NEWJERSEY — A federal judge on Wednesday ruled that a recent graduate ofRowan University does not have to hand over tapes of his interview with aconvicted murderer to the state attorney general. Judge Joseph E. Irenasthrew out the New Jersey attorney general’s subpoena of Jason Kitchen, theformer film student whose then-unfinished documentary, Fatal Mistakes,included interviews with death row inmate Robert O. Marshall. Marshall receivedthe death sentence in 1986 for arranging the murder of his wife. Thestate wanted access to the footage for its case against Marshall, who isappealing his sentence. Marshall claims that he received ineffective counsel inthe penalty phase of his trial. Kitchen’s attorneys argued that the filmmakerhad a journalistic privilege to keep the footage of Marshall’s interviewconfidential. The judge also threw out the state’s subpoena of RowanUniversity, which possessed the master copies of Kitchen’s tapes. RowanUniversity is in Glassboro, N.J.”It’s a victory for the First Amendment,the [New Jersey] shield law and for Jason,” said Bruce Rosen, one of Kitchen’slawyers. “It was a fishing expedition [by the attorney general] from thebeginning.” Many courts have ruled that journalists are protected fromhaving to reveal sources or material under the concept of qualified privilege.The privilege can be overcome if the court finds that the information sought ishighly relevant, necessary or critical to the maintenance of the legal claim andnot obtainable from any other source.Kitchen’s case was helped last weekwhen a judge granted the state attorney general’s request to depose Marshall.Because the state can gather the same information from Marshall in thedeposition that they could by watching the tapes, the film was not as vital toits case, Rosen said. Robert Balin, another lawyer for Kitchen, saidthe ruling is good news for other student filmmakers. “The courtaffirmed the proposition that, as a student documentarian who was doinginvestigative journalism, Jason was fully entitled to invoke the newsman’sprivilege,” Balin said. “That sends a good message for other students involvedin other types of documentary endeavors.”Kitchen, now a graduate studentat Michigan State University, recently completed a final version of thedocumentary, and he hopes the publicity surrounding the film will gain it abroader audience, Balin said.Kitchen’s lawyers, who represented him onbehalf of the American Civil Liberties Union, said they will file a petitionwithin two weeks to collect attorney’s fees from the state. The ACLUtook interest in the case after it was contacted by Academy Award-winningfilmmaker Michael Moore, whom Kitchen interned for this summer at his productioncompany, Dog Eat Dog Films.
Read previous coverage:
- Student filmmaker ordered to hand over interview footage of death row inmate News Flash, 7/25/2003