'The First 48' won't hand over footage in Minneapolis double homicide case

A Twin Cities murder case has turned into an unlikely legal battle over the First Amendment and the at-times-blurry line between journalism and entertainment.

Last July, Minneapolis police allowed a production company for A&E's true-crime television show "The First 48" to follow and film while they investigated a double homicide in a South Side park. Police ultimately arrested 23-year-old Antonio Fransion Jenkins Jr., a suspected gang member known on the streets as "Popeye," who was charged with eight felonies in connection with the two fatal shootings. Minneapolis Police Chief Janeé Harteau signed an access agreement giving the production company rights to all the footage, with the caveat that the department could review a "near final" episode before it aired.

In Hennepin County District Court Friday, the prosecution and Jenkins' public defender demanded that the city turn over the video, arguing that it could contain evidence critical to the case. A Minneapolis city attorney said police can't give up the video because they don't have it. A lawyer for "The First 48" says the show won't provide it, arguing that members of the production crew are protected by laws designed to shield journalists from being forced to divulge sources and information in state courts.

The dispute represents a rare alignment of interests for prosecutors and defense attorneys in a murder trial.

In Friday's hearing, assistant Hennepin County Attorney Vicki Vial-Taylor argued the city must release the video "to ensure a fair trial for everyone." She said that Jenkins' constitutional rights trump any contractual agreement with "The First 48," and that the judge not ordering the release of the footage could "diminish faith in the system."

Taylor said the footage contains interviews with two witnesses, including Jenkins' uncle. She emphasized she has no reason to believe the police have misrepresented those interviews, but said the footage could potentially corroborate or cast doubt on the statements — either of which would be relevant to the case.

Taylor also argued that the police helped create evidence and therefore had a responsibility to preserve it.

Assistant City Attorney George Norris denied that police helped create the footage, and said the video belongs to the production company, not the city or police department.

"The police department does not have it and has never had or seen the footage," said Norris. "The city cannot produce what it does not have."

Judge Tanya Bransford said she would issue a ruling before the next hearing in the case, scheduled for late February.

First Amendment battle

Technically, "The First 48" is not involved in the dispute over the footage­ — at least not yet.

Neither the prosecutor nor defense has subpoenaed the video from the show's production company so far. Still, the show has retained Minnesota media attorney John Borger, who wrote a letter to prosecutors in October saying "The First 48" wouldn't turn over the footage, citing the First Amendment and reporter shield laws in Minnesota and New York.

At the request of the judge, Borger reiterated parts of the argument in court Friday, calling the prosecutor's request for the raw footage "too broad and too sweeping." He said the argument wouldn't meet the legal threshold to circumvent reporter shield laws.

Judge Bransford expressed concern that the episode could potentially influence jurors if it ran before Jenkins' April trial. Borger said he didn't know when A&E planned to air it, but retorted that it was no different from a television news station covering a criminal case.

As the case moves forward, one major consideration could be whether failing to release the footage — and whatever evidence it may contain — would indeed violate Jenkins' constitutional right to a fair trial, said Jane Kirtley, professor of media ethics and law at the University of Minnesota.

Kirtley said Minnesota and New York both have broad shield laws, and it's possible the show would be protected. "Independence is key," she said, and "The First 48" would have to prove it wasn't filming with an overt bent toward either side.

"The trouble is that the closer the relationship is with either party, the less likely it is that they're acting independently," Kirtley said.

Andy Mannix • 612-673-4036