For three years, the San Francisco federal public defender representing alleged accomplice David Lin has been trying to get videotapes and transcripts of the outtakes from an America's Most Wanted segment on the crime. But the show has fought it, arguing that the subpoena threatens its freedom of press.
Then a secretary for the show's attorney, Thomas Burke, accidentally sent the defense and the government the transcripts. Burke says he tried to fix the error within 15 minutes of learning about the leak, but S.F. Federal Public Defender Daniel Blank points out that Burke's call came on Nov. 7, about a month after his office received the documents.
Now everyone has agreed to play nice and seal the documents until a Dec. 8 hearing in the U.S. Court of Appeals for the 9th Circuit. Only Blank isn't buying that this case has anything to do with the First Amendment.
"America's Most Wanted is really a quasi-vigilante arm of the government," he says. The show, he believes, is designed to get information for law enforcement; it's not a "check on the government," like a newspaper.
But Wanted's Burke believes cases like his are threatening journalists across the country. "What's at stake for the broader media is to protect the media from regularly having to respond to subpoenas," he explains. (You know, like New York Times reporter Judith Miller, who spent 12 weeks in jail for not revealing a source, and S.F. vlogger Josh Wolf, who's still in jail for refusing to turn over video footage.)
The public defender, Blank, has filed briefs arguing that because the government got the Fox transcripts, the documents should be fair game. "The law says that when the government has them, they have to give us those statements," he says. Besides, he believes that government employees interviewed for the Wanted episode made statements in those outtakes that are inconsistent with their current arguments.
A judge ruled that the materials should be turned over. But when he watched them, he called them "a big nothing," according to The Recorder.
As for questions about whether America's Most Wanted counts as journalism, Burke scoffs, "They could say they don't think alternative newspapers are real journalism."
But who'd say something like that?