Baker & Hostetler Team Helps Filmmaker Burns Fend Off City's Subpoena

, New York Law Journal

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Outtakes from a controversial documentary about five men who are suing New York City claiming they were wrongfully imprisoned for the 1989 Central Park jogger attack are protected by the reporter's qualified privilege under federal common law, a judge ruled yesterday.

Southern District Magistrate Judge Ronald Ellis rejected the attempt of the city of obtain outtakes from "The Central Park Five" in a $250 million civil rights lawsuit brought by the five men who claim that as teens they were railroaded into giving confessions implicating them in the brutal attack on jogger Patricia Meili.

The film—by Ken Burns, his daughter Sarah Burns and her husband David McMahon—asserts that the five men were coerced into giving confessions that sealed their fate at trial, and that overzealous police and prosecutors, while under pressure to solve a horrific crime, overlooked inconsistencies in the confessions and evidence.

It also posits that the arrest and prosecution of the five—Yousef Salaam, Korey Wise, Raymond Santana, Antron McCray and Kevin Richardson—occurred in a racially charged, high-crime environment that accelerated a rush to judgment.

In quashing the subpoena, Ellis said the filmmakers had made the requisite showing of journalistic independence needed to invoke the privilege.

The five were in Central Park on April 19, 1989, the night of the Meili attack, and were among a larger group of teens, some of whom were arrested for attacking joggers and walkers in the park in what was termed by some police and commentators as a "wilding."

The five claimed vindication when convicted rapist and murderer Matias Reyes came forward and said that he acted alone when he attacked Meili and left her for dead. District Attorney Robert Morgenthau dropped the case against them in 2002.

They filed suit in 2003 claiming malicious prosecution and civil rights violations in In re McCray, 03-cv-09685.

The city's Law Department has spent the last nine years aggressively fighting the suit, claiming that police acted with probable cause to arrest and that prosecutors, including former sex crimes unit chief Linda Fairstein acted properly in obtaining the confessions, indictment and guilty verdicts (NYLJ, Nov. 23, 2012).

The Law Department served a subpoena on Burns' company, Florentine Films, on Sept. 12, 2012, seeking the outtakes, especially of interviews with four of the plaintiffs. It claimed that the full interviews would shed light on the claim that the confessions were coerced. An amended, somewhat narrower subpoena was served in October, but it still sought outtakes of interviews with 18 people, including the plaintiffs, their experts and some witnesses.

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