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A Camden County, N.J. judge must determine whether the state’s Shield Law, which protects news reporters’ sources and notes, should be pierced when a reporter gets too close to her source. Lawyers for Fred Neulander, a Cherry Hill rabbi charged with arranging his wife’s beating death, are seeking to obtain notes and records on the case from Philadelphia Inquirer reporter Nancy Phillips, whose industry helped authorities arrest an accomplice to the murder. “I respect the Shield Law,” says Jeffrey Zucker, one of the defense lawyers. “Our position is Nancy Phillips has clearly crossed over the line from a newsperson who deserves the protection of the Shield Law [to a participant].” Specifically, Zucker and co-counsel Dennis Wixted refer to Phillips as an “agent provocateur” who for several years following the 1994 murder kept in touch with an associate of the rabbi, Leonard Jenoff of Collingswood. Jenoff eventually told Phillips that he took part in the murder. Phillips arranged a meeting with authorities at which Jenoff confessed to his role in the contract killing. In court papers filed Aug. 11, the Inquirer moved to quash the subpoena. Superior Court Judge Linda Rosenzweig has given defense lawyers until today to answer the motion and will hold a hearing on the matter Sept. 1 in Camden County Superior Court. The Shield Law, N.J.S.A. 2A:84a-21, is intended to protect news reporters from entanglement in the controversies they report on, and it compels those seeking an exception to the law to meet a high standard. The statute states that, in general, a professional news reporter has a privilege to refuse to disclose, in any legal or quasi-legal proceeding, news or information obtained in the course of pursuing his or her professional activities, including sources. “It’s very broad protection, even in the case of a criminal defendant, who has a constitutional right to compel testimony,” says Thomas Cafferty, a media lawyer and partner at Somerset’s McGimpsey & Cafferty. “The criminal defense has a lot of obligations to meet.” Specifically, the defense must show that the information they seek could not be found elsewhere, that the information is critical to the defense case, that the information’s value on the issue of guilt or innocence outweighs the privilege of disclosure and that the request is not overbroad or unreasonably burdensome. Warren Faulk, the attorney representing Phillips, says that the defense lawyers’ subpoena is silent on those points, but Zucker says he had no way of knowing the reporter would invoke the Shield Law. He intends to meet the relevant standard in court papers to be filed this week, he says. In support of his motion, Faulk, a partner with the Westmont firm of Brown & Connery, cited a pair of 1980 New Jersey Supreme Court opinions — State v. Boiardo I, 82 N.J. 446, and State v. Boiardo II, 83 N.J. 350 — to argue against the release of the reporter’s notes. In the Boiardo cases, four defendants in a murder trial were seeking letters that a prosecution witness sent to a newspaper reporter, hoping to impeach the witness’ testimony. A trial court directed the reporter, Robin Goldstein of the now-defunct Daily Register of Shrewsbury, to produce the letter for an in camera inspection. The Appellate Division denied review, but the Supreme Court granted leave to appeal and reversed the lower court ruling without prejudice, finding the defendants did not demonstrate the nonavailability of less-intrusive sources for information similar to that in the letter. The case bounced down and up again, and the justices found the Shield Law applied ( Boiardo II). In the Neulander case, wrote Faulk in his motion papers: “The subpoena issued to Ms. Phillips is nothing more than a ‘fishing expedition’ — an unsanctioned and unlicensed attempt to rummage through six years of a reporter’s confidential and privileged materials to see if they contain any information which might be helpful to the defense.” But another First Amendment lawyer, Corinne Mullen, says that the Neulander lawyers’ request for the reporter’s notes may constitute a stronger case than the one in Boiardo. Phillips’ dealings with Jenoff went on for years and were so extensive that she must have information that others do not have, says Mullen, a Hoboken lawyer who has handled Shield Law cases for The Record of Hackensack and other clients. Following the murder of Carol Neulander, Phillips kept in contact with Jenoff, and they often met to talk about the unsolved crime over restaurant meals that the reporter charged to her newspaper. Phillips visited his home, gave him her recipe for potato pancakes, talked with him about their religious convictions and got postcards from Jenoff when he vacationed in Mexico, she wrote in a May 17 article describing their relationship. “Before long, Jenoff and I were speaking nearly every day. My goal was to learn what he knew, confirm its accuracy and report the story,” Phillips wrote in a May 17 Inquirer article recounting her involvement with the case. In December 1999, Jenoff confessed to Phillips that he was troubled by a secret and admitted to her that he and his roommate, Paul Daniels, killed Carol Neulander. The rabbi asked Jenoff to kill someone who was an enemy of Israel, and promised that if he pulled off the murder, Neulander would help him get a job with the Mossad, the Israeli secret police, the Inquirer reported. A few days after Jenoff confessed to Phillips, he told her he was thinking of confessing to authorities, but would do it later, according to the Inquirer account. She suggested he do it right then, and when he agreed she called the prosecutor on her cell phone and arranged a meeting. Phillips was at Jenoff’s side when he confessed his role in the killing to Camden County Prosecutor Lee Solomon and Investigator Martin Devlin in a booth at Weber’s Colonial Diner in Audubon. “I think it’s one of the closest Shield Law cases I’ve seen, because it presents the classic juxtaposition of the defendant’s Sixth Amendment right to trial and the newsperson’s privilege,” Mullen says. “Some of the material could go to impeachment (of Jenoff), but some could go to exculpate Neulander.” The defense “should be arguing that this may be one of those rare case where the First Amendment protection in the Shield Law might fall to the defense’s fundamental right under the Sixth Amendment to a fair trial.” But Cafferty, the Somerset attorney who is also counsel to the New Jersey Press Association, a newspaper trade group, says he does not know of any cases where the Shield Law has been successfully penetrated. He expressed doubt that the Neulander case could become the first to meet the standards to pierce the shield. “They’ve got to do it by clear and convincing evidence. It’s a very broad protection,” Cafferty says, “even in the case of a criminal defendant who has a constitutional right to compel testimony.” Zucker, who with co-counsel Wixted are partners at Camden’s Sufrin Zucker Steinberg Waller & Wixted, says Phillips’ notes are critical to the defense of Neulander because Jenoff has shown himself unreliable by giving multiple versions of the facts, according to Zucker, who added that the metal pipe Jenoff allegedly used to strike Carol Neulander on the head was never recovered. “Nothing he can say can be corroborated by physical evidence. We want to be well prepared to cross-examine Mr. Jenoff,” Zucker says. Mullen says that the request for the reporter’s notes is “a close case” but believes the Shield Law will ultimately prevail. “The problem is, you have experienced newsgathering counsel who handle these issues day in and day out, and you have defense counsel who might have this issue come up once or twice in a career,” Mullen says.

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