News-Press Can’t Have Child Porn Back

It was an atypical Wednesday morning at the Santa Barbara County Courthouse on May 2, when the normally quiet routine was upended by a speaker-powered rally beneath the historic clock and arch. There, in plain view of the steady, occasionally honking traffic on Anacapa Street, about 50 people gathered to once again demonstrate against the News-Press‘ management tactics.

A couple Sundays ago, those tactics included a front-page, non-bylined story linking former editor Jerry Roberts to computers that contained an immense amount of child pornography. The story – which elicited an immediate and angry response by Roberts, who denies any responsibility – sparked outrage in the Santa Barbara community and journalism industry at large, prompting The Santa Barbara Independent to buck our Spring Fashion issue from the cover in favor of the headline “Have You No Shame, Mrs. McCaw?” running beneath the News-Press owner’s pixilated mug shot.

Those covers were the chosen images of the Wednesday morning rally, which was spearheaded by David Pritchett and also included an open microphone, some chants of “Shame!,” and almost as many media types as demonstrators. The 8:45-9:15 a.m. rally was timed to coincide with the 9:30 a.m. hearing in Judge James Brown’s courtroom, in which the News-Press‘ attorneys were scheduled to argue in favor of the newspaper getting the porn-laden computers returned.

The official reason? If the newspaper’s experts could determine that Roberts did download the child porn – which law enforcement experts were unable to do – then the newspaper could prevail in the $25 million arbitration claim against the former editor because he would have violated the code of conduct.

It was also an atypical scene inside Brown’s courtroom, a place normally reserved for attorneys and their clients. Instead, in addition to a spattering of demonstrators sporting Independent covers, there was a slew of media, including reporters, editors, bloggers, columnists, television correspondents, and men with cameras of varying sizes and functions. Also in attendance were Scott Steepleton and Travis Armstrong, the editor and editorial writer, respectively, from the News-Press.

It was a large showing, especially because it was fairly certain that Judge Brown would stick to the tentative ruling he issued on Tuesday, May 1. (See the SB Media Blog report on that here.) But in a very public war over newspaper ethics where the battles are usually fought behind closed doors – specifically, in the offices where reporters are fired, articles are written, and attorneys advise – the masses tend to converge whenever the News-Press‘ representatives show up to tell their side of the story. Given that the newspaper’s management no longer gives comments to any newspapers, magazines, or other form of media, that telling tends to come from the mouths of lawyers.

(As a side note, controversial Santa Barbara developer Bill Levy was in the courtroom for a different matter. And probably for the first time in Levy’s recent life, his attendance in court was, well, a side note.)

On Wednesday, the anointed News-Press mouthpiece was Barry Cappello, a superstar attorney known for representing everyone from victims of toxic air poisoning to rocker Courtney Love. Cappello was there to argue against a few things in Brown’s tentative ruling, which denied the newspaper’s attempts to retrieve the porn-laden hard drive under the Public Records Act because the act does not require government agencies to turn over contraband.

Rather, Brown recommended that such a request be handled via the ongoing arbitration case between Roberts and Ampersand Publishing, which owns the News-Press and is owned by Wendy McCaw. That arbitration began with a $500,000 claim against Roberts by McCaw. He countered with a $10 million claim against her, and then she turned around and bumped her claim against him to $25 million.

But from Cappello’s first words, it was clear that he was not arguing against Brown’s denial of the hard drive that contains 15,000 images of child pornography. Instead, Cappello was prepared to argue three specific points of the ruling: 1) that the City of Santa Barbara should return a Toshiba laptop computer because it did not contain any illicit images; 2) that the News-Press has a motive to get the hard drive because it may be related to a current employee and the crime may still be ongoing; and 3) that the 60 days provided by Judge Brown to stop the destruction of the hard drive should be upped to 120 days to allow the arbitration process ample time to access it.

As to Cappello’s first point, he produced a Sheriff’s Department report about the Toshiba laptop that was once used by Jerry Roberts. The report, which Cappello obtained via a FOIA request, showed that there were no images of illicit child pornography (just six images of “adult erotica”), and therefore it was not contraband. Cappello, who admitted that the News-Press had been given a clone of that hard drive, argued that the newspaper should be given back their property.

As to point number two, Cappello referenced the second to last paragraph of the tentative ruling, which asserted that the News-Press had no need for the hard drive beyond the arbitration with Roberts. Cappello argued that, in fact, the News-Press does have a reason for wanting to get to the bottom of the matter: the child porn could have been downloaded potentially by a current employee, that employee could still be using the paper’s computers illegally, and the newspaper’s management would very much like to find out who that person is.

“Certainly, this issue is now a public issue, as you can see,” said Cappello, waving his arm toward the cameras and scribbling reporters in attendance. And that fact, said Cappello, may be forcing the criminal to “go underground.” During this line of argument, Cappello also reiterated what he had said last week in The Indy‘s Angry Poodle: the computer, according to Cappello, is not “used” as has been widely reported based on the Santa Barbara Police Department’s assessment. “No,” said Cappello, “we’re going to get a declaration” from the company who sold the computer to the News-Press that will say the hard drive was “absolutely clean and not used.” Cappello didn’t confirm that 100 percent, but he did say he “strongly” believes that to be the case.

As to the third point, Cappello simply asked for more time to use arbitration to access the hard drives.

In his response, city attorney Steve Wiley didn’t really address the laptop issue, only to say that the police did turn over a cloned hard drive of that computer, and that the Public Records Act, to his knowledge, does not require the actual return of the exact item. “Either this is Public Records demand or it’s not,” said Wiley.

Wiley then asked, “What gives them the right to take evidence from the police department?” and outlined his objections as to why the police department does not want to return the hard drive. First, Wiley explained that they do not want to jeopardize a criminal investigation, as the FBI is still looking at a clone of the hard drive. Second, and related, is that if the cops did turn over the hard drive, all future criminal cases could be tainted because the “chain of custody” would be “messed up,” allowing criminal defense attorneys an easy defense.

Thirdly, and perhaps most provocatively, Wiley’s main concern is that this hearing seemed to be all about “the effort and not the order.” He feared that Cappello’s motion was more about the “ability to tarnish someone’s reputation before the prosecutorial authorities have a chance to weigh in,” a means, said Wiley, of getting the newspapers to cover something rather than a real legal tactic.

Cappello responded to Wiley’s assertion by saying he was “taken aback by the grandstanding.” Cappello further explained that Ampersand Publishing has known about this matter since last July and has “done everything we can to keep this matter as contained as we can.” A question from this reporter was emailed to Cappello immediately following the hearing about how a front-page article by the Ampersand-owned News-Press constitutes doing “everything” to keep the matter “contained.” He has not yet replied.

Judge Brown, clearly understanding the greater drama at play, dismissed Cappello’s “grandstanding” talk, saying he was there to rule on a technical matter and “embellishments” on both sides were not going to sway his opinion. He upheld his tentative ruling that prescribed using the arbitration channels to access the hard drive, and upped the days from 60 to 120 that the police department would have to wait before destroying the illicit hard drive.

With that, everyone left the courtroom and went on with their Wednesday.