(CN) – In their zeal to solve a 22-year-old cold case, Manhattan prosecutors could wind up chilling the state’s expansive press-shield laws, a First Amendment attorney told New York’s highest court on Tuesday.
“We are more protective of free-speech rights and free-press rights than anyone else,” attorney Katherine Bolger said this afternoon, referring to the Empire State, at arguments in Albany.
An attorney with the firm Davis Wright Tremaine, Bolger represents the Pulitzer Prize-winning New York Times reporter Frances Robles, whom prosecutors subpoenaed in 2016 to testify at the expected trial of Conrado Juarez.
Police arrested Juarez three years earlier for the 1991 murder of his 4-year-old niece, Anjelica Castillo.
Until a DNA test of the remains confirmed her identity in 2013, Castillo had been known for 22 years as Baby Hope. Investigators determined that the child had been malnourished and sexually abused before someone asphyxiated her, bound her naked body with rope and the cord from Venetian blinds, and stuffed her inside a garbage bag. No one ever reported the child missing, and she had been dead a week before her badly decomposed remains were found alongside a Manhattan highway on July 23, 1991, in a cooler that also contained unopened soda cans.
Once Castillo was identified in 2013, however, police arrested her uncle, Juarez, and obtained a confession from him after a 14-hour interrogation. Robles interviewed the suspect days later at Riker’s Island Correctional Facility, and prosecutors contend that her testimony and notes from that meeting are critical to their case.
Though the judge presiding over Juarez’s case refused to quash the subpoena of Robles, an intermediate appeals court reversed on Oct. 20, 2016. Noting that Juarez’s videotaped confession had already been deemed admissible, along with other evidence, the court said prosecutors failed to make the case that the information Robles could provide was so “critical or necessary” that it overcame journalistic privilege.
Assistant District Attorney Diane Princ contested this finding Tuesday before the New York Court of Appeals.
“Quite frankly, your honor, this evidence is critical to our case,” Princ said. “It’s likely to turn a juror’s head.”
Judge Jenny Rivera pushed back this afternoon against Princ’s argument that Robles should not even have been permitted to appeal the subpoena until after her refusal to honor it landed her in contempt.
“It sounds like you’re saying their recourse is, they have to break the law,” said Rivera, who is one of seven judges that will resolve the state’s appeal.
Judge Leslie Stein noted that the question was a hard one.
“Obviously these are strong policy considerations on both sides, and of course, some of what we do in this court involves policy sometimes,” Stein said.
Stein added that the policy questions usually go to another branch of government.
“Why shouldn’t the Legislature be looking at these policy issues?” she asked.
The Times attorney responded that is because the Court of Appeals has affirmed such decisions in three cases for more than 80 years.
Reversing course would “be a tremendous retreat from our position as one of the most protective courts in the country,” Bolger added.
Bolger also contested the prosecution’s claim that Robles will offer crucial testimony. “The defendant told the reporter that he was coerced,” the lawyer said. “That can’t be critical,” she added.
Since Robles received her first subpoena, reporters have expressed alarm about what a precedent could hold. The Washington-based watchdog Reporters Committee for Freedom of the Press filed a friend-of-the-court brief endorsed by 58 national media organizations warning about the repercussions of such an order.
“Routine compelled disclosure of non-confidential but unpublished information would stymie reporting by threatening the independence of the news media and deterring sources from speaking to journalists, as well as burdening the news media’s time and resources and discouraging journalists from reporting on controversial matters and maintaining records of past reporting,” the group wrote in a 2016 brief. “The resulting loss of news coverage would be to the detriment of the public.”