New York Times reporter subpoenaed to testify in murder trial

June 27, 2018

In 2016, New York Times reporter Frances Robles was subpoenaed to testify in the murder trial of Conrado Juarez, whom Robles interviewed in jail in 2013. Robles fought the subpoenas, but the New York Court of Appeals — the highest court in the state — upheld the subpoenas on a technicality in a ruling on June 27, 2018. 

If Robles refuses to comply with the subpoena, she could be held in contempt of court and put in jail.

In October 2013, Robles conducted a jailhouse interview with Conrado Juarez, who had been charged with the murder of “Baby Hope,” a four year old found dead in a picnic cooler in 1991. Although Juarez had confessed to the murder to police, he told Robles that police had coerced him into confessing. The day after the interview, the Times reported that Juarez claimed that his confession to police had been coerced.

In early 2016, Robles was subpoenaed to testify about her interview with Juarez and to hand over her reporter’s notes from the interview. Robles was subpoenaed to testify at a pre-trial hearing to determine admissibility of Juarez’s statements to law enforcement. 

Robles moved to quash the subpoenas.

According to the New York State Constitution, a reporter can only be compelled to disclose non-confidential information if it is “critical or necessary” to the case and not available from any other source.

On April 13, 2016, the court quashed the subpoena, ruling that Robles’ testimony was not “critical or necessary” to the pretrial hearing because the prosecution already had a videotape of Juarez’s confession and access to the police and prosecutor that obtained it. The court also noted that compelling Robles’ testimony would open the door to lines of questioning beyond published material during cross examination.

After the pretrial hearing, the prosecution tried to subpoena Robles to testify during Juarez’s criminal trial. Robles again moved to quash the subpoenas, but this time, the trial court ruled against her. In August 2016, the trial court formally upheld the subpoenas, ruling that her testimony was “critical or necessary” to the case that the prosecution wanted to make about Juarez’s confession during the trial.

Robles immediately appealed the trial court’s decision. In October 2016, the First Department appeals court reversed the trial court’s decision, finding that the prosecution had not shown that Robles’ testimony was so “critical or necessary” that it could override her reporter’s privilege not to testify about her sources.

The prosecution then asked the New York Court of Appeals, the highest court in New York state, to review the First Department appeals court’s decision, and the New York Court of Appeals agreed to do so. 

The prosecution wanted the New York Court of Appeals to find that Robles’ testimony was in fact “critical or necessary” to the case and the First Department appeals court was wrong to reverse the trial court’s original decision forcing Robles to testify. Robles’ attorneys wanted the New York Court of Appeals to uphold the First Department appeals court’s decision and ensure that journalists in New York state cannot be compelled to testify in court about her conversations with sources. 

“Ms. Roles has testified that most sources in jail would not speak with her if they came to believe ‘that the prosecution could successfully compel [her] to testify’ about their conversations,” Robles’ legal team wrote in a brief to the New York Court of Appeals. “Permitting prosecutors to enforce subpoenas like the one in this case would ‘fundamentally diminish’ Ms. Robles’s ‘practical ability to gather the news…’ and would in turn diminish the public’s knowledge about claims of mistreatment by indigent individuals caught up in the criminal justice system.”

In the end, the New York Court of Appeals did not rule on whether or not Robles’ testimony was necessary to the case. Instead, in a controversial 4-3 decision, the Court of Appeals ruled that Robles was not technically allowed to appeal the trial court’s original decision, so the First Department appeals court’s ruling was completely moot.

The New York Court of Appeals did not actually say that the trial court’s decision to uphold the subpoenas was correct, just that Robles was not allowed to appeal it.

But it hardly matters to Robles. Since she’s not allowed to appeal the trial court’s decision to uphold the subpoenas ordering to testify, that decision stands.

If she refuses to testify, the trial court could find her in contempt of court and order her jailed until she agrees to testify.

The Reporters Committee for Freedom of Press (a partner organization of the U.S. Press Freedom Tracker) criticized the Court of Appeals decision.

“The protections of a shield law are meaningless unless a reporter can appeal an erroneous trial court ruling,” RCFP executive director Bruce Brown said in a statement. “Today’s decision leaves important substantive protections for journalists under New York law without the means to enforce them. A reporter should not have to risk going to jail for contempt in order to trigger appellate review of her rights.”

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