⚾️ With opening day here, these Delaware players are on MLB rosters or could be soon
CRIME

News Journal must turn over video of Paladin suspect

After analyzing the reporters' privilege law, a judge said the newspaper must comply with a subpoena for the trial.

Jessica Masulli Reyes
The News Journal

A Delaware judge has ruled The News Journal must comply with a subpoena to turn over previously unpublished video clips of a reporter interviewing Christopher Rivers before he was charged with murder.

An attorney representing The News Journal argued Tuesday that turning over the clips would have a "chilling effect" on the newspaper's ability to develop and maintain sources. A state prosecutor said the videos are key to showing inconsistencies between what Rivers told police and what he told a reporter.

Christopher Rivers

In the end, Superior Court Judge Charles E. Butler analyzed the reporters' privilege section of Delaware law and determined the public interest in a fair trial for Rivers outweighed the newspaper's need for confidentiality.

"We're disappointed,' said News Journal Executive Editor David Ledford. "It seems clear the judge leaned on his prosecutorial roots and gave little thought to the balancing test imbued in Delaware's 'reporter privilege' before demanding that we hand over the video."

"The state has subpoena power and could easily have conducted the same interview we did. And while the remaining minutes of video not already published at delawareonline.com is not material to the state's case, as we explained to prosecutors over and over again, the long arm of the state reaching into our newsroom will have a chilling effect on news organizations reporting in Delaware.

"The weak reporters' privilege act in Delaware is built on judicial discretion, and in the mind of this jurist the First Amendment doesn't mean much in the digital age."

Butler was chief deputy attorney general for Delaware before being appointed to Superior Court by Gov. Jack Markell.

The standoff arose when Attorney General Matt Denn's office subpoenaed former reporter Cris Barrish and News Director Phil Freedman in anticipation of the murder trial of Rivers, 33, and Dominique Benson, 25. Rivers is accused of hiring Benson and others to kill Joseph and Olga Connell in front of their Paladin Club condominium in the early hours of Sept. 22, 2013. The state specifically wanted video from Barrish's Oct. 7, 2013, interview with Rivers.

Only about three minutes of video considered the most "newsworthy" was published on delawareonline.com on Oct. 9, 2013, and an additional clip was published two weeks ago on the eve of the trial.

In the clips, Rivers says he would never harm his "best friend" and had no idea the couple was killed until detectives told him at the police station.

In court Tuesday, the state and newspaper went head-to-head over the subpoena.

The newspaper claimed the material is protected from disclosure under both state and federal laws that protect reporters, and if released, would give the impression to the public that reporters are an arm of law enforcement.

Denn's office has said the decision to subpoena the newspaper was not taken lightly and was narrowly tailored to not include other material, such as the reporter's notebook.

"DOJ is not seeking to have confidential media sources revealed or a reporter’s notes," spokesman Carl Kanefsky said last week. "This is a narrowly tailored request for a video that has already been partly publicly displayed."

ALSO TUESDAY: Victim's sister takes the stand in Paladin Club trial

The News Journal on Tuesday pointed to extensive federal case law that protects reporters from having to share unpublished material, but the judge ultimately found that the guiding principle in this case should be the Delaware Reporters' Privilege statute.

That statute was tested only once before. In 2003, The News Journal challenged a subpoena in which a former reporter at the newspaper was being called to testify at a trial for a defendant who spoke to her hours after a shooting and attempted robbery.

At the time, the court ruled against the newspaper, but did say the Delaware Reporters' Privilege Act requires the court to balance the public's interest in having the reporter's testimony presented at trial against the public interest in keeping the reporter's information confidential.

The statute gives judges a five-part balancing test in order to do so. The judge "shall take into account" whether the information is relevant, the efforts the state has made to acquire the evidence elsewhere, the sufficiency of the evidence available from alternative sources, the circumstances under which the reporter obtained the information, and the likely effect that disclosure would have on the future flow of information to the public.

Butler paused specifically on the last part of the test, saying he does not want to see a negative flow of information to the public. However, he went on to say that the courts' obligation has to be to ensuring the defendant gets a fair trial.

Deputy Attorney General Colleen Norris argued to the judge that there was no other way for police and prosecutors to get access to Rivers. After speaking briefly to New Castle County Police Department on the morning of the slayings, he invoked his right to remain silent and never again spoke to police.

"There was no other place to go," Norris said. "We can't get it anywhere else."

The judge noted that Rivers clearly knew he was meeting with a reporter and that the information would be made public.

"It doesn't take a genius to figure out Rivers wanted ... to get his story out," Butler said. "It was mutually beneficial to both parties."

Contact Jessica Masulli Reyes at (302) 324-2777, jmreyes@delawareonline.com or Twitter @JessicaMasulli.