A State Supreme Court judge in Brooklyn, N.Y. ruled on Sept. 12, 2007, that two newspaper reporters will not be compelled to testify in a murder case against the parents of the victim.
Reporters Corey Kilgannon of The New York Times and Douglas Montero of the New York Post interviewed the mother and stepfather of 7-year-old Nixzmary Brown, shortly after she was found beaten and starved to death in her family home in Brooklyn in January 2006. The abusive nature of Brown’s death spawned an 18-month long investigation of the Administration for Children’s Services in New York.
The reporters interviewed Brown’s mother and stepfather about the circumstances of their daughter’s death at the Rikers Island prison complex after they were arrested and charged with failing to render medical assistance to the victim.
Prosecutors sought to compel the two reporters to testify because they believed that their unbiased testimony was critical to the prosecution’s case against the victim’s parents. In an article published Aug. 28, 2007, The New York Times quoted Assistant District Attorney Jane S. Meyers speaking at a pretrial hearing. Without the two reporters’ testimony, she claimed, “we would have no case against these defendants,” adding, “it is hard for me to even imagine something that’s as important to our case as these reporters’ testimony.”
The prosecution argued that the reporters’ testimony would be used to demonstrate that the police did not coerce the victim’s mother and stepfather to make incriminating statements regarding the circumstances of Brown’s death. In order to underscore the voluntary nature of the parents’ statements, Meyers wanted to show that they made similar statements to the two reporters about the murder, according to The New York Times.
The Brooklyn Daily Eagle reported on Sept. 13, 2007 that the victim’s stepfather, Cesar Rodriguez, gave a statement to police after Brown’s body was discovered in which he admitted to beating the victim regularly and banged her head against a bathtub fixture on the night of her death.
Lawyers for the newspapers moved to quash the subpoenas in the pretrial hearing. They argued that the state’s shield law protected the reporters from being forced to testify for the prosecution.
New York state’s reporter shield law, codified at New York Civil Rights Law section 79-h, exempts journalists in certain circumstances from being forced to divulge information when they are subpoenaed. The Times reported on August 28 that its Vice President and Assistant General Counsel, George Freeman, asserted that the shield law was intended to protect journalists’ credibility from erosion in circumstances such as the Brown case. He stated that journalists are often at the scenes of crimes and can therefore make credible witnesses.
The state shield law provides an absolute protection for confidential sources; it provides a qualified privilege for nonconfidential sources. In the latter case, journalists are compelled to testify if the state can show that their testimony is relevant, critical, and not obtainable from other sources. As Justice L. Priscilla Hall noted in her statement from the bench on September 12, this case was unusual because the prosecution wanted the reporters to testify about unpublished information from nonconfidential sources: the circumstances of the interviews with the victim’s parents.
“The problem arises because of unpublished material,” said Hall, “and it arises because of the defendant’s Sixth Amendment right to question witnesses against him.”
Hall ruled that the prosecution demonstrated the relevance of the reporters’ testimony, but that it failed to show that the information was critical and could not be obtained from other sources. She also stated that if the journalists took the stand, they would have to divulge information that was not published in their stories.
An article published in the Post on Jan. 16, 2006 reported that the victim’s mother had not prevented her boyfriend from beating her daughter because she was afraid of him. An article published in The Times on Jan. 20, 2006, described the stepfather’s vicious “approach to discipline” with the girl, which included physically assaulting her and tying her to a chair all night.
The Times’ lawyer, Freeman, called Hall’s ruling an accurate interpretation of New York’s shield law in a Times article published Sept. 13, 2007. “Even though reporters typically make very credible witnesses, that is no reason to force them to testify, particularly where, as the judge found, their evidence is not critical to the case,” Freeman said.
Assistant District Attorney Meyers disputed that point earlier in a plea to Justice Hall to reconsider her ruling. “It is the difference between these defendants being acquitted and these defendants being convicted and spending 25 years to life in prison,” Meyers said.
The District Attorney’s office said it will not appeal the ruling.
(In New York state, the Supreme Court is a trial court.)
- Amba Datta, Silha Research Assistant