A Brown Pride gangster — dressed in an orange jumpsuit with the letters DCSO stenciled on the back — sat before a television camera and discussed the murder of Lucio Garcia, saying nonchalantly that his gang “did what we had to do.” When parts of that footage were later released in a popular docudrama, eyebrows rose at the Davidson County District Attorney’s office.
Now, prosecutors hope raw footage from that interview will shore up their homicide case against now-19-year-old Nashvillian Jonathan Gutierrez, whom they believe fired the fatal shot at 19-year-old Garcia, a rival gang member.
But the network hasn’t been willing to give up the tapes, and it has appealed a judge’s order to do so.
In addition to testing the investigatory powers of the local DA, the fight over the footage could also probe Tennessee’s media shield law, which has largely been unchallenged since 1974.
Show ordered to turn over tapes
In an episode of A&E Television Networks’ Gangland titled “Hunt and Kill,” a dramatic, deep voice narrates a battle between Nashville’s Brown Pride and Sureños gangs that took place in the early hours of Aug. 26, 2007.
Gutierrez — aka “Spook” — sat outside his mother’s house on East Thompson Lane with three other Brown Pride gangsters, when Garcia’s white ’96 Ford Mustang, loaded with four underage girls, made several passes. Each time the girls yelled out the window, according to police reports.
On the last pass, the Brown Pride members jumped in an ’03 Ford Escape and gave high-speed pursuit through south Nashville, firing shots at the Mustang along Glenrose Avenue, following Garcia and company across Interstate 440 and finally catching up to them at the Wedgewood Avenue exit on Interstate 65.
There, Gutierrez and another allegedly opened fire on Garcia, with one bullet entering his left cheek and pinballing long enough to sever his spinal cord, according to the autopsy.
“[They] just started disrespecting us, saying all kinds of stuff,” Gutierrez told Gangland. “Everything happened so quick. Did what we had to do. So things happen.”
Prosecutors, intrigued by the notion that a key to their case could lie on the cutting room floor, subpoenaed Gangland Productions to turn over the raw interview footage from the show that first aired on the History Channel — which A&E owns — in August.
But the company isn’t ready to hand over the tapes. In a motion filed last month by Gangland Productions, attorney Robb Harvey cited the Tennessee media shield law’s “three-prong test” to overcome a reporter’s privilege: There must be probable cause of a specific crime; the information can’t be obtained any other way; and there must be a compelling and overriding public interest in what is subpoenaed.
The state argued the raw footage is the only source of the information it sought, adding that Gutierrez’s lawyer, Paul Walwyn, who was present for the interview, couldn’t recall what his client was asked or if what was shown was the entirety of his comments regarding the Garcia murder.
“I don’t think anything was said, one way or the other, that’s bad,” Walwyn told The City Paper. “It just depends on the interpretation and how you look at it.”
Two weeks ago, Davidson County Criminal Court Judge Cheryl Blackburn denied Harvey’s motion, stating that it’s clear Gutierrez referred to the night of Garcia’s murder, and the state’s attempt to determine what questions the reporter asked him and other details did not amount to a “fishing expedition” for further investigation but rather sought context for the on-camera statements.
Blackburn ordered that the raw footage be turned over for the trial, but portions of the footage not used for the trial are to remain under seal “to protect Gangland Productions’ qualified privilege.”
Harvey refused to comment for this story but did offer that his client has appealed Blackburn’s order.
As a rule, the district attorney’s office doesn’t comment on pending litigation, but Assistant District Attorney Bret T. Gunn felt confident the trial would be continued, possibly due to an appeal.
A journalist’s right to privacy?
The rift between the district attorney’s office and the media company once again brings into focus an ongoing national discussion about the limits of journalistic protection when a crime has been committed.
Frank Gibson, executive director of the Tennessee Coalition for Open Government, said reporters aren’t in the business of police work, and the footage aired should be enough for prosecutors.
“Journalists should not become arms of the police department or the prosecution,” he said. “Their job isn’t to investigate things and then turn their notes over to law enforcement.”
The First Amendment Center’s David Hudson Jr. said the “three-prong test” provides a pretty high standard of proof as established under the 1972 U.S. Supreme Court case Branzburg v. Hayes.
“I do think that the publishers of the broadcast have a very good claim under the shield law,” Hudson said.
As for public interest, Gunn wrote in a court brief, “It would be difficult to imagine a more ‘compelling and overriding public interest’ of the people of Tennessee than seeing a man convicted of the murder that he committed.”
But Gangland reporter/producer Thomas Steffus, who produced this episode, warned of the slippery slope peered down every time a district attorney goes “fishing” in a reporter’s notes.
“If documentary reporters, producers, or production companies may be subject to subpoena … whenever there is a mere possibility that there may be some useful information or the district attorney is curious about what is on outtakes, the role of documentary reporters and producers will be changed from that of investigators and reporters to adjuncts of the trial process.”
Walwyn immediately filed for a continuance in the Gutierrez murder trial, set to begin Monday, following Blackburn’s order to turn over the footage. Walwyn said Blackburn’s decision raises issues of appeal for both A&E and his client, Gutierrez.
“It’s a fine line,” Walwyn said, “so the question is going to be: If they appeal it, how is the appellate court going to look at it, and will this open up the floodgates for anytime anyone gives an interview to have the whole tapes produced.”