Judge says defense not entitled to video shot for ‘The First 48’ documentary covering local murder case.
By Gary L. Wright, Charlotte Observer of February 4, 2011
A TV documentary show on homicide investigations will not have to turn over its video footage to a Charlotte lawyer defending a murder suspect.
Superior Court Judge Eric Levinson ruled Thursday that defense lawyer Jeremy Smith and his client are not entitled to video taken for “The First 48” television program.
Levinson said the video is not essential to the defense and that journalists are protected by N.C. law from having to turn over the video.
“I don’t think the law is on your side,” the judge told murder suspect Jonathan Fitzgerald, who is awaiting trial in an August 2010 stabbing death.
Smith, talking to reporters outside the courthouse, said: “Obviously, we’re disappointed. … Not getting the video violates my client’s constitutional rights and hampers my ability to represent him.”
Smith said he would talk to his client before deciding whether to appeal.
Police departments, including Charlotte-Mecklenburg police, have given “The First 48” extraordinary access to videotape murder scenes and investigations. The video is later broadcast on the A&E network TV program that chronicles police in U.S. cities trying to solve murders.
Smith said he believes the TV program has video of the crime scene, investigative interviews and the capture of his client in Cabarrus County. He said his client is entitled to review all the evidence gathered in the case, and that he considers the TV program’s footage possible evidence.
“It would assist in his defense if something was done wrong,” Smith told the judge.
But lawyers for the TV show say their videographers are journalists protected by N.C. law from being compelled to disclose the information they gather.
Before a judge can order the video footage to be turned over, they argued, the defense must show that the information is essential to the defendant’s case and is unavailable from other sources.
“The defense is on a fishing expedition,” Jon Buchan, one of the TV show’s attorneys, told the judge.
Fitzgerald, 19, is charged with murder in connection with the August 2010 slaying of Oscar Alvarado Chavez. The 22-year-old victim was stabbed to death in his car. Police have said a man and a woman met Chavez to buy heroin, but robbed and killed him instead.
Levinson’s ruling Thursday is not binding on other judges.
“The First 48” program’s video footage of murder investigations in Charlotte could be the subject of similar legal battles in coming months.
“I think every defense lawyer in these murders will request the TV show’s video just in case there’s something in the footage that the police don’t know about,” Charlotte lawyer George Laughrun told the Observer.
CMPD has sanctioned the TV program, Laughrun said.
“I don’t think the TV program can hide behind the journalistic privilege because they’re basically working hand in hand with the police,” Laughrun said. “They’re at the murder scenes because the police gave them permission to be there. That makes them almost quasi police – not for the investigations but for gathering information.”
“The First 48” focuses on the first two days of a murder investigation – the period widely believed to be the most crucial to catching a killer.
But critics worry that embedding cameras with investigators can jeopardize officers, the investigations and the public. The TV show recently came under sharp criticism after a crew following detectives in Detroit taped a raid that left a 7-year-old girl dead. Police accidentally shot the girl after bursting into a home in search of a murder suspect. The killing raised questions about whether the presence of cameras led officers to act brashly.
Smith, in seeking the “The First 48” video, argued the TV company had gathered the information on behalf of CMPD. The company that produces the television series, he said, is part of the “prosecutorial agency” in the case and is required to turn over its complete file in his client’s case.
But lawyers for the TV program said all the witness interviews, including a confession by the murder suspect, were recorded by CMPD, and that the material has been turned over to the defense.
The independent television producers, the lawyers said, were not working on behalf of the government to catch and convict killers.
The video was taken to serve the program’s own interests – not to further the police interest in solving the murder, they argued.
Ten8 
Leave a comment