Subpoena of Reporter Could Damage All Journalists’ Credibility

Monday, August 22, 2016
Credit: Steve Straehley/AllGov

By Les Neuhaus, Courthouse News Service

The grisly discovery of a four-year-old’s body inside a cooler by the side of an exit ramp in New York City in 1991 shocked the nation. She was never reported missing and was simply dubbed “Baby Hope” by authorities.

But in 2013, the NYPD and D.A.’s office got their man, 22 years later.

Or did they?

Conrado Juarez — accused of second degree murder of Anjelica Castillo, as she was eventually identified — has been sitting in a cell at New York City’s Riker’s Island Correctional Facility since he was arrested in Oct. 2013, accused of smothering the toddler — his cousin — to death, after allegedly attempting to rape her.

That’s according to a confession he gave after roughly 14 or so hours of intense interrogations by detectives, through a Spanish-speaking interpreter, without a legal representative present, according to Juarez’s attorney, Michael Croce, who makes no secret about his prejudice against the prosecution’s case.

Days after Juarez was arrested, New York Times reporter Frances Robles interviewed him in jail without pen, paper or a recording device, per jail regulations.

She wasn’t able to write out notes on the interview until about 25 minutes after it ended. The accused man never confessed to Robles he killed Anjelica, but said he had helped dump her body with his sister, now deceased.

Croce and his client maintain Juarez was intimidated into a confession that wasn’t properly documented, with the only recording of the interrogation coming at the end of the session in the video-taped admission of guilt, Croce told Courthouse News on Friday.

The professionalism of the police during the interrogation has been questioned, leaving open a sliver of defense for Croce. And now Robles has been subpoenaed to testify by the New York County District Attorney’s office, who said in an email on Friday to Courthouse News the reporters’ testimony, through the interview of Juarez, will “provide critical evidence” to their case.

But Croce had a choice rebuttal to the prosecution’s game plan to haul in a member of the media — a two-time Pulitzer Prize winner and a George Polk awardee — to essentially shore up their case, as they simultaneously test the state’s press shielding law, which tends to side more heavily with confidential sourcing versus named sourcing.

“This is all a show to make it look like the police have credibility and are not the thugs they are when they are doing these interrogations,” Croce said by phone from New York, who was not present at the Riker’s interview by the reporter. “I’m told there were no recordings made of the statements or contemporaneous writing made of the interview by Ms. Robles.”

He continued: “The prosecution wants to put a Pulitzer winner on the stand to shine up their case and make it look like the police did nothing wrong. There’s a reason police interrogators don’t record interviews — they don’t want you to see what’s going on.”

After declining to comment over the phone, the prosecution asserted on Friday in an email many of the details documented in Robles’ jailhouse-interview article mirror the confession Juarez gave to police interrogators and were given to her freely, without coercion. Therefore, it is within the realm of legal protocol that what Juarez told Robles is what Juarez told the police, truthfully, and that now he’s just trying to squirm his way out of a despicable crime, they suggested.

“Robles’s notes are critical to the issue of Juarez’s voluntariness,” the email read, in part. “Juarez is challenging the admissibility of statements that he made to police and prosecutors on October 11 and 12, 2013, on the grounds that the statements were both involuntary and false. Of course, the People bear the burden of establishing the opposite — that Juarez’s statements to the police and prosecutors were voluntary and truthful.”

With one obvious aforementioned flaw in that theory: Juarez didn’t confess to killing the little girl to Robles. He had already confessed to police before the reporter’s interview. That raises the question of why prosecutors need Robles to say what she didn’t get from him and what they already have?

The New York Daily News got an interview with Juarez the day after Robles. But the prosecution hasn’t called for their testimony.

Lawyers on retainer by The New York Times representing Robles filed a 53-page motion this month to appeal the judge’s subpoena order.

It’s the right call, according to Deborah Nelson, an associate professor with a J.D. in media law at the University of Maryland’s Law School.

“This is a case in which the prosecutors and the courts are willing to do long-term damage for dubious, short-term gain in the case,” Nelson, once a full-time journalist who won a Pulitzer Prize during a career path that led her through the newsrooms of The Los Angeles Times, The Washington Post and The Chicago Sun-Times, said by phone on Friday from Takoma Park, Maryland. “How weak can their case be if they are using her testimony? ... But it seems like they’re using it now to make up for weaknesses in police work.”

She continued: “In our democracy the police and press have different roles and they should not cross except in extraordinary circumstances — and this isn’t one of them. They have a confession already. It puts in jeopardy any work reporters do on criminal cases.

“And the N.Y. state law recognizes that it should be under exceptional circumstance — it’s written into the law and I would be surprised if the appellate court doesn’t overturn the judge’s (subpoena) order.”

Her sentiments were echoed in a 44-page amicus brief (pdf) filed by the Reporters Committee for Freedom of the Press on Friday, obtained by Courthouse News, in which 58 national media organizations and press rights groups were signatories to the document that specifically backs Robles in her appeal not to be forced to testify in the Juarez trial.

“Protecting nonconfidential information from compelled disclosure, whether in the form of testimony about an interview or notes describing such an encounter, is vitally important to the free flow of information to the public,” a portion of the brief said. “Routine compelled disclosure of nonconfidential 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 resulting loss of news coverage would be to the detriment of the public. Accordingly, courts must robustly interpret the Shield Law’s qualified privilege against compelled disclosure of nonconfidential information.”

Ultimately, it is up to the court to decide whether Juarez is guilty or innocent, or whether Robles will testify. The trial is scheduled to begin this fall.


To Learn More:

New California Law Gives Journalists 5-Day Warning of Records Seizure by State (by Noel Brinkerhoff, AllGov)

Justice Dept. Secretly Obtained Phone Records of Associated Press…Obama Crosses the Freedom of the Press Line (by Noel Brinkerhoff and David Wallechinsky, AllGov)

U.S. Drops to 49th Place in World Press Freedom Index…Worst in 9 Years (by Noel Brinkerhoff, AllGov)


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