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New York court order to handover materials challenged

The headstone of Baby Hope bears her real name, Anjelica Castillo, on 14 October 2013, in the Bronx borough of New York
The headstone of Baby Hope bears her real name, Anjelica Castillo, on 14 October 2013, in the Bronx borough of New York

AP Photo/Bebeto Matthews

This statement was originally published on freemedia.at on 22 August 2016.

A New York Times reporter should not be forced to handover materials about her jailhouse interview with the suspect in the 1991 murder of a toddler long known only as "Baby Hope", nearly 60 news media outlets, journalists' associations and press freedom defenders said last week.

Supporting Frances Robles' appeal of a court order, the organisations, including the International Press Institute (IPI)'s North American Committee, argued in an amicus brief that journalism would be hindered and the public would suffer if New York's Shield Law was weakened to allow routine, compelled disclosure of non-confidential, non-published information.

A Manhattan court early this month ordered Robles to surrender unpublished notes and testimony regarding her interview with Conrado Juárez, 55, who argues police coerced his 2013 confession to the rape and murder of Anjélica Castillo. Juárez, Castillo's cousin, recanted days later, telling Robles that he only helped his sister, with whom the child lived, dispose of the body.

Castillo's remains were found in 1991 in a cooler off an exit from the Henry Hudson Parkway. Nicknamed Baby Hope, her death was never reported to police and her name remained a mystery for 22 years until an anonymous tip helped police identify her in 2013. Juárez was arrested shortly thereafter.

New York's Shield Law generally protects unpublished materials that journalists gather in the course of reporting, even if no promise of confidentiality was made. However, journalists can be compelled to testify or handover materials that are "highly material and relevant" and "critical or necessary" to a party's claim if the information they contain is not obtainable from another source.

Prosecutors, noting the lack of scientific evidence tying Juárez to the crime, had argued that his statements to Robles corroborate details of the crime and are needed to show his confession was neither coerced nor fabricated. But Robles' attorney countered that Juárez's three-hour, videotaped confession, as well as other corroborating evidence, plus the fact that he did not confess in his interview with Robles, made the journalist's materials unnecessary.

Robles appealed and the organisations supporting her as amici contended that a "robust interpretation" of the Shield Law's protection of non-confidential information was "critical to the news media's ability to inform the public". They argued that allowing the order to stand would threaten journalists' ability to gain the trust and confidence of sources, and risk journalists being seen as an investigatory arm of the government.

The organisations predicted that journalists, who often report on issues that end up litigated, could be overwhelmed with subpoenas, preventing them from actually doing their work as they used valuable time to respond or appear in court. They also said courts "should be especially sensitive to the need to protect non-confidential information" from jailhouse interviews because they "are critical to the news media's ability to inform the public on crime, trials, and prison conditions".

IPI Executive Board Member Marty Steffens, a Society of American Business Editors and Writers (SABEW) endowed chair at the University of Missouri and the head of IPI's North American Committee, said that "when police and the courts force journalists to turn over notes and testify against criminal defendants, it ultimately damages American society".

She added: "The press has an important role as an independent observer of police and the justice system. Forcing journalists to, in effect, do the work of police and prosecutors makes journalists just another arm of law enforcement. Recent events are yet another reason why journalists must remain free to cover criminal offenses without threat of being forced to testify or turn over notes of interviews. We must stand firm on this issue as a check and balance on the justice system."

The Robles case is just one of a number of recent cases implicating journalists' ability to protect non-confidential, non-published information. Earlier this year, an Army prosecutor threatened to subpoena hours of recordings of telephone conversations between journalist Mark Boal and accused Army deserter Sgt. Bowe Bergdahl. Portions of those conversations were used in the second season of the podcast "Serial", which focused on Bergdahl's time as a Taliban hostage.

In a second case involving New York's Shield Law, a trial court in July ordered a Bronx cable television news station to surrender unaired segments of an interview with Nasean Bonie, a former building superintendent accused of killing a tenant amid a rent dispute. Bonie was convicted without use of the footage while the order was challenged, bolstering criticism of prosecutors' efforts. However, an appeals court upheld the order and The New York Times reported that the decision has been cited in four other cases, including the effort to obtain Robles' materials.

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