NEW JERSEY — The New Jersey Attorney General issued a subpoena to a recent graduate of Rowan University in July, ordering him to hand over the unedited footage of a documentary he shot about death row inmate Robert O. Marshall.
The filmmaker is contesting the subpoena in court on the grounds that he has a journalistic privilege to keep the information confidential. Jason Kitchen and six other students shot the documentary, titled “Fatal Mistakes,” for a film class and screened it at the university in May.
John Hagerty, spokesperson for the attorney general’s office, said the state needs the unedited tapes for their investigation against Marshall, who was sentenced to death in 1986 for hiring a hit man to murder his wife. Marshall has been fighting his conviction in the courts, and a federal hearing to determine whether Marshall’s defense attorney was effective is set for September.
“We want to know what is on those videotapes, it’s that simple,” Hagerty said. “We are looking to determine if Marshall … provided information we are unaware of.”
Kitchen’s three lawyers, who were appointed by the American Civil Liberties Union, argued that journalists are protected from having to reveal material to courts under First Amendment qualified privilege.
The qualified privilege can be overcome if the court finds that the information sought is highly relevant, critical to the maintenance of the claim and not obtainable from any other sources.
In 1995, a federal district court in New Jersey quashed a subpoena against a college reporter, ruling that she was protected under the qualified privilege test.
A motion to quash Kitchen’s subpoena was filed in late July and oral arguments were scheduled for August, said Robert Balin, one of his lawyers.
“It would send a terrible message if the government were able to use Jason as an investigatorial arm of the government,” Balin said.
Kitchen, who graduated in May with a degree in communications, said the court should consider him a journalist and give him the qualified privilege.
“The journey we took to complete this was everything and more that a journalist would do,” Kitchen said. “Everyone we interviewed went into this idea that they were doing this for students. They didn’t think they were giving a deposition for the state of New Jersey.”n
The attorney general also issued a subpoena to Rowan University, where the master copies of the tapes are being held in a locked safe.
Joe Cardona, a university spokesperson, said the school had obtained private counsel and was waiting to see what the court decides before they provide the tapes. He said the university should not have to hand over the tapes because of scholar privilege, which protects students and faculty from subpoenas for research projects.
“We are in support of the students until the courts tell us otherwise,” he said.