Federal appeals court upholds subpoena seeking notes and outtakes of interviews

NEW YORK — In late September the U.S. Court of Appeals in New York (2nd Cir.) upheld a defense lawyer’s subpoena to journalists seeking notes and outtakes of filmed interviews with the lawyer, who has been charged with criminal contempt. In 1990 and 1991 the lawyer, Bruce Cutler, had sharply criticized the government’s prosecution of his client, the notorious New York organized crime figure John Gotti.

On several occasions the trial judge, I. Leo Glasser of the U.S. District Court in Brooklyn, had warned prosecutors and defense counsel to obey the district court’s rules that prohibit public statements likely to “interfere with a fair trial or otherwise prejudice the due administration of justice.”

After being charged with contempt, Cutler subpoenaed notes and outtakes from reporters for the Daily News, the New York Post, the New York Times, Newsday, CBS and Fox television station WNYW. Cutler maintained that he needed this information to prove that his statements did not justify the contempt charge when considered in their full context. The journalists refused to comply. In late June, Chief Judge Thomas C. Platt of the U.S. District Court in Uniondale held them in contempt and fined them $1 a day.

In upholding the subpoena for the journalists’ notes and outtakes in late September, the appeals court limited an earlier Second Circuit opinion that had recognized a First Amendment reporter’s privilege in criminal cases. In that case, the information sought was deemed “merely cumulative.”

The appeals court quashed Cutler’s subpoena of the journalists’ notes concerning unpublished statements by government officials, ruling that they were not relevant.

(U.S. v. Cutler; Media Counsel: R. Bruce Rich, New York; Anthony M. Bongiorno, New York)