Criminal defendant gets new trial over quashed subpoena

• State high court rules police interrogation recorded by documentary crew should not have been withheld from manslaughter defendant under shield law.

Feb. 25, 2005 — The Court of Appeals of New York, the state’s highest court, Tuesday ordered a new trial for James Combest, who was convicted of killing a bystander during a shootout, because a documentary film company successfully quashed a subpoena for film of his interrogation. The court held that the qualified reporter’s privilege provided by the state’s shield law had been overcome by the defendant’s need for the tape for his defense.

Following the April 2000 shootout, a team from Hybrid Films Inc. accompanied New York City police and filmed Combest’s arrest and interrogation for a Court TV documentary series titled “Brooklyn North Homicide Squad.” Police did not record the interrogation, but videotaped a 14-minute confession afterwards. The footage of Combest was not used in the Court TV series.

Combest subpoenaed Hybrid’s film, claiming it supported his claims that he acted in self defense and that his confession was coerced. Hybrid voluntarily turned over the footage of the arrest, but moved to quash the subpoena for the interrogation footage.

Under New York’s shield law, a news organization may not be required to disclose unpublished material unless it is highly material and relevant, critical or necessary to a claim or defense, and not obtainable from other sources. Without viewing the film, the trial court found that because no single alleged threat was sufficient to show that Combest’s confession was coerced, the film was not highly material and relevant and not critical to his defense. The subpoena was quashed and Combest was convicted.

A state appellate court affirmed the conviction, but the Court of Appeals reversed on February 22, 2005, and ordered a new trial.

Chief Judge Judith S. Kaye, writing for the six-member majority, held that “It is beyond dispute that a defendant’s own statements are highly material and relevant to a criminal prosecution.”

Combest had further argued that the shield law was an unconstitutional violation of his right to a fair trial and that the documentary crew had been performing a police function. The court found it unnecessary to reach those arguments, but criticized the practice of allowing the media to film interrogations.

“Had the police made (or had copies of) the videotapes, they would plainly have had to provide them to defendant. Just as plainly, the film company could not have videotaped defendant’s interrogation in the absence of an agreement with the police,” Kaye wrote. “Of course, much of the difficulty could have been avoided here had the police themselves taped the entire interrogation or conditioned access to the interrogation on Hybrid’s agreement to provide the police with a copy of the resulting videotapes.”

Judge Robert S. Smith filed a dissenting opinion, arguing that the trial court should have viewed the tape and then made a decision as to whether it was critical to Combest’s defense.

Hybrid’s attorney, Cameron Stracher, told the Associated Press that Hybrid was not notified of the appeal. “How can you have a case of journalistic privilege and not have the journalist in front of you?”

Stracher said Hybrid is considering whether to ask the court to rehear the case.

(People v. Combest, Media Counsel: Cameron A. Stracher, Levine Sullivan Koch & Schulz LLP, New York) — GP

© 2005 The Reporters Committee for Freedom of the Press

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