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The strangeness surrounding Patrick Hsu’s 2001 murder began with the fact that he was killed by an exploding robot dog sent to him by mail. Then the prime suspect went on the lam, and the government flip-flopped on its decision to seek the execution of an alleged accomplice, David Lin, who now faces a non-capital trial in January. But nothing in the case is more convoluted and bizarre than an offshoot piece of litigation having to do with a 2002 episode of “America’s Most Wanted.” The show portrayed Hsu’s murder, by way of a robot dog packaged as a gift. When Hsu put batteries in the apparent toy, a pipe bomb inside detonated. The problem, according to Lin’s defense lawyer, Daniel Blank, is that the show portrayed suspect Anthony Chang � the victim’s brother-in-law, and currently a fugitive � and Lin as both being involved in the construction of the bomb. Blank, an assistant federal public defender, argues in court filings that the depiction is inaccurate. For the last three years, he’s been trying to get videotapes and transcripts of the show’s outtakes to find out what prosecutors interviewed on the show told its producers off camera � initially arguing that the show may have prejudiced the Northern California jury pool. “America’s Most Wanted” has fought back, hard: They’ve litigated the case from a magistrate court � where a judge said the defense may subpoena show transcripts � up through U.S. District Judge Ronald Whyte, who last month refused to quash the subpoena. That’s when the fight took its strangest turn yet: In the process of appealing Whyte’s decision to the Ninth Circuit U.S. Court of Appeals, lawyers for the show accidentally sent the defense a copy of the transcripts it was trying to keep private. “They were accidentally turned over,” said the TV show’s lawyer, Davis Wright Tremaine partner Thomas Burke. In court filings this week, Burke blamed the disclosure on a secretary who was preoccupied with her elderly mother’s health and housing issues. Full-court press While reenacting prosecutors’ version of events may not strike most people as a typical journalistic enterprise, “America’s Most Wanted” has argued for more than three years that a court order requiring disclosure could go a long way to crippling freedom of the press. “America’s Most Wanted’s ability to broadcast important newsworthy information and thereby aid law enforcement in the capture of fugitives would be severely compromised if victims, witnesses or law enforcement officials believed that their tips might one day end up in a court of law,” Burke wrote in a Ninth Circuit brief. The case, he added last week, “is a perfect opportunity to, hopefully, make some important law for reporters.” His papers include arguments that the federal courts should follow California’s shield law in protecting the privacy of journalists’ notes. And in the most recent set of filings, attorneys for two newspaper companies and the California Newspaper Publishers Association filed amicus briefs in support of those arguments. But in the initial stages of litigation, Blank had argued that it was necessary to see the transcripts of interviews with then-U.S. Attorney David Shapiro and a U.S. Postal Service investigator to determine whether they passed on information that tainted the jury pool. In court papers, Blank says the TV reenactment incorrectly portrayed his client. Host John Walsh, Blank wrote, said Lin provided help “constructing a deadly bomb housed in an unusual casing.” “There is no evidence that Mr. Lin built the bomb,” Blank wrote. “On the contrary, all available evidence suggests that Anthony Chang constructed the bomb himself.” The show exaggerates not just Lin’s role, Blank wrote, but also the force of the explosion that killed Patrick Hsu, showing the wall of his house being blown off. Those arguments gained import in 2003, when the U.S. Department of Justice announced its intention to pursue a capital prosecution against Lin. That decision has since been reversed. But Lin’s defense is still largely based on the question of how much he knew about the package he was mailing for Chang. In more recent filings, Blank has moved away from the prejudice issue, focusing more on the argument that he has a right to see anything prosecutors told the TV producers about the relationship between Chang and Lin. Rock & a press-friendly place No one involved in the case has been put in a more awkward position when it comes to the tension between defendants’ discovery rights and the press’s right to privacy than the federal prosecutors handling Lin’s case. Over the last year or so � and most recently in a major gang case � the San Francisco U.S. attorney’s office has argued for tight restrictions on defendants’ discovery powers. At the same time, they’ve also been aggressive when it comes to getting information from journalists. Blogger Josh Wolf is the latest example � he’s been incarcerated for three months for refusing to turn over to prosecutors a videotape of a protest. “In our view, there is no need for special criteria merely because the possessor of the documents or other evidence sought is a journalist,” wrote Barbara Valliere, the chief of U.S. Attorney Kevin Ryan’s appellate division, in a brief filed earlier this month in Lin’s case. In the end, though, the government took the TV show’s side, saying that discovery rules should allow the subpoena to be quashed. And the envelope, please… Whether the accidental disclosure of the interview transcripts makes the case moot is an issue that the Ninth Circuit will also have to decide. Blank, who referred to court filings in response to a request for comment, refused to comply with Burke’s request that he immediately return the document. Instead, he wrote in a filing, the transcript was placed in a sealed envelope, where it will stay until the Ninth Circuit rules. In his briefs on the issue, Burke takes umbrage with the notion that the accidental disclosure waives privilege. “It would be fundamentally unfair to find a waiver in this situation,” he wrote, since defendants have made extensive efforts to keep the material private. Those included stamping each page, in “oversize bold font,” with the words “Not to be disclosed to anyone (including counsel for David Lin) without court order,” Burke wrote. While that may not have been enough to prevent the disclosure snafu, Judge Whyte � the only person outside the TV crew who, before the mistake, had seen the documents � called the transcripts “a big nothing” in the course of ordering them turned over. And Shapiro, the former U.S. attorney, agreed. Reached last week, he said the outtakes amounted to nothing more than him stumbling over the same words he said on camera. That doesn’t change the issue for Burke, though. “There’s a lot at stake here,” he said.

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