text: Opinionated Commentary on Law, Politics, Economics, and More from Michael Dorf, Neil Buchanan, Eric Segall, and (Occasionally) Others
  Tuesday, January 22, 2013
  The Central Park Five and the Journalist's Privilege
  By Mike Dorf
  The Ken Burns et al film The Central Park Five tells the story of how five teenage boys came to confess to a notorious crime they did not commit: the 1989 brutal rape of a woman who came to be known as the "Central Park jogger." It's a story of an injustice perpetrated, discovered and not yet corrected. The CP5, by now grown men, were exonerated in 2002 when serial killer Matias Reyes acknowledged that he had in fact committed the attack and had acted alone. Re-examination of the evidence confirmed his confession. There had never been any physical evidence against any of The Five and Reyes was a DNA match for semen found on the victim.
  The Five filed a federal civil rights lawsuit against NYC and various government officials who were responsible for the investigation and prosecution of the crime. At least based on the portrayal of events in the film, the case looks like a possible winner for the plaintiffs--although the threshold for victory is high. The investigation was certainly flawed, but that doesn't necessarily mean that the defendant officers violated the plaintiffs' clearly established federal rights, which is the showing necessary to overcome the qualified immunity of the individual officers. Nor can municipal liability be established without a showing that the rights of the plaintiffs were violated pursuant to an official policy or practice--as opposed to mere sloppiness.
  The City appears to be taking a scorched earth approach to the case, which explains why, more than ten years after the Five were exonerated, the civil lawsuit remains bogged down in discovery. A brief filed by the City last month is eye-opening. It seeks to compel the filmmakers (technically Florentine Films) to turn over the raw footage of interviews of the plaintiffs that appear (edited) in the film.
  The brief begins fairly enough. It makes what strikes me as the correct point that federal rather than state law governs the privilege question because federal law supplies the rule of decision in the case. Thus, the filmmakers' reliance on New York privilege law is misguided. But then the brief makes two points that strike me as highly problematic.
  First, the brief argues that the filmmakers are not entitled to the journalists' privilege because they came to the film siding with the plaintiffs. This strikes me as wildly off-base. Journalists almost always have some bias, whether it's one that they bring to the project or one that develops as they write (or film) the story. If having a viewpoint disqualifies journalists from the journalists' privilege, then there is no journalists' privilege.
  Second, the brief argues that the defendants (in the civil lawsuit, i.e., the City etc) are entitled to the raw interview footage because it may tend to undermine the story told by the plaintiffs to the extent it reveals inconsistencies in their stories. The brief cites a number of supposed inconsistencies between the edited version and prior testimony of the plaintiffs.
  This second argument is really eye-opening because at this point the plaintiffs' stories are largely beside the point. With the prosecutor and the court already having agreed that the CP5 never should have been indicted because they had nothing to do with the attack on the jogger, what difference does it make whether there were some inconsistencies in their statements? With one exception, if the case goes to trial, the core contested issue will almost certainly be what the investigators and prosecutors knew or should have known.
  The exception is the underlying question of whether the interrogations of the CP5 which led to their false confessions violated their civil rights. With detectives and prosecutors having long denied that they subjected the CP5 to undue pressure, I suppose that there is a factual question of what happened in those interrogation rooms before the videotape was turned on.
  But that's what makes the City's position truly disturbing. In the film, the CP5 do not say that they were beaten or threatened with violence. They say that they were held and questioned for a long time without food or sleep, and that they were told what to say so they could be released. Given that the CP5 were innocent and that what they said in their false confessions was mutually self-contradictory, their claims appear unassailable on that point. Yes, I suppose that there are factual questions about how long they were held for, what exactly was promised them, and so forth. Therefore, the City's position that the underlying raw footage is relevant seems technically accurate. But only technically so. Unless the City is arguing that the CP5 were not subject to serious pressure when held and interrogated, the precise details are of very minor concern.
  Accordingly, it's difficult to read the City's brief without the sense that the City intends to maintain that the CP5 really were guilty all along, despite the overwhelming evidence to the contrary. If so, one hopes that the film will have the salutary effect of pushing the City to abandon that delusional position. With one City official now saying that the City should expeditiously settle the case, at least that's a possibility.