State Court of Appeals Compels Reporter To Testify

By Andy Katz

A recent decision by the state’s highest court could affect whether journalists can appeal court subpoenas in order to protect sources, information and interview notes.

In a 4-3 vote on June 27, the New York State Court of Appeals ruled that Frances Robles, a reporter for the New York Times, could not appeal a subpoena issued by the Manhattan District Attorney’s office compelling her to testify against defendant Conrado Suarez in the “Baby Hope” murder trial.

The decision may set the precedent that someone subpoenaed to testify in a criminal case cannot appeal a trial court’s decision, legal experts say.

The majority decision relied on Robles’s status as a “nonparty” in the case, and, as such, said she lacked standing to appeal trial judge Bonnie Wittner’s denial of her appeal. Robles argued that the state’s shield laws should protect her from turning over interview notes or testifying against Suarez.

Acknowledging that decision blocks appeal from a trial judge’s initial ruling, the court essentially threw the issue back to state lawmakers, declaring that, “Unless the legislature acts, CPL, article 450 does not authorize a nonparty’s appeal under these circumstances.”

Writing in dissent, Judge Jenny Rivera said the decision places Robles and all other journalists in a terrible bind.

“The result of the majority’s decision will be that Robles, other journalists, and nonparties will have to risk contempt if they are unwilling to comply with a subpoena order,” Rivera wrote. “In Robles’ case, the choice is to testify and turn over her notes and breach her journalist’s oath and ethics, or refuse to comply with Supreme Court’s order and be held in contempt.

Robles is an award-winning reporter responsible for breaking stories such as New York Police Department Detective Louis Scarcella’s history of coercing false confessions and perjured eyewitness testimony. Her reporting helped prompt at least one exoneration and led to the review of additional cases.

Robles interviewed Suarez shortly after he confessed to killing 4-year-old Anjelica Castillo by smothering her with a pillow, placing her body in a cooler and dumping it alongside the Henry Hudson Parkway in 1991.

The interview, which took place at Rikers Island and was conducted in Spanish, was later published by the New York Times. Juarez reportedly admitted to helping dispose of the child’s body but denied killing her. He claimed instead that detectives had coerced him to confess during an hourslong interrogation. Robles had not been permitted to take notes or record the conversation per jail policy, and relied on notes written shortly afterward.

Robles appealed Judge Wittner’s denial of her motion to quash the DA’s subpoena. An appeals court in Manhattan sided with Robles, but the DA appealed that ruling to the state’s highest court. It now it appears that she will be forced to testify or face contempt charges.

According to the Reporters’ Committee for Freedom of the Press, which filed an amicus brief in support of Robles’s position, reporters’ shield protections are strongest when sources are confidential, but “less strong” when the source is widely known, or shared with anyone outside the reporter’s news organization.

Courts have sided with the authorities in cases where security was thought to override the reporter’s need for confidentiality. In 2014, he U.S. Supreme Court declined to consider an appeal from Washington Post reporter James Risen to quash a subpoena issued by federal prosecutors who demanded that he reveal a source for his 2006 book, State of War. In their lower court decision, the Fourth Circuit Court of Appeals stated in part that “[the First Amendment] does not protect against unauthorized leaks.”

U.S. Attorney General Eric Holder later ordered prosecutors not to demand answers or seek contempt charges when Risen declined to reveal his sources in court.

Robles has not decided whether or not she will testify or face contempt of court charges, the New York Times reported.