In the Matter of the People, Appellant,v.Conrado Juarez, Defendant. Frances Robles, Nonparty Respondent.BriefN.Y.April 24, 2018To be Argued by: KATHERINE M. BOLGER (Time Requested: 15 Minutes) APL-2017-00057 New York County Clerk’s Index No. 30222/15 Court of Appeals of the State of New York In the Matter of an Application for a Subpoena Ordering the Personal Appearance of Frances Robles as a Material Witness in: PEOPLE OF THE STATE OF NEW YORK, Appellant, - against - CONRADO JUAREZ, Defendant. ------------------------------ FRANCES ROBLES, Non-Party Respondent. BRIEF FOR NON-PARTY RESPONDENT DAVID A. SCHULZ KATHERINE M. BOLGER THOMAS B. SULLIVAN LEVINE SULLIVAN KOCH & SCHULZ, LLP Attorneys for Non-Party Respondent 321 West 44th Street, Suite 1000 New York, New York 10036 Tel.: (212) 850-6100 Fax: (212) 850-6299 Date Completed: July 27, 2017 i TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii PRELIMINARY STATEMENT ............................................................................... 1 COUNTERSTATEMENT OF THE QUESTIONS PRESENTED ........................... 4 BACKGROUND ....................................................................................................... 5 A. Frances Robles ................................................................................................. 5 B. The Murder of “Baby Hope” ........................................................................... 6 C. Juarez Confesses and Is Charged..................................................................... 7 D. Ms. Robles’s Reporting on the Prosecution of Juarez ..................................... 8 E. The Huntley Subpoenas ................................................................................... 9 F. The Court Quashes the Huntley Hearing Subpoenas .................................... 12 G. Reversing Course, the Court Enforces the Trial Subpoenas ......................... 13 H. The Confession Is Held To Be Voluntary and Admissible ........................... 15 I. The First Department’s Decision ................................................................... 16 ARGUMENT ........................................................................................................... 16 I. THE APPELLATE DIVISION PROPERLY APPLIED THE THREE-PART TEST THAT GOVERNS THE SCOPE OF THE REPORTERS’ PRIVILEGE .......................................................................... 18 A. Ms. Robles’s Testimony and Notes Are Not “Critical or Necessary” ........................................................................................... 19 B. The Defendant’s Right to Cross-Examine Further Supports the Decision to Quash.......................................................................... 26 C. Ms. Robles’s Notes in Particular Are Not “Critical or Necessary” ........................................................................................... 30 ii II. THE FIRST DEPARTMENT DECISION IS FULLY CONSISTENT WITH THE “STRONG” PUBLIC POLICY OF THE STATE OF NEW YORK ..................................................................... 31 III. THE PEOPLE’S EFFORTS TO AVOID THIS CLEAR PRECEDENT ARE UNAVAILING ............................................................. 36 CONCLUSION ........................................................................................................ 44 iii TABLE OF AUTHORITIES Cases Page(s) In re Application of Behar, 779 F. Supp. 273 (S.D.N.Y. 1991) ..................................................................... 22 In re Application to Quash Subpoena to NBC, 79 F.3d 346 (2d Cir. 1996) ..................................................................... 19, 20, 41 Baez v. JetBlue Airways, 2012 WL 5471229 (E.D.N.Y. Nov. 9, 2012) ..................................................... 41 Baker v. Goldman Sachs & Co., 669 F.3d 105 (2d Cir. 2012) ........................................................................passim Beach v. Shanley, 62 N.Y.2d 241 (1984) ............................................................................. 19, 32, 36 Brady v. Ottoway Newspapers, Inc., 63 N.Y.2d 1031 (1984) ................................................................................. 18, 20 Brown & Williamson Tobacco Corp. v. Wigand, 228 A.D.2d 187 (1st Dep’t 1996) ........................................................... 20, 21, 22 Doe v. Cummings, 1994 WL 315640 (Sup. Ct. St. Lawrence Cnty. Jan. 18, 1994) ......................... 31 Evans v. NYC Sch. Constr. Auth., 34 Misc. 3d 1227(A), 2012 WL 555087 (Sup. Ct. Bronx Cnty. Jan. 13, 2012) .................................................................. 41 Flynn v. NYP Holdings, Inc., 235 A.D.2d 907 (3d Dep’t 1997) ...................................................... 19, 30, 31, 41 Giles v. California, 554 U.S. 353 (2008) ........................................................................................... 40 In re Grand Jury Subpoenas Served on NBC, 178 Misc. 2d 1052 (Sup. Ct. N.Y. Cnty. 1998) .................................................. 41 Guice-Mills v. Forbes, 12 Misc. 3d 852 (Sup. Ct. N.Y. Cnty. 2006) ...................................................... 41 iv Holmes v. Winter, 22 N.Y.3d 300 (2013) ..................................................................................passim Jackson v. Denno, 378 U.S. 368 (1964) ...................................................................................... 24, 25 Knight-Ridder Broad., Inc. v. Greenberg, 70 N.Y.2d 151 (1987) ............................................................................... 3, 35, 36 Morgan Keegan & Co. v. Eavis, 37 Misc. 3d 1058 (Sup. Ct. N.Y. Cnty. 2012) .............................................. 27, 28 O’Neill v. Oakgrove Construction, Inc., 71 N.Y.2d 521 (1988) ..................................................................................passim In re Paul, 270 Ga. 680 (1999) ............................................................................................. 23 People v. Bonie, 141 A.D.3d 401 (1st Dep’t 2016) ................................................................. 42, 43 People v. Brown, 192 A.D.2d 356 (1st Dep’t 1993) ....................................................................... 22 People v. Chavis, 147 A.D.2d 582 (2d Dep’t 1989) ........................................................................ 23 People v. Combest, 4 N.Y.3d 341 (2005) ....................................................................................passim People v. Escobar, 7 Misc. 3d 1014(A), 2005 WL 927005 (Suffolk Cnty. Ct. Apr. 13, 2005) ....................................................................... 21 People v. Haverman, 119 Misc. 2d 980 (Sup. Ct. Queens Cnty. 1983) ................................................ 21 People v. Huntley, 15 N.Y.2d 72 (1965) ..................................................................................... 20, 21 People v. Leonti, 18 N.Y.2d 384 (1966) ......................................................................................... 21 v People v. Leyra, 1 N.Y.2d 199 (1956) .................................................................................... 25, 26 People v. Marahan, 81 Misc. 2d 637 (Sup. Ct. Kings Cnty. 1975) ................................................... 29 People v. Medina, 93 A.D.3d 459 (1st Dep’t 2012) ......................................................................... 23 People v. Mercereau, 24 Misc. 3d 366 (Sup. Ct. Richmond Cnty. 2009) ................................ 29, 42, 43 People v. Mickens, 159 A.D.2d 403 (1st Dep’t 1990) ....................................................................... 22 People v. Moses, 63 N.Y.2d 299 (1984) ......................................................................................... 26 People v. Novak, 41 Misc. 3d 749 (Sullivan Cnty. Ct. 2013) ................................................... 42, 43 People v. Pica, 176 A.D.2d 647 (1st Dep’t 1991) ....................................................................... 22 People v. Quiles, 186 Misc. 2d 814 (Sup. Ct. Bronx Cnty. 2000) .................................................. 21 People v. Royster, 43 A.D.3d 758 (1st Dep’t 2007) ......................................................................... 22 People v. Santiago, 36 Media L. Rep. 1011 (Sup. Ct. Kings Cnty. Oct. 4, 2007) ..................... passim People v. Taylor, 135 A.D.2d 202 (1st Dep’t 1988) ....................................................................... 21 Perito v. Finklestein, 51 A.D.3d 674 (2d Dep’t 2008) .......................................................................... 20 Prince v. Fox Television Stations, Inc., 36 Misc. 3d 1235(A), 2012 WL 3705165 (Sup. Ct. N.Y. Cnty. Aug. 28, 2012) .................................................................. 41 vi In re Subpoena Duces Tecum to ABC, 189 Misc. 2d 805 (Sup. Ct. N.Y. Cnty. 2001) .................................................... 41 In re Subpoena to Eisinger, 2011 WL 1458230 (S.D.N.Y. Apr. 12, 2011) ................................................... 29 United States v. Burke, 700 F.2d 70 (2d Cir. 1983) ................................................................................. 22 United States v. Marcos, 1990 WL 74521 (S.D.N.Y. June 1, 1990) .......................................................... 26 Statutes N.Y. Civ. Rights Law § 79-h ............................................................................passim N.Y. CPL § 240.20(1)(a) ......................................................................................... 37 N.Y. CPL § 710.30................................................................................................... 37 Other Authorities CJI2d[NY] Instructions of General Applicability: Statements (Admissions, Confessions) .......................................................................... 24, 25 N.Y. Const. Art. I, § 6 .............................................................................................. 40 N.Y. Const. Art. I, § 8 ................................................................................................ 1 1 PRELIMINARY STATEMENT This is an appeal from an order quashing two subpoenas for the testimony and notes of Frances Robles, a New York Times reporter, regarding a jailhouse interview she conducted with the defendant, Conrado Juarez, after his arrest. In that interview, Juarez discussed his home life with the victim, four-year old , but specifically stated that he did not kill her and that he only confessed to killing her because he had been coerced into doing so by the police. R22-23. The People have a videotape of that confession and access to the police officers and prosecutor who obtained it, and the trial court has already deemed it voluntary beyond a reasonable doubt. R111, 125, 237. Nonetheless, the People want Ms. Robles to testify because they claim that portions of her testimony will corroborate the voluntariness of the confession (despite the fact that Juarez told Ms. Robles the confession was coerced). The First Department correctly quashed the subpoenas to Ms. Robles. As this Court held in O’Neill v. Oakgrove Construction, Inc., 71 N.Y.2d 521, 524 (1988), Article I, Section 8 of the New York State Constitution requires that a reporter can only be compelled to disclose her non-confidential newsgathering materials, like those at issue here, if the party seeking disclosure makes a “clear and specific showing” that the information sought is not only “highly material and 2 relevant” to an issue in dispute, but actually “critical or necessary” to the case and not available from any other source. Id. The New York State Legislature also acted to protect journalists when it amended the New York State Shield Law, N.Y. Civ. Rights Law § 79-h, to impose a similar three-part test. The First Department held that Ms. Robles’s testimony was not critical or necessary because the People already have the evidence they need to demonstrate that the confession was voluntary-the videotape of the confession and the available testimony of the witnesses to whom Juarez confessed. R237. To put it directly, the First Department correctly concluded that the People simply do not need Ms. Robles’s testimony or notes, particularly when the broad scope of any potential cross-examination is taken into account. In fact, the trial court made the same decision at the Huntley stage, only to reverse itself inexplicably when the same evidence was sought for the same purpose and for the same reasons at the trial stage. R9-12 Because a straightforward application of the New York reporters’ privilege inevitably results in the quashing of the subpoenas, the People seek to side-step it. They do not make any meaningful effort to demonstrate how the high burdens established in O’Neill and the Shield Law are satisfied, but instead challenge the wisdom of the reporters’ privilege and argue that, in criminal cases, the People 3 should be able to obtain relevant evidence from a reporter so long as the request is not too burdensome. The People claim this relaxed approach is needed to ensure that “guilt shall not escape or innocence suffer,” but this ends-justify-the-means approach would run roughshod over another constitutional interest-this State’s commitment to “providing the broadest possible protection to ‘the sensitive role of gathering and disseminating news of public events.’” O’Neill, 71 N.Y.2d at 529 (citation omitted). The People are surely correct that the abuse and murder of is an abhorrent crime and the public interest is served by this prosecution. But the severity of the crime does not justify the rejection of press protections that also benefit our society. As Judge Bellacosa stressed 30 years ago, the Shield Law embodies “a very significant policy decision” by the Legislature that “the interests of the public would be best served by allowing newspeople to protect their materials and sources even if it impedes a criminal investigation.” Knight-Ridder Broad., Inc. v. Greenberg, 70 N.Y.2d 151, 167 (1987) (Bellacosa, J., dissenting).1 The First Department correctly applied well-settled law to undisputed facts. Its decision should be affirmed. 1 In O’Neill, 71 N.Y.2d at 524, the full Court adopted in large part Judge Bellacosa’s views in his dissenting opinion in Knight-Ridder. 4 COUNTERSTATEMENT OF THE QUESTIONS PRESENTED 1. Did the People make a clear and specific showing that a reporter’s testimony about statements made by a defendant during a jailhouse interview is “critical or necessary” to determining whether the defendant voluntarily confessed, when the People have available at trial the police officers and prosecutor who interrogated the defendant and an admissible videotape showing the defendant’s actual words and demeanor during the confession? The Appellate Division answered “No.” 2. Did the People make a clear and specific showing that a reporter’s notes from a jailhouse interview with the defendant are “highly material and relevant” and “critical and necessary” to the prosecution, without any showing of their evidentiary value? The Appellate Division answered “No.” 5 BACKGROUND A. Frances Robles Frances Robles is an investigative journalist with twenty-five years of experience who, along with her colleagues, has been awarded two Pulitzer Prizes. R16. She has reported for the New York Times since 2013, focusing on, among other things, criminal justice, police misconduct, and wrongful convictions. R16- 17. Throughout her career Ms. Robles has “relied on jailhouse interviews of suspects of crimes.” R17. In particular, Ms. Robles, a Spanish speaker, has spent several years reporting on the experiences of indigent inmates, including Spanish speakers who have been cut off from traditional means of communication. R17, 44. Ms. Robles has been able to give meaningful voice to these individuals in a way that unquestionably benefits the public. In 2014, Ms. Robles and several Times colleagues won the prestigious George Polk award for their investigative reporting about disgraced former NYPD detective Louis Scarcella. R16-17. As a result of her reporting, more than half a dozen homicide convictions were overturned, and several men who had served decades in state prison were released. Ms. Robles’s jailhouse interviews were instrumental in overturning these convictions. Id. 6 Forcing Ms. Robles to testify in a murder trial under any circumstance is “unquestionably problematic.” R17. Ms. Robles has testified that most sources in jail would not speak with her if they came to believe “that the prosecution could successfully compel [her] to testify” about their conversations. Id. Permitting prosecutors to enforce subpoenas like the one in this case would “fundamentally diminish[]” Ms. Robles’s “practical ability to gather the news,” R18, and would in turn diminish the public’s knowledge about claims of mistreatment by indigent individuals caught up in the criminal justice system. B. The Murder of “Baby Hope” In July 1991, detectives recovered the body of an unidentified four-and-a- half-year-old girl who had been found in a cooler near the Henry Hudson Parkway. A medical examination of the body showed that the young girl had been sexually assaulted and suffocated. R85-86.2 Over the next twenty-plus years, police continued to search for a suspect, R86, and the New York Times continued to cover developments.3 In 2013, a tip led 2 The People’s brief includes the previously undisclosed detail that “defendant confessed to having smothered with a pillow while he was anally sodomizing her,” Br. for Appellant (“DA Br.”) at 3, a detail apparently offered to advance their theory that the monstrous nature of the crime justifies a relaxation of Ms. Robles’s constitutional privilege. This detail is not in the record, which described only a “sexual encounter.” See R87. 3 See, e.g., E.C. Gogolak, Police Still Seeking Identity of Girl’s Body Found in ’91, 7 police to Margarita Castillo, the mother of Baby Hope, whose actual name turned out to be . Id. According to Ms. Castillo, she lost both and another daughter, , to their father in a custody dispute in the 1980s. Id. Years later, in 1995, the father’s nephew, defendant Conrado Juarez, returned to Ms. Castillo, at which time he first told her that had died. Id. Through interviews with Juarez’s family, police later learned that his sister, Balbina Juarez, had taken care of the two young sisters. Id. They also discovered that Juarez often spent time with the girls too. Id. Later, they learned that a family member recalled having seen Juarez and his sister leave their apartment with a picnic cooler and return without it. Id. was never seen again. R87. Balbina Juarez has since died. Id. C. Juarez Confesses and Is Charged Juarez was questioned by the police for several hours over two days. Id. He provided the government with “two detailed statements.” R123. The videotape of one of the statements is “almost three-hours long” and the other “is also quite lengthy.” R125. According to the People, Juarez admitted that he spent time alone with the girls and admitted that he had a “sexual encounter” with the victim shortly N.Y. Times (July 23, 2013); Chuck Sudetic, Legendary Detective Wages War on Word ‘Unsolved,’ N.Y. Times (Apr. 21, 1995); Emily M. Bernstein, Still Seeking Answers, Detectives Bury Baby Hope, N.Y. Times (July 24, 1993). 8 before her death. R87. Juarez initially told police officers “that he did not kill ” and only helped dispose of the body, but subsequently admitted in his videotaped statement that he “smothered with a pillow during a sexual encounter, then disposed of her body in the cooler with the help of his sister.” Id. The People then indicted Juarez for murder. Id. D. Ms. Robles’s Reporting on the Prosecution of Juarez Two days after the confession, on October 16, 2013, Ms. Robles visited Juarez at Rikers Island for about an hour. Id. Because of security restrictions she was not allowed to take a pen and paper to the interview. R27. Rather, Ms. Robles made notes about the interview twenty or twenty-five minutes after it ended. Id. The next day, her article describing the interview was published by the Times under the headline, Suspect Recalls the Short Life of ‘Baby Hope.’ R20 (the “Article”). The Article recounts Juarez’s description of a family “overwhelmed by children” and his “sense of resentment about the girls’ presence.” R21. Consistent with police interviews of family members, Juarez explained that he spent many nights at his sister’s apartment where the girls stayed. R22. The Article describes Juarez’s admission that he told police he had “‘put a pillow over [ ] face and killed her,’” and reports that he now says “‘it wasn’t like that.’” Id. Instead, the Article explains, Juarez says that his sister 9 called to tell him that “had fallen down the stairs” and died. Id. He claims only to have helped dispose of the body in a cooler on the side of the road, as he had told the detectives initially. Id. The Article explains that this part of his story “matche[d] the account given to the police by an anonymous caller in 1991, who said she saw a short Mexican or South American man and woman in heels carrying a cooler along the highway,” and also matched an account Juarez gave to the police during his interrogation. Id. In the Article, Juarez explains his confession by saying that “‘after a while and after so much pressure, I accepted it and said what [the police] wanted.’” R23. E. The Huntley Subpoenas Because Ms. Robles is a Florida resident, the People sought and obtained two subpoenas to Ms. Robles from the Florida court in advance of a Huntley hearing on the admissibility of the defendant’s confession; one subpoena demanded testimony about her interview of Juarez (the “First Subpoena”), and the second demanded her notes (the “Second Subpoena”). R101-02, 138-39. In seeking the First Subpoena, the People sought to compel testimony from Ms. Robles only to introduce the “statements the defendant made to [her] that were published” in the Article. R88. This testimony was sought for use “both at the 10 pre-trial hearing to determine admissibility of defendant’s statements to law enforcement, as well at any subsequent trial.” Id. Ms. Robles moved in New York to quash the subpoena seeking her testimony at the Huntley hearing, and reserved the right to move later on the demand for trial testimony. R153. On February 23, 2016, the trial court held a hearing on the motion to quash and initially began to deny the motion orally. The trial court noted that the People have “always alleged they want [Ms. Robles] to authenticate the statements made,” R118, and suggested that the only inquiry of Ms. Robles on cross-examination would be: “[I]sn’t it true [Juarez] said he didn’t do it.” R118-19. The defendant’s counsel vigorously disagreed, explaining that if Ms. Robles was called to testify: [I]t is my intent to explore this interview, not just, what did he say but explore whether he made other statements with respect to how this police statement was taken from him to explore the circumstances upon which this interview took place. How did she represent herself. Did she represent herself as a member of the press, or as someone who was there to help him. Did she, in her statements to him, introduce information that was well known and well published in the press, that the press had made public about the circumstances of the death of this child in suggesting certain things to Conrado Juarez which he may have responded in a yes or no answer. There is a significant amount of questioning I would want to conduct. R119. 11 The court sua sponte raised the issue of producing Ms. Robles’s notes and suggested that Shield Law should give “way to in-camera inspection by the judge to determine what could be used during cross.” R106. In response, counsel for Ms. Robles pointed out that “[t]here are no notes at issue” because they were not requested by the subpoena. Id. Departing from prior assurances that they sought only testimony about the published Article, the prosecutor then asserted, “it would certainly be useful” to know if notes exist. R111. The Court stayed any prospective order until such a time as the parties could determine the scope of the direct and cross in light of defendant’s counsel’s arguments about the scope of the cross. R119-21.4 Subsequently, on March 9, 2016, the People sought and obtained from the Florida court the Second Subpoena seeking Ms. Robles’s notes. R80-84. The prosecutor claimed to need the notes “to help the Court define the scope of the cross-examination in a way that best protects those portions of the notes that may be privileged under the statute.” R82. 4 In their Brief, the People inaccurately state that at this hearing the court denied the motion to quash and stayed the hearing only until such time as the People obtained a subpoena for Robles’s notes. Compare DA Br. at 16, with R119-21. In fact, the Court adjourned hearings on the subpoena many times in an effort to understand the scope of any potential cross. See, e.g., R128-32. 12 On March 31, 2016, Ms. Robles filed a motion to quash the subpoena for her notes on the grounds that the People made no showing sufficient to satisfy the Shield Law. R75. In response, the prosecutor again argued that the notes were necessary to define the scope of cross-examination. R82. F. The Court Quashes the Huntley Hearing Subpoenas On April 13, 2016, the trial court issued an order quashing both the First and Second Subpoenas for evidence at the Huntley hearing. R12. Citing the defendant’s “constitutional right to fully cross-examine witnesses,” the court found that the subpoena for testimony implicated the Shield Law notwithstanding the prosecutor’s commitment to ask only about the published Article, because it would open the door for the defendant to cross-examine Ms. Robles on matters beyond the authenticity of the published statements. Id. The court then concluded: At this juncture, and for the purposes of the Huntley hearing only, during which defendant has a constitutional right to fully cross-examine the witnesses, I find that the People have not overcome the shield law’s qualified privilege for reporters’ testimony and notes. This requires a showing that the notes and testimony are highly material and relevant; critical or necessary to the maintenance of the claim; and not obtainable from any alternative source. People v Combest, 4 N.Y.3d 341, 352 (2005); N.Y. Civil Rights Law Sect. 79-h. In particular, there is insufficient showing that a decision on the 13 Huntley claim will virtually rise or fall based on the reporter’s evidence. Id. G. Reversing Course, the Court Enforces the Trial Subpoenas After the Huntley hearing, the People sought enforcement of the subpoenas a third time, demanding that Ms. Robles appear to testify at the trial of the defendant and produce her notes for in camera inspection. At a June 7, 2016 hearing on the renewed subpoenas, the court explained that the People’s position was “basically . . . the same” as it was for the Huntley subpoenas. R33. That is, the People again sought Ms. Robles’s evidence because they believed it was relevant to the voluntariness of the defendant’s confession, which the court anticipated would “be highly challenged” at trial. R60. The court did not make an immediate ruling from the bench, but made several observations. First, although it may be possible to limit the cross- examination under normal rules of relevancy, the court thought the defendant should be allowed to test Ms. Robles’s credibility were she to testify. R53-54 (noting that defense could cross Ms. Robles, saying “You’re a liar. You made this up for publicity”). Second, the court characterized at least some of Ms. Robles’s evidence as “corroborat[ive],” R56, and more generally as a “building block to the conviction,” R57. Finally, the court emphasized the burden the People have in a 14 criminal case, explaining that the beyond a reasonable doubt standard is “very high,” further supporting the importance of obtaining Ms. Robles’s evidence. Id. On August 4, 2016, although the prosecution’s burden on voluntariness is the same at trial as at a Huntley hearing, the court denied Ms. Robles’s motion to quash the trial subpoenas. R9-11. The court again recognized that the “notes and cross-examination of Ms. Robles, beyond the authentication of the published statements, would be protected by the New York State Shield Law” unless the People could overcome that law. R10. Departing from its previous decision, the court held that the prosecutor had made this showing: The court characterized the case against Juarez as a circumstantial one and reasoned that in such cases a defendant’s statement to anyone about “the charges against him and his relationship to the victim, are highly material and relevant.” R10-11 (citation omitted). The court then acknowledged that Juarez had made admissible statements to both police and the prosecution implicating himself, but nevertheless found Ms. Robles’s testimony and notes to be critical or necessary. Observing that “voluntariness may be raised before the jury regardless of the [Huntley] decision,” the court found that it was “critical that the People present all possible evidence corroborative of [Juarez’s] statements to the police.” R10 (emphasis added). The 15 court finally found that Ms. Robles’s evidence was not available from other sources because “she was the only one present at the interview.” Id. In light of its decision, the trial court made clear that it also intends to allow the defendant to test Ms. Robles’s credibility on cross-examination. R11. Although it refused to permit a “wide ranging examination of Ms. Robles concerning her reporting and investigative techniques in general,” it would allow “[q]uestions directly relevant to her reporting of defendant’s statements, such as those testing her memory and fluency in Spanish.” Id. The court ordered in camera production of the notes and indicated it would disclose those portions relevant to any cross-examination. The trial court then stayed its order until the Appellate Division “either affirm[ed the] decision or reverse[d] it.” R12.2. H. The Confession Is Held To Be Voluntary and Admissible On August 5, 2016, the trial court denied the defendant’s Huntley motion to suppress the videotaped confession and concluded that it would be shown to the jury, along with the testimony of the officers and prosecutor who were present for the confession. The court did so without the benefit of Ms. Robles’s testimony. 16 I. The First Department’s Decision After receiving full briefing, on October 20, 2016, the First Department reversed the trial court’s order in a unanimous decision. It first noted that “the People have a videotaped confession by the defendant that has been found admissible at trial and that includes statements consistent with other evidence in the case.” R237. Recognizing the broad protection given to “‘the sensitive role of gathering and disseminating news of public events’” by the New York State Constitution, it then quashed the subpoenas. The Appellate Division squarely held: [T]he People have not made a “clear and specific showing” that the disclosure sought from Robles (her testimony and interview notes) is “critical or necessary” to the People’s proof of a material issue so as to overcome the qualified protection for the journalist’s nonconfidential material (Civil Rights Law § 79-h [c]). R237-38. A month later, the People served their motion for leave to appeal. This Court granted that motion on April 4, 2017. ARGUMENT The First Department properly applied the three-part test that the Constitution and laws of this State require to be satisfied before reporters may be compelled to testify about their newsgathering activities. To overcome the privilege, the People must show that the evidence sought from Ms. Robles- 17 including testimony on both direct and cross examination and her notes-is not only “highly material and relevant,” but actually “critical and necessary” to the case and not available from any other source. This is an intentionally high burden, one that tilts the balance in favor of a free press. Here, the People seek disclosure from Ms. Robles regarding statements made by Juarez in a jailhouse interview in which he denies murdering and claims his confession was coerced. The People do so on the theory that other statements recounted in the Article about his home life with might support the voluntariness of his confession. This convoluted theory of why the People need Ms. Robles’s testimony and notes surely does not meet the threshold of criticality and necessity required by O’Neill and the Shield Law. Indeed, the trial court itself reached that decision at the Huntley stage only to inexplicably change course at the trial stage. The trial court had it right the first time and the First Department correctly quashed the subpoenas here. Faced with their inability to meet the O’Neill and Shield Law test, the People ask this Court to upend it-to reduce the application of the reporters’ privilege to a simple “[w]eighing [of] the parties’ competing interests.” DA Br. at 22. That is not the law, and the People’s argument is an untenable effort to set 18 aside both the clear dictate of the State Legislature and this Court’s unambiguous reading of the New York State Constitution. The First Department decision can be set aside only if this Court finds the Appellate Division abused its “discretion as a matter of law.” Brady v. Ottoway Newspapers, Inc., 63 N.Y.2d 1031, 1032 (1984).5 To the contrary the Appellate Division properly and carefully applied the law to the facts. The decision should be affirmed. I. THE APPELLATE DIVISION PROPERLY APPLIED THE THREE-PART TEST THAT GOVERNS THE SCOPE OF THE REPORTERS’ PRIVILEGE The Shield Law and Article I, Section 8 impose a heavy burden on any party seeking to compel testimony or the production of records concerning routine newsgathering. They require a “clear and specific showing” that the evidence demanded is: (i) highly material and relevant; (ii) critical or necessary to the maintenance of a claim, defense or proof of an issue material thereto; and 5 The People contend repeatedly in their brief that the Appellate Division “failed to give due deference to the ruling by the trial judge,” DA Br. at 24; see also id. at 6, 51-52. While the Appellate Division does review under an abuse of discretion standard, “since it is vested with the same power and discretion,” it “may also substitute its own discretion even in the absence of abuse.” Brady, 63 N.Y.2d at 1032. 19 (iii) is not obtainable from any alternative source. See N.Y. Civ. Rights Law § 79-h(c); Holmes v. Winter, 22 N.Y.3d 300, 308 (2013). These protections expressly extend to evidence sought in criminal prosecutions. Beach v. Shanley, 62 N.Y.2d 241, 251 (1984) (holding that Shield Law “does not distinguish between criminal and civil matters”). A. Ms. Robles’s Testimony and Notes Are Not “Critical or Necessary” The First Department correctly held that the People failed to make a clear and specific showing that Ms. Robles’s testimony and notes are critical and necessary to this prosecution. As the First Department noted, “the People have a videotaped confession by the defendant that has been found admissible at trial and that includes statements consistent with other evidence in the case.” R237. They do not need Ms. Robles’s testimony or notes. To satisfy the critical and necessary requirement of the Shield Law, it is not enough to “merely show that the materials [a]re useful.” Flynn v. NYP Holdings, Inc., 235 A.D.2d 907, 908 (3d Dep’t 1997). To the contrary, the evidence sought must be “essential to the maintenance” of the prosecution. O’Neill, 71 N.Y.2d at 527; see also In re Application to Quash Subpoena to NBC, 79 F.3d 346, 351 (2d Cir. 1996) (“In re NBC”) (“there must be a finding that the claim for which the information is to be used ‘virtually rises or falls with the admission or exclusion of 20 the proffered evidence.’” (citations omitted)); Baker v. Goldman Sachs & Co., 669 F.3d 105, 108 (2d Cir. 2012) (same). Stated differently, “petitioner cannot merely show that it would be useful, but rather that the [prosecution] could not be presented without it.” Perito v. Finklestein, 51 A.D.3d 674, 675 (2d Dep’t 2008); see also Brown & Williamson Tobacco Corp. v. Wigand, 228 A.D.2d 187, 187 (1st Dep’t 1996) (where litigant had “ample proof” supporting claim, information sought not critical or necessary). Here, the First Department correctly determined the People did not make the required showing. As an initial matter, the First Department decision quashing the subpoenas correctly resets the balance the trial court struck when it quashed the subpoenas at the Huntley stage. Then, as now, the only argument the People make as to necessity is that some statements by Juarez quoted in the Article are similar to some statements made in his confession (although not the confession itself) and, therefore, Ms. Robles’s testimony and notes are needed to establish that the videotaped confession was voluntarily given. R107. This opaque reasoning was rejected by the trial court as a ground for compelling Ms. Robles to testify at the Huntley hearing. R12. Without Ms. Robles’s evidence the trial court then determined, beyond a reasonable doubt, that the confession was not coerced. See 21 People v. Huntley, 15 N.Y.2d 72, 78 (1965) (noting that, as at trial, burden of proof at Huntley hearing is “beyond a reasonable doubt”).6 Nonetheless, the trial court reversed itself and denied the motion to quash the subpoenas to Ms. Robles at the trial stage despite the fact that the standard for determining the voluntariness of a confession is the same at the trial stage as at the pretrial stage, see People v. Leonti, 18 N.Y.2d 384, 389 (1966) (“the validity of the Trial Judge’s determination of the question of voluntariness must be measured by the same standards applicable to a verdict of guilt”), and that the People advanced the same arguments at both stages, R33. This was an error and the First Department acted within its discretion when righting it. Both the First Department and the trial court at the Huntley stage were correct that the People do not need Ms. Robles’s testimony and notes because the prosecution has “ample proof” from which a jury can decide the voluntariness of 6 This is not a surprising outcome in any way because prosecutors overcome their burden at Huntley hearings every day based on the testimony of law enforcement officers. People v. Taylor, 135 A.D.2d 202, 203-05 (1st Dep’t 1988) (finding no error where the only testimony as to the voluntariness of defendant’s confession was that of a single police officer); People v. Escobar, 7 Misc. 3d 1014(A), 2005 WL 927005, at *3, *8 (Suffolk Cnty. Ct. Apr. 13, 2005) (finding that testimony of single officer established knowing waiver of Miranda); People v. Quiles, 186 Misc. 2d 814, 815-17 (Sup. Ct. Bronx Cnty. 2000) (refusing to suppress statement based on coercion where “the sole witness” was a police officer whose testimony was “both candid and credible”); People v. Haverman, 119 Misc. 2d 980, 980-81, 984 (Sup. Ct. Queens Cnty. 1983) (denying motion to suppress based on testimony of single officer). 22 the confession and the defendant’s guilt or innocence without Ms. Robles’s allegedly “corroborating” evidence. Brown & Williamson, 228 A.D.2d at 187. When testimony sought from a reporter would be cumulative of other evidence, it cannot be necessary or critical to the prosecution. In re Application of Behar, 779 F. Supp. 273, 275 (S.D.N.Y. 1991) (construing Shield Law); see also Brown & Williamson, 228 A.D.2d at 187 (quashing subpoenas to reporters because plaintiff “already ha[d] ‘ample proof’ of the breach of confidentiality agreements”); People v. Royster, 43 A.D.3d 758, 760 (1st Dep’t 2007) (finding no prejudice to defendant by order quashing subpoena to reporter seeking cumulative evidence); United States v. Burke, 700 F.2d 70, 78 (2d Cir. 1983) (applying federal constitutional privilege to quash subpoena seeking cumulative evidence). Here, Juarez spent hours speaking with the police and then spent three hours speaking with a prosecutor on videotape, at which time he confessed. R125. Determinations of guilt are often made on the existence of videotaped confessions, even where other evidence is lacking. See, e.g., People v. Brown, 192 A.D.2d 356, 356 (1st Dep’t 1993); People v. Pica, 176 A.D.2d 647, 648 (1st Dep’t 1991); People v. Mickens, 159 A.D.2d 403, 403-04 (1st Dep’t 1990). As a result, courts-including those in states with far weaker protection of reporters than New York-regularly quash subpoenas to journalists where the parties to a criminal prosecution already had 23 videotaped confessions of the defendant. See, e.g., People v. Santiago, 36 Media L. Rep. 1011, 1014-15 (Sup. Ct. Kings Cnty. Oct. 4, 2007) (noting the existence of “a videotape of the defendant receiving the Miranda warnings and making a statement to the Assistant District Attorney”); In re Paul, 270 Ga. 680, 686-87 (1999) (holding that reporter’s testimony about jailhouse interview was cumulative where videotape of the confession existed). And Ms. Robles’s testimony and notes as a practical matter do not necessarily support Juarez’s confession-he, in fact, denied the crime and posited an alternate theory to Ms. Robles. The testimony and notes are, therefore, not critical or necessary to determining whether Juarez murdered . Indeed, as the trial court correctly held at the Huntley stage, Ms. Robles’s testimony and notes are also unnecessary to determining whether Juarez’s confession was voluntary. The People are already in possession of the best evidence they need to argue that it was-i.e. the videotape of the confession. People v. Medina, 93 A.D.3d 459, 460 (1st Dep’t 2012) (“The videotape depicts defendant unequivocally waiving his Miranda rights, and there is nothing to cast doubt on the statement’s voluntariness.”); People v. Chavis, 147 A.D.2d 582, 582 (2d Dep’t 1989) (affirming denial of motion to quash videotape evidence because “defendant’s allegations were refuted by the videotape itself”). As this Court has 24 held, videotaped confessions can “establish those intangibles that might properly be considered” by a jury in determining the voluntariness of a defendant’s confession, including “displays of fear, upset, suggestibility, protestation.” Combest, 4 N.Y.3d at 349. The People can also obtain the testimony of the police officers and assistant district attorneys who secured the confession. Ms. Robles’s testimony and notes are unnecessary. In addition, Ms. Robles’s testimony could not be even helpful in establishing voluntariness. This is so as a matter of law and fact. As a matter of law, after-the- fact statements such as those made to Ms. Robles are not generally probative of whether a confession to law enforcement was voluntary. In Santiago, the prosecution made the same argument advanced here-that it needed a reporter’s testimony about a jailhouse interview because statements to the reporter mirroring statements to police implied that the defendant’s confession was voluntary. 36 Media L. Rep. at 1014. The court rejected this argument out of hand. Although videotape of a confession is evidence of voluntariness, a reporter’s “testimony about the defendant’s” interview with a reporter “is not.” Id. In addition, even if Ms. Robles provided testimony confirming details in the defendant’s confession, such testimony would not constitute material evidence that the confession was not the product of coercion. Jackson v. Denno, 378 U.S. 368, 384 (1964) (“Th[e] issue 25 [of voluntariness] must be decided without regard to the confirmation of details in the confession . . . .” (citation omitted)); see also CJI2d[NY] Instructions of General Applicability: Statements (Admissions, Confessions) at 11 & n.13. In addition, as a matter of fact, Ms. Robles’s testimony does not support the People’s claim that the confession was voluntary because Juarez told Ms. Robles it was not. Nor would the vast majority of statements the prosecutor wants from Ms. Robles be relevant at all to the ultimate question of Juarez’s guilt or to the voluntariness of the confession. Testimony providing Juarez’s recollection of the victim’s general demeanor and his sister’s state of exhaustion from the children, or his opinion that the victim’s absent father was a good person, as recounted by Ms. Robles, provides no insight into whether he voluntarily confessed or is guilty of the crime charged. R21. Similarly, statements that Juarez’s sister had a stroke or that the victim’s absent mother never called the victim are probative of nothing material to the issues at his trial. R23. The First Department and the trial court at the Huntley stage were, therefore, both correct in determining that Ms. Robles’s testimony was not critical and necessary to establish either the voluntariness of the confession or Juarez’s guilt. The People are on no more solid ground in arguing the reporter’s testimony and notes can help to establish consciousness of guilt. Evidence of consciousness 26 of guilt is not critical or necessary because, as a matter of law, such evidence “may not serve as a substitute for other proof, [but] it operates ordinarily only by way of lending strength to other and more tangible evidence.” People v. Leyra, 1 N.Y.2d 199, 209-210 (1956) (internal marks and citations omitted); see People v. Moses, 63 N.Y.2d 299, 308 (1984) (“Evidence thought to bear on consciousness of guilt has traditionally been considered weak . . . .”); see also United States v. Marcos, 1990 WL 74521, at *4 (S.D.N.Y. June 1, 1990) (quashing subpoena because “false exculpatory statements, while undoubtedly probative circumstantial evidence of consciousness of guilt, are rarely of critical significance to the Government’s proof of a crime”). Evidence that merely “lends strength” is neither critical nor necessary. The People have not identified anything in Ms. Robles’s requested testimony that is actually necessary-let alone critical-to the prosecution of this case. The First Department correctly quashed the subpoena. B. The Defendant’s Right to Cross-Examine Further Supports the Decision to Quash The comparatively broad scope of the potential cross-examination of Ms. Robles that would be sought by the defendant provides an additional basis to quash the subpoenas. Though the People have purported to limit their questioning of Ms. Robles to published information, Juarez’s counsel has not. He intends to “explore 27 this interview” and conduct “a significant amount of questioning” if Ms. Robles testifies. R119. While the trial court indicated it would consider limiting the scope of the cross, it already has held that “[q]uestions directly relevant to her reporting of defendant’s statements, such as those testing her memory and fluency in Spanish, will be allowed.” R11. State and federal courts in New York repeatedly have held that in assessing whether the Shield Law’s standards have been satisfied an evaluation of the entire subject matter of the compelled testimony, including the testimony likely to be elicited on both direct and cross-examination, is required. Baker, 669 F.3d at 110; Morgan Keegan & Co. v. Eavis, 37 Misc. 3d 1058, 1060, 1064 (Sup. Ct. N.Y. Cnty. 2012); Santiago, 36 Media L. Rep. at 1016. There is good reason for this requirement: Once a prosecutor calls a witness to the stand, the accused has a Sixth Amendment right to cross-examine. If a court were to consider only the scope of the direct examination sought by the prosecutor in determining whether the reporters’ privilege has been overcome, requiring the journalist to testify would inevitably create the potential for a clash between the reporter’s statutory and constitutional privilege not to testify and the defendant’s Confrontation Clause rights. If the Shield Law is not satisfied for the entire subject 28 matter of a reporter’s testimony in a criminal case, courts will refuse to compel the reporter to take the stand, in order to avoid the constitutional conflict. In Baker, for example, the Second Circuit construed the Shield Law as “turn[ing] on the subject matter of the inquiry,” not the distinction “between direct and cross-examination.” 669 F.3d at 111. This approach prevents a litigant, like the People here, from “deliberately fram[ing]” questions on direct “to be (supposedly) outside the scope of the privilege to have the effect of compelling testimony on cross-examination within the privilege.” Id. at 111-12. In such a case, questions on cross would “easily overcome” the Shield Law because criminal defendants could readily show “critical need” for rebuttal testimony after direct. Id. at 111. Similarly, in Santiago, the Kings County Supreme Court quashed a subpoena to a journalist, despite initial representations that prosecutors sought only public information, in part because “parties could not agree that the scope of the reporter’s testimony should be limited to statement[s] contained in the published article.” 36 Media L. Rep. at 1013; see also Morgan Keegan & Co., 37 Misc. 3d at 1064 (“risk of cross-examination within the scope of the privilege is particularly acute . . . [where parties] have not agreed to limit their cross”). 29 The fact that potentially intrusive cross-examination into Ms. Robles’s newsgathering would be pursued in this case thus provides an additional basis to affirm the First Department’s decision. “[T]estimony about a journalist’s investigative techniques and process of reporting” is not highly material under the Shield Law because it cannot meaningfully affect the outcome of the case. In re Subpoena to Eisinger, 2011 WL 1458230, at *4 (S.D.N.Y. Apr. 12, 2011), aff’d sub nom. Baker, 669 F.3d 105. Requiring Ms. Robles to take the stand would unnecessarily put her newsgathering process and personal credibility on trial, something the Shield Law specifically seeks to prevent. See, e.g., People v. Marahan, 81 Misc. 2d 637, 643 (Sup. Ct. Kings Cnty. 1975) (requiring reporter to testify improperly invites “an open challenge to the right of newspapermen to write, edit and collect the news”); cf. People v. Mercereau, 24 Misc. 3d 366, 370 (Sup. Ct. Richmond Cnty. 2009) (“there is a stark divergence between the compelled production of nonconfidential ‘material’ (e.g., video footage) and a journalist having to ultimately testify about the details of his newsgathering efforts”). There can be no serious argument that Ms. Robles’s reporting techniques, her Spanish language skills, and similar facts are critical or necessary to determining whether Juarez’s confession was voluntary or whether he is guilty. 30 The fact that this cross-examination cannot possibly defeat Ms. Robles’s privilege provides further reason to affirm the First Department’s order. C. Ms. Robles’s Notes in Particular Are Not “Critical or Necessary” The First Department is on even stronger ground in quashing the subpoena as it relates to Ms. Robles’s notes than it was in quashing the subpoena for testimony. Indeed, the People never made any claim that the notes are “critical and necessary,” asserting to the contrary at one point that they did not need the notes at all: “[The notes are] certainly something that [defense counsel] might be interested in subpoenaing, if they exist. If not, that entire area of discussion is eliminated.” R111. It was three months after seeking the First Subpoena that the prosecution sought to compel production of the notes out of a purported need to “define the scope of cross-examination.” R82. This puts the cart entirely before the horse. The Shield Law has to be overcome before the notes are produced: the notes cannot be used to overcome the Shield Law. The People were equally misdirected in asserting that their intrusion into the newsgathering process would be limited because they asked only that the notes be produced in camera. Disclosure in camera is itself a violation of the Shield Law, if a demonstration is not first made to overcome the privilege. See, e.g., Flynn, 235 A.D.2d at 909 (affirming grant of motion to quash where trial court refused to 31 conduct in camera review since no showing had been made that the privilege had been defeated); Doe v. Cummings, 1994 WL 315640, at *2 (Sup. Ct. St. Lawrence Cnty. Jan. 18, 1994) (denying request to conduct in camera review to determine the usefulness of the materials sought). The trial court in any event short-circuited this argument by announcing that “those portions, if any, relevant to cross- examination related to her testimony authenticating defendant’s statements to her will be provided to defendant.”7 R11. For these reasons, the First Department’s decision to quash the subpoena after a careful application of the O’Neill test should be affirmed. II. THE FIRST DEPARTMENT DECISION IS FULLY CONSISTENT WITH THE “STRONG” PUBLIC POLICY OF THE STATE OF NEW YORK The First Department decision is no outlier. It reflected well-established law that finds its roots in the jurisprudence of this Court. As this Court has repeatedly underscored, “New York has a long tradition . . . of providing the utmost protection of freedom of the press.” Winter, 22 N.Y.3d 7 The Shield Law has been repeatedly amended to prevent precisely what the trial court ordered here. Most notably, the Legislature amended the Shield Law in 1981 to reverse courts that “pierce[d] the Shield Law time after time” and left it “in a state of legal impotency,” where judges became “ever more creative in finding limitless reasons to violate the statute and ignore the intent of the Legislature.” Mem. of Assemblyman Steven Sanders introducing A-7006, An Act to Amend the Civil Rights Law (1981) (Shield Law) at 1. 32 at 307; O’Neill, 71 N.Y.2d at 529. The Shield Law, N.Y. Civ. Rights Law §79-h, embodies this “consistent tradition” by “providing the broadest possible protection to ‘the sensitive role of newsgathering and disseminating news of public events.’” O’Neill, 71 N.Y.2d at 529 (citation omitted). It protects journalists against compelled disclosure of their newsgathering materials, whether or not the material was obtained under a promise of confidentiality. See N.Y. Civ. Rights Law § 79- h(b) and (c). The constitutional dimension of this protection was articulated by this Court more than 30 years ago in O’Neill, which found a protection for non-confidential newsgathering materials conveyed by Article I, Section 8 of the New York State Constitution. Citing New York’s long history of press protection, O’Neill urged particular “vigilance by the courts of this State in safeguarding the free press against undue interference.” Id. at 528 (citations omitted) (quoting Beach, 62 N.Y.2d at 256 (Wachtler, J., concurring)). Regardless of the confidential or non-confidential status of information, this Court held, the “autonomy of the press would be jeopardized if resort to its resource materials” were allowed as a matter of course. “[B]ecause journalists typically gather information about accidents, crimes, and other matters of special interest,” absent a privilege the “burdens on time and resources” and the 33 “disruption of newsgathering activity” would be “particularly inimical to the vigor of a free press.” Id. at 526-27; see also id. at 527 (“confidentiality or the lack thereof has little, if anything, to do with the burdens on the time and resources of the press”). To address this situation, the Court concluded that the New York State Constitution required more than an ad hoc balancing of litigants’ needs against the burdens imposed on reporters. Rather, it held that a party seeking disclosure of newsgathering materials must demonstrate “clearly and specifically, that the items sought are (1) highly material, (2) critical to the litigant’s claim, and (3) not otherwise available.” Id. O’Neill defined a broad constitutional reporters’ privilege that extends to all confidential and non-confidential materials that are “prepared or collected in the course of newsgathering.” Id. at 524. The privilege articulated in O’Neill is not, as the People suggest, simply concerned with the practical burden on the press of complying with a subpoena. To the contrary, this Court was explicit in O’Neill that the privilege more broadly protects a reporter’s ability to function as a way to protect her free expression rights-to develop reliable relations with sources and to retain a reputation for independence from the government. This privilege is derived from the fundamental constitutional protections of free speech and a free press. Combest, 4 N.Y.3d at 341 (noting that the reporters’ 34 privilege is rooted in “our state constitutional guarantee of freedom of the press”). The three-prong test of the reporters’ privilege is the mechanism this Court and the State Legislature have articulated to mediate the inherent tension between a vigorous press ferreting out the news and the criminal justice system’s legitimate need for truthful information. That test does not simply balance the burden on a reporter against the need of a prosecutor on a case-by-case basis. Rather, it “strikes an appropriate balance between the principle of a free press embodied in the First Amendment and a defendant’s right to a fair trial” by placing a high structural burden on the prosecutor alone to show a compelling need for essential information that is not otherwise available. Governor’s Approval Mem., Ass’y Bill 3326 (Shield Law) (Mar. 23, 1990) (“Governor’s Mem.”). Following O’Neill, the Legislature acted swiftly to strengthen the already existing Shield Law to reach all unpublished journalistic work product, whether or not obtained from confidential sources. As explained by the bill’s sponsor, Senator Roy Goodman, this was done, in part, to “curtail court battles over notes . . . and other material which is routinely used by journalists.” S. Debate Transcript, 1990 c. 33 (Shield Law) at 1824:10-18. The Shield Law was further amended to apply explicitly to subpoenas in criminal matters. See N.Y. Civ. Rights Law § 79-h(c) (protection applies against 35 contempt ruling “by any court in connection with any civil or criminal proceeding”). The Legislature did so because subpoenas in criminal prosecutions particularly threaten the ability of the press to gather news as a neutral, independent institution: Journalists . . . encounter the most problematic incursions into the integrity of the editorial process when they are drawn into the criminal justice system merely because they have reported on a crime. They run the risk of being used as investigative agents of the government or the defense. Mem. of Support of State Exec. Dep’t, 1990 McKinney’s Session Laws of N.Y. at 2332; see also Governor’s Mem. (“the need for protection of non-confidential and information and sources is especially strong in criminal cases”). The Legislature acted to prevent the inevitable impulse of prosecutors to use reporters as extensions of law enforcement. The facts of this case provide a clear example of why the strict three-part test was adopted. This was a horrific crime and the natural desire to see someone brought to justice is overwhelming. Absent the rigorous protections required by O’Neill and the Shield Law, the tendency to yield to that desire would be powerful; journalists would often be called to provide evidence to ensure a conviction-even when the journalist’s evidence was unnecessary to achieve that result. The reporters’ privilege precludes that outcome, in the interest of preserving a vigorous 36 and independent press. Knight-Ridder, 70 N.Y.2d at 167 (Bellacosa, J., dissenting). Therefore, “even if one were to be in disagreement with the wisdom of the policy underlying section 79-h and no matter how heinous the crime under investigation, the courts are not free to ignore the mandate of the Legislature and substitute a policy of their own.” Beach, 62 N.Y.2d at 252 (internal quotation marks omitted). The First Department decision is fully consistent with this policy. III. THE PEOPLE’S EFFORTS TO AVOID THIS CLEAR PRECEDENT ARE UNAVAILING Straining to avoid the obvious absence of any critical need for Ms. Robles’s testimony and notes, the People make a series of arguments seeking to undermine the constitutional balance crafted in O’Neill and the legislative requirements of the Shield Law. The effort is entirely misdirected. The People devote several pages of their Brief to urging this Court to apply a different test and simply “weigh[] the parties’ competing interests” because this criminal case involves a truly heinous crime. E.g., DA Br. at 22, 24, 34. In an effort to rationalize the use of a relaxed standard in this case, the People discuss the origin of the Shield Law as a protection for confidential sources, criticize the analysis that led to this Court to recognize a privilege for non-confidential information in O’Neill, and examine federal cases applying a narrower privilege 37 existing under the United States Constitution. See id. at 24-28 & n.7, 35-36. The People also purport to find strength for their argument that the O’Neill test should apply differently in criminal cases by citing this Court’s decision in Combest. These arguments are unavailing. As an initial matter, far from applying a balancing test of the kind proposed by the People, the Combest court engaged in a straightforward application of the O’Neill test, concluding that it was overcome because the videotaped materials sought were critical and necessary to the defense. 4 N.Y.3d at 347. In addition, Combest in many respects is sui generis. In that case, as part of a reality television series, a television production crew filmed the arrest and interrogation of a defendant by the police during which the defendant confessed to the crime. Id. at 343. The production company turned over a video of the arrest to the defendant but took custody of the only copy of the videotape of the interrogation. The defendant later claimed his confession was coerced, and subpoenaed the television production company for the unaired video and audio tapes of his interrogation. Id. at 344. In deciding that the Shield Law was overcome on these extreme facts, the Court found it “beyond dispute that a defendant’s own statements to police are highly material and relevant to a criminal prosecution.” Id. at 347 (emphasis added). 38 In support of this conclusion, the Court cited statutes relating to statements made by a defendant to public servants, CPL § 240.20(1)(a) and CPL § 710.30(1)(a), and explicitly noted that its decision was based on concerns about allowing the film company to perform what was in fact a police function-the memorialization of an otherwise private interrogation and admission-by videotaping it, thus possessing the only recording of the event. Had the police made (or had copies of) the videotapes, they would plainly have had to provide them to defendant. Id. at 350. Nothing remotely similar exists here. The People here seek to compel not the production of the only copy of the videotaped evidence of a confession that should have been turned over by the police, but the disclosure of testimony and notes of a routine jailhouse interview in which the defendant denied having committed the crime. The unnecessary evidence here is exactly what the privilege exists to protect. Further, the People’s contention that Combest stands for the proposition that any “criminal party” has a “substantial right to obtain relevant evidence,” DA Br. at 33 (citing Combest, 4 N.Y.3d at 347), that is merely “weighed” against the reporter’s burden is incorrect. 8 Combest neither implicitly nor explicitly suggested 8 Indeed, even applying the People’s test here, other than recounting the fact that Juarez stands accused of a serious and horrible crime, the People have not 39 that the application of the reporters’ privilege is different in a criminal case. To the contrary, it declined to do so. The Combest court was asked by a criminal defendant to declare the Shield Law unconstitutional on the ground that those accused of a crime should always be entitled to newsgathering materials relevant to their defense. Id. at 346. While this Court noted that a criminal defendant's interest in non-confidential material “weighs heavy,” id., it expressly declined to decide what standard-other than the O’Neill standard-is required to overcome a criminal defendant’s independent constitutional right “to obtain relevant evidence,” id. at 347. Even if it is a fair reading to suggest that the Combest court was undecided as to whether the O’Neill standard applies to a subpoena from a criminal defendant, there is nothing in Combest to suggest the O’Neill standard might not articulated any specific “need” for the information such that the balance tips in their favor. The People make clear that (a) they want the information, (b) they believe that all statements by criminal defendants are important to a prosecutor, and (c) because of the age of this investigation, there is little evidence other than the confession to convict Juarez. See DA Br. at 37-38. The fact remains, however, that Juarez has confessed and there is a videotape of that confession for the jury to watch that the trial court has already determined beyond a reasonable doubt was voluntarily obtained. R237. On the other side of the scale, there would be real harm to Ms. Robles, and to the public, if the People are allowed to question her about jailhouse interviews. R16-17. Jailhouse interviews are fundamental to fair and accurate reporting on how the government is prosecuting crimes. Id. By way of example, Ms. Robles’s own jailhouse reporting contributed to the exoneration of ten criminal defendants. Id. 40 apply to a subpoena from the prosecution. Criminal defendants have broad Confrontation Clause rights that the prosecution does not. Indeed, the government is denied the right to introduce evidence that would be helpful or even crucial to its case in many situations required by constitutional considerations, such as the testimony of the defendant himself, see N.Y. Const. Art. I, § 6; see also Giles v. California, 554 U.S. 353, 376 n.7 (2008) (“The asymmetrical nature of the Constitution’s criminal-trial guarantees is not an anomaly, but the intentional conferring of privileges designed to prevent criminal conviction of the innocent. The State is at no risk of that.”)9 Combest provides no support for the People’s proposed ad hoc balancing. The People further argue that the terms “critical or necessary” do not mean “essential to the maintenance” of the prosecution-even though this Court said just that in O’Neill-or “virtually rises and falls” as described in other cases. DA Br. at 45-48. They do so in two principal ways. First, the People dismiss the “virtually rises or falls” formulation as originating in federal courts which have now abandoned it. Id. at 45-46. But the cases cited by the People are construing the federal reporters’ privilege. See id. at 47-48. While some federal courts have in 9 The People argue that the defendant here “had a stake in obtaining the materials,” see DA Br. at 38, but it is the People’s subpoenas only at issue and they admit that Juarez “did not want Robles to testify at all,” id. at 18. The People do not have standing to make arguments on the defendant’s behalf. 41 recent years retreated from traditional protections afforded to reporters under the First Amendment, this State has not relaxed is protections. Just four years ago this Court reaffirmed that the Shield Law represents the “strong public policy” of New York, see Winter, 22 N.Y.3d at 316. And in any event, the question is academic: the First Department never used the “rises or falls” language in quashing the People’s subpoenas. In addition, there is no question that many New York courts have held that information is critical or necessary only if a party’s claim “virtually rises or falls” with the information. See Flynn, 235 A.D.2d at 908 (citations omitted); Prince v. Fox Television Stations, Inc., 36 Misc. 3d 1235(A), 2012 WL 3705165, at *7 (Sup. Ct. N.Y. Cnty. Aug. 28, 2012); Evans v. NYC Sch. Constr. Auth., 34 Misc. 3d 1227(A), 2012 WL 555087, at *1 (Sup. Ct. Bronx Cnty. Jan. 13, 2012); Guice- Mills v. Forbes, 12 Misc. 3d 852, 856 n.3 (Sup. Ct. N.Y. Cnty. 2006) (citation omitted); In re Subpoena Duces Tecum to ABC, 189 Misc. 2d 805, 808 (Sup. Ct. N.Y. Cnty. 2001) (citation omitted); In re Grand Jury Subpoenas Served on NBC, 178 Misc. 2d 1052, 1058 (Sup. Ct. N.Y. Cnty. 1998) (citation omitted). So too have many federal courts applying the New York Shield Law. E.g. Baker, 669 F.3d at 108; In re NBC, 79 F.3d at 351; Baez v. JetBlue Airways, 2012 WL 5471229, at *2 (E.D.N.Y. Nov. 9, 2012). 42 The People also argue that Combest held that the “critical or necessary prong can be satisfied by showing that the sought-after information ‘support[s]’ a criminal litigant’s theory at trial, even if the litigant has some other evidence supporting that theory.” DA Br. at 34. The People then extrapolate this interpretation of Combest to mean the Shield Law can be overcome even if a prosecutor has legally sufficient evidence of guilt. The argument again wildly misses the mark. The videotapes sought by the defendant in Combest were critical or necessary not because they “supported” a defense, but because they were “the only depictions of his interrogation by the police” and, in other circumstances would have had to have been turned over to the police. 4 N.Y.3d at 348. Combest simply does not speak to the situation at issue here-where the People have the videotape of the confession and merely seek testimony and notes about a jailhouse interview that may or may not corroborate it in some respects. At bottom, the People argue that the information sought from Ms. Robles is “critical or necessary” because all statements by a criminal defendant are critical and necessary. Nothing supports such a bright line rule. Rather, applying the three-part test, courts have reached differing results on differing facts about whether to compel a reporter to testify about statements made by a criminal defendant or provide outtakes containing such statements. Compare People v. 43 Bonie, 141 A.D.3d 401 (1st Dep’t 2016) (requiring disclosure); Mercereau, 24 Misc. 3d 366 (same), with Santiago, 36 Media L. Rep. 1101 (granting motion to quash); People v. Novak, 41 Misc. 3d 749 (Sullivan Cnty. Ct. 2013) (same). These decisions confirm that the constitutional standard works as intended. In the end, this is a very straightforward case. The People simply have not shown that either Ms. Robles’s testimony or her notes are critical or necessary for this prosecution. The New York State Constitution and the Shield Law therefore require that the subpoenas should be quashed. The First Department decision should be affirmed. CONCLUSION For each and all the foregoing reasons, the decision of the Appellate Division should be affirmed. Dated: New York, NY July 27, 2017 LEVINE SULLIVAN KOCH & SCHULZ, LLP avid A. Schulz By: D Katherine M. Bolger Thomas B. Sullivan 321 West 44th Street, Suite 1000 New York, NY 10036 (212) 850-6100 (212) 850-6299 dschulz@lskslaw.com kbolger@lskslaw.com tsullivan@lskslaw.com Counsel for Frances Robles 44 PRINTING SPECIFICATIONS STATEMENT I hereby certify that the foregoing brief was prepared on a computer using Word 2010. Type. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point Size: 14 Line spacing: Double Word Count. The total number of words in this brief, inclusive of point headings and footnotes and exclusive of the statement of status of the related litigation; the corporate disclosure statement; the table of contents, the table of cases and authorities and the statement of questions presented required by subdivision (a) of this section; and any addendum containing material required by section 500.1(h) of this Court’s Rules is 9,721. Dated July 27, 2017 LEVINE SULLIVAN KOCH & SCHULZ, LLP jCaJtw fa- tfh Katherine M. Bolger 321 West 44th Street, Suite 1000 New York, NY 10036 (212) 850-6100 (212) 850-6299 kbolger@lskslaw.com Counsel for Frances Robles By: 45