[Marxism] City Rebuffed in Bid for Outtakes From Central Park Jogger Film

Louis Proyect lnp3 at panix.com
Wed Feb 20 12:15:29 MST 2013

NY Times February 19, 2013
City Rebuffed in Bid for Outtakes From Central Park Jogger Film

New York City lawyers were rebuffed on Tuesday in their efforts to 
subpoena outtakes from the documentary filmmaker Ken Burns’s movie about 
the five men who were convicted and later exonerated in the racially 
charged 1989 Central Park jogger rape case.

A federal lawsuit brought by the men has been pending for 10 years. As 
part of the city’s defense, its lawyers last year subpoenaed notes and 
outtakes from Mr. Burns’s film, “The Central Park Five,” which was 
released last year and included extensive interviews with the men.

Mr. Burns, who made the film with his daughter, Sarah Burns, and her 
husband, David McMahon, fought the subpoena, describing it as an assault 
on journalism that would have a chilling effect on reporting of 
sensitive cases.

City lawyers argued that Mr. Burns’s production company had veered from 
journalism into advocacy on behalf of the five, in part because he had 
publicly said he hoped the film would encourage the city to finally 
settle the case.

Magistrate Judge Ronald L. Ellis of United States District Court in 
Manhattan rejected the city’s contention that the issue was similar to a 
federal appellate court ruling in 2011 concerning another documentary 
filmmaker, Joe Berlinger. In that case, Mr. Berlinger had to turn over 
outtakes from “Crude,” a 2009 film about a group of Ecuadoreans who were 
suing Chevron, saying that oil fields established there by Texaco (now 
owned by Chevron) polluted their water supply.

Whereas Mr. Berlinger had been asked to make a film from the 
Ecuadoreans’ perspective and removed a scene from the movie at the 
request of their lawyer, the Burns team had remained independent, the 
judge found.

Judge Ellis said that the city’s comparisons of Mr. Burns to Mr. 
Berlinger were “misplaced” and that having a point of view did not 
necessarily preclude the protections against subpoenas generally granted 
to journalists.

“Indeed, it seems likely that a filmmaker would have a point of view 
going into a project,” Judge Ellis wrote.

The judge criticized city lawyers for mischaracterizing Mr. Burns’s 
comment to suggest his purpose was to affect the lawsuit.

“The manipulation of the quote in this manner is troubling,” Judge Ellis 
wrote in a footnote.

Mr. Burns, who was vacationing with his family in Puerto Rico, said he 
“jumped up and down” when he learned of the decision.

“I think it’s a hugely important decision and I think it reverses some 
of the harmful effects of the Berlinger decision,” he said. He added 
that he hoped the decision returned the focus to “getting a resolution 
for something that has haunted New York for far too long.”

The five men, who as teenagers came to embody racial tensions in a city 
overtaken by rampant crime, confessed after being held and interviewed 
by the police for more than 24 hours. Though they recanted almost 
immediately, all five were convicted, based largely on their confessions.

About a decade after their convictions, a man who had been convicted of 
a string of rapes on the Upper East Side the same summer as the Central 
Park attack bumped into one of the convicted men in an upstate prison. 
The convicted rapist, Matias Reyes, eventually confessed, and his DNA 
matched evidence found on the Central Park victim.

Robert M. Morgenthau, the Manhattan district attorney at the time, 
ordered a new investigation and, on his recommendation, a Manhattan 
judge vacated the convictions of the five men.

The city’s Law Department was “disappointed and reviewing our options,” 
said Celeste Koeleveld, the city’s executive assistant corporation counsel.

“While journalistic privilege under the law is very important, we firmly 
believe it did not apply here,” she said in a statement. “This film is a 
one-sided advocacy piece that depicts the plaintiffs’ version of events 
as undisputed fact. It is our view that we should be able to view the 
complete interviews, not just those portions that the filmmakers chose 
to include.”

Judge Ellis also ruled that the city failed to meet the requirements for 
subpoenas to journalists for nonconfidential material: that the material 
would be significant and relevant to its case and was unavailable 
elsewhere. He said pretrial depositions would give the city’s lawyers 
ample opportunity to question the five men.

“It’s a marvelous decision for documentary filmmakers and point-of-view 
journalists,” Mr. Burns’s lawyer, John Siegal, said. “And it’s an 
important victory for the media industry generally.”

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