N.Y. newspaper decides to disclose info rather than fight ruling

Monday, February 21, 2011

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Rather than risk an unfavorable appellate court ruling that could have sweeping implications for New York’s shield law, the New York Daily News earlier this month complied with a trial judge’s unprecedented order to disclose information about a confidential source.

It’s unknown whether the Daily News disclosed the identity of its source, because Justice Mark Dwyer ruled on Jan. 11 that the newspaper only had to disclose in chambers whether its source was one of two arresting officers at the scene of an attempted murder.

In the case, Angelo Diaz is charged with attempted second-degree murder. According to prosecutors, Diaz shouted “shoot the cop” while Angel Rivera and a police officer fought for control of a gun. In its story about the incident, however, the Daily News quoted “authorities” as saying that the person who yelled “shoot the cop” was Rivera’s mother, not Diaz.

When Diaz’s attorneys subpoenaed the Daily News to disclose its source, the newspaper resisted, citing the shield law’s absolute privilege protecting the anonymity of confidential sources. In mid-January, Dwyer rejected the privilege claim, holding that Diaz’s constitutional right to a fair trial trumped the statutory privilege.

“A defendant’s Sixth Amendment rights to confront witnesses and present a defense are generally subject to rules of privilege and to other evidentiary restrictions,” Dwyer wrote. “A defendant generally could not, for example, insist on presenting testimony about a co-defendant’s privileged communications with that co-defendant’s attorney. Nor could he expect to elicit declarations in violation of the rules against hearsay. But under some extreme circumstances, rules of evidence must be subordinated to a defendant’s due process right to a fair trial.”

Claiming that “any number of state and federal decisions have concluded that the interests of the press protected by constitutional and statutory privileges may have to give way when weighed against a criminal defendant’s claim that protected information is vital to his defense,” Dwyer held that “where a criminal defendant seeks press information that (1) is highly material, (2) is critical to the defendant’s claim, and (3) is not otherwise available, then the press privilege must give way in the face of the Sixth Amendment. And that is true even if the information is confidential.”

Dwyer’s holding is based on the questionable premise that the New York shield law establishes a rule of evidence — like hearsay — rather than a protected, confidential relationship like that which exists between lawyers and clients or priests and penitents. As such, an appeal of his holding could have succeeded.

Nothing on appeal is guaranteed, however. It’s therefore difficult to criticize the Daily News’ decision to comply with the ruling, a decision that — at least for now — prevents Dwyer’s reasoning from obtaining any precedential value.

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