Opinion: Shield filmmakers

From The Concord (N.H.) Monitor, Oct. 12, 2012:

New Hampshire filmmaker Ken Burns tells stories, but now Burns, along with his daughter, Sarah, and her husband David McMahon, have become the story. It is a tale that deserves to end with kudos to the three filmmakers for their defense of a free press — and a spanking for New York City prosecutors who are abusing their power.

The filmmakers are the target of an ill-reasoned subpoena campaign by the city of New York, which is seeking all the interviews, outtakes and other material from the latest Burns documentary about a sensational crime.

Flash back, if you will, to April 19, 1989, when a dystopian nightmare took place in Central Park. In it, a group of roughly 40 black teenagers from Harlem swept through the park and attacked anyone they encountered. Joggers, walkers and bicyclists were savagely beaten. The event was dubbed a "wilding," a term that came to mean a senseless attack on random innocents by a group or mob.

On the same night in the park, a 28-year-old female investment banker was raped and beaten nearly to death. The police charged five African-American teens with the attack, interrogated them relentlessly with no lawyers present and denied them sleep until, the lawyers representing them said, they confessed. No DNA match could be made between the victim and any of the teens.

The boys, the youngest was just 14, subsequently recanted the confessions that constituted the only evidence against them and said they were coerced by police into making them.

The case of the Central Park Five divided the city. Black leaders said the boys were railroaded by the police. Donald Trump took out a full-page ad in four newspapers calling for the five to be put to death. The five were convicted and given lengthy prison sentences.

In 2002, Matias Reyes, a convicted rapist and serial killer, confessed to raping the Central Park jogger. His DNA matched evidence at the scene. The convictions of the teens, who had become men, were vacated, and they were released from prison. Lawyers for the five, alleging police misconduct, sued the city for $50 million apiece. The lawsuit is now in its ninth year. New York City police and prosecutors knew that Sarah Burns had written a book about the Central Park Five and that the trio's company, Florentine Films, was making a documentary about the case. They knew because they declined to comment or share any information with the filmmakers.

Fast forward to September 12, when city prosecutors subpoenaed virtually everything to do with the film, including the videotaped footage of the five wrongfully convicted men discussing their experience for the documentary. To their credit, the trio refused to comply with the subpoena. The city backed off a bit and issued a more limited subpoena on Oct 2. Again, the filmmakers again refused to comply.

The matter may now go to trial, where it should be laughed out of court. New York State has a strong shield law that guards freedom of the press by protecting journalists from subpoenas seeking information that police could obtain by other means. The city's lawyers, however, contend that the shield law and other First Amendment protections don't apply to the Burns team because they are not journalists but "advocates" for the five men. Those lawyers should open The New York Times, or virtually any other paper, to the editorial page and take note. Not all journalists are advocates — reporters struggle to be fair and not take sides — but advocacy has been fundamental to journalism from its beginning. Editorials advocate.

The Central Park Five documentary premiered at the Cannes Film Festival in the spring, and it will soon begin appearing at film festivals. Like all Burns documentaries, we presume that it will eventually air on public television. We urge viewers to watch it when it does and, when the spirit moves them, give New York City's prosecutors a Bronx cheer.

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