through which he could demonstrate to the jury with extraordinary clarity the government's zeal to arrest him and its failure to produce any evidence after tearing apart his home.
Our juries are particularly vigilant to prevent gross overreaching and abuse by the government. See Alan Scheflin, Jury Nullification: The Right to Say No, 45 S. Cal. L. Rev. 168, 181 (1972) (jury nullification "may be a useful check on prosecutorial indiscretion"). This tape, with the gripping pictures of a cowering wife and child and lack of any evidence supporting the government's case, is likely to be strongly relied on by the jury in weighing the government's charges. By inviting CBS to accompany it on its search, the Secret Service may well have provided a basis for a finding of not guilty. The criminal may go free, not because the constable has blundered, but because the Secret Service and CBS have abused criminal process in a way the average citizen may find unacceptable. This practical aspect of trial by jury cannot be ignored.
The court is reluctant in a criminal case to substitute its judgment for a defendant's on the question whether such evidence is "necessary or critical" to a defense. It is sufficient that a compelling argument of cogency can be made. That the material -- the tape itself -- is not obtainable from any other source is plain.
2. Other Limitations on CBS's Privilege
It is not only defendant's ability to meet the necessary three-part test that allows him to overcome CBS's qualified privilege. It is also the fact that the privilege operates weakly, if at all, in this case. CBS entered defendant's home without the consent of defendant or his family. As a participant in the execution of a search warrant, it did so, in effect, under color of official right. The tape reveals that defendant's wife believed the camera crew to be a part of the team executing the warrant. CBS's argument that she impliedly consented to the crew's presence by failing to ask it to leave is fanciful. The reasonable person confronted with a phalanx of Secret Service agents, including a camera crew that failed to identify itself or request permission to be present, would not entertain the notion that she had an option to exclude the camera's eye and the reporter's recorder. That the woman had the presence of mind to request that she not be photographed was, under the circumstances, remarkable.
Defendant does not seek damages from CBS at this time. This court could not, in any event, entertain such a request for relief in a criminal case. That CBS both trespassed upon defendant's home and engaged in conduct, with the connivance of the government, directly contrary to Fourth Amendment principles, however, bears upon the court's evaluation of CBS's newsgathering privilege. The First Amendment is a shield, not a sword. Even a reporter must accept limits on how far upon another person's privacy he or she may intrude. To both approve CBS's violation of defendant's privacy and rule that he is not permitted to see the private images that were taken from him in the course of that violation would be intolerable. CBS must give defendant the tape which record the images and sounds taken from his home without his permission while illegally within his home.
B. Government's Conduct
The dispute at issue here is between defendant and CBS. The government's role, however, cannot be ignored. CBS, though it exceeded the permissible scope of its privilege, was engaged in the zealous pursuit of news and profit to which it was properly devoted. The government's obligations are of a different kind. Charged as they are with the delicate and sensitive responsibility of executing a judicially sanctioned violation of a person's privacy, government agents have a duty to see that as little harm is done as is necessary to the task. Wantonly exceeding the scope of the warrant would represent a failure to perform that duty. Inviting private citizens whose presence is not necessary to the execution of the warrant to join the search party is a failure of public trust -- one that indicates a disregard of the important values at stake when the government enters a person's home.
The United States Attorney in this case, when he learned of CBS'S interest in joining the search, explicitly directed the Secret Service not to permit such an adventure. The agents disregarded him and, apparently at the direction of "higher authority" within the Secret Service, invited CBS to come along. While not rising to the level of misconduct required to dismiss an indictment, such behavior cannot be tolerated. Agents of the executive branch must understand the gravity of their role when a judicial officer authorizes their presence in a private person's home.
The motion to bash is granted only to a limited extent. Defendant is entitled to the tape. CBS is permitted to obscure the identity of a confidential source whose identity it agreed, at the government's request, to protect. CBS also is directed, if the defendant or his wife so requests, to obscure the identity of defendant's wife and child who are not parties to this action. The United States Attorney is ordered to bring this matter and the court's opinion to the attention of the highest authority in the United States Secret Service.
Jack B. Weinstein
United States District Judge
Dated: Brooklyn, New York
November 23, 1992
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