By Erin Sherbert
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Last April, San Francisco was home to the sort of ethical controversy that occasionally erupts when the priorities of journalists and cops collide. A San Francisco State University photojournalist working on a project in Bayview–Hunters Point found himself on the scene when one of his subjects, 21-year-old Norris Bennett, was shot dead during a dice game. Police tried to execute a search warrant for the student's pictures, but he argued that his work was protected under the state's Shield Law, which bars law-enforcement officials from forcing professional journalists to turn over unpublished material.
San Francisco Superior Court Judge Tomar Mason, who redacted the photographer's name from court documents because the student feared for his safety, agreed that the law applied. The photographs remained out of the hands of police investigators, and the student's identity stayed undisclosed. His success was trumpeted as a victory for the First Amendment. Just last month, the Society of Professional Journalists' local Freedom of Information Committee presented him with an award (anonymously) for his successful invocation of Shield Law privileges.
Yet it turns out that the photographer, Alex Welsh, lowered the shield some time ago. His name was not revealed by police, the judge, or even the San Francisco Chronicle in its coverage of the case, but he did choose to announce it himself — in the country's foremost student photojournalism contest. Based on his work in Hunters Point, Welsh — who no longer lives in the Bay Area — won the gold medal in the documentary category of the 2009 College Photographer of the Year awards. One of the images he submitted depicted Bennett's bloody body splayed on the ground while a police officer tried to give him CPR.
San Francisco homicide detectives said they have renewed their efforts to get Welsh to cooperate with the investigation into the murder after seeing that he had submitted the image, which is posted on the contest's Web site. "We're aware that the photo is on the Internet, and it's caused us to look at the case anew," SFPD Inspector Joe Engler said. No arrests in the case have been made. "It was always represented to us that there were no pictures — that they did not exist," Sergeant Gavin McEachern said.
Welsh declined to comment for this story. SF Weekly has decided to publish his name because he did so himself, in a prominent journalistic forum, in connection with an image of the murder victim. His documentary photography on Bennett and Hunters Point is also readily accessible online.
Michael Ng, the lawyer who represented Welsh in his successful effort to quash a police search warrant for his work, said his client had always acknowledged taking photos at the crime scene after Bennett was shot. "He in no way made false representations," Ng said. "The police knew all along that he was there after the fact." A motion Ng filed in the case asserts that while Welsh "resumed taking photographs" after police arrived, "there is no basis in believing, based on the police records, that [he] either saw or knows who shot Bennett." (Disclosure: Ng is a partner at the San Francisco law firm Kerr & Wagstaffe, which has represented SF Weekly in civil litigation.)
The issue of journalists' rights to avoid cooperating with law-enforcement proceedings in the manner expected of normal citizens has always been touchy. California's Shield Law is particularly strong, granting "virtually absolute protection," in the words of one court ruling cited by Ng, to those who can prove two things: that they are journalists and that their work has not yet been published. (Shield Law protections extend to freelancers.) In this case, the judge almost certainly made the right decision.
The trickier question is whether Welsh made the right decision — choosing to use a photograph of the gunned-down Bennett to advance his career, but not to advance police officers' efforts to solve Bennett's murder. Edward Wasserman, the Knight professor of journalism ethics at Washington and Lee University in Virginia, said journalists' conflicting obligations to the criminal-justice system and their own methods and sources have "always been very problematic" and not prone to simple moral calculus. "Is there some kind of moral rule you can apply? Probably not," he said.