THE BRONX — The Democratic candidate for Bronx District Attorney ordered a reporter to testify in a case about the notorious Colorado mass shooting at a showing of "The Dark Knight Rises," ruling that the New York Shield Law did not apply.
Darcel Clark, who is running to replace Robert Johnson as the District Attorney for The Bronx, wrote the majority opinion for the 2013 case while serving as a judge on the Appellate Division of the New York State Supreme Court.
The decision focused on whether or not Fox News reporter Jana Winter would have to testify in court after she published a story about material in a notebook that convicted shooter James Holmes had sent to a psychiatrist prior to the shooting. There was a "pretrial publicity" court order in place to not reveal any information about the notebook.
Holmes' legal team argued that law enforcement officers had violated this order by talking to Winter, but the reporter said that testifying and revealing her sources would damage her career and that their identities were protected by New York's Shield Law.
The New York Supreme Court ruled that Winter had to testify, a decision that Clark agreed with when writing the opinion for the Appellate Division.
Clark ruled that New York’s Shield Law did not apply in Colorado, where Winter would be testifying, and that it was not clear that her testimony would result in her having to identify the sources who gave her information from the diary.
“Compelling respondent [Winter] to testify is distinguishable from compelling her to divulge the identity of her sources,” Clark wrote.
“The facts presented on this record do not establish with absolute certainty that the Colorado District Court will require the disclosure of confidential sources,” she continued.
However, the New York Court of Appeals overturned this decision, ruling that the state's Shield Law still protected Winter from revealing her sources and disputing the idea that compelling her to testify in court would not necessarily result in her identifying them.
“It is clear from the certificate issued by the District Court in this case that the only purpose of requiring Winter to appear in Colorado is to compel her to reveal the identities of the individuals who supplied the information she reported in the news story — information obtained in exchange for a promise of confidentiality,” the opinion reads.
Clark said she stood by her decision in the Winter case despite this verdict that reversed it.
“The court of appeals felt differently. That happens,” she said. “We got reviewed by a higher court, just as we reviewed the lower court.”
The Winter opinion is one of three that Clark was credited as the sole author of during her roughly three years serving as an appeals court judge.
Clark also wrote the opinion in the Appellate Division's ruling on whether wealthy philanthropist Brooke Astor's son Anthony Marshall had been swindling her out of her estate.
Marshall was accused of taking advantage of his mother when her mental health was declining and having her sign over her estate to him near the end of her life, when she was suffering from Alzheimer's.
He was convicted of grand larceny and other charges in New York Supreme Court, and Clark largely upheld the court's rulings in her opinion, which was not overturned.
She wrote that Marshall was properly convicted for his scheme to defraud his mother, correctly denied a mistrial and should not have his indictment for first-degree grand larceny thrown out.
The Marshall and Winter cases were both very high profile, but Clark maintained that the amount of publicity surrounding these cases did not affect how she and the other judges approached them.
“We pay the same amount of attention to a high profile case as we do to a case that’s not high profile,” she said. “The bottom line is to make sure that we get it right, and we follow the law.”
The other opinion Clark wrote focused on whether or not tenant Phillip Pitt was a "permanent tenant" of his residence on West 103rd Street and entitled to Rent Stabilization Code protections.
Clark ruled that he was, but a higher court ruled that this matter was moot because Pitt had left his building on 103rd Street voluntarily.
Clark wrote other opinions while on the Appellate Division, but she did not sign all of them because they were unanimous decisions, she said.
“I’ve written several others, but because it was unanimous, then we just go down as a panel as unanimously agreed,” she said. “I don’t really recall why it is that I decided to sign those.”
Appellate lawyer Mark Baker said unsigned opinions are typical on the court.
"The Appellate Division department doesn’t often issue signed opinions," he said. "Most of their decisions are memorandum decisions, so it’s a rare event when there is a signed opinion, and that’s when the court views it to be of particular significance."
