By Lena Williams – Once again, a prosecutor wants to haul a reporter into court to testify at a trial saying it’s the only way the state can prove its case.
And, yet again, a court has sided with the government even though the judge hearing the case had decided against the state in an earlier ruling.
The case in question involves New York Times reporter Frances Robles’ jailhouse interview with a man accused of killing a toddler known as Baby Hope.
The defendant, Conrado Juarez, gave a videotaped confession to police admitting to the crime when he was arrested in October 2013. In an interview with Robles days later, Juarez acknowledged disposing of the child’s body but denied killing her.
The prosecution believes those two contradictory statements would likely confuse a jury. Prosecutors argued they need Robles’ notes and testimony to clear up the discrepancies in order to win the case.
In April, New York State Justice Bonnie G. Wittner, ruled that Robles could not be compelled to testify at a pretrial hearing on the case. In her decision, Wittner said the prosecution had not shown that its case would “rise or fall” on Robles’ testimony.
But on Aug. 5, Wittner reversed herself. She ruled that Robles must testify because her notes and testimony are “material, relevant and critical to the people’s case.”
So which is it?
One moment, the court appeared to believe the state had a strong enough prima facie case based on evidence from a voluntary videotaped confession, then the next the court finds that the state can’t make its case without the forced testimony of a reporter.
Justice Wittner seems to be hedging. She stayed the decision until an appellate panel in New York has a chance to review it, but predicted “they will confirm what I did.”
She may be right, due to a technicality in New York’s shield law provides “absolute protection” for information acquired off the record. The law only provides “qualified immunity” for reporters such as Robles because the source of the information is known and the information is not confidential.
That means that if the prosecution can persuade the judge that Robles’ testimony was “critical and necessary” to prove its case, she can be compelled to testify.
The lead prosecutor, Melissa Mourges, said in court papers that no scientific evidence, such as DNA, links Juarez to the crime, making his statements to Robles critical in proving to jurors that he had told the truth to police.
“Simply stated, the prosecution cannot succeed unless the jury accepts the statements as both voluntary and true,” she wrote. “This means the case virtually rises and falls on evidence surrounding all the statements Juarez made.”
I guess that means the jailhouse interview which ran in the Oct. 17, 2013, editions of The Times, along with three hours of a video confession and corroborating evidence from the victim’s body wasn’t enough for prosecutors to prove Juarez did it. They’ve got to compromise the First Amendment rights and ethics of a reporter because their case against Juarez is weak. Whose fault is that?
Even more disconcerting is that Judge Wittner, having weighed the very same arguments presented in the case by both sides, could reach such a dramatic difference in opinion in less than three months.
In April, Wittner quashed two subpoenas from the Manhattan district attorney’s officer ordering Robles to testify and to turn over her notes saying she was protected by the state’s shield law.
Now Wittner has concluded the outtakes of Robles’ interview, in which Juarez discusses the charges against him and his relationship with the victim, “are on their face highly material and relevant.”
“In a circumstantial murder case, evidence in which, standing alone, might appear innocuous can be deemed critical when viewed in combination with other circumstantial evidence,” Wittner wrote.
A lawyer for Ms. Robles, Kate Bolger, said she would appeal the decision immediately.
“This kind of subpoena interferes with the reporter’s ability to communicate news and the public’s right to hear it,” said Ms. Boger.
She said Ms. Robles remains hopeful that the appellate court will reverse the decision.
Wittner based her decision partly on a recent appellate division ruling in People v Bonie. In that case, an appeals court in Manhattan ordered a TV reporter for News 12 to turn over to prosecutors unaired footage of an interview with Nasean Bonie, a landlord, accused of killing Ramona Moore, a tenant. The ruling has been appealed to the state’s highest court.
Wittner relied on the Bonie opinion in deciding the Robles case.
“Here, the reporter described on air statements made by defendant in unaired portions of the interview to the effect that Ms. Moore was a good tenant and a good person who always paid her rent on time and was friendly with fellow neighbors,” Wittner said. “While these statements out of context might seem benign, the People argue persuasively that they are ‘critical or necessary’ to the People’s effort to prove motive, intent, and consciousness of guilt, since they contradict defendant’s earlier statements to police.”
According to Wittner, the circumstances surrounding the Robles case are similar to those in the Bonie case. However, she said she would limit the cross-examination of Robles by a defense lawyer.
“A wide-ranging examination of Ms. Robles concerning her reporting and interviewing techniques in general, other sources for her article, and questions about other crime stories will not be permitted,” Wittner wrote. “Questions directly relevant to her reporting of the defendant’s statements, such as those testing her memory and fluency in Spanish, will be allowed.”
That is of little to comfort to the growing number of journalists who have been subpoenaed by state and federal prosecutors for sources and information and threatened with prosecution or imprisonment for standing their ethical ground as members of a free press.
No one is arguing that journalists are above the law and should be granted license to violate the understood standard that a court is entitled to “every man’s evidence.” But journalists must be able to do their jobs without fear of state interference.
When reporters like Robles are forced to testify for or against a party, their credibility is harmed and their traditional roles as neutral watchdogs and objective observers is compromised.