MANHATTAN (CN) – The makers of a documentary about the notorious Central Park jogger case did not lose journalistic privilege by having a strong point of view, a federal judge ruled.
“The Central Park Five,” a film by Ken Burns, his daughter Sarah Burns and her husband, David McMahon, takes the unambiguous perspective that police coerced five black and Latino teenagers to confess to gang-raping a Central Park jogger in 1989 amid a backdrop of racial tension and rising crimes rates in New York City.
Antron McRay, Raymond Santana Jr., Kharey Wise, Kevin Richardson and Yusef Salaam were between the ages of 14 and 16 when they became suspects in the horrific sexual assault.
After they served their sentences, convicted rapist and murderer Matias Reyes admitted that he was the actual perpetrator, and DNA testing corroborated his confession.
The Central Park Five, as they came to be known, had their convictions vacated, and they sued the city, the police, the District Attorney’s Office, interrogators and prosecutors in 2003.
Florentine Films released the Burns documentary reflecting on their case, imprisonment and civil claims in 2012, near the 10th anniversary of the civil suit.
Trying to gather evidence for the upcoming trial, city lawyers subpoenaed Florentine to turn over footage of interviews with lawyers, experts and witnesses left on the cutting-room floor.
Although interviews with sources are typically protected under journalistic privilege, such protection has been waived in the cases of “Crude” filmmaker Joseph Berlinger and Andrea Reynolds, the mistress of an alleged wife-killer.
The 2nd Circuit found that both could not claim to be independent journalists. Berlinger, who filmed a multibillion-dollar legal battle between Chevron and Ecuadorean natives in the Amazon, lost that mantle by editing out a scene at the request of lawyers for the aborigines. Decades earlier, Reynolds had been denied privilege because her claim about writing a book was only a convenient way to shield the information she had gathered. Her subsequent decision to actually write the book was not enough to shield production of the information and the manuscript.
U.S. District Judge Deborah Batts found that neither of these cases could be compared to the “Central Park Five” filmmakers.
City lawyers contended that Sarah Burns lost her independence by researching the case in college as a paralegal for the law firm representing the young men.
This link proved too “attenuated,” however, for Batts.
“Like Burns, many investigative journalists may have previous familiarity with a subject before beginning their work on a project,” she wrote. “Courts would undermine the purpose of the reporter’s privilege and severely curtail its applicability if the standard hinged on whether the reporter had previously researched the subject of the subpoena for a high school or college paper, and whether she intended to disseminate information to the public at that early stage.”
Entered late on Monday, the order affirms a report and recommendation by U.S. Magistrate Judge Ronald Ellis earlier this year.
City lawyer Celeste Koelveld said that the department was “reviewing the decision and our legal options going forward.”
“We continue to support a full airing of the evidence and would have preferred that the jury be privy to a more complete picture,” Koelveld said in a statement. “During the time this motion was pending, depositions were proceeding, and the case was moving forward otherwise. The discovery process, including depositions, has reinforced that the evidence does not support the plaintiffs’ claims against the city.”
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