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A headline like “60 Dead Inmates” has a way of focusing the mind, at least in theory. Alarm bells should have been going off across the county government when San Diego CityBeat exposed the shocking death toll at local jails.
But prisoners kept dying, including a man who killed himself behind bars in yet anther suicide. His widow is suing. On the defensive, the county’s attorneys have found a target to harass: One of the reporters behind the award-winning coverage. They’ve upended her life, forcing her to do one of three things — expose sources by testifying about her work, agree to a deal that would protect her fragile health at the expense of harming the widow’s case or fight back.
Kelly Davis, a highly respected colleague and fellow contributor to VOSD, did the right thing and refused to play ball with the county. A judge is standing with her, but the legal scuffle isn’t over.
Enough. The county needs to stand up and back off.
The roots of the county’s demand — that Davis give up notes, interviews and recordings — are linked to CityBeat’s investigative work about the stunning death toll in San Diego-area jails. The first stories, in a 5-part series, began appearing in early 2013. As Davis and colleague Dave Maass reported, “between 2007 and 2012, 60 people died while wards of the San Diego County Sheriff’s Department’s five-jail detention system,” nearly half in suicides, homicides and accidents.
No one expects jails to be free of death, but there shouldn’t be very many. As the reporters explained, the county’s mortality rate was consistently sky-high.
In fact, none of the 10 largest jail systems in the state had a higher prisoner death rate. There were questions about several of the jail deaths, and at least 19 were preventable. But the county hadn’t changed its policies since 2006. The journalists also reported officials failed to provide full and accurate information to oversight agencies and family members.
The coverage, which focused on the individual stories of prisoners who died, won awards and praise. But there was no significant public outcry. “We’ll continue to cover this appalling story; we hope that, one day, you’ll care,” said a CityBeat editorial in 2014.
Well, now the county cares. It cares about hauling journalist Kelly Davis into court.
In March 2014, a Camp Pendleton Marine named Kristopher Nesmith hung himself in a cell at the county jail in the North County city of Vista. As Davis reported in a story for The San Diego Union-Tribune, Nesmith — who’d been jailed after attacking his wife — was the second of six inmates who killed themselves in local jails that year, a number that outpaced that in the much-larger L.A. County jail system.
The Marine’s widow is suing the county, claiming the jail system didn’t protect Nesmith from himself despite multiple warning signs. A judge allowed the case to go forward, noting that news coverage could “plausibly” have given the county a heads-up of “a pattern of deliberate indifference” to suicidal inmates.
The county demanded that Davis give testimony in a deposition and provide all the documents, notes and recordings that she used in her reporting about the county’s high jail mortality and suicide rates. It also demanded her communications with the widow’s attorneys regarding jail suicides.
Why? Because, says the county in legal papers, it now has the responsibility to determine whether the news stories were true. And that means forcing Davis to, essentially, show her work.
Let’s dig beyond the legalese into what the county is actually saying here:
So you’re suggesting we should have known that we had a big problem with jail suicides because of those “60 Dead Inmates” headlines and done something? Maybe those stories were wrong, and we didn’t need to know about a problem we didn’t actually have! We can’t be bothered to run the numbers ourselves, so we’ll force the reporter to do it for us.
This part is unsaid: This will also suck up hours of depositions and cost everyone a bundle. Luckily, we’re taxpayer-funded! And hey, we’ll learn who squealed to the reporter too. Bonus!
“I am just wondering if they are trying to intimidate me,” Davis told NBC 7. If so, they’re not familiar with her strength. She’s spent years sensitively and aggressively reporting on local issues like law enforcement abuses and the homeless. Two years ago, she drew national attention for her deeply moving VOSD story about the death of her sister in one of California’s first aid-in-dying cases.
A pro bono legal team is defending Davis, noting that state and federal law protects her rights to not be forced to give up “unpublished material.”
In response, county attorneys proposed a deal: OK, we won’t force the reporter to testify. In fact, the whole issue of her news coverage won’t come up at all during the case. Even other articles that refer to her coverage — like the one you’re reading right now — couldn’t be admitted or acknowledged.
In other words: FINE, we’ll let Davis off the hook and pretend like “60 Dead Inmates” was never published, and the county never knew about it.
Davis, who’s fighting an advanced case of breast cancer, told NBC 7 that “I was terrified, I was shaking” when she received the initial subpoena. Cooperating could have gotten her back to her work and her health.
Her attorneys spoke to lawyers for the Marine’s widow, and they refused the deal, which would have weakened the widow’s case against the county that it knew there was a problem but did nothing.
According to NBC 7, a judge ruled against the county earlier this month. Davis won’t have to testify, at least for the moment. The county could still appeal.
We’ve seen several recent cases of overreach by lawyers who work for taxpayers. The city attorney’s office slut-shamed a victim of a predatory cop and held an extensive jail term over the head of a man who protested a bank by writing slogans in chalk on a sidewalk. The district attorney’s office, meanwhile, targeted a rapper over his lyrics and tried to send a group of men to jail for having links to a gang involved in a fatal shooting.
These cases all gave San Diego a well-deserved black eye. The county legal team behind this latest fiasco needs to stand down before it ends up as another sorry exhibit in our local Legal Hall of Shame.
Randy Dotinga is a freelance contributor to Voice of San Diego. He is also immediate past president of the 1,200-member American Society of Journalists and Authors (asja.org). Please contact him directly at firstname.lastname@example.org and follow him on Twitter: twitter.com/rdotinga.
Correction: This story has been corrected to clarify that the attorneys for the widow of Nesmith, not Davis, refused a deal with the county.