MANHATTAN (CN) – Rebuking her colleagues for piercing press-shield laws to help prosecutors close a 22-year-old cold case, a judge accused New York’s highest court on Wednesday of undermining a tradition dating back to pre-Revolutionary times.
“Expansive protection for the press in New York is not just in our Constitution; it is in our history,” Judge Jenny Rivera wrote in a lengthy dissent.
Hearkening back to the 1735 libel case of colonial journalist John Peter Zenger, Judge Rivera lamented that her colleagues put contemporary reporters at risk by having one face imprisonment for failing to testify at the expected trial of Conrado Juarez.
All of the judges in Wednesday’s 4-3 ruling agree that the murder Juarez is accused of committing is one of the most gruesome in memory.
In 1991, authorities discovered the naked, sexually abused and partially decomposed body of a 4-year-old girl. Two decades would pass, however, before DNA testing revealed that the child known as “Baby Hope,” was Juarez’s niece, Anjelica Castillo.
Once Castillo was identified in 2013, Juarez admitted to the crime after a 14-hour interrogation. Juarez told New York Times reporter Frances Robles that his confession was coerced, however, and prosecutors contend that the journalist’s notes and testimony will help them to pick apart inconsistencies in the suspect’s statements.
Though a lower court agreed to quash the subpoena of Robles two years ago, prosecutors fought for a reversal at June 5 oral arguments in Albany.
Wednesday’s ruling renews the risk of imprisonment for Robles, with Chief Judge Janet DiFiore writing for the Court of Appeals majority that it is premature to review the subpoena ahead of a contempt finding.
“We are not unsympathetic to Robles’s policy-driven arguments, echoed by our dissenting colleagues, concerning how best to balance the interests of the expedient resolution of criminal actions against the right of a nonparty in a pending criminal action to seek appellate review of an order denying a motion to quash a subpoena when the state’s longstanding interests in protecting the newsgathering role of reporters … or other weighty third-party concerns, are implicated,” DiFiore wrote in a 7-page opinion. “Nor do we minimize the significance of the rights provided by article I, § 8 of the New York State Constitution. However, the right to appeal is not premised on the nature of the challenge waged, and this court cannot ‘create a right to appeal out of thin air.’”
Rivera said that New York has invested reporters with that right for centuries, quashing a subpoena five years ago that would have forced Fox News reporter Jana Winter to disclose what sources gave her the notebook of Colorado theater shooting suspect James Holmes.
“The Shield Law, now nearly fifty years old, is embedded in that venerable tradition,” Rivera wrote.
Judge Rowan Wilson joined Rivera’s opinion and a separate dissent by Judge Eugene Fahey.
“In New York, there is no right to protection from government interference that has been held in higher esteem than freedom of speech and the press. We honor it highly because we value our liberty above all else,” Fahey wrote.
The Reporters Committee for Freedom of the Press executive Bruce Brown blasted the court Wednesday for gutting the state’s shield law.
“The protections of a shield law are meaningless unless a reporter can appeal an erroneous trial court ruling,” Brown said. “Today’s decision leaves important substantive protections in New York law without a means to enforce them. A reporter should not have to risk going to jail for contempt in order to trigger appellate review of her rights.”
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