Constitutional Ex Post Facto Prin-

ciples 14

III The Petitioner Was Not Denied A Fair

Hearing ceibledaaieaalgakapeialte 17

(SS ALLELE: SANE NL BER 21

EERE Sao RTE ORR SEE PET TSR DERN EMAL TORE ELGG TEER

il Index

TABLE OF CASES AND AUTHORITIES CITED

Cases

Page

Abbott, Ex parte, (1893) 94 Cal. 333 2000000. 4

Branzburg v. Hayes (1972) 408 U.S. 665, 33 L.Ed.

2d 625 5, 7, 8, 10, 11, 16

Farr v. Superior Court, 99 Cal. Rptr. 342, 22 Cal.

App. 3d 60 (1971) —.......... . 15

Farr. In re, 111 Cal. Rptr. 649, 36 Cal. App. 34

577 17

Johneon v. Mississippi, 403 U.S. 212, 29 L.Ed.2d

423 (1971) . . Samah ae

Sheppard v. Veen, 384 US. 333, 16 L.Ed.24

600 oo? FF ee

Karlson, Ex parte, (1911) 160 Cal. 378 15

Mayberry v. Pennsylvania, 400 U.S. 212 2, 2

Osborne v. Owsley (MO. 1954) 264 S.W.2d 332. 14

Wood v. Georgia (1962) 370 U.S. 375, 8 L.Ed.2d

569 9

Authorities

California Evidence Code, Section 1070 0... 15

California Government Code §27647

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IN THE

Supreme Court of the Gnited States

October Term 1975

No. 75-444

WILLIAM T. FARR,

Petitioner,

vs.

PETER J. PITCHESS,

SHERIFF OF LOS ANGELES COUNTY,

Respondent.

BRIEF FOR RESPONDENT IN OPPOSITION

INTRODUCTION

This is the second time this case has been presented

to this Honorable Court on petition for writ of certi-

orari. On November 13, 1972' the court denied Farr’s

previous petition, made on the same grounds raised

in the instant petition, save one. The only new issue

presented is the claim that Farr’s contempt adjudica-

tion was an unconstitutional ex post facto application of

the law. There is no issue concerning the validity of

the publicity order, rather, the question goes to the

courts power to enforce it.

1408 U.S. 1011, 34 L.Ed.2d 305, 93 S.Ct. 430

wn er. ona ae 2 RO et reat tN

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QUESTIONS PRESENTED

1. Is the constitutional right of freedom of speech

and press abridged*by requiring a news reporter to ap-

pear before a judge and answer relevant questions con-

cerning the identity of certain persons from whom he

obtained court transcripts in violation of a publicity

order; can the mandate of the United States Supreme

Court in Sheppard v. Marwell, 384 U.S. 333, 16 L.Ed.

2d 600 be negated by protecting under a claim of First

Amendment rights a reporter’s refusal to reveal

observed violators of a criminal trial publicity order?

_ 2. Under the facts of the case have constitutional

ex post facto principles been violated by the enforce-

ment of a coercive civil contempt sanction?

3. Is a trial judge under the decision of Mayberry

v. Pennsylvania, 400 U.S. 212, disqualified from adjud-

icating the contempt of a witness who willfully refuses

to answer relevant questions?

STATEMENT OF FACTS

The summary of facts in the Court of Appeals de-

cision is comprehensive, however, the petitioner’s

statement is inadequate or misleading by omission of

the following facts.

1. The full extent of petitioners activities in ob-

taining the Virginia Graham transcripts were uot dis-

closed at the in chambers conferences during the Man-

*

ETA DRONE: AS IG ER SAE I AEE RS Aa IE OEP 5 PE GEOL TS EOP ERE

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son trial. It was not until the initial hearing in June

of 1971 that it was revealed that Farr had actually

solicited the transcripts from attorneys he knew were

subject to the publicity order in exchange for his

promise to conceal their identity.

2. The colloquy that took place in Judge Older’s

chambers on October 8, 1970 occurred after Farr had

made his promise to conceal and had obtained the

transcripts. There was no causal connection between

those in chambers conversations and the violations of

the court publicity order.

3. The subsequent proceedings against Farr for

contemptuous interference with a court order were dis-

missed on a technical ground, not on the merits. The

trial court was of the opinion that the contempt pro-

ceeding was quasi-criminal in nature and that the

corpus delecti rule applied; therefore, the offense had

to be established by evidence other than the defendants

own statements. At no time has Farr ever denied that

he obtained the transcripts from the attorneys in ex-

change for a promise to conceal.

4. It is true that no contempt proceeding has ever

been initiated against any party subject to the publicity

order, but that fact weakens, rather than supports,

petitioners case. Any action against the guilty at-

torneys has been frustrated by Farr’s refusal to

reveal their identity.

Shem — Nie SE CEE INSERTION BOE MLW A POE EEE VN,

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REASONS FOR DENYING THE PETITION

The Larger Problem

A substantial and disturbing problem existing un-

resolved since the opinion of this Supreme Court in

Sheppard v. Maxwell, and posing a substantial threat

to effective compliance with the Court’s directive in

that case, manifests itself in this case. This is the

problem of enforcing valid court publicity orders is-

sued in compliance with Sheppard when counsel and

members of the press collaborate and the reporter re-

fuses to reveal the identity of the party violating the

court order. In such circumstances not only is the vio-

lator protected but dissemination of the prejudicial

publicity is encouraged and placed beyond the author-

ity of the trial court to curtail. Such potential for

abuse cannot be countenanced.

Your Honorable Court in Sheppard, in unequivocal

terms, mandated the trial courts of this country to take

effective action at the outset of a criminal trial to

insure the accused a fair hearing untainted by preju-

dicial newspaper publicity. In language that could

not be more express or urgent it was stated that under

appropriate circumstances the trial judge should make

orders proscribing extrajudicial statements concern-

ing a pending criminal case by lawyers, parties, wit-

nesses, and court officials. Failure to take such pro-

tective measures could be construed as effectively

denying the accused a fair trial, requiring a reversal

of the conviction.

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The Court’s concern with the prevention of preju-

dicial extrajudicial statements was again expressed

most recently by the majority opinion in Branzburg

v. Hayes, where at 33 L.Ed.2d 626, 642, the Shep-

pard case was cited as authority for the issuance of

trial court orders proscribing extrajudicial statements

by attorneys, witnesses, and court officials. In addi-

tion, the Court commented that where necessary to

assure a defendant a fair trial, newsmen ‘‘may be

prohibited from attending or publishing information

about trials.’’

Although the opinions of the Court in Sheppard v.

Maxwell and Branzburg v. Hayes indicate that in ap-

propriate circumstance direct restraints on publica-

tion might be imposed upon the press, the constitu-

tional validity of such action has not yet been directly

determined. Thus, once the information has been

acquired by the press it remains questionable whether

publication of that information, no matter how poten-

tially prejudicial to the conduct of a fair trial, could

be foreclosed. The crux of the problem is the exis-

tence of this hiatus between the court’s duty to re-

strict extra judicial statements by officers of the court

and its apparent lack of direct authority over the news

media once the prejudicial information is in their pos-

session. How can the court fulfill its duty to provide

a fair trial unless effective enforcement of its valid

orders governing the conduct of its own officers is

assured ?

— MPMI WOOD BNET ASEAN as AEGEAN STROLL) IH I IM LATTER ARES ES LACES AR en IR ee

caillicin

The facts of the instant case portray accurately the

gravity of this problem, particularly when counsel and

reporters collaborate. If a reporter can claim an im-

munity from the requirement of all citizens to testify,

the courts are rendered powerless to perform the duties

required of them by the United States Supreme Court.

When the parties enjoined by a trial court’s publicity

order can shield themselves from discovery and cor-

rective action by merely giving the extrajudicial state-

ments to members of the news media, the ability of the

trial court to protect the accused from the prejudicial

effect of such statements is reduced to nothing more

than the issuance of impotent admonishments. When

a reporter can not only hide behind an alleged report-

ers ‘‘privilege’’ to the frustration of a court’s legiti-

mate and compelling duty but can also rely upon such

a ‘‘privilege”’ to obtain the extrajudicial statements in

the first instance, the trial court’s continuing viability

as the protector of a defendant’s constitutional right

to a fair trial is in serious jeopardy.

I

THE PETITIONER’S FIRST AMENDMENT RIGHTS

HAVE NOT BEEN VIOLATED

The initial question presented that the petitioner’s

First Amendment rights have been abridged has been

answered by the opinion of the court in Branzburg v.

Hayes (1972) 408 U.S. 665, 33 L.Ed.2d 625. It is

quite clear that there has been no attempt by the court

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in this case to annex the news media as an investiga-

tive arm of the government. Rather, they illustrate

a conscientious effort by the court to give meaningful

protection to the fair trial guarantees mandated by the

Supreme Court in Sheppard v. Maxwell, 384 U.S. 333,

16 L.Ed.2d 600, by inquiring into the identity of two,

perhaps three attorneys, who fragrantly violated the

court’s protective order.

In view of the petitioners statements that he had

obtained the information from two attorneys admit-

tedly subject to the publicity order and in a criminal

case that was probably the most publicized in the his-

tory of the United States, the trial court, if it were to

observe its judicial responsibilities, was compelled to

conduct an inquiry into the identity of the violators.

It is important to note that the proceedings at no time

could be characterized as a fishing expedition. The

court prior to instituting its inquiry, had been fur-

nished with information indicating that the petitioner

had knowledge of the identity of the attorneys in ques-

tion. At subsequent hearings, of course, the petition-

ers own testimony confirmed that he had in fact re-

ceived the information from at least two and perhaps

three of the attorneys subject to the order.

In Branzburg v. Hayes, the Court rejected the

claim that a newsman had an absolute constitutional

privilege against being compelled to reveal the sources

of his information.

. - sages 15 TRUE ERRI GRE EOL RIE ER

—— PEER ISR BRI ITA MANE MRE ES LEIS TOP SONAL CLOT LR i 4

Rm, FS - * r .

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In Branzburg, the reporter was held to be required

to appear and testify before a grand jury investigat-

ing a crime, the court being of the opinion that the

overwhelming interest of the public in the investiga-

tion of crimes by grand jurys outweighted any in-

direct, consequential and uncertain burden on news

gathering activities. In the instant case, the report-

er’s testimony was sought in a court of law only after

it had been clearly established (by the reporter’s own

statements) that he knew the identity of the attorneys

violating the courts publicity order. In addition, this

case is directly concerned with the protection of an-

other constitutional amendment of great importance

in a free society—the Sixth Amendment guaranteeing

a criminal defendant a trial before an impartial jury,

free from the effects of prejudicial publicity. The

concurrent accommodation and protection of Sixth

Amendment rights was not a factor present in the

Branzburg case.

The petitioners attempted distinction of Branz-

burg is extremely superficial. The discovery of the

identities of attorneys violating fair trial protection

orders is immensely more important to the administra-

tion of justice than the concerns which prompted the

decision in Branzbury. In Branzburg, societys com-

pelling interest in effective law enforcement through

the discovery and prosecution of criminals was held

to be predominant. In the present case, the discovery

of a criminal is only a part of the larger issue, for

here we are confronted with a direct challenge to ef-

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fective enforcement of a criminal defendant’s right to

a fair trial. If a reporter can request and obtain in-

formation in violation of a fair trial protective order

and then hide the attorneys identity behind a claim of

First Amendment rights, any publicity order would be

totally ineffectual. As the facts herein so amply

demonstrate reporter and attorney do not conduct

their activities in the presence of third parties.

The distinction for First Amendment analysis be-

tween a grand jury proceeding and a criminal trial

was previously noted »y this court when in Wood v.

Georgia (1962) 370 U.S. 375, 8 L.Ed.2d 569, the major-

ity observed:

“First, it is important to emphasize that the

case does not represent a situation where an in-

dividual is on trial; there was no ‘judicial pro-

ceeding pending,’ in a sense that prejudice might

result to one litigant or the other by ill-considered

conduct aimed at influencing the outcome of a

trial or a grand jury proceeding ... and of course

the lumitations on free speech assume a different

proportion when expression is directed toward a

trial as compared to a grand jury investignation.’’

(Emphasis added) Wood v. Georgia, 8 L.Ed.2d

at page 580.

The petitioner cooperated with, and promised

to conceal the identity of each of the attorneys acting

in violation of the court order. The following com-

ment of this court in Branzburg, supra at page 646, is

therefore particularly in point.

EURAIL OR MENT MENTAL MEENA: MELT LESTE AO ENT PMI MR EN CE SETA ILIN TONE IEA, to

va} EAT J

ation

‘‘Thus. we cannot seriously entertain the mo-

tion that the First Amendment protects a news-

man’s agreement to conceal the criminal conduct

of his source, or evidence thereof, on the theory

that it is better to write about crime than to do

something about it. Insofar as any reporter in

these cases undertook not to reveal or testify about

the crime he witnessed, his claim of privilege

under the First Amendment presents no substan-

tial question. The crimes of news sources are no

less reprehensible and threatening to the public

interest when witnessed by a reporter than when

they are not.”’

It is significant to note that the scope of inquiry

in the proceedings before Judge Older were much more

narrow and relevant than was the situation in Branz-

burg. The petitioner’s own admissions established

that the violators of the publicity order were all within

a small defined group of individuals. Moreover, the

petitioner did not object on constitutional grounds

and, indeed, furnished without objection much in-

formation that clearly indicated the propriety of fur-

ther inquiry by the court.

Even when the standards articulated by Mr. Jus-

tice Stewart in his dissent in Branzburg are applied

to the facts herein, the action of the trial court did

not constitute an unconstitutional infringment of First

Amendment rights. The information sought was clear-

ly relevant to a precisely defined subject of judicial

inquiry, could not have been obtained by alternative

means, and certainly the protection of Sixth Amend-

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ment rights and effective compliance with a constitu-

tional mandate of the United States Supreme Court is

a matter of grave national concern.

The danger to the administration of justice that

recognition of a newsmans privilege would entail was

observed by the majority opinion in Branzburg. All

of those potential evils are present in the case at bar,

plus the very real threat to Sixth Amendment rights.

Factually and legally there exists no valid reason why

the rule stated in Branzburg should not obtain in this

case.

The premise underlying the protection of news

sources is totally contradictory to the constitutional

principle upon which a fair trial publicity order is

based. To recognize the right to conceal the identities

of attorneys violating such orders would inevitably en-

courage the dissemination of prejudicial information

and invite violations of protective orders.’

If the recognition of a privilege in this case will

serve to expedite the dissemination of information the

order re publicity was intended to curtail, how ean it

2This is a consideration that has not been overlooked by the petitioner.

Professor Blasi, in his exhaustive study, The Newsman’s Privilege; An Em-

perical Study, 70 Michigan Law Review (1971) 229 at 265, made the follow-

in observation from an interview with Farr.

“A somewhat different way in which a subpoena can actually

help a reporter acquire sources was suggested to me in an in-

terview with Bill Farr, a former investigative reporter who is currently

the subject of a widely publicized oy ap dispute in California.

Farr speculates that the publicity he has received in accepting a

contempt sentence rather than revealing his source should increase

the number of unsolicited tips and leads he gets simply because

people who have a story to tell will have heard of him.”

RMR CA eny: LAR RE GT ONE UN EN RS I a TEAR RN A nH 08 A Ml dO OL PO a hh ate ci iat ae a Cin a

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seriously be denied that the mandate of the United

States Supreme Court is not being frustrated. Your

Honorable Court has declared that the Sixth Amend-

ment requires that prejudicial publicity be restricted,

not encouraged. No valid public purpose is promoted

by broadcasting while the trial is in progress the type

of information that was related in the petitioner’s

newspaper article.

The cribbed view taken by petitioner that before

a court can inquire into a violation of its order it first

must be shown that the violation resulted in prejudice

to the accused is myopic and if followed would not only

prevent effective enforcement of publicity orders but

invites their breach. There can be no question that

the type of lurid article published by the petitioner

was inherently prejudicial.’ It was expressly excluded

from evidence and the dissemination of that type of

information while the trial was in progress served no

more valid public purpose than the release of a de-

fendants pretrial confession or statements later ruled

inadmissible.* To require that the court find that the

violation of the order actually proved prejudicial to a

defendants case before the violation can be investi-

gated would invite wholesale breaches of court orders

8The article bore the headline, “Liz, Sinatra on Slay List - yy oe

Ghastly Tortures Planned for Stars.” In this article Mr. Farr

lurid and dell Gp uamecns teste Gat Ge Gdmieae in Go

trial to inflict upon the named celebrities. These acts

So gouging ae

Burton and skinning Frank Sinatra alive while playing his

‘Recently Mr. Justice Blackmon in Nebraska Press Assn v. Stuart noted

im an Opinion in Chambers that the news media could be directly restrained

reporting a purported confession and circumstances leading to a

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and leave a defendant’s fair trial rights subject to the

eaprices of reporters striving for a sensational story

and unprincipled attorneys willing to cooperate.

The petitioners facile claim that the Circuit Court

of Appeals opinion implies that attorneys have a pro-

clivity to violate publicity orders, ignores other evi-

dentiary avenues available to the court and that the

newsman itself remains subject to prosecution if they

collaborate with those violating court orders need not

be examined any further than the facts of this case.

The petitioners theorization is completely rebutted by

the actions that took place during the Manson proceed-

ings. Not only did Farr obtain the information from

one attorney, but from two and perhaps, a third. No

one observed the attorneys handing the transcripts to

Mr. Farr and when the attorneys themselves were

called to testify, they all denied giving Farr the tran-

scripts. There simply was no existing evidentiary ave-

nues available to the court to ascertain the identity of

the attornies except Mr. Farr, a fact he was well aware

of when he promised to conceal their identities. Last-

ly, the claim that newsmen remain subject to criminal

prosecution for their interference with a court order

is but a theoretical possibility, as the facts of the sub-

sequent Farr contempt proceedings bear witness. If

there is no evidence other than the reporters own state-

ments or the newspaper article, the corpus delicti of

the offense can not be established.

PETITIONER’S CONTEMPT CITATION DOES NOT

VIOLATE CONSTITUTIONAL EX POST FACTO

PRINCIPLES

It is extremely difficult to fathom from the argu-

ments presented by the petitioner any logical relation-

ship between ex post facto principles and the circum-

stances of the present case. Initially it should be ob-

served that ex post facto is primarily a rule of crim-

inal law and that in California proceedings taken

under the authority of California Code of Civil Pro-

cedure Section 1219 are not criminal actions but civil

contempt proceedings.® Provisions of the California

Penal Code are totally inapplicable, Ex parte Abbott

(1893) 94 Cal. 333; Ex parte Karlson (1911) 160 Cal.

378; Osborne v. Owsley (MO. 1954) 264 S.W.2d 332.

Although under some circumstances the distinction

between a civil and criminal penalty in contempt pro-

ceedings may be a hazy one, that is certainly not the

case involving a conditional sentence to compel obedi-

ence to a court order. When a party has the ability to

verform an act the law requires, a sentence conditioned

solely upon the parties continued refusal, is coercive,

not punitive in nature. The federal courts have long

classified such coercive contempt sentences as civil,

not criminal.

It is important to note that the petitioner herein

had made his promises to conceal and induced the sev-

5Mr. Justice Douglas described Farr’s coercive sentence as cw” im an

appeals. 409 U.S. Peti rs 1243, 342 Ed.2d 655.

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eral violations of the courts publicity order prior to

any conference in Judge Older’s chambers. The peti-

tioner’s contempt arises out of his refusal to testify,

not his solicitation of a violation of the order. The

court warned him several times before holding him in

contempt that his refusal would constitute contempt.

He was advised by counsel at all times, and enforce-

ment of the order was stayed until exhaustion of all

appeals. Subsequent to appellate rulings, Farr was

twice afforded the opportunity to purge himself of his

contempt.

The Petitioners mechanical argument lacks legal

substance. Questions on the scope of statutory privilege

constantly rise and require appellate rulings and the

courts have consigtently held that when the witnesses’

claims have been adjudicated against him, he is re-

quired to answer the relevant questions or face coer-

cive sanctions. ‘This is what occurred, in the Branz-

burg case.

California Evidence Code Section 1070, relied upon

by the appellant in the first instance to support his

refusal to testify, is not a criminal statute. It is a

statute granting certain civil immunities purely as a

matter of legislative grace. The judicial construction

of that statute in Farr v. Superior Court, 99 Cal.Rptr.

342 22 Cal.App.3d 60. (1971) did not broaden a crim-

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inal statute but in very limited factual circumstances

narrowed the scope of a legislative immunity.

All of petitioners ex post facto arguments suffer

from an erroneous assumption. They relate Farr’s

contempt adjudication to his conduct in soliciting the

violation of the court order and in publishing a story

based on the obtained information. While petitioners

conduct was questionable he was not held in contempt

for his dealings with the attorneys, but was held in

contempt solely for his refusal to testify as a witness.

The law did not authorize Farr and the attorneys

to cooperate in the violation of publicity orders either

in October of 1970 or at any time. What Farr did

in October of 1970 is totally irrelevant. The petition-

er’s conduct that is in question is his refusal to testify

and in this regard he received adequate notice of the

risk that he was undertaking.

The essence of the ex post facto rule is that a per-

son must be given fair warning that his contemplated

conduct will result in criminal sanctions. It i¢ beyond

argument that Farr received ample warning both be-

fore the sentence was imposed and before he was in-

earcerated that his refusal to answer would constitute

a contempt of court. No valid ex post facto claim can

possibly arise from an appellate decision determining

that a witness must answer relevant questions if the

witness is thereafter given the opportunity to answer

the questions and refuses to do so. If the witness has

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been afforded the opportunity to test the legality of

his refusal on appeal, advised of the state of the law

as determined by the appellate courts and then given

the opportunity to comply with the law, any taint of

ex post facto application has been dissipated.

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THE PETITIONER WAS NOT DENIED A FAIR

HEARING

The claim of bias was initially raised in Farr’s

first petition for writ of certiorari to this court. Since

denial of that petition, both the California Court of

Appeal on a subsequent petition for writ of habeas

corpus (In Re Farr, 111 Cal.Rptr. 649, 36 Cal.App.3d

577) and the United States Court of Appeals for the

Ninth Circuit reviewed this claim and found it devoid

of merit. Similarly, the United States District Court

found the allegation to be without foundation (see

Petitioner’s Brief, Exhibit ‘‘A,’’ pages 40-41).

The petitioner’s contentions of bias have come very

late in this action. Not only did he fail to object to

Judge Older presiding at the hearing, his attorney

represented that prior to the hearing he had examined

the Judge’s background and affirmatively represented

that there would be no objection to Judge Older pre-

siding. No claim of bias was raised in his appeal to

the California Court of Appeal or subsequent petition

for hearing in the California Supreme Court.

A review of the record clearly indicates the lack

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of bias. Indeed various actions taken by the court

throughout the proceedings indicated a concerned and

conscientious effort to determine the identity of the

guilty attorneys without the necessity of incarcerating

Mr. Farr. Ascertaining the identity of the attorneys

in question was the single goal of the trial courts in-

quiry, not the incarceration of the petitioner. Mr.

Farr was summoned as a witness to the proceedings

because he had previously out of court volunteered the

information that he had obtained the Virginia Graham

statement from an attorney in the case.

Judge Older during the hearings gave each party

full and fair opportunity to argue their respective

positions. Before the petitioner was held in contempt,

the court continued the proceedings and summoned

all of the attorneys involved in the case and asked each

under oath if they had given the transcripts to Mr.

Farr. A denial by all raised the issue of perjury and

necessitated further inquiries to Mr. Farr. The

petitioner was afforded the opportunity to purge him-

self of contempt before the contempt judgment was

entered and again in proceedings held after the Su-

preme Court denied certiorari. Moreover, the trial

court on its own initiative stayed execution of its sen-

tence until completion of Farr’s appeals.

After the United States Supreme Court denied

certiorari, Judge Older again held proceedings with

the object of identifying the guilty attorneys without

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the necessity of incarcerating Mr. Farr. On Noxyem-

ber 22, 1972, all of the attorneys in question were again

summoned to court and again, each denied under oath

that they had given Farr the transcripts and affirma-

tively represented to him that he had no obligation to

conceal their identity nor did they have any objection

to his revealing the identity of his sources. Despite

such representations, Farr again refused to identify

the individuals who gave him the transcripts.

Petitioner’s other arguments concerning bias equal-

ly lack substance. He concedes that he was cited for

contempt immediately after refusing to answer the

questions but tries to attach some significance to the

fact that the judgment itself was not filed until nine

days later. These nine days were spent in preparing

the lengthy order and in collecting exhibits, and a delay

for that purpose was stipulated to by his then attorney.

Petitioner’s interpretation of the subsequent con-

tempt proceedings against him for willful interfer-

ence with a court order is deceptive. It is true that he

was found not guilty of the contempt charged but not

on the merits. The contempt citation was dismissed

because the only evidence of his interference with the

court publicity order was his own admissions which,

in the opinion of the Judge who heard the case, could

not be relied upon to establish the corpus delicti. (An

exerpt from the transcript of Judge Jefferson’s ruling

is attached hereto as Exhibit ‘*A.’’)

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A conditional sentence of the nature imposed by

the trial court has long been recognized as the least

severe form of contempt sentence because it dissolves

as soon as the contemner has obeyed the law. In view

of the nature of the sentence imposed, petitioner’s

claim of prejudice is without substance. To compel

an answer to its questions the courts only alternative

was to imprison Mr. Farr until he consented to re-

spond. No analysis of the judges state of mind is nec-

essary or relevant under these cirmustances, for all

that petitioner had to do to dissolve such a sentence

was to comply with the valid court order.

Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct.

499 (1971) and Johnson v. Mississippi, 403 U.S. 212,

29 L.Ed.2d 423 (1971) cited by the appellant on this

point are easily distinguishable on their facts as the

District Court observed. The cases all pertain to be-

havioral offenses of a disruptive nature or acts con-

stituting a vicious, slanderous, or personal vilification

of the trial judge, occurring in his immediate presence.

In each case, there was an objection to the trial court

presiding made prior to the adjudication of contempt

and in each case the sentence was a criminal punish-

ment, not a coercive sanction.

The tortured analysis adopted by the petitioner in

his attempt to twist the present case into the context

of the Mayberry and Johnson eases overlooks one

simple and elementary fact. The contempt sentence

merely orders the petitioner to obey a valid court

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order. With all of Farr’s assertions, there is no claim

that any of his statements made under oath were un-

true or that he did not in fact induce release of the

transcripts from the attorneys he knew were governed

by the court publicity order. The referral of the mat-

ter to another judge would in no way affect the adjudi-

cation of contempt as a willful refusal to testify con-

stitutes a contempt in any court.

CONCLUSION

Every appropriate appellate court that has con-

sidered this case has refused to disturb the contempt

judgment. The claims of prejudice and that first

amendment rights have been violated, was examined at

every appellate level in California, and by the Unit-

ed States District Court, the Circuit Court of Appeals

and the United States Supreme Court.

Of all the recent cases involving claims of a news-

man’s privilege, the petitioners is the least worthy, for

here he deliberately attempted to induce a breach of

the court’s protective order and succeeded. His re-

fusal to testify was an effort to comply with his

agreement with the attorneys. The trial courts at-

tempt to ascertain the identity of attorneys who vio-

lated a protective order issued in a sensational and

highly publicized criminal trial cannot be superficially

characterized as a meaningless effort to satisfy the

courts curiousity.

The viability of a fair trial protective order issued

a SS

in accordance with this courts mandate in Sheppard v.

Maawell is directly and deliberately challenged by the

petitioner’s actions in this case. As Your Honorable

Court in Sheppard stated,

‘‘Neither prosecutors, counsel for defense, the

accused, witnesses, court staff, nor enforcement

officers coming under the jurisdiction of the court

should be permitted to frustrate its function. Col-

laboration between ounsel and the press as to in-

formation affecting the fairness of a criminal

trial is not only subject to regulation, but is highly

censurable and worthy of disciplinary measures.”’

In light of that observation and the uncontradicted

evidence of the petitioners behavior, his claims of First

Amendment privilege indeed sound very hollow. To

adopt the position urged by the petitioner would open

the door to potential abuses so obvious that they need

no recitation here. This case provides the sobering

example. No substantial federal constitutional ques-

tions are present and the petition for writ of certiorari

should be denied.

I dena ctseicnininnlaneniinipihnle

Respectfully submitted

JOHN H. LARSON, County Counsel

By 3

WILLIAM F. STEWART

Principal Deputy

County Counsel

ONL AISNE ON EER RE IE EI NET RNS LORE SB IIET BRIS PREIS ORE ESS TIE ELI CES REE ION LIS

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EXHIBIT A

So it is my holding in this case that the only proof

of this alleged contempt are these statements made by

Mr. Farr in the prior proceeding, and that they can-

not be used against him in this proceeding to estab-

lish the corpus delicti. There is no other evidence to

say that he solicited the transcript, so therefore I find

him not guilty of any contempt in this case.

MR COOPER: Thank you, your Honor.

(Proceedings concluded. )

REPORTER’S CERTIFICATE

STATE OF CALIFORNIA )

) ss.

County of Los Angeles )

I, KATHLEEN RACKLIN, an Official Reporter

of the Superior Court of the State of California, for

the County of Los Angeles, do hereby certify that the

foregoing pages, 1 to 14, inclusive, comprise a full

true and correct transcript of the proceedings had in

the matter of the within action on Monday, December

6. 1971, and that said transcript contains all of the

evidence, all of the objections of counsel, and rulings

of ‘the Court, and al] matters to which the same relate.

Dated this 20th day of December, 1971.

KATHLEEN RACKLIN,

Official Reporter

Pe a PE ree EN RE FRONT BEA SRE BESTS a