The Subpoena

(Unpublished article intended for Harper’s Magazine)

By Peter Y. Sussman

Q: Have you been in discussions with any agent or publisher regarding a book regarding the media access to prisons issue?

Q. … Did you talk to anybody personally at the California Department of Corrections who was an employee or staff or officer of the Department of Corrections as opposed to an inmate to obtain the information in [your broadcast] report?

Q. Were you involved in any legislation that was carried during the prior term of the California Legislature by Senator Quentin Kopp?

Q. Do you know whether inmate Robert Woodard has a copy of [your] book Committing Journalism? …

Q. What paperwork have you seen [from this court case]?

Q. Have you written anything for Pacific News Service, whether published or not, regarding Governor Wilson?

Q. What plans do you have [to write about inmate Woodard] in the future?

Q. Have you ever read Games Inmates Play?

Q: Do you recall who interviewed you regarding that topic, media access to prisons, during 1996?

Q. … Have you read novels published by inmates as opposed to non-fiction works published by inmates?

Q. What is the subject of [your upcoming] book contract?

Q: Are you involved in lobbying for or supporting any of that legislation [regarding inmate-specific interviews within the California Department of Corrections]? … In what capacity are you involved in lobbying for or supporting that legislation?

Q: Do you have a deadline with Harper’s for any article?

“Yes” to the last question. This is that article.

It is not the article I set out to write – that article appears elsewhere on these pages – nor was it written by the originally contemplated deadline, because along the way I was subjected to 14 hours of deposition by the California Attorney General’s Office – excerpted above – as well as two subpoenas and months of threatened legal actions.

In the second, four-page subpoena, filed in conjunction with a prisoner’s lawsuit for violation of his civil rights, the state “commanded” my “Custodian of Records,” whoever that is, to hand over “any and all correspondence, contracts, and documents regarding any contract with any magazine, including but not limited to Harper’s Magazine, regarding an article or articles or story or stories concerning media access to prisons in which Peter Y. Sussman is involved in any capacity whatsoever.”

In case there was any confusion, the state went to the trouble of defining “documents”:

“… writings [including] without limitation, all written, typed, printed, drawn, charted, recorded, graphic, photographic, or otherwise preserved communications including any letter, correspondence, note, book, pamphlet, article, bulletin, directive, review, publication, memorandum, diary, log, test, analysis, study, projection, check, invoice, receipt, bill, purchase order, shipping order, contract, lease, agreement, work paper, calendar, envelope, paper, telephone message, tape, computer tape, computer disc, computer card, recording, videotape, film, microfilm, microfiche, drawing, account, ledger, statement, financial data, electronically transmitted, received, or stored communications, and all other writings or communications … “

That was just the beginning of what my presumably beleaguered Custodian of Records was “commanded to produce” from my personal files.

It was, one attorney told me, “a subpoena that would have made Joe McCarthy proud.”

People I consulted about my predicament detected echoes, too, of Kenneth Starr. But I felt less like Webster Hubbell than the befuddled Josef K., from Franz Kafka’s novel The Trial.


[W]ithout knowing the nature of the charge and all its possible ramifications, his entire life, down to the smallest actions and events, would have to be called to mind, described, and examined from all sides.
[The Trial]


As the subpoenas grew in length and detail — and as one deposition of three-plus hours led to another of more than 10 hours — I felt at times as if I were caught up in a grotesquely exaggerated case of mistaken identity. “Oh,” I dreamed of saying in still another deposition, “HIM? Actually, I’m the OTHER Peter Sussman.”

Indiscriminate document demands on journalists are usually targeted at unpublished information from past reporting. But with the Harper’s clause I was also being ordered to provide sources, notes and other editorial information gathered for an upcoming article.

The state’s actions against me were part of its representation of various employees of the California Department of Corrections who had been sued by convict Robert (Boston) Woodard, formerly of the California Men’s Colony (CMC) in San Luis Obispo. Woodard had been fired as editor of the CMC newspaper, confined to quarters and punished in other ways, he claimed, because of a letter he sent to a journalist.

In addition to my Harper’s-related documents, the state’s attorneys demanded that I hand over whatever I had on the plaintiff and defendants. But the subpoena wasn’t confined to my work as a journalist; they also wanted a raft of documents related to my activities as a citizen.

My mythical Custodian of Records was ordered to produce “each and every document in its possession, custody, constructive custody or control regarding or relating to Peter Sussman’s correspondence, press releases, public statements, newspaper clippings and other documents [see definition above] regarding Sussman’s opposition [emphasis added], either as an individual or as an officer or former officer of the Northern California Chapter of Professional Journalists [sic] to proposed changes to Title 15, California Code of Regulations sections …”

I had once co-authored with prison writer Dannie Martin a book entitled Committing Journalism. Now, it seemed, I was suspected of committing democracy as well.

I had indeed opposed the 1996 California prison regulations (in Title 15) restricting the news media’s ability to interview specified prisoners – regulations that figured in Woodard’s lawsuit. The state’s interview restrictions had been issued during my watch as president of the Northern California chapter of the Society of Professional Journalists, the nation’s largest and oldest association of journalists. In that capacity, I had testified a number of times before the California Legislature and the Office of Administrative Law, seeking to overturn the regulations.

“Is it okay for me to ask the relevance of my political activities to this case … ?” I asked Deputy Attorney General Jane Catherine Malich at one particularly frustrating point during a daylong deposition, when she asked me about my activities on behalf of a bill then in the Legislature. Her question, I told Malich, “seems to interfere with the right to petition government by chilling criticism of government.”

Woodard’s attorney, David Newdorf, had a succinct assessment of the importance of that line of questioning: “The legislation could pass or fail and it would have no relevance to this case.”

In hour after hour of depositions in a stuffy, windowless conference/storage room in a downtown San Francisco highrise, I was barraged with questions about what I considered to be my personal life, for reasons that no one chose to divulge to me. On several occasions I was asked about the code of ethics of the Society of Professional Journalists, which I had helped to draft several years earlier, and once, specifically, about a Maryland journalism professor’s critique of that code, as reported in Editor and Publisher. The trade journal had solicited my reaction to the professor’s comments, but the Attorney General’s Office had misunderstood the article as a critique of my role.

I suppose one can be forgiven for misreading a journal article, but even if properly construed, the Editor & Publisher article and the questions based on it had nothing whatever to do with the court case that occasioned them. I can only surmise that such questions on supposedly derogatory information were designed, at the very least, to let me know that my activities (nudge, nudge) were known to the government.


“That’s the Law. What mistake could there be?” “I don’t know that law,” said K. “All the worse for you,” said the guard. [The Trial]


The intense interest in misconstrued and non-germane aspects of my career would have been laughable but for three considerations:

• I was well into the kind of subpoena process that had led to jail for at least 14 of my American journalism colleagues over the past decade and a half;

• Defending myself took me away from professional endeavors for months;

• And joking was verboten, as I was warned repeatedly during my droning hours of interrogation.

Underlining the deadly earnestness of the government’s hold on me, Malich repeatedly accused me of wasting her time in depositions that I had been ordered to attend. Any momentary relief from the drumbeat of her questions was taken as a sign that I was undermining the gravity of my inquisition. With schoolmarmish sternness, Malich repeatedly warned me to refrain from any expression of humor. “No joking on my time here,” she cautioned at one point. On another occasion she asked solicitously, “Do you want to take a break? You’re joking a lot.” And again: “I’m going to charge you for the transcript cost of these jokes if you don’t watch out.”


“Now there you go again. … Good heavens!” said the guard, “you just can’t accept your situation; you seem bent on annoying us unnecessarily.” [The Trial]


Total compliance with the subpoena would have been well nigh impossible, even if I were inclined to comply – and I was not. Although by profession an editor and writer for more than 35 years, I could neither comprehend nor parse all of the demands for my documents. Consider the order to produce “… any and all documents, including but not limited to drafts, amendments, superceded versions, edited and final versions of said documents, including but not limited to any and all contracts Peter Y. Sussman has entered into with any … lawyer, law partnership, law corporation or … law firm … from January 1, 1989 to date including but not limited to contracts for legal services …”

Let’s see: Contracts with lawyers and law firms – but not limited to contracts. And other “documents” (that pesky word again!) that I had “entered into” with lawyers over the past 10 years. What does that mean? Maybe diary entries about lawyers? Ten years’ worth of phone bills that list calls to attorneys’ numbers? Address book listings for lawyers?

As the dispute played itself out to increasing public attention, I came to realize that no speculation on my part could exaggerate the invasiveness of the demands made upon me. In the course of discussions to try to resolve the impasse over my subpoenas, my pro bono attorney and guardian angel, David Durant, called the government’s attention to the 46 linear inches of shelf space devoted to my books on prisons. Presumably, he explained, those books could be considered background material for any article I wrote on prisons, and thus were subject to the subpoena. We were told that compromise was possible on the books. No surprise there — surely the Attorney General’s Office had no conceivable use for cartons of my books. But the compromise they were contemplating did not involve forgoing my book collection entirely. We were informed that all they really needed were copies of the pages I had annotated – the marginal notes!

It was my mind they wanted, not my books.

The demands from the California Attorney General’s Office, issued in conjunction with a civil lawsuit to which I was not a party, illustrated in a first-hand, fist-to-the-gut way that the often unforeseen difficulties of reporting on prisons extend beyond the bureaucratic evasions and petty obstacles that numerous reporters had described during my research for Harper’s. To a freelance journalist without institutional affiliation, demands such as those made on me can add up to thousands of dollars in lost work time and legal fees.

“Do you have any other deadlines for [writing] commitments within the next two to three months?” Malich asked me during a deposition. One reason for this question was to ascertain when I would be “free” to devote all my time to satisfying the government’s insatiable demands for my personal and professional papers, beginning with so-called “privilege logs.”

Through the effective (though belated) personal intervention of newly inaugurated California Attorney General Bill Lockyer, my subpoena was finally withdrawn as part of an agreement hammered out minutes before a scheduled court hearing. Pending at that hearing was a government motion to compel me to produce the privilege logs, which would have entailed my personal review of thousands of pages of my documents in scores of files and boxes, in addition to many megabytes of computer records and hundreds of hours of tape recordings, including numerous interviews with my sources. I would have been required to catalogue all the documents and list the privilege I was claiming for not producing each tape, piece of paper or computer file. Conservatively, it would have been a months-long task – uncompensated, of course.


“… you’ve misunderstood me; you’re under arrest, certainly, but that’s not meant to keep you from carrying on your profession. Nor are you to be hindered in the course of your ordinary life.” [The Trial]


No journalist could in good conscience hand over to the state documents such as those I had been ordered to produce. These were editorial records – many related to confidential sources – and thus protected under the First Amendment guarantee of a free press. “Confidential sources” may sound like a meaningless professional scruple to non-journalists, but the issue is in no way theoretical to the prisoners and others who risked retribution — possibly years more of incarceration — for telling me about various abuses they had seen or experienced in prison. Informants in government agencies are also highly vulnerable, facing incalculable damage to their careers and livelihoods.

Furthermore, it is difficult to imagine how I — or any other journalist — can explore the policies of a governmental agency while attorneys for that agency are sifting through my papers, including the contract setting forth the mandate for the very story for which I am interviewing that agency’s officials.

As the legal noose tightened, Deputy Attorney General Malich also sought the court’s leave to serve a subpoena on one of my online service providers for documents by me and others that “Mr. Sussman did not produce.” Included in the motion – also pending before a judge at the time the settlement was finally reached – was a demand for all “documents from ‘The Well’ which [Sussman] had posted, e-mailed, received or read relative to the topics specified in the subpoenas served on him and his Custodian of Records …” I was apparently expected to become the state’s agent in downloading and turning over not only my own years-old musings, but discussions by others that I had “read” on the WELL community’s free-swinging forums. The discussions in question were about media access to prisons, but they could as well have been about abortion, religion, politics or any other issue of private interest or public policy. I had naively believed that such discussions were none of the government’s damned business. I am told that others on the WELL share my belief.

Malich claimed that the state had a “critical” need for those discussions to fulfill its responsibilities in representing its clients. As she explained in court papers, “E-mail messages, message board postings, discussions and similar materials from ‘The Well’ are either directly admissible evidence or are reasonably calculated to lead to the discovery of admissible evidence because they discuss the subject matter of this litigation, discuss and describe facts and evidence, and may lead to the discovery of additional witnesses who have evidence bearing on the case.”

The clear message for other citizens is: If you value your privacy, you are advised to refrain from discussing “the subject matter” of governmental actions that may later become the focus of litigation.


“Most defendants are so sensitive,” said the court usher. [The Trial]


How, in the words of Newdorf, had I become the “lightning rod” for a legal case in which I was, at best, “a peripheral witness on some minor issues of fact”? The attempt to understand the reasons for a subpoena such as mine resembles the Cold War art of Kremlinology. It entails speculation based on subtle textual clues. But the difficulties cannot be allowed to preclude analysis. A little history:

Woodard’s lawsuit challenged his conviction in a prison hearing for attempting “to circumvent CDC policies regarding media interviews” – specifically, the department’s new restrictions on media interviews that were being enforced informally, without official announcement, months before they were submitted for the customary administrative law rule-making review. Department of Corrections Assistant Director Tipton C. Kindel was later to say in a court declaration and in an interview with me that at the time of Woodard’s infraction there was no policy to freeze face-to-face interviews by “traditional” news media. But Kindel and other prison officials had previously acknowledged that, in his words, “informally this policy had been in place for several months prior to the actual filing.” Woodard was specifically accused of “circumventing” his prison public information officer’s “verbal” explanation of this policy during the time before it was codified.

The convict’s circumvention consisted of sending a letter to a journalist friend who wished to conduct an interview at his prison. In his letter, Woodard suggested a way of arranging for an interview that he understood to be legal, and he referred the journalist to the prison’s public information officer, giving her name, phone number and office hours. The letter was mailed openly, though rules in existence at the time permitted him to send it confidentially. This is hardly the surreptitious behavior one would expect of a hardened “circumventer.”

The policies that Woodard was said to have circumvented were nowhere written down at the time. “My understanding is it doesn’t have to be in writing,” J.P. Tremblay, the assistant secretary of the Youth and Adult Correctional Agency, said. The basis of my published support for the inmate had been my own understanding that one can’t violate – or even “circumvent” – a policy that is not written down, much less duly promulgated. I had also argued that the “unpolicy,” as it was later published, governed the department’s behavior and not the inmate’s. In other words, the department’s decision that it would not approve face-to-face media interviews with specified prisoners could not be violated by a prisoner’s letter to a journalist suggesting ways of arranging an interview that he understood to be legal under the unwritten rules.

The suspicion lingers, at least in Woodard’s mind, that his infraction was more directly related to his comments in the prison newspaper he edited, opposing the new media interview restrictions. Woodard’s commentary quoted from a press release I had issued on behalf of the Society of Professional Journalists. My name had also cropped up in a letter Woodard wrote to a prison official – without my knowledge or authorization, and before I knew him. If the Attorney General’s Office was confused about the use of my name by others, and if that helped to explain my subpoenas, its confusion could have been cleared up with about two questions in my first deposition, which I attended willingly and without counsel.

At various times, the Attorney General’s Office implied that the demands made on me were based on the supposition that I would become an expert witness for the plaintiff at trial. And yet, not only was I never asked to serve as an expert witness, but the date for naming such witnesses had long since passed by the time of my second, more extensive deposition and the issuance of my expanded document subpoena.

Another rationale for the demands was that I had been designated by the plaintiff’s attorney, Newdorf, as an unpaid “consultant” who had briefed him on the background of some of the media access issues that figured in the lawsuit — as I had briefed scores of other attorneys and journalists who called me because of whatever expertise I had acquired on the subject. The “consultant” tag is an accepted device to shield an attorney’s legal strategy from a courtroom opponent. The state’s attorneys were free to ask me the about the same information on which that the plaintiff’s attorney had sought my insights. The rules governing discovery precluded questions only about the specifics of Newdorf’s interest, not my information. Nevertheless, in the middle of one deposition, Newdorf waived his consultant prerogative, allowing Malich to ask me about the questions he had posed to me. That, presumably, ought to have eliminated my “consultant” designation as a justification for the continuing demands for access to my files; it did not. Malich asked very few questions on the substance of my knowledge of media access regulations, appearing to lose most of her interest once Newdorf suspended his objections.

A final – and murkier – reason for my grilling seemed to be Malich’s suspicion that there was also some kind of journalistic conspiracy to “circumvent” the prisons’ media interview rules. I and the Society of Professional Journalists apparently were suspected of being among the putative co-conspirators. Such suspicions were illustrative of – and perhaps shaped by – the toxic cloud of suspicion that hangs over so much of prison-media relations in California and elsewhere.


[I]n the course of the defendant’s interrogation, the individual points of the indictment and its basis emerge more clearly, or may be surmised. [The Trial]


Other journalists who had written about the interview restrictions were also suspect, though they weren’t subpoenaed. Page after page of my transcribed depositions are devoted to Malich grilling me about various colleagues, including Michael Taylor, whose December 1995 story in the San Francisco Chronicle first made public the informal policy halting in-person media interviews with specified prisoners:

Did I know Michael Taylor? Did I supervise Michael Taylor when I was an editor at the Chronicle? Did I edit any of his work? Who is Michael Taylor? Does he have a specific beat? What was his assignment in late 1995? Did I have any contact with him in 1995? Is he a member of the Society for Professional Journalists’ Northern California chapter? Did I discuss his Dec. 28, 1995, article with him or any other member of the Chronicle staff during the month of December? How about during 1996? With whom did I discuss it? Did I recall what sources he quoted in his article? Did he talk to people in Sacramento for his story?

A similar series of questions sought to elicit the nature of my relationship with Pia Hinckle, at the time the managing editor of the San Francisco Bay Guardian and another journalist who had written extensively about the media restrictions, as well as about Woodard’s charges.

The network of suspected journalistic conspirators apparently extended to Newdorf himself, who had been a reporter before becoming a lawyer and still did occasional articles for legal publications. “Are you aware of Mr. Newdorf’s other career?” Malich asked me coyly in one deposition. And: “Have you ever seen an article written by Mr. Newdorf involving a prisoner?” And again: “Have you ever seen any writing done by Mr. Newdorf other than as a lawyer?”

“The fact that I am a former journalist seems to be very alarming to them,” Newdorf told me later.

One fear seemed to be that I, acting in concert with Newdorf, would disclose information that he had acquired in the lawsuit’s discovery phase. Rub two journalists together and what do you get? Questions like these:

Q. Have you received any discovery responses?

Q. Was it your understanding in May of ’98 that you would have access to the content of the discovery?

Q. Have you discussed in any fashion whatsoever with either Mr. Newdorf, [his associate] Mr. Reardon or anybody else from their firm any of the materials, using that term in its broadest senses, which have been produced in response to plaintiffs’ request for production in this action?

In a letter to Newdorf, Malich expressed concern that I or Newdorf, rather than reveal privileged information directly, would use that information to elicit confirmation from third parties and then publish it. In another letter, she claimed that his and my journalistic roles were reason to deny government documents to the plaintiff that he would otherwise have been entitled to.

Such exaggerated efforts to protect official secrets are especially common in prisons, where some administrators appear to grow accustomed to absolute authority and quasi-military loyalty, in an often isolated physical setting. Woodard’s lawsuit revolved around the prisons’ sensitivity to the news media, and the process of litigating that lawsuit mirrored the circumstances that led to it.

It’s a comforting irony that the government that fought so hard for access to a citizen’s personal and professional papers would be so prickly about revealing its own (public) documents.


[A]t times .. he found consolation in the most trifling and, what is more, equivocal incidents … [The Trial]


Normally when there is excessive interest in keeping government information secret, one wonders what secrets administrators are trying to conceal. In this case, it is purest speculation:

Is it possible that the Department of Corrections was afraid that it would be compelled to reveal in discovery some of the real reasons it acted to restrict the access of journalists to prisoners? Surely many of the reasons officials had listed in proposing the regulations were so far-fetched that they strained credulity.

Malich several times acknowledged that one of her concerns was that information I received through discovery would be used to further legislation in Sacramento to overturn the media interview restrictions. In other words, the Legislature might learn information that had been closely held by the Department of Corrections. Apparently, there is something wrong with that.

The concern about my future writing extended beyond the potential publication of court documents. And, of course, government questions about the content of future writings naturally raise fears of prior restraint.

Q. Does your contract with Harper’s magazine specifically reference inmate Robert Woodard aka Boston Woodard?

A. No, it specifically relates to media access to prisons.

Q. Including the California Department of Corrections? …

Q. Do you contemplate more than one article [about Boston Woodard]? …

I was interrogated, too, about my government and prisoner sources, whom I refused to divulge. Often back-door questions were used to get me to “name names”: Have I published any articles on Donovan Correctional Facility, and if so which inmates did they mention by name? For which inmates am I an approved visitor (information already available to the Department of Corrections, which must approve prisoners’ visitors in advance)?

Newdorf later summed it up for me: “The only thing that makes sense to me is that defendants in this case and their counsel were extremely curious as to what you had written, what you were writing and what you may write in the future about the state prisons.” And besides, he added sardonically, “They don’t have the opportunity to subpoena journalists every day.”


“What I seek is simply a public discussion of a public disgrace.” [The Trial]


As part of her interrogation, Malich asked me “whether there is an ethical duty on a journalist to avoid reporting or covering a news event in which you personally participated or which you personally organized or which you personally took part in as a participant.” It was a curious question inasmuch as it didn’t seem to relate to the legal case. Law was at issue in Woodard’s punishment, and not reportorial ethics. Was Malich alluding to the journalist who had been seeking Woodard’s advice about how to set up an interview? Or was the question perhaps a veiled warning to me?

The Constitution, of course, does not guarantee press freedom only to wallflowers. There is a rich tradition in this country of what we now sometimes call advocacy journalism and sometimes just plain commentary, going back to John Peter Zenger and Tom Paine, whose activities were partially responsible for the fact that we have a First Amendment. Zenger’s history is especially apt since he dictated stories through the door of a jail cell.

But beyond that, it is one of the uncomfortable ironies of reporting on “secret places” like prisons — where only the government has the keys to information that may call into question that government’s own actions — that the very attempt to gain access to the information or to the institution that is concealing it can turn the journalist into a participant, opening to challenge his or her subsequent reporting. The main recourses left to the writer caught in such an ethical Catch-22 are to report the story as legally, accurately and fairly as possible and to acknowledge openly any involvements that might unwittingly have colored his or her reportage.

I have made no secret in my writings that on a number of occasions – as a professional writer, an editor and a chapter officer of the Society of Professional Journalists – I advocated for easier access to the prison stories that I and others were trying to report. My advocacy began in 1988 with federal prisoner Dannie Martin’s punishment for an article of his that I had published in the San Francisco Chronicle. In that and other instances, the slippery slope to participation was not always within my control. When the State of California’s subpoenas placed me in jeopardy of going to jail, self-preservation certainly dictated a more active kind of advocacy.

Brushes with censorship can even help writers to understand the nature and significance of the obstacles they encounter and thus inform their coverage. Subpoenas, for example, have a way of concentrating the mind – and educating the recipient.

I cannot accept that the personal experiences that brought prison censorship issues to my attention and helped me to understand their ramifications would disqualify me from reporting on them. As one crime-beat reporter told me in an interview about his own reporting, “My notion would be that if the Department of Corrections and the Federal Bureau of Prisons exercise the same diligent ethics that I do, then we would not be in this situation.”


“[D]on’t make such a fuss about how innocent you feel; it disturbs the otherwise not unfavorable impression you make.” [The Trial]


I owe the quashing of my subpoena, finally, to two forces that proved equal to the government’s challenge – the power of an aroused journalism community, which came galloping to my support with eloquent and thoughtful columns and editorials, and the dedication of conscientious lawyers, especially David Durant, of Crosby Heafey Roach & May in Oakland, who spent many hours defending me because it was the right thing to do, even without any expectation of compensation.

Attorney General Bill Lockyer played a role too. Lockyer came into office long after the attorneys had begun jousting in the Woodard lawsuit. He brought with him a reputation as a civil libertarian, and he was said to have been embarrassed by the beating he took in the press because of my subpoenas. Although I and the press saw Lockyer’s name listed at the top of legal briefs and court motions directed against me, it was the attorney general who finally broke the logjam in his department and facilitated a settlement.

Down at the trial level, Malich tried several times during my depositions to reassure me about her own intentions. “I would hope that you would understand that I am not motivated by any improper motive,” she said at one point. And again: “… it’s certainly not any sort of intent to chill or interfere with Mr. Sussman’s First Amendment rights or his professional duties, obligations, etc., but in terms of defending a lawsuit.” In the course of the increasingly public dispute, spokespeople for the Attorney General’s Office also cited the responsibility to vigorously defend their clients.

The federal Department of Justice has adopted guidelines to assure that “the prosecutorial power of the government should not be used in such a way that it impairs a reporter’s responsibility to cover as broadly as possible controversial public issues.” The guidelines cover tactics such as subpoenas. In a state that has no such safeguards, somehow, despite attorneys’ stated intentions, I believe that “prosecutorial power” was allowed to run amok, as it so often will in the absence of codified constraints.


“I’ve been accused of something but can’t think of the slightest offense of which I might be accused. But that’s also beside the point, the main question is: Who’s accusing me? What authorities are in charge of the proceedings? Are you officials? No one’s wearing a uniform ….” [The Trial]


Did the Department of Corrections decide to use the pretext of a lawsuit to go after a critic of its media policy, or was there perhaps something in the culture of the Correctional Law Section – the branch of the Attorney General’s Office that defends the Department of Corrections — that predisposed it to such abuses? Much of the section’s workload is to defend against prisoners’ lawsuits, many of them file without the aid of attorneys. Was I simply being treated as the Criminal Law Section had become accustomed to treating prisoner-litigants?

“Oh no,” says Catherine Campbell, an attorney who represents prisoners and their families. “They’re not treating you as they treat prisoners. You’re worse – you’re the media.”

Campbell claimed that the Department of Corrections had “institutionalized litigation” and even turned it to its own advantage. “They have made that part of their bureaucratic business. And the only thing that really is outside the scope of the ordinary course of business is the media. … They panic when the press is involved. They panic like an animal in the night. Really, they do. And they go nuts. And they circle around the press as if you were their major vulnerability and as if you had a firm grip on the jugular.”

Campbell’s colorful theories are informed by her experiences but ultimately as speculative as my own.

They are, however, shared by Newdorf, who told me, “It’s very clear that they are paranoid – there’s no other word for it – about what is going to be written about this case, or what may be written about this case.”


“But how did it happen? …These things don’t happen all at once, they build up over a long period of time; there must have been some indications … ?” [The Trial]


Nathan Barankin, Lockyer’s spokesman, assured the Associated Press that the agreement to quash my subpoena “in no way limits our ability to defend the Department of Corrections” against Woodard’s suit.

“It was never the attorney general’s intent or the department’s intent to chill speech,” Barankin told the AP reporter, who then asked the spokesman how that statement “squared with Sussman’s deposition and subpoena.”

The attorney general’s spokesman replied, “I think there are a lot of things that occur during the course of litigation that defy explanation.”


“We’re talking about two different things here, what the Law says, and what I’ve experienced personally; you mustn’t confuse the two.” [The Trial]