A judge's order that CBS News must turn over unaired portions of an interview with a confessed murderer is threatening to scuttle California's "shield law," which protects reporters who refuse to disclose confidential sources.
Alameda County Superior Court Judge Stanley Golde has ruled that the law, which is part of the state's constitution, is unacceptable under the U.S. Constitution because it violates a defendant's Sixth Amendment right to a fair trial. The judge ordered CBS News to produce the outtakes of an interview for "60 Minutes" by next Tuesday or be held in contempt of court.
The interview, conducted in 1977 by Mike Wallace, was with Barry Braeseke, now 26, who is on trial in Golde's Oakland court for the slayings of his parents and grandfather. Braeseke confessed to law enforcement officers after his arrest and was subsequently convicted, but the conviction was overturned when an appeals court ruled that Braeseke's rights were violated at the time of his original confession. He is now being retried.
While awaiting the outcome of his appeal, Braeseke granted an interview to Wallace for a segment on the drug PCP, a powerful hallucinogenic. Braeseke claims to have been under the influence of PCP at the time the murders were committed.
The "60 Minutes" crew taped 24 minutes of Braeseke discussing the murders and the drug, two minutes of which have been aired. The aired two minutes included Braeseke's confession to the crime.
The judge's order to CBS News was made at the request of both the defense, which is trying to demonstrate Braeseke's diminished capacity through drug use, and the prosecution, which is trying to ensure that Braeseke's fair-trial rights are not violated.
Edwin A. Heafey, an attorney for CBS, summarized the refusal to turn over the outtakes this way: "In the profession of journalism, independence is what it's all about." Since the court already had an on-air confession, he said, the unaired portion "did not seem important," and that Braeseke "wants to see the outtakes simply to see whether he said something that would help him.
"The way the game is played in California," Heafey added, "is to try to create as much error in the trial record as you can, and you'll never be hung."
Thomas J. Broome, Braeseke's attorney, said he had "difficulty understanding CBS' position. It's very bad from the news media's perspective." Broome said the judge had no choice but to rule the shield law unconstitutional because, while its protection of reporters is absolute, a defendant's fair-trial rights clearly entitle the defense to the whole of a confession when part is entered into the record and "no state law can ever override the federal Constitution."
"We have three dead people and a defendant with certain rights," Broome said. "It's just a bad case to test the issue on."
Jack C. Landau, director of the Reporter's Committee for Freedom of the Press in Washington, D.C., said the case was unusually significant because California is the only state that has made a reporter shield law part of its constitution.
Landau said the intent of the constitutional amendment was to give reporters the same privilege as attorneys or priests when asked to reveal confidences.
Landau said CBS might still be able to prevent further damage to the shield law by turning over the outtakes on the grounds that Braeseke, the only source involved, had already waived his right to be protected. He said if Golde's decision stands, it will conflict directly with the recent decision of a Los Angeles Superior Court judge who ruled that a reporter who heard a confidential confession from a murderer did not have to testify.
An editorial in The Oakland Tribune noted that CBS was not trying to protect confidential sources and said the network's position "threatens the shield law, itself. This clash of constitutional principles cries out for a common-sense solution."