In the Matter of the People, Appellant,v.Conrado Juarez, Defendant. Frances Robles, Nonparty Respondent.BriefN.Y.April 24, 2018Submitted by JORDAN K. HUMMEL _________________________________________________________________ COURT OF APPEALS State of New York _______ THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- APL – 2017 - 00057 CONRADO JUAREZ, Defendant, FRANCES ROBLES, Non-Party Respondent. _____________________________________________________ BRIEF FOR AMICUS CURIAE DISTRICT ATTORNEY’S ASSOCIATION OF THE STATE OF NEW YORK _____________________________________________________ SCOTT D. MCNAMARA District Attorney, Oneida County President, District Attorney Association of the State of New York c/o DARCEL D. CLARK District Attorney, Bronx County 198 East 161st Street Bronx, New York 10451 (718) 838-7322; Fax: (718) 590-6523 hummelj@bronxda.nyc.gov NANCY D. KILLIAN JORDAN K. HUMMEL Assistant District Attorneys, Bronx County Of Counsel __________________________________________________________________ PRINTED ON RECYCLED PAPER COURT OF APPEALS STATE OF NEW YORK --------------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- CONRADO JUAREZ, Defendant, FRANCES ROBLES, Non-Party - Respondent. --------------------------------------------------------------------------X AMICUS CURIAE BRIEF PRELIMINARY STATEMENT The District Attorneys Association of the State of New York (“DAASNY”) submits this brief as amicus curiae in the above-captioned appeal. By permission of this Court, granted on April 4, 2017, the People of the State of New York appeal from an order of the Appellate Division, First Department, dated October 20, 2016, reversing an order of the Supreme Court, New York County (Wittner, J.), which had denied Frances Robles’ motion to quash a subpoena compelling her to testify at a criminal trial about her jailhouse interview with defendant and to turn over her interview notes for in camera review by the court. 2 INTRODUCTION This appeal arises from the investigation following the July 1991 discovery of the decomposing body of a four-year-old girl inside of a cooler. The case remained unsolved until 2013, when a break led police to defendant, a cousin of the dead girl. Defendant was interviewed and admitted to the murder. He repeated his confession to a prosecutor and was arrested. Days later, defendant granted a jailhouse interview to non-party respondent Frances Robles, a New York Times’ reporter. After publication of an account of the interview in which defendant denied involvement in the crime, the People sought to compel Robles’ testimony and production of her notes. Robles moved to quash the subpoena, and the trial court granted the quashal motion with respect to a pre-trial hearing on defendant’s motion to suppress his statement to law enforcement, but denied it with respect to trial testimony. On appeal to the Appellate Division, that court reversed and granted the motion in full, relying on Civil Rights Law § 79-h (c), the so-called Shield Law. It held that “the People have not made a ‘clear and specific showing’ that the disclosure sought from [the reporter] (her testimony and her 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 non-confidential material” because “the People have a videotaped confession by the defendant that has been found admissible at trial and that includes 3 statements consistent with other evidence in the case.” People v. Juarez, 143 AD3d 589 (1st Dept 2016). This appeal follows. STATEMENT OF AMICUS CURIAE The District Attorneys Association of the State of New York (“DAASNY”) is a state-wide organization composed of elected District Attorneys from throughout New York State, the Special Narcotics Prosecutor of the City of New York, and the Special Prosecutor/Inspector General at New York State Justice Center for the Protection of People with Special Needs, and their nearly 2,900 assistants. At issue here is the scope of Civil Rights Law § 79-h (c), which allows a party to obtain non-confidential information and sources from the media where: the party seeking such news has made a clear and specific showing that the news: (i) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party's claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any alternative source. Id. The Association’s interest is obvious. As the group that represents the constitutional officers obliged to prosecute all crimes across the state, DAASNY has expertise in the circumstances in which a news gatherer ought to be compelled, within the limits of the statute, to provide evidence, and is also concerned about potential limitations on a prosecutor’s ability to seek important, non-confidential evidence simply by virtue of the nature of the witness’s work. Clarification of those limitations is crucial 4 in advising prosecutors precisely how they might proceed in cases, such as this one, in which the Shield Law is raised to bar disclosure of otherwise significant evidence. The Facts In July 1991, a four-year-old girl’s body was found decomposing inside of a cooler in Manhattan. The girl was unable to be identified so investigators nicknamed her “Baby Hope.” For 20 years, police continued investigating, unable to identify Baby Hope’s killer, until a break in 2013 led investigators to defendant, Baby Hope’s cousin. Amongst other investigatory steps, the police interviewed defendant on October 11 and 12, 2013. During these interviews defendant admitted he had sexually abused Baby Hope days before her death. Although he initially denied killing her, he admitted that he assisted his sister in disposing of the body by placing it in a cooler and bringing it to a park. Defendant was subsequently interviewed on video by a prosecutor and admitted that he had smothered Baby Hope with a pillow while anally sodomizing her and helped dispose of her body. Accordingly, defendant was charged with Baby Hope’s murder. On October 16, 2013, defendant granted a 45-minute jailhouse interview to New York Times reporter Frances Robles. Robles memorialized the interview in about six pages of notes approximately 25 minutes after it concluded, because she was not permitted to bring a pen and paper into the interview. On October 17, 2013, the New York Times published an article about this interview entitled, “Suspect Recalls the Short Life of ‘Baby Hope.’” The article included defendant’s statements describing his relationship with Baby Hope, his frustrations with her, his denial that he killed her, and 5 his confession that he helped dispose of her body. Additionally, for the first time, defendant provided an alternate cause of death– directly contradicting what he had told the prosecutor – that Baby Hope had fallen down the stairs while under another relative’s care. Initially, the People petitioned for a certificate adjudging Robles to be a material witness pursuant to Criminal Procedure Law (hereinafter, “CPL”) § 640.10 because her testimony about defendant’s statements during her interview would be necessary and relevant to a “critical issue in this case,” specifically, the voluntariness of defendant’s confession, and on December 11, 2015, Justice Witter issued the certificate. By Order dated February 4, 2016, a Florida judge issued a subpoena for her to testify in New York. On February 9, 2016, Robles moved to quash the subpoena under the Shield Law. The Supreme Court, New York County, denied the motion, stating that her testimony was critical or necessary given the circumstances of the prosecution and that defendant was challenging his confession as involuntary. On March 9, 2016, the People amended their previous application to include Robles’ notes about the interview for the trial court to inspect in camera and, again, on March 31, 2016, she moved to quash the subpoena on the same grounds. On April 13, 2016, the Supreme Court, New York County, granted the motion to quash, with respect to the Huntley hearing only.1 The issue was litigated again with respect to compelling 1 Defendant’s motion to suppress his statements was denied on August 5, 2016. 6 Robles’ testimony and production of her notes for trial and, on August 4, 2016, the Supreme Court, New York County, denied the motion to quash, stressing that published portions of defendant’s interview indicated that he had discussed the charges against him and his relationship with the victim. Robles appealed to the Appellate Division and that court reversed, holding that the People had not made a clear and specific showing that Robles’ testimony and her notes were critical or necessary to a material issue in their case because defendant’s videotaped confession was found admissible at trial and “includes statements consistent with other evidence in the case.” Juarez, 143 AD3d 589. On April 4, 2017, this Court granted leave to appeal.2 The issue before this Court is narrow – how “qualified protection” of non-confidential information and sources applies in criminal proceedings considering the unique circumstances and competing constitutional interests implicated in such proceedings, as compared to civil cases; specifically, what a “clear and specific showing” entails and what it means to be “critical or necessary to the maintenance of a party’s claim, defense or proof of an issue material thereto” (Civil Rights Law § 79-h [c][ii]). 2 While the Association is aware that this Court has asked the parties to address the Court’s jurisdiction in this matter, as amicus, the Association does not address that issue herein. 7 ARGUMENT POINT WHEN APPLYING CIVIL RIGHTS LAW § 79-H (C), THE ELEMENT “CRITICAL OR NECESSARY” SHOULD BE GIVEN ITS PLAIN MEANING, WHILE ALSO CONSIDERING THE UNIQUE CONSTITUTIONAL CONSIDERATIONS AND CHARACTERISTICS OF A CRIMINAL PROCEEDING, ABSENT IN A CIVIL PROCEEDING. Under Civil Rights Law § 79-h (c) – the current version of the Shield Law that establishes New York’s journalistic privilege – non-confidential information and sources receive qualified protection.3 Thus, generally, professional journalists cannot be held in contempt “for refusing or failing to disclose any unpublished news obtained or prepared by a journalist or newscaster in the course of gathering or obtaining news. . . or the source of any such news, where such news was not obtained or received in confidence.” Id. However, disclosure of non-confidential news material may be compelled where: the party seeking such news has made a clear and specific showing that the news: (i) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party's claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any alternative source. Id. This standard applies in “any civil or criminal proceeding.” Id. 3 By contrast, the statute affords “[a]bsolute protection for confidential news” without exception. Civil Rights Law § 79-h (b) (emphasis supplied). 8 In reversing and granting the motion to quash in whole, the Appellate Division held that “the People ha[d] not made a ‘clear and specific showing’ that the disclosure sought from Robles (her testimony and her 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 non-confidential material” because “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.” Juarez, 143 AD3d 589. This appeal will allow precise resolution of what it means to be “critical or necessary to the maintenance of a party’s claim, defense, or proof of an issue material thereto” (Civil Rights Law § 79-h [c][ii]) (emphasis supplied) in a criminal proceeding; specifically, whether the prosecution’s entire case must fail, as a matter of law, without the sought evidence in order to obtain non-confidential materials from the media. As will be discussed at greater length, the terms “critical or necessary to the maintenance of a party’s claim, defense or proof of an issue material thereto” (Civil Rights Law § 79- h [c][ii]), should be defined by a plain reading of the statute, while allowing for consideration of the unique circumstances and competing constitutional interests implicated in criminal proceedings, as compared to civil cases. To require an exceedingly stringent interpretation of the statute for non-confidential news sources such that, as a practical matter, neither the People nor a criminal defendant can ever obtain evidence from the media, directly defies the Legislature’s intent and the meaning of the statute. The Shield Law has explicitly articulated an exception to balance the 9 competing interests between criminal prosecutions and freedom of the press and, where the standard has been met, the Legislature has mandated that the media must comply and turn over the requested evidence. The very existence of this exception strongly indicates that the Legislature did not intend to create an impossible standard in which parties could never obtain evidence from the media. While “courts are not free to ignore the mandate of the Legislature and substitute a policy of their own” (Beach v. Shanley, 62 NY2d 241, 252 [1984]), neither is the media. Thus, the Shield Law should be interpreted in a reasonable manner that permits parties to obtain such evidence upon the appropriate showing, as the Legislature intended. A. Legislative History The Shield Law was adopted in 1970 under Civil Rights Law § 79-h (L 1970, ch 615, § 1). The bill’s sponsor stated that it was intended to protect "newsmen from being held in contempt for refusing to disclose their news sources before a court inquiry, legislative hearing or any other body having contempt powers" and had been prompted by recent efforts by Federal authorities to subpoena journalists to obtain evidence which could later be used in criminal prosecutions. When the Governor signed the bill, he also noted that it "‘protects journalists and newscasters from charges of contempt’ and observed that the ‘threat to a newsman of being charged with contempt and of being imprisoned for failure to disclose his information or its sources can significantly reduce his ability to gather vital information’ by cutting off ‘valuable sources of 10 information.’" Oak Beach Inn Corp. v. Babylon Beacon, Inc., 62 NY2d 158, 164-165 (1984) (quoting NY Legis Am, 1970, p. 508). Several amendments followed, including a 1990 amendment designed to address “continuing confusion over the level of protection provided by the statute.” See Summary of Legislation 1990. In particular, this bill was passed in response to the confusion arising from this Court’s decisions in Knight-Ridder Broadcasting, Inc. v. Greenberg, 70 NY2d 151 (1987), which held that the Shield Law offered no protection to non-confidential evidence, and O’Neill v. Oakgrove Construction, Inc., 71 NY2d 521, 524-25 (1988), which held, as a matter of state and federal constitutional law, that particular constitutional provisions provide that a “reporter’s privilege [] extends to confidential and non-confidential materials,” and adopted a tri-partite showing to obtain non-confidential materials (the current Shield Law standard). Critically, the O’Neill Court did “not consider the different factors present in criminal cases.” Id. at 528, n. 2. Accordingly, the 1990 Amendment clarified that the Shield Law applied to criminal and civil proceedings, and articulated a strenuous – though not impossible – standard for parties to meet in order to obtain non-confidential material. Crucially, the Legislature declined to provide absolute protection to non-confidential material, as it had with its confidential counterpart. This decision was endorsed by various news organizations – including ABC (Letter from Capital Cities / ABC, Inc., March 22, 1990 at 20, Bill Jacket, L 1990, ch 33, Assembly Bill 3326-B), CBS, NBC, and the Associated 11 Press (Letter from Rogers & Wells submitted on behalf of CBS, Inc., The Associated Press, Gannett Co., Inc., National Broadcasting Companies, Inc., and Capital Cities / ABC, Inc., March 22, 1990 at 23-27, Bill Jacket, L 1990, ch 33, Assembly Bill 3326-B) – who all submitted letters in support of the amendment, celebrating the creation of the qualified protection without insisting upon absolute protection for all sources and information. Thus, qualified protection was deemed adequate to satisfy the concerns that inspired the amendment.4 B. The plain language of the Shield Law demonstrates that the “critical or necessary” prong does not require that the People’s entire case must fail, as a matter of law, without the sought evidence. Critical to the Appellate Division’s reversal was its holding that the People did not need Robles’ evidence because of defendant’s confession to law enforcement. But the plain language of the statute rebuts the notion that lack of necessity alone justifies the extraordinary relief of quashal. The Shield Law requires that the evidence sought be “critical or necessary to the maintenance of a party’s claim, defense, or proof of an issue material thereto.” Civil Rights Law § 79-h (c)(ii) (emphasis supplied). The question presented here is whether in a criminal case this standard requires that the People’s entire case must fail, as a matter of law, without the sought evidence. The plain language 4 Notwithstanding a few individual cases in which the media is dissatisfied that it must comply with a lawful subpoena, satisfaction with the Shield Law has endured. No further legislation to increase or amend protections for non-confidential material has been proposed, despite the current proposal to amend the definition of a “professional journalist” to include “employment or association with a web log” which is defined “as a website or webpage that contains an online journal containing news, comments and offers hyperlinks provided by the professional journalist or newscaster” (2017 NY Senate Bill S89 [January 4, 2017]). 12 of the statute and common sense make clear that this stringent interpretation belies the Legislature’s intent. The terms “critical” or “necessary” have different meanings. Black’s Law Dictionary (10th Edition) defines “critical evidence” as “evidence strong enough that its presence could tilt a juror's mind.” Likewise, the Merriam-Webster Dictionary defines “critical” as “of, relating to, or being a turning point or specially important juncture.” By contrast, as is relevant here, Black’s Law Dictionary (10th Edition) defines “necessary” as “essential” and Merriam Webster defines it as “absolutely needed.” Thus, the terms do not share the same meaning. Surely, if the Legislature had intended that “critical” meant “necessary,” it likely would not have included both terms or it would have used the conjunctive “and” to link them, rather than the disjunctive “or” that appears in the statute.5 The plain language of the statute clearly establishes that each term carries a different meaning and that the evidence sought can be either critical or necessary, but need not be both. In this case, by citing defendant’s videotaped confession (and implying that it establishes a prima facie case for the People), the Appellate Division has effectively rewritten the statute to require that the material sought be both “critical” and “necessary.” 5 Merriam-Webster dictionary defines “and,” in relevant part, as “used as a function word to indicate connection,” while it defines “or” as “used as a function word to indicate an alternative.” 13 As to the purpose of the evidence sought – to maintain “a party’s claim, defense, or proof of an issue material thereto” (Civil Rights Law § 79-h [c][ii] [emphasis supplied]) – again, the plain language of the statute is instructive. The Legislature clearly did not limit the purpose of the evidence sought to the maintenance of a party’s entire claim, as the so-called “rise or fall” standard would suggest. Instead, the Legislature chose to include additional purposes like a “defense” and “an issue material thereto.” Id. This strongly indicates that the Legislature never intended that a party’s entire case must fail, as a matter of law, in order to meet the critical or necessary standard or it would have omitted these other purposes. Indeed, the only time the People must allege that they cannot proceed with their case without a particular piece of evidence is when the evidence is suppressed and the People are seeking leave to appeal the suppression order. CPL § 450.50(1). Since the Legislature has not burdened the People with making a similar assessment in the context of Civil Rights Law § 79-h (c), the fact that the People’s case could theoretically proceed without the sought evidence is not dispositive. Additionally, the People’s representation that they could, if necessary, present a prima facie case without the sought evidence is by no means a concession that the evidence is not critical or necessary; it is an honest evaluation of the prosecution’s case and how the People anticipate the evidence will unfold at trial recognizing the very real difference between presenting prima facie evidence of a crime and sustaining the burden of proving a defendant’s guilt beyond a reaonsable doubt, and in circumstantial cases to a moral certainty, of each and every element of the crimes charged. Indeed, as appellant 14 points out, a prima facie case is made out “in every criminal case in which the grand jury returns a legally sufficient indictment” (Appellant’s Brief, p. 48), but the Legislaute cannot have intended that the People could never seek such materials post-indictment. Such a rule would be illogical since, as in this case, media coverage frequently begins only after a suspect has been arrested/indicted. Accordingly, evidence is critical or necessary to a criminal prosecution where the People will be unable to prove a material part of their case without it. See People v. Combest, 4 NY3d 341, 347-49 (2005) (footage of defendant’s interrogation was critical or necessary to challenge the voluntariness of his statements); Matter of Grand Jury Subpoenas (National Broadcasting Co.), 178 Misc2d 1052 (Supreme Court, NY County, 1998) (footage of protest was material and necessary to identify assailants). Common examples of such material parts are identity, intent, motive, and consciousness of guilt. The identity of a defendant is essential in any criminal prosecution, thus, any information regarding a defendant’s identity is critical or necessary. See Matter of Grand Jury Subpoenas (National Broadcasting Co.), 178 Misc2d 1052. Intent is an essential element of most crimes and, therefore, must be proven beyond a reasonable doubt. Combest, 4 NY3d 341 (recognizing videotape of defendant’s interrogation could undermine the element of intent). Motive, while not an explicit element of charged crimes, is critical to prove in most prosecutions and properly considered by the jury (particularly in homicide prosecutions and prosecutions based largely on circumstantial evidence). See People v. Seppi, 221 NY 62, 70 (1917) (“In determining 15 the guilt or innocence of a defendant . . . the question of motive is always to be considered by the jury in their deliberations”); Criminal Jury Instructions (2d Edition) (Motive When not an Element of Charged Crime) (jury may consider motive where it is not an explicit element “if you find from the evidence that the defendant had a motive to commit the crime charged, that is a circumstance you may wish to consider as tending to support a finding of guilt”). Thus, where, as here, the defendant is charged with an intentional crime, motive and intent are always critical to the People’s case. Further, in circumstantial cases a defendant’s consciousness of guilt, while not sufficient alone to prove a defendant’s guilt, can greatly strengthen the People’s case by showing that he knew he had done something wrong and attempted to cover it up or mitigate his actions to make himself appear less culpable.6 See People v. Bonie, 141 AD3d 401 (1st Dept), lv dismissed 28 NY3d 956 (2016) (in “a circumstantial murder case, evidence which, standing alone, might appear innocuous can be deemed critical when viewed in combination with other circumstantial evidence” and “[w]hile [a reporter’s] statements out of context might seem benign, the People argue persuasively that they are ‘critical or necessary’ to the People's effort to prove motive, intent, and consciousness of guilt, since they contradict defendant's earlier statements to police”). 6 Notably, all circumstantial evidence – and most direct evidence – alone would be insufficient to sustain a conviction. Indeed, rarely does a case rely upon only one piece of evidence. Thus, requiring that the evidence sought be the linchpin of the case that will entirely determine if the case will be proven beyond a reasonable doubt is an unrealistic standard. If this standard were adopted, no one prosecuting a circumstantial case could ever successfully seek evidence from the media. This cannot be the rule the Legislature intended. 16 Conversely, impeachment materials do not meet the “critical or necessary” standard. See People v. Novak, 41 Misc3d 749 (Sullivan County Ct 2013). The jailhouse interview at issue here meets the “critical or necessary” standard. Since defendants frequently exercise their right to remain silent, a jailhouse interview may provide the only insight into a defendant’s internal intent, motives, and consciousness of guilt. This includes a defendant’s statements that are “materially inconsistent” with prior statements to law enforcement or “were not made to law enforcement.” People v Mercereau, 24 Misc3d 366, 371-72 (Sup Ct. Richmond County 2009); see also Bonie, 141 AD3d at 403-04, People v. Cheche, 151 Misc2d 15, 18 (Cayuga County Ct 1991) (“Certainly a defendant’s voluntary, unsolicited statements to one who is in no way connected with either party to a law suit could be very necessary and critical to proving the People’s claim”). Where a defendant has already given an interview to law enforcement, the details of a jailhouse interview can reveal inconsistencies between his statements that speak to the voluntariness of his confession, a habitually contested issue at trial. These inconsistencies are not sought for impeachment (since it is the defendant’s right not to testify and such right is seldom exercised), but to resolve a material issue at trial – whether defendant’s statements to law enforcement were voluntary. The voluntariness of a defendant’s statement to law enforcement – particularly, as in this case, where defendant’s statement is the predominant evidence linking him to a crime – is simply not the “ancillary issue in the 17 litigation” that this Court has sought to prevent from overriding the protection to needlessly obtain evidence from the media. O’Neill, 71 NY2d at 527. To determine which portions of the sought evidence are critical or necessary, a criminal court should review the evidence in camera, precisely as was ordered in this case. As the statute prescribes, where the qualified protection is overcome, a “court shall order disclosure only of such portion, or portions, of the news sought as to which the above-described showing has been made and shall support such order with clear and specific findings made after a hearing.” Civil Rights Law § 79-h (c). It would be impossible for a court to follow this mandate and limit disclosure without first reviewing the evidence in camera to decide which portions, if any, met the standard. Thus, courts have frequently held that a trial court’s in camera review of the evidence is appropriate. See Matter of Grand Jury Subpoenas (National Broadcasting Co.), 178 Misc2d 1052; Matter of Sullivan, 167 Misc2d 534 (Sup Ct, Queens County, 1995). This Court has repeatedly recognized the propriety of in camera review for determining if evidence is privileged and, if so, if it meets an exception requiring dissemination to the parties. See In re World Trade Ctr. Bombing Litig., 93 NY2d 1, 4 (1999) ( “an in camera assessment of the disputed [World Trade Center security-related materials] is necessary to weigh whether the particular, requested data are shielded by a public interest privilege against disclosure of confidential governmental communications”) (alteration supplied); Spectrum Sys. Int'l Corp. v. Chem. Bank, 78 NY2d 371, 378 (1991) (“whether a particular document is or is not protected [by attorney-client privilege] is necessarily a 18 fact-specific determination most often requiring in camera review”) (internal citation omitted and alteration supplied); Cynthia B. v. New Rochelle Hosp. Med. Ctr., 60 N.Y.2d 452, 461 (1983) (evaluating if doctor-patient privilege applied to psychiatric records, stating “[i]n order to balance the competing claims, an in camera inspection of the record will be advisable in most instances”). This mechanism strikes the appropriate balance between the need to protect privileged evidence and litigate related claims, only dispensing the evidence that meets the required threshold and protecting the remainder. Prohibiting in camera review would be impractical since, alternatively, the privileged party alone would determine when evidence should be disclosed. This cannot be the result the Legislature intended; whether evidence is critical or necessary is plainly a legal determination, not a factual one, thus, it must be left to a court to make the requisite determination. And, perhaps more importantly, only the court presiding over a particular prosecution will be in a position to make the determination. A defendant’s statement that may seem innocuous when preparing a news broadcast or article – such as a characterization of his relationship and experiences with the victim – can be, and in this case is, critical or necessary in proving the voluntariness of the defendant’s statement and, thus, his guilt beyond a reasonable doubt. Cf. Kyles v. Whitley, 514 US 419 (1995) (State’s Brady disclosure obligation tested against cumulative effect of all suppressed evidence). Allowing in camera review does not diminish the importance of the underlying policies of freedom of the press. All privileges are rooted in important policies such as 19 ensuring public safety, promoting open and honest communications between attorneys and clients, and medical privacy, but each is subject to in camera review to determine the appropriate scope of that privilege. The media has failed to explain why journalistic privilege should be exempt from this well-established procedure. In fact, in Knight- Ridder, 70 NY2d 151, O'Neill, 71 NY2d 521, and Combest, 4 NY3d 341, each court conducted an in camera review before determining if the journalistic privilege applied, and this Court never questioned such review. This is likely because the very purpose of in camera review is to prevent the sort of wanton public dissemination of privileged information the media is concerned about while simultaneously balancing the State’s compelling interest in prosecuting crimes with all of the critical or necessary evidence. In undertaking this in camera review, courts should afford the seeking party some deference regarding how the party chooses to prove its case. As this Court recognized in Combest, when determining what is critical or necessary, “in a criminal case [the court] should also be mindful that ‘omissions, contrasts and even contradictions . . . are certainly not as apparent to the impartial presiding judge as to single-minded counsel.’” Combest, 4 NY3d at 349, n. 4 (citing People v. Rosario, 9 NY2d 286, 290 [1961]). Accordingly, courts have been hesitant to “substitute its judgment for a defendant’s on the question whether such evidence is ‘necessary or critical’ to a defense.” United States v. Sanusi, 813 F Supp 149, 160 (EDNY 1992) (CBS must produce unaired footage of police executing a search warrant of defendant’s home where no evidence was recovered to support claim the government overreached in its charges); see Matter of 20 Sullivan, 167 Misc2d 534 (Sup Ct, Queens County, 1995) (Court TV must provide defendant with unaired portions of police interrogation due to his claim that his statements were involuntary, and the court should not substitute its judgment for a defendant as to what is “necessary or critical” to his defense). Likewise, a court should apply the Shield Law in the same manner when the prosecution seeks materials and not substitute its judgment in deciding what evidence the People need to present to meet their burden of proof at trial as “[i]t is imperative to guarantee a fair trial not only to the defendant but also the People.” Cheche, 151 Misc2d at 18-19; see Old Chief v. United States, 519 US 172, 187-89 (1997) (stressing the need to present evidence in the manner the prosecution chooses due to “the need for evidence in all its particularity to satisfy the jurors' expectations about what proper proof should be”). Again, it cannot be that the Legislature intended to create two different rules for criminal defendants and prosecutors seeking the same protected evidence. C. Applications of the Shield Law must consider the well-recognized differences, constitutional and otherwise, between criminal proceedings and civil proceedings. While the Shield Law clearly applies to both civil and criminal cases, it is not clear that each element, particularly the “critical or necessary” element, applies in the exact same manner in both types of cases. The meaningful differences between civil and criminal litigation are well-established and these differences should inform how applications of this standard may yield different results. 21 Given the severe consequences at risk in a criminal proceeding – most obviously the deprivation of one’s liberty – criminal defendants are entitled to numerous constitutional protections that are not available to civil litigants. For instance, under the Fifth Amendment to the United States Constitution, criminal defendants have the right to remain silent; civil litigants do not. The burden of proof in criminal cases – beyond a reasonable doubt – is significantly higher than the burden in civil cases – by a preponderance of the evidence. See In re Winship, 397 US 358, 363 (1970) (“a person accused of a crime would be at a severe disadvantage, a disadvantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case”) (internal quotation marks and alterations omitted). Criminal cases based on circumstantial evidence require even higher judicial scrutiny and, frequently, a special jury instruction that “the facts proved must exclude to a moral certainty every reasonable hypothesis of innocence.” People v. Ford, 66 NY2d 438, 441-42 (1985) (internal quotations omitted). Thus, it is logical that due to these designedly different burdens of proof, additional information may be “critical or necessary” in a criminal proceeding, but not in a civil proceeding. Further, the discovery available to criminal parties is far more limited than that available to civil litigants who may depose parties – including the defendant – and witnesses and have adversaries respond to interrogatories. This impacts the “clear and specific showing” (Civil Rights Law § 79-h [c]) that a criminal party will be able to make since 22 less documentary evidence is available.7 Thus, given these real differences between criminal and civil litigation, it is predictable and appropriate that applications of the Shield Law will yield different results. D. The media’s concerns are speculative or overstated. The Reporters Committee for Freedom of the Press and 48 Media Organizations (hereinafter “RCFP”) and the Asian American Journalists Association, et. al. (hereinafter “AAJA”), argue that permitting parties to obtain non-confidential evidence threatens the media’s independence and its ability to continue gaining the trust and confidence of sources, thereby impeding their ability to report the news (RCFP Amicus Brief, pp. 8-10; AAJA Amicus Brief, p. 20). See also Robles’ Affidavit sworn to on Feb. 8, 2016, R. 17-18; Robles’ Affidavit sworn to on Mar. 30, 2016, R. 28. These complaints are overstated and speculative. As an initial matter, any supposed negative results are the natural consequence of the exception the Legislature created. While the media complains about the 7 Accordingly, the clear and specific showing required must oftentimes rely upon reasonable permissible inferences drawn from the available evidence to articulate the evidence sought. This is consistent with the inherent nature of these claims – where a party seeks information they do not already possess and is unavailable from an alternate source. For example, in this case, where during a 45-minute unrecorded jailhouse interview defendant denied killing the victim, but described her as “a little headstrong for a 4-year-old,” “conveyed a sense of resentment” towards her, and offered an entirely new cause of death (falling down the stairs, rather than defendant smothering her with a pillow while anally sodomizing her), it is reasonable for the People to infer that the journalist asked naturally related questions including why defendant never reported the victim’s death or told law enforcement the alternate cause of death. Undoubtedly, if this Court were to prohibit such inferences, no claim seeking to override the qualified protection would succeed because the seeking party necessarily does not have access to the information sought (such access would render their application moot). Indeed, the Legislature did not create an impossible standard and clearly intended non-confidential evidence to be disclosed in some cases, thus, such reasonable inferences must be permitted. 23 “overwhelming number of subpoenas seeking nonconfidential information that would diminish their time, resources, and attention” (RCFP Amicus Brief, p. 12; see also AAJA Amicus Brief, p. 24-25; Robles’ Affidavit sworn to on Feb. 8, 2016, R. 19, ¶ 9; Robles’ Affidavit sworn to on Mar. 30, 2016, R. 28, ¶ 11), the Legislature addressed this very concern in the 1990 amendment. Indeed, the Legislature and the media organizations that supported the amendment agreed these concerns were adequately addressed by requiring the moving party to justify the need before the news organization would be subject to entering litigation – a fact that was praised by news organizations in their letters of support (Letter from Rogers & Wells submitted on behalf of CBS, Inc., The Associated Press, Gannett Co., Inc., National Broadcasting Companies, Inc., and Capital Cities / ABC, Inc., March 22, 1990 at 26, Bill Jacket, L 1990, ch 33, Assembly Bill 3326-B. It is crucial to remember that the Shield Law imposes an exceedingly high – though not impossible – standard for the seeking party to meet before any action is required by the journalist. Accordingly, it is the rare case in which these subpoenas are even issued, much less that the media is required to take any affirmative steps such as actually producing evidence or appearing in court. Since nothing has changed in the procedures since this amendment, there is no reason to believe now that these practices will become overly burdensome, and, if for some reason they do, the media can always petition the Legislature once again to address this issue.8 8 To the extent that the media is concerned about lengthy litigation of such subpoenas, the People also have an interest in expeditious litigation given that the speed with which the People bring a case to 24 Another common complaint is that if the media were compelled to produce non- confidential evidence, non-confidential sources will stop speaking to them, thus impeding the media’s ability to report the news (RCFP Amicus Brief, pp. 10-11; AAJA Amicus Brief, p. 20; Robles’ Affidavit sworn to on Feb. 8, 2016, R. 17-18, ¶¶ 7-8; Robles’ Affidavit sworn to on Mar. 30, 2016, R. 28, ¶¶ 8-9). This claim is completely unsupported. In fact, a cursory review of recent media coverage reveals this assertion is speculative at best and most likely incorrect. In 2016, in People v. Bonie, 141 AD3d 401 (1st Dept), lv dismissed 28 NY3d 956 (2016), the Appellate Division ruled that outtakes of a defendant’s jailhouse interview must be produced, yet there seems to have been no chilling effect on jailhouse interviews. For instance, the New York Times ran an entire series entitled “Murder in the 40,” self-described as an “examination of the life and death of each person murdered in 2016 in the 40th Precinct in the South Bronx,” which included multiple jailhouse interviews with multiple defendants. Similarly, on May 20, 2017, the New York Post boasted an exclusive jailhouse interview with a defendant who drove his vehicle into Times Square killing one eighteen-year-old woman and injuring an additional twenty people (Stephanie Pagones, “I was trying to get help,” Times Square driver trial, particularly in metropolitan areas experiencing a backlog of cases, is crucial. In all cases except for homicide trials the People are subject to CPL § 30.30 limitations, and in homicide prosecutions the defendant still has a constitutional right to a speedy trial (see People v. Taranovich, 37 NY2d 442 [1975]). Thus, it is in the People’s interest to do everything possible to expeditiously resolve these issues. 25 says in jailhouse interview, NY Post, May 20, 2017) and, on February 26, 2018, the New York Daily News reported on its jailhouse interview with a defendant accused of attempting to stab a woman on the subway (Catherina Gioino and Stephen Rex Brown, Suspected subway creep claims he’s actually the victim, denies attempting to stab woman, NY Daily News, February 26, 2018). Thus, there is no evidence that these rulings – or any rulings in the nearly 50 years since the Shield Law was enacted – have chilled criminal defendants’ willingness to grant jailhouse interviews or the media’s ability to report on such incidents. Logically, it is unlikely that such a result would occur. Unless a defendant’s interview is confidential, it cannot be guaranteed that the information will not be accessible by the government. This should come as no shock to criminal defendants who clearly are not speaking to reporters under the disillusion that they will have editorial control over what information will be published for the entire world (including prosecutors) to see. Thus, the fact that a defendant’s unpublished statements may ultimately be turned over to the People after they have made the rigorous showing demanded by the Shield Law and after the trial court’s in camera review, is unlikely to deter a non-confidential source from speaking to the media. A defendant has the right to remain silent or to testify or to speak to third parties about his case, but these decisions come with certain consequences. If a defendant chooses to testify, he will be cross-examined. If a defendant chooses to speak to a third party, such as a reporter whose sole intent is to gather information to report it to the public, he assumes the risk 26 that his statements will be disseminated and, possibly, available to the prosecution. This is simply the risk a defendant takes when he chooses to speak publicly about his crimes, and there is no evidence that that risk has discouraged defendants from granting jailhouse interviews.9 It has further been suggested that compelling the media to comply with lawful subpoenas will discourage journalists from reporting on controversial matters and encourage news organizations to routinely destroy records of past reporting (RCFP Amicus Brief, pp. 11-12). This seems highly unlikely. If journalists take their duty to the public to provide this information seriously, they should not be so easily deterred by answering motions and possibly appearing in court. If this duty can be so easily abandoned, it is not as revered as the media has portrayed. Additionally, while the media is free to develop a more stringent document retention policy, it should be cautioned that this practice would likely only increase the need for reporters to testify about the destroyed evidence since that source of information would be unavailable. In any event, this is a calculated risk that the media must determine on its own, and it is inappropriate to threaten courts with destruction of important evidence simply to avoid having to comply with a legal process the Legislature created to protect the media’s interests. Such threats should be disregarded. 9 Where such reporting is useful for prison reform (RCFP Amicus Brief, pp. 11-12; AAJA Amicus Brief, pp. 21-24), journalists are certainly free to visit prisons and interview defendants about the relevant conditions without fear of subpoena, for those interviews would likely not be relevant to a specific criminal proceeding. 27 Thus, this Court should apply the plain language of the Shield Law in interpreting what it means for sought evidence to be “critical or necessary to the maintenance of a party’s claim, defense, or proof of an issue material thereto” (Civil Rights Law § 79-h [c][ii] [emphasis supplied]), while also considering the meaningful differences between criminal and civil proceedings that may yield appropriately different results in each context. Upon such an analysis, this Court should conclude that the Appellate Division incorrectly applied the Shield Law to the facts of this case. CONCLUSION SINCE THE PEOPLE HAVE MADE A CLEAR AND SPECIFIC SHOWING MEETING THE SHIELD LAW’S REQUIREMENTS, THE APPELLATE DIVISION’S DECISION SHOULD BE REVERSED. Respectfully Submitted, SCOTT D. MCNAMARA District Attorney, Rockland County President, DAASNY c/o DARCEL D. CLARK District Attorney, Bronx County Amicus Curiae NANCY D. KILLIAN JORDAN K. HUMMEL Assistant District Attorneys, Bronx County Of Counsel March 2018 COURT OF APPEALS STATE OF NEW YORK X THE PEOPLE OF THE STATE OF NEW YORK, Appellant, PRINTING SPECIFICATIONS STATEMENT APL- 2017 -00057 -against- CONRADO JUAREZ, Defendant, FRANCES ROBLES, Non-Party - Respondent. X PRINTING SPECIFICATIONS STATEMENT This brief was prepared in Microsoft Word 2010, Garamond typeface, with 14- point type, and was calculated by Microsoft Word as containing 7,000 words. c