New Yorker magazine contesting judge's order to turn over recordings of interviews with Lindsay Clancy's husband
The reporter, Eren Orbey, also interviewed the parents of both Clancys as well as experts on the issue of filicide, including one who is working for Clancy's defense. One person is identified only as a pastor, but most of the others are quoted by name.
In February, Plymouth Superior Court Judge William F. Sullivan issued a subpoena for reporting materials related to the article at the request of Plymouth District Attorney Timothy J. Cruz's office.
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Sullivan approved the subpoena without indicating whether he would review the material before providing it to prosecutors.
In court documents, prosecutors said they needed access to the handwritten notes, emails,
audio recordings, and voice messages between Orbey and people he interviewed for the story, including the person identified as the pastor.
Prosecutors said the published article was crafted to generate sympathy
for Lindsay Clancy and that journalists are legally required to comply with such court orders.
The profile 'in both title and substance — is intended to portray the defendant in a sympathetic light and support her defense of a lack of criminal responsibility,' prosecutors said.
The New Yorker, through First Amendment attorney Jonathan Albano, urged Sullivan to reconsider his order. (Albano also represents the Boston Globe).
'The New Yorker's sympathies are not on trial here,' he wrote. 'In fact, even a cursory reading of the piece shows The New Yorker's reporting is complex and nuanced, and is hardly 'in support' of the defense,' Albano wrote.
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More significantly, 'the notion that the government could seek presumptively privileged, unpublished information from any news outlet that expresses sympathy for a criminal defendant is chilling and directly contrary to the First Amendment,' he added.
Under both the US Constitution and the Massachusetts Declaration of Rights, the request by prosecutors is legally invalid and Sullivan should quash the subpoena, he wrote.
Albano filed the magazine's response to the subpoena last week. No hearing is currently scheduled on the issue, according to court records.
John R. Ellement can be reached at
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