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Inquirer reporter’s notes safe from criminal defendant’s subpoena

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  1. Protecting Sources and Materials

    NMU         NEW JERSEY         Confidentiality/Privilege         Sep 12, 2000    

Inquirer reporter’s notes safe from criminal defendant’s subpoena

  • A defendant on trial for murder cannot obtain a reporter’s notes from interviews of a private investigator who may testify for the prosecution.

Philadelphia Inquirer reporter Nancy Phillips need not surrender to criminal defense attorneys information she gained in interviews with a key player in a Camden, N.J. murder trial, a state superior court judge ordered Sept. 11. The judge ruled the reporter’s privilege was not waived when Phillips interviewed a prosecutor without revealing she had learned of the possible involvement of a third person.

Attorneys for Fred Neulander, a rabbi charged with murdering his wife Carol, sought the reporter’s notes alleging Phillips played a large role in encouraging Leonard Jenoff to confess to his part in the murder, calling her an “agent provocateur” with a “Svengalian presence and charm.”

Phillips, who was covering the Neulander murder, met Jenoff in February 1995. At the time, Jenoff claimed Neulander hired him as a private investigator to uncover who killed Carol Neulander. During the next five years, Jenoff repeatedly misled Phillips by giving her false information.

On April 28, Jenoff told Phillips that Neulander hired him to arrange the murder. Phillips asked Jenoff to consider speaking to the authorities, and the reporter accompanied him to a New Jersey diner where he ultimately confessed to a prosecutor. Phillips told the prosecutor she was present “as a reporter,” not as Jenoff’s “friend,” as he suggested.

Nine days earlier, Phillips spoke with the prosecutor regarding the Neulander murder but did not volunteer any information.

Jenoff pleaded guilty to aggravated manslaughter and agreed to testify against Neulander.

Defense attorneys claimed the earlier meeting with Solomon constituted a waiver of the New Jersey Newsperson’s Privilege, the state’s shield law.

In her ruling, Judge Linda G. Rosenzweig wrote, “It is only when the reporter herself conveys or communicates information, i.e. gives up information rather than receiving information, that the privilege is waived.” Additionally, the court stated Phillips’ presence at the confession to the prosecutor did not constitute a waiver of the privilege.

By deciding the subpoena could not reach the reporter’s notes the court also held defense attorneys failed to overcome the privilege in this case.

The court ruled the notes were in fact relevant, material and necessary because Jenoff’s testimony will likely be the only direct evidence of Neulander’s involvement in the killing. However, the court ruled the subpoena request was overbroad because it called for nearly six years of notes of interviews or conversations, which might include information unrelated to why Jenoff came forward. The court also found a less intrusive means to gain the same information: Jenoff himself.

Finally, the judge decided the privilege against disclosure outweighed the value of the notes to Neulander’s case. The judge cited examples demonstrating that “Jenoff’s credibility is already compromised” and Phillips’ notes “will not add significantly to the quantum of evidence bearing on his credibility.”

(New Jersey v. Neulander; Media Counsel: Warren Faulk, Westmont, N.J.) DB

© 2000 The Reporters Committee for Freedom of the Press

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