Once a Felon, Is Man Now a Victim?

Steven Gates figured his criminal past was so far behind him that his friends and colleagues would never learn of it. He was married, lived in a prestigious neighborhood in San Bernardino County, attended church regularly, had built a successful career in sales and owned a business with his wife.

Then came the breathless phone call from his mother one night: You are on the Discovery Channel, she told him.

Gates switched on the TV and discovered that all his efforts to put his past behind him had been in vain. “I was horrified,” Gates said in an interview. “I almost threw up.”

His name and photograph were shown on a program about a 1988 San Diego murder for hire in which Gates had pleaded guilty to being an accessory after the fact. The hourlong episode was aired several times.

Gates filed an invasion-of-privacy lawsuit but has not yet been permitted to take it to trial. In a ruling expected soon, the California Supreme Court will decide whether ex-felons like Gates are entitled to privacy when their crimes occurred long ago and they have fully rehabilitated.

“Gates is a man whose last offense took place ... years before, who has paid his debt to society and who has friends, family and co-workers who were unaware of his early life,” said Niles Sharif, Gates’ lawyer. “Gates has assumed a position in respectable society.”

The news media and the entertainment industry, siding with the Discovery Channel, have warned that stories based on old crimes might not be written or produced if their subjects can recover big jury awards for loss of privacy.

If so, their lawyers said, such movies as “Goodfellas,” about the true story of a mobster and FBI informant, and “Boys Don’t Cry,” based on the 1993 murder of Teena Brandon, might become vulnerable to lawsuits.

“The important societal interest in rehabilitating former felons is served in better ways than by muzzling the media and their fellow citizens,” said Louis P. Petrich, a lawyer who is representing Discovery Communications Inc., which owns the Discovery Channel.

Gates said he lost clients after the television show was broadcast. His wife also lost clients in the beauty salon the couple owned together. Worse, Gates said, was the anxiety he felt wondering if people he knew believed, wrongly, that he was involved in a killing.

“You just don’t know who is looking at you and who is judging you because of what this show reported,” said Gates, 51.

Last year, a San Bernardino County judge awarded Gates a certificate of rehabilitation, recognizing his rehabilitation and restoring his legal rights.

The show that unveiled Gates’ past was an episode of “The Prosecutors,” which reenacted crimes using the names of victims and perpetrators and included interviews with investigators and prosecutors.

The episode, “Deadly Commission,” dealt with the murder for hire of Salvatore Ruscitti, a car salesman who was shot in the head in the doorway of his San Diego County home on Sept. 17, 1988. Ruscitti’s wife and grandchildren were just steps away.

Will Nix, who owned an auto dealership in Pomona and employed Gates as an assistant manager, eventually was convicted of hiring a Mexican hit man, who has eluded police, to kill Ruscitti. Authorities said Nix wanted Ruscitti dead because he had initiated a class-action lawsuit accusing Nix’s mother and stepfather of fraud at a car dealership they owned and at which Nix once worked, according to court records. Nix feared the litigation might force his parents into bankruptcy.

It took police years to crack the case, in part because Gates initially refused to testify about his boss. Gates said Nix told him after the killing that he had ordered it, but one of Nix’s associates threatened to kill Gates’ wife and parents if he told police what he knew. Gates had no criminal record.

Police initially charged Gates with conspiring in the murder. Gates said he had to hire a battery of lawyers and private eyes to prove that he had not been involved in the killing.

“Otherwise I would have gone to jail for the rest of my life for something I didn’t do,” he said. “They came after me with deal after deal after deal. I said no.”

Finally, he was asked if he would testify against his boss and plead guilty to being an accessory after the fact. Am I an accessory after the fact? Gates said he asked his lawyer. The lawyer replied that he had “hedged” before a grand jury and could honestly plead guilty to the charge.

Gates was sentenced in 1993 to three years in prison and served 17 months, the last four on a work furlough. After his release, he worked hard to rebuild his life, he said. He sold jewelry for a while, worked as an office manager for a friend and finally found a job in the fastener industry, selling nuts, bolts and screws, and became a certified fastener specialist.

“I tried to live a life of anonymity,” Gates said. “I went to church. I did what a person was supposed to do after he was rehabilitated.”

“Deadly Commission,” which first was broadcast on Feb. 13, 2001, falsely implied that Gates had been a conspirator in the murder, Gates said. He called a lawyer, who contacted Discovery and threatened a lawsuit if the episode were shown again. It was broadcast several times, and Gates sued.

Gates initially claimed defamation as well as invasion of privacy, but a judge ruled that the gist of the show had been accurate, a finding that Gates still disputes. A trial judge permitted Gates to proceed with his invasion of privacy claim. A Court of Appeal in San Diego overturned that decision, and Gates appealed to the state high court.

Gates’ lawsuit relies on a 1971 California Supreme Court precedent called Briscoe vs. Reader’s Digest Assn. In that case, Marvin Briscoe sued Reader’s Digest for including him in a 1966 article about truck hijackings. The article failed to note that Briscoe’s crime had occurred 11 years earlier.

The California Supreme Court, in ruling for Briscoe, said articles about past crimes deserve less 1st Amendment protection than stories about current events. The court concluded that there was a strong public interest in protecting the identities of rehabilitated felons.

During a hearing last month on Gates’ case, several California Supreme Court justices expressed sympathy for Gates but observed that the U.S. Supreme Court had clarified the law to the benefit of the media since the Briscoe decision.

In particular, the justices cited a 1975 high court ruling in Cox Broadcasting Co. vs. Cohn. A court clerk in Georgia had permitted a reporter to see an indictment in a rape-murder case. The reporter broadcast the victim’s name in violation of a Georgia law.

The victim’s father brought an invasion-of-privacy suit, but the high court ruled that the media could not be liable for truthful publication of information obtained from public judicial records.

Lawyers for news media, including the Los Angeles Times, have argued that the Briscoe decision “continues to chill the work of documentarians, librarians, historians and the press, who are forced to self-censor their publication of information” from public records.

The Motion Picture Assn. of America which also opposes Gates, contends that the entertainment industry also must be protected from suits like Gates’.

“The motion picture industry has for decades used publicly available records to create countless and often classic motion pictures and television program,” the industry’s lawyers said in written arguments to the court.

Gates’ lawsuit argues that rehabilitated felons should not be haunted by the past. Gates was no longer a public figure when the show aired, his lawyer said, and no one from the show ever attempted to contact him to check for accuracy.

But during the court’s hearing on Gates’ case, California Chief Justice Ronald M. George expressed reservations about permitting a jury to determine what is newsworthy and protected by the 1st Amendment’s guarantee of free speech.

“Jurors may have different views about the 1st Amendment,” George said. He said some polls have shown that large numbers of Americans disagree with parts of the Bill of Rights.

Lawyers for Discovery argued that high courts in at least three other states have rejected the holdings of Briscoe and ruled for media. They cited a recent ruling in Idaho that dismissed a lawsuit over a newspaper’s publication of a story about a 40-year-old court document that stated the plaintiff had engaged in homosexual activity.

In Gates’ case, Discovery’s lawyers argued, “the hit man is still at large and his procurer [Nix] was sentenced to a life term with no possibility of parole. The case continues to be a matter of public interest.”

Sharif, Gates’ lawyer, said he expects the case to reach the U.S. Supreme Court eventually.

If Gates loses, “all these reality shows are basically going to be given free rein,” he said. “It will be open season on people who have been convicted of crimes.”