Privilege Shields ‘Central Park Five’ Outtakes

MANHATTAN (CN) - Documentary outtakes cannot help New York City fend off a $20 million civil suit by five men falsely imprisoned for the rape of a Central Park jogger, 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 the police coerced five black and Latino teenagers to confess to gang-raping a Central Park jogger in 1989 amid a backdrop of racial tensions 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.

Producer Florentine Films released the Burns documentary reflecting on their case, imprisonment and civil claims last year, 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, city attorneys claimed there was precedent to order such disclosure.

In 2010, a federal judge ordered disclosure of outtakes from the Joseph Berlinger documentary "Crude," which depicted Chevron's ongoing litigation over oil spills in Ecuador. Upholding that ruling a year later, the 2nd Circuit said journalist's privilege did not protect Berlinger because he filmed the work as an advocate for the Ecuadoreans, rather than as an independent reporter. The ruling noted that a lawyer for the Ecuadoreans solicited the documentary and swayed Berlinger to delete a certain scene.

As to the directors of "The Central Park Five," however, U.S. Magistrate Judge Ronald Ellis found that they maintained their editorial and financial independence throughout the filmmaking process.

"In Berlinger, the [2nd Circuit] made clear that consistency of point of view does not show a lack of independence where, for example, a filmmaker has editorial and financial independence over the newsgathering process," Ellis wrote. "Indeed, it seems likely that a filmmaker would have a point of view going into a project."

The city's claims do not trump press freedom, according to the 15-page opinion.

"In sum, defendants have failed to present this court with 'a concern so compelling as to override the precious rights of freedom of speech and the press' the reporter's privilege seeks to ensure," Ellis wrote.

City lawyer Celeste Koeleveld called the decision disappointing and said she and her colleagues are "reviewing our options."

"While journalistic privilege under the law is very important, we firmly believe it did not apply here," Koeleveld said in a statement. "This film is a one-sided advocacy piece that depicts the plaintiffs' version of events as undisputed fact. It is our view that we should be able to view the complete interviews, not just those portions that the filmmakers chose to include."

John Siegel, a lawyer for Florentine Films, told Courthouse News over the phone that the city was partly responsible for the alleged one-sidedness of the documentary.

"My clients repeatedly over an extended period of time sought to interview a wide array of city officials involved in the case, including police official and prosecutors involved in the case, and every effort was rebuffed," Siegel said.

He hailed the "excellent" decision as a boon to filmmakers and advocacy journalism as a whole.

"The mere fact that the filmmakers have a perspective and point of view in the Central Park case does not come close to a justification [for a subpoena]," he said.

He added that Ellis' order "very precisely outlines the limits of the Berlinger decision ... to its peculiar and perhaps unique facts."

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