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For Immediate Release
September 2, 2003
Newark – The ACLU of New Jersey announced in a news conference today that on September 3, 2003, United States District Judge Joseph Irenas granted the ACLU-NJ’s motion to stop the forced disclosure of video-taped interviews that Rowan University student Jason Kitchen had created for a documentary about a New Jersey death row inmate.
“This ruling was a victory for not only a free press, but for student journalists in particular,” stated ACLU-NJ cooperating attorney Robert Balin of Davis Wright Tremaine. “Jason Kitchen was as much a reporter after his story as any other documentary filmmaker, and the State cannot decide to go rummaging through his materials any more than it can through the materials of someone working for a daily newspaper.”
The State of New Jersey had subpoenaed the material for their defense of Mr. Marshall’s federal petition challenging his death sentence based upon ineffective assistance of counsel. At issue in the case was whether student filmmakers such as Kitchen are covered by the journalists’ privilege, a public policy that shields the press from compelled disclosure of their newsgathering materials and whether the State could override, in this particular case, that presumption against disclosure.
Kitchen’s film, “Fatal Mistakes” is a 56 minute documentary about the case of Robert Marshall who was convicted in 1986 of hiring someone to murder his wife and was sentenced to death. In April 2003, Jason Kitchen, then a 22-year-old film student at Rowan University in Glassboro, N.J., decided to produce a documentary on Marshall as part of his Television Documentary Production course at the college. During the semester, Kitchen and his crew interviewed a number of individuals involved in Marshall’s case, including Mr. Marshall himself. This was the first filmed interview of Marshall since his conviction in 1986.
On July 7 and 9, 2003, respectively, the State served subpoenas on Rowan and then on Kitchen. The subpoenas sought “all videotapes, notes and documents pertaining to interviews” that Kitchen conducted of Marshall, his son, his trial attorney, the trial prosecutor and the chief investigator. On August 1, the state narrowed its subpoena to only the Marshall interview materials and, realizing that the law requires the state to seek alternative sources for the information, made a motion to take Marshall's deposition.
As argued in the ACLU-NJ’s brief in support of the motion to quash the subpoenas, federal courts have recognized a qualified privilege protecting journalists from the compelled disclosure of both confidential and non-confidential sources and newsgathering information. In recognition of the important First Amendment interests in protecting such materials from compelled disclosure, the qualified privilege requires those seeking to subpoena such information from a journalist to satisfy a demanding three-part test before compelled disclosure will be allowed. In order to overcome the privilege, the party seeking disclosure (here, the State) must make a “strong showing” that 1) the information sought is relevant; 2) the information is “necessary” and “crucial” to the claim; and 3) there is “no other source for the information requested.” The courts have also consistently held that the privilege is not limited to members of the traditional print and broadcast news media, but may be invoked by anyone who engages in investigative reporting with the intent to disseminate the information to the public, including documentary filmmakers and student journalists such as Kitchen.
Judge Irenas ruled that Kitchen’s work was protected by the press privilege. He further held that the state could not make a strong showing on any of the three criteria needed to overcome that protection. The judge referred to the state's subpoena as a "fishing expedition.”
“I’m extremely pleased with the decision,” said Jason Kitchen. “It will help ensure the ability of students with creative intentions to conduct projects in the future.”
ACLU-NJ cooperating attorneys in the case are Bruce Rosen of McCusker, Anselmi, Rosen, Carvelli & Walsh in Chatham, New Jersey, and Robert Balin and Matthew Leish of Davis Wright Tremaine in New York City. The case is captioned Robert O. Marshall v. Roy Hendricks.
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