Court finds defendant's interest overcomes shield law

A New York Supreme Court judge in Brooklyn ruled in early January that the New York Daily News must disclose to the court in chambers the source of information related to the case, despite the state's shield law, which provides journalists with the privilege to protect the anonymity of sources. In New York, the Supreme Court is a trial-level court.

The defendant, Angelo Diaz, is charged with attempted murder in the second degree. The state alleged that Diaz shouted "shoot the cop" when co-defendant Angel Rivera struggled with a police officer for control of a firearm. After the incident, the Daily News reported that, "according to authorities," Rivera's mother shouted "shoot the cop."

Diaz insisted that his Sixth Amendment right to confront witnesses compelled disclosure of the Daily News' source. Previous state court decisions have concluded that press protection may be outweighed by a defense claim that the information the press is protecting is vital to their case.

The opinion noted the three-prong test used in New York to balance the competing interests. "The rule may be stated this way: where a criminal defendant seeks press information that (1) is highly material, (2) is critical to the defendant's claim, and (3) is not otherwise available, then the press privilege must give way in the face of the Sixth Amendment," the opinion explained.

The court found that "the People's claim that defendant was an accomplice in serious crimes is almost completely dependent on the statement at issue." Therefore, the court denied the Daily News' request to quash the subpoena. Justice Mark Dwyer ruled: "The Daily News will disclose to the court in camera whether the source of the relevant information was one of the two officers at the crime scene. If so, the subpoena will require an appearance by a witness from the Daily News."

The Daily News decided not to appeal the ruling and has disclosed the source to the judge.

"The Daily News has chosen not to appeal Justice Dwyer’s order because we think the decision was narrowly confined to the unique facts of the case: the accomplice liability charge against the criminal defendant rests solely on the arresting officers’ word that it was Diaz who shouted 'shoot the cop, shoot the cop,'" Anne B. Carroll, vice president and deputy general council for the Daily News, said via email.

"Rather than risk a New York appellate decision that might sweep more broadly than the facts in Diaz warrant, we complied with Justice Dwyer’s narrow order to reveal to him in camera only whether our source was one of the arresting officers," she added.

The criminal case is currently in pretrial.