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Leaked Tapes: Shield Law May Not Protect Journalists

August 21, 1995

LOS ANGELES (AP) _ Journalists who reported leaked excerpts from the Mark Fuhrman tapes may not be protected by the California Shield Law if questioned about their sources in the O.J. Simpson courtroom, some legal experts said Monday.

The Shield Law does not protect sources if they are officers of the court, including trial attorneys, and Judge Lance Ito might conceivably narrow the likely leakers to the two teams of lawyers.

Both sides have access to the tapes and transcripts, as well as a defense motion and its so-called offer of proof, which quotes from the tapes. The documents were filed last week and immediately sealed by Ito. The tapes and transcripts are under protective court order.

An attorney for the owner of the tapes suggested in court Monday that reporters should be questioned on the witness stand about their sources and said the Shield Law would not apply if they were lawyers.

Matthew Schwartz represents Laura Hart McKinny, who taped interviews with Fuhrman several times from 1985 through 1994 while researching a screenplay. Schwartz argued in court that the leaks violated Ito’s confidentiality order protecting McKinny’s work.

In 1975, the California Supreme Court ruled that officers of the court, including attorneys at trial, fall outside the range of sources the Shield Law was designed to protect. The case was Rosato vs. Superior Court, in which sealed grand jury transcripts were leaked; the Supreme Court, ruling that the right to a fair trial is critical, found that the law could be set aside in order to identify and punish the leakers.

But legal experts differ over whether Rosato applies to the Simpson trial.

There is no evidence that leaking the Fuhrman tapes has affected Simpson’s right to a fair trial, said Erwin Chemerinsky, a law professor at the University of Southern California.

Jurors in the Simpson case have been sequestered since Jan. 11 and presumably know nothing about the tapes.

``The judge in (Rosato) felt the order was necessary to preserve the defendant’s right to a fair trial,″ Chemerinsky said. ``Laura Hart McKinny’s protecting her proprietary interest in her tapes has nothing to do with Simpson getting a fair trial.″

But Southwestern University law professor Robert Pugsley predicted the Shield Law may be set aside again. It is ``really designed to protect a legitimate source, who’s not under court order, like a tipster,″ he said.

``Of course, they (reporters) are going to invoke the Shield Law and say nothing,″ Pugsley said. ``I think this is one of those instances where the newsman should pack a toothbrush.″

Yet another expert, media law attorney Kelli Sager, said Rosato probably became irrelevant when the Shield Law was made part of the California Constitution in 1980.

In the debate on the constitutional amendment, lawmakers made it clear they wanted to erase the reasoning in the Rosato case, she said.

``The Rosato case’s authority is questionable at best,″ she said. ``In fact, if you look at the legislative history of the referendum ... Rosato was mentioned as something that needed to be changed.″

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