While a raft of New York police, prosecutors and other officials would love to get their hands on them, outtakes from a documentary by critically acclaimed filmmaker Ken Burns, his daughter Sarah and their fellow producer David McMahon enjoy journalistic privilege and the materials from The Central Park Five need not be given over, a federal judge has ruled, affirming an earlier magistrate’s recommendation. The Burns’ PBS-aired film chronicles the injustice carried out against five black and Latino teenagers who were coerced into wrongly admitting roles in the horrific and sensationalized ‘wilding’ rape of a woman jogger in Central Park in 1989. A decade later, after the five did jail time, a serial rapist confessed to the jogger’s brutal assault and DNA evidence confirmed his guilt.
The 13-year-old convictions in the case were vacated and the wronged juveniles, now grown men, sued New York City, its police, the District Attorney’s Office, various members of the two agencies’ leadership and numerous detectives and prosecutors. As part of the civil rights lawsuit, in which plaintiffs seek $20 million, defense attorneys sought by subpoena interviews from the documentary, including footage not shown in the completed and aired documentary by Florentine Films, the documentary-maker in which Burns is a founding producer.
Florentine resisted the demand for its materials and earlier this year U.S. Magistrate Ronald Ellis recommended that the federal courts quash the defense subpoenas as the filmmakers requested and as U.S. District Judge Deborah Batts decided to do. While filmmakers don’t always get the same legal shields as do journalists, say, for newspapers and television news programs — just consider that a federal judge rejected similar claim for them for the documentary Crude — Ellis took judicial note of the editorial and financial independence from plaintiffs taken by Burns and his co-producers, buttressing their claim for privilege in this instance.
And while a pronounced point of view that blurs over into advocacy, especially for a party in litigation, might undercut the claim for journalistic privilege, the filmmakers’ counsel told the Courthouse News Service — a tip of the that to that news agency, too, for posting online many of the documents referenced here — that The Central Park Five may seem to slam officials for railroading the accused, all of whom were 14-, 15- and 16-years-old at the time of the rape case, because those involved in prosecuting the case refused repeated requests for interviews.
In case you missed the documentary, here’s the trailer for it: