Court Ruling Means Times Reporter Must Testify in ‘Baby Hope’ Trial

NEW YORK — In a split decision that could have a chilling effect on journalists, the New York state’s highest court ruled Thursday that a New York Times reporter has no right to appeal a trial judge’s decision to compel her to testify about a jailhouse interview she did with a man accused in one of the city’s most notorious murders.

The Court of Appeals, in a 4-3 ruling, said the state’s criminal procedure law does not allow people subpoenaed to testify in a criminal case to appeal a trial court’s decision.

The decision means the reporter, Frances Robles, will be compelled to testify at the trial or face contempt of court charges. She had argued that New York’s shield law should protect her from being compelled to turn over her notes or to testify about her interview with Conrado Juárez, who is charged in the murder of “Baby Hope,” a 4-year-old girl found dead in a picnic cooler in Upper Manhattan in 1991.

“We are disappointed in the court’s ruling, which is a setback for press freedom in New York,” said Danielle Rhoades Ha, a spokeswoman for The New York Times. “It is imperative that the Legislature act to correct the problem.”

Robles has not decided if she will testify, her lawyer, Katherine M. Bolger, said.

“Ms. Robles is deeply disappointed about the New York Court of Appeals decision and thinks it marks a retreat from their traditional role as protectors of the free press in New York,” Bolger said. “This is particularly so because it appears that at least some of the judges believe she is right on the merits.”

The Manhattan district attorney’s office declined to comment.

A 2013 tip led investigators to identify Baby Hope as Anjélica Castillo, and the potential killer as Juárez, a restaurant worker whose sister had been caring for Anjélica at the time of her death. He was arrested in October 2013 and, after an all-night interrogation, confessed to the crime.

Four days later, Robles spoke to Juárez on Rikers Island for about 45 minutes. In the interview, published by The Times the next day, Juárez said he helped dispose of the girl’s body but denied killing the child and claimed the detectives browbeat him into a confession.

Prosecutors in the Manhattan district attorney’s office argue Robles’ recollections of the conversation are vital to their case, because they corroborate several details in Juárez’s videotaped confession. They also contend the fact Juárez spoke freely to a reporter and repeated things he said to detectives undermines his claim the police coerced his confession.

Robles and The Times fought the subpoena on the grounds it would violate her rights as a journalist under the state’s shield law and damage her credibility with sources. The shield law protects journalists from being forced by the courts to provide information from confidential sources, but offers limited safeguards regarding named sources like Juárez.

In those cases, journalists may be compelled to take the stand or turn over notes only if prosecutors can show the information cannot be obtained elsewhere and is “highly material and relevant” and “critical or necessary” to proving their case.

Robles’ lawyer argued prosecutors already had a videotaped confession and did not need her notes or testimony to prove Juárez’s guilt. “He told the reporter he had been coerced into confessing, and in fact that he had not done it,” Bolger told the judges during oral arguments. “That can’t be critical and necessary here.”

In April 2016, the trial judge, Justice Bonnie G. Wittner, rejected that argument and said Robles must take the stand. Six months later, the Appellate Division overturned her decision, saying the shield law protected Robles.

The Manhattan district attorney, Cyrus R. Vance Jr., then brought the case to the Court of Appeals, arguing not only that Robles’s testimony was critical to the case, but also that she did not have a right to appeal the lower court’s initial finding.

In the end, the four-judge majority on the Court of Appeals ruled on the narrow procedural question of whether Robles had a right to appeal, once the trial judge rejected her motion to quash the subpoena.

The majority said the state law was clear: Once a criminal proceeding starts — with an indictment or an arrest on a criminal complaint — a lower court’s rulings on subpoenas are final and cannot be appealed.

Judge Jenny Rivera, in a lengthy dissenting opinion, said that since 1936, the Court of Appeals had recognized that lower-court decisions about granting or quashing subpoenas could be challenged because they are “civil in nature” even if they are issued during a criminal investigation. For decades, appellate courts had heard the challenges, she said. The majority’s ruling had left people who are not defendants but who have been subpoenaed with no recourse, she said.

“The result of the majority’s decision will be that Robles, other journalists, and nonparties will have to risk contempt if they are unwilling to comply with a subpoena order,” Rivera wrote. “In Robles’ case, the choice is to testify and turn over her notes and breach her journalist’s oath and ethics, or refuse to comply with Supreme Court’s order and be held in contempt.

“This choice places Robles and all other journalists in a terrible bind,” Rivera concluded. “It is a reversal of our settled law and against our state’s strong historical protections of journalists and the newsgathering process.”

Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, said the court’s decision leaves journalists with no way to ask an appellate court to review a subpoena in New York to determine if it violates the shield law. He said the legislature should pass legislation allowing such appeals.

“The protections of a shield law are meaningless unless a reporter can appeal an erroneous trial court ruling,” he said in a statement. “A reporter should not have to risk going to jail for contempt in order to trigger appellate review of her rights.”