Update, 10/10/12, 2:47 p.m. EDT: A response from filmmaker Joseph Berlinger to comments made by Baker & Hostetler attorney John Siegal about Berlinger’s film Crude have been added to the 16th and 17th paragraphs below.
In 1990, John Siegal was a speechwriter for then–New York City mayor David Dinkins when five Harlem teenagers were convicted and sentenced to prison for raping a 28-year-old investment banker as she jogged in Central Park on the evening of April 19, 1989. Virtually the only evidence against the teens was their videotaped confessions.
Twenty-two years later, Siegal has once again crossed paths with the case, this time as a Baker & Hostetler partner representing filmmaker Ken Burns’s production company in response to a City of New York subpoena seeking access to unused footage from a new documentary, The Central Park Five.
The city claims it needs the footage as part of its effort to defend itself against a $250 million lawsuit in which Antron McCray, Kevin Richardson, Yusef Salaam, Raymond Santana, and Kharey Wise—whose convictions were vacated in 2002 when convicted rapist Matias Reyes confessed to committing the Central Park assault—and their families claim New York City police coerced them into admitting to the crime and withheld evidence that would have helped the boys prove their innocence.
Burns’s two-hour film, made in conjunction with his daughter, Sarah Burns, and her husband, David McMahon, contains interviews with all five plaintiffs, as well as relatives, lawyers involved in the case, journalists, psychologists, and historians. No one affiliated with either the New York City police department or the Manhattan district attorney’s office, which prosecuted the case, agreed to be interviewed by the filmmakers.
Unlike Ken Burns’s sweeping PBS documentaries on such subjects as baseball, the Civil War, and jazz music, The Central Park Five gets to the point quickly and relies on a variety of interview subjects to put the case in context. At times the film is as much a history of New York in the 1980s and 1990s as it is a narrative of a specific crime, detailing the so-called crack wars, daily murders, and tense race relations that helped define New York City some two decades ago—with supporters of the white victim on one side and defenders of the five black teens on the other. As an introductory scene explains, the Central Park jogger case “provoked outrage in a city famous for indifference.”
In its initial subpoena, filed September 12, the city requested that Burns’s production company, Florentine Films, turn over “all footage shot or acquired” in the making of the documentary, as well as any other information the filmmakers have gathered related to the case. After the filmmakers rebuffed that request, city lawyers issued a second subpoena October 2 “in an effort to avoid judicial intervention” in which they asked specifically for footage from interviews with the five men and family members named as plaintiffs in the litigation, as well as interviews with attorneys, experts, and others directly related to the case. Neither subpoena states what specifically the city hopes to uncover.
“The plaintiffs’ interviews go to the heart of the case and cannot be obtained elsewhere,” Celeste Koeleveld, an attorney with the New York City Law Department, said in a statement. ”If the plaintiffs truly want an open airing of the facts, they should encourage the filmmakers not to hide anything.”
In an interview with The Am Law Daily, Siegal countered that the film, which he says was produced completely independently of the plaintiffs, should receive protection under New York shield laws and federal laws protecting journalists’ privilege. “They have produced this film as a work of journalistic art, and as a public service, and not to be foot soldiers of the lawyers litigating a civil case,” says Siegal, a trial lawyer who has handled a number of media-rights cases (and also represented disgraced former U.S. Representative Anthony Weiner in the wake of the 2011 sexting scandal that prompted him to resign from Congress). “The city has tools for discovery available to them.”
City attorneys argue that the work is more like advocacy than journalism and for that reason does not deserve protection. Sarah Burns, they point out, has said she became interested in the case while working from 2004 to 2006 as a paralegal and researcher at Moore & Goodman, a civil rights law firm that at the time represented three of the plaintiffs. (Attorney Jonathan Moore has since taken the case to Beldock Levine & Hoffman). She has also written a book about the case, titled The Central Park Five: A Chronicle of a City Wilding, which was published last year.
“It’s very distressing to take the position that advocacy or opinion journalism does not afford the protection of reporters’ privilege,” responds Siegal, who is working on the case with Baker & Hostetler associate Peter Shapiro. “I can’t imagine them taking the same position with the New York Times editorial board.”
In a letter accompanying the October 2 subpoena, the city bolsters its argument that the filmmakers do not qualify as “independent press” by citing Ken Burns’s public comments that he hopes the film pressures the city to settle the long-running litigation, which began in 2003. The city’s lawyers also make reference to a 2009 letter they say Burns sent to New York City Mayor Michael Bloomberg urging him to resolve the case. (Under New York state law, people who prove they spent time in prison for crimes they did not commit can receive compensation. The current litigation, however, does not seek to prove the five men are innocent but instead seeks compensation from the City of New York based on police misconduct.)
The city argues that having access to the complete interviews is crucial because “depositions are unlikely to adequately substitute for this footage” and sworn testimony is likely to diverge from the interviews given to the filmmakers.
In arguing that they are entitled to the material they seek, the city’s lawyers cite a similar standoff involving Joseph Berlinger’s Crude, a documentary chronicling the multibillion-dollar toxic tort case brought by Ecuadorian plaintiffs against Chevron over claims that the company’s operations in the Lago Agrio region had contaminated the water supply while causing widespread health problems.
Chevron’s lawyers at Gibson, Dunn & Crutcher sought outtakes from Crude in order to bolster their case that plaintiffs lawyer Steven Donziger, who had invited Berlinger to follow the case, had tried to corrupt the Ecuadorian legal system in his attempts to win a $27 billion award. In a ruling later upheld by the U.S. Court of Appeals for the Second Circuit, U.S. District Judge Lewis Kaplan ordered Berlinger to turn over hundreds of hours of Crude footage. In its decision affirming Kaplan’s ruling, the Second Circuit said Berlinger had “failed to carry his burden of showing that he collected information for the purpose of independent reporting and commentary” in part by cutting scenes from the final version of the film at the plaintiffs direction.
Siegal says the two cases are not comparable: “The most disturbing aspect of this position the city is taking is that they’re citing a case in which a documentary filmmaker was hired, paid, and worked in conjunction with attorneys in a case. We can demonstrate, and we will if we have to, that the Chevron Berlinger case doesn’t apply here at all.”
Berlinger counters that Siegal’s comments express commonly held misconceptions about his case. “It is completely false that I was hired, paid and worked in conjunction with the attorneys in the Ecuador litigation that I documented in Crude, nor was that the Court’s finding,” Berlinger wrote in an email to The Am Law Daily. “According to the documentary rights agreement and releases that were signed, I had complete editorial control and I was absolutely not being hired by or paid by the plaintiffs.”
Berlinger, who says he supports Burns’s position with regard to the city’s subpoena, adds that his film was independently financed, and that while he did remove part of a scene after Crude premiered at the Sundance Film Festival, it was deleted because it “had no impact on the story I was telling but it bothered the plaintiffs. I did this as a favor because it had no impact on the story I was telling, not because they had any semblance of editorial control.” As to the court’s finding that Donziger “solicited” Berlinger to make the film, Berlinger says that Donziger did pitch him the story, but also pitched 60 Minutes and Vanity Fair and received coverage from both. “Would these outlets be labeled as not being independent because they were pitched by the subjects of the story?”
As for the material the city’s lawyers seek from Burns, Kelli Sager, a media law specialist and partner at Davis Wright Tremaine who is not involved in the Burns case, says their argument that the depositions would be different than the interviews sounds to her like “they are saying people are going to lie.”
“They have to assume people under oath will tell the truth,” Sager says. “A fishing expedition into journalists’ unpublished work is not justification” for a subpoena. Sager says New York has strong shield laws, though they don’t automatically apply since the case is in federal district court and based on federal civil rights laws. However, she says that the court is likely to take the state laws into consideration alongside federal First Amendment protections.
“It’s not an absolute privilege,” she says of the protection given by the First Amendment. “But it’s a very strong privilege because you don’t want journalists to be essentially witnesses to one side or the other in a lawsuit.”
The city has said it plans to take the issue to court if Florentine Films refuses to comply with the latest subpoena. In the meantime, The Central Park Five will continue to be shown at film festivals around the country before a limited theatrical release later this year.