The New York City Law Department claims its subpoena of outtakes from Ken Burns' film about the Central Park jogger case poses no threat to the independence of documentary filmmakers.
The city asked a federal judge on Dec. 5 to enforce a subpoena for outtakes from the recently released "The Central Park Five" for use in its defense of a $250 million civil rights suit filed by five men who spent time in prison for the 1989 rape and near-fatal assault on jogger Patricia Meili before another man came forward to admit he had committed the crime and their convictions were vacated.
Rebutting a motion to quash, lawyers for the city argued that Burns' company, Florentine Films, never considered the clips confidential and has no right to invoke a journalists' privilege provided under New York statutory law and federal common law.
"The Central Park Five" is not independent journalism, and the city is only seeking "unedited interviews of the plaintiffs and their counsel discussing the claims and damages in this case," Assistant Corporation Counsel Philip DePaul and Senior Counsel Elizabeth Daitz state in their memorandum in In re McCray, 03-cv-0968.
The five men—Yusef Salaam, Korey Wise, Raymond Santana, Antron McCray and Kevin Richardson—were teens at the time of the crime and they claim they were harassed and coerced into giving the statements and confessions that sealed their convictions, a point of view adopted by the film.
The five also claim that overzealous police and prosecutors ignored inconsistencies in their statements and contrary evidence. The film declares the five to be victims of a mob mentality infused by racism—a charge the police and city have vehemently denied through nine years of litigation (NYLJ, Nov. 23).
The city served Florentine Films the subpoena on Sept. 25 and served an amended subpoena on Oct. 2, seeking all audio or visual materials documenting interviews with the five plaintiffs, their family members, their current or former counsel and any experts they have interviewed.
It claimed that Sarah Burns, who directed and wrote the film with her father and her husband, David McMahon, worked as a paralegal for plaintiffs' lawyer Jonathan Moore, that the filmmakers have totally adopted the plaintiffs' side of the lawsuit and that statements made by Burns urging the city to settle show the film is advocacy rather than journalism.
Ken Burns, they say, even wrote Mayor Michael Bloomberg asking that he use his influence with the Corporation Counsel and "speed along the process of the lawsuit towards settlement and closure."
Florentine moved to quash and submitted a memorandum on Nov. 8 by John Siegal and Peter Shapiro of Baker & Hostetler arguing the city's sweeping subpoena violates the reporter's privilege.
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This is going to be a huge case for New York City. The film shows the impact of that crime and how it resonated across different sections in the city. If the city settles, it besides paying a lot of money, will show how bad and possibly corrupt at the highest levels some city officials operated so they are fighting for their reputation as well as trying to prevent paying $250 million.
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