From the Fall 2000 issue of The News Media & The Law, page 22.
A New Jersey trial court sided with a Philadelphia Inquirer reporter in a murder defendant’s effort to force her to reveal information she gathered from interviews with a second man involved in a murder-for-hire.
The court ruled Nancy Phillips did not waive the reporter’s privilege by her presence at the second man’s confession to police.
Attorneys for accused murderer Rabbi Fred Neulander have appealed the motion denying access to the notes from interviews with Leonard Jenoff. In the notice of appeal, defense attorneys claim the reporter inspired Jenoff’s confession, making her notes highly relevant to the proceedings.
In her ruling in late September, Camden County Superior Court Judge Linda Rosenzweig quashed the subpoena served on Phillips. The judge decided to uphold the protections of the state shield law, known as the New Jersey Newsperson’s Privilege, because the defendant failed to prove a waiver of it by clear and convincing evidence or by meeting a four-part test of relevancy and necessity to the defendant’s case.
Phillips, who investigated the 1994 murder of Carol Neulander for the Inquirer, met Jenoff in February 1995. Jenoff claimed Fred Neulander hired him as a private investigator to find his wife’s killer. During the next five years, Jenoff gave Phillips false information and leads.
In December 1999, Jenoff confessed to Phillips that Neulander had hired him to arrange the murder. In April, Jenoff told Phillips he was going to confess to authorities in the coming days. Phillips asked him whether he would not rather go to the prosecutor’s office, and she accompanied Neulander when he confessed to Camden prosecutor Lee Solomon in a New Jersey diner. Neulander’s attorneys have suggested Phillips played a large role in encouraging Jenoff to confess to the authorities, calling her an “agent provocateur” with a “Svengalian presence and charm.”
In seeking Phillips’ notes, Neulander’s attorneys first argued Phillips waived the privilege by meeting with Solomon individually on April 19. At this meeting Phillips questioned Solomon, but did not offer any information to him.
“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.” Rosenzweig wrote in her decision.
Rosenzweig also stated Phillips did not waive the privilege by accompanying Neulander to his confession to Solomon.
Neulander’s attorneys next argued that they had sufficiently proven a need for the information to overcome the privilege.
According to the court, in order to defeat the privilege, a criminal defendant must prove by a preponderance of the evidence that “there is a reasonable probability that the subpoenaed materials are relevant, material and necessary to the defense, that they cannot be secured from any less intrusive source, that the value of the material sought as it bears upon the issue of guilt or innocence outweighs the privilege against disclosure and that the request is not overbroad, oppressive or unreasonably burdensome.”
Neulander’s attorneys claimed reasons other than a “guilty conscience” may have propelled Jenoff to confess. The only way to discover his motivation is through the reporter’s notes, they claimed.
Rosenzweig ruled Phillips’ notes were “relevant, material and necessary” in large part because Jenoff’s testimony will likely be the only direct evidence of Neulander’s involvement in the killing. However, the judge called the subpoena request overbroad because it called for nearly six years of interview notes, which might include information unrelated to why Jenoff came forward to authorities.
Rosenzweig also pointed to a less intrusive source the defense could have used to gain the same information: Jenoff himself. Jenoff pleaded guilty to aggravated manslaughter and agreed to testify against Neulander.
Finally, Rosenzweig decided Neulander failed to prove that the value of the desired material as it bore upon his culpability outweighed the privilege against disclosure. The judge listed 11 examples demonstrating that Jenoff’s credibility is already compromised and said Phillips’ notes “will not add significantly to the quantum of evidence bearing on his credibility.”
Specifically, the judge said Jenoff lied about working for the Central Intelligence Agency, about any involvement in the Iran-Contra affair and owning guns. Jenoff also lied about his own background to Phillips and about the details of the murder.
“There is an awful lot of information available to the defendant to impeach Mr. Jenoff,” said Warren Faulk, Phillips’ attorney. “I think the judge may have looked at (Phillips’) notes as additional or cumulative information on the issue of credibility. Typically a judge will not allow the introduction of evidence that is more cumulative than necessary.” –DB