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The First 48 and the First Amendment

Viewer discretion advised. So is participation by police departments.

Viewer discretion advised. So is participation by police departments.

Robert Barrere does not look like a cop. Thin and boyish, with premature salt-and-pepper hair and black-rimmed glasses, he seems likelier to be holding court in a public radio studio.

This unintimidating visage is why it's so interesting to watch the soft-spoken Barrere confront Thayon Samson, a barber, exotic dancer, and suspected murderer.

In a scene from The First 48, Barrere, a detective with the New Orleans police, calmly explains that he knows Samson tried to destroy evidence by setting fire to a car with a woman's corpse in the trunk.

The fire didn't catch. DNA from gym shorts in the backseat matched Samson's. He was arrested for murder.

The First 48 makes for good television. But is it journalism?

That's the question judges in Minneapolis will have to answer. At least a dozen felony cases with upcoming court dates were the subjects of the A&E show, which tagged along with Minneapolis police as they investigated their most serious cases. Now lawyers on both sides want access to all the video shot.

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But police can't grant their request, according to Minneapolis City Attorney Susan Segal. They don't have the footage. First 48 does.

The prosecutions at stake are as big as they get. In one, the victim of a robbery took revenge, knocking his assailant flat with one punch. In response, say police, the thief's friend, Brandon Broszko, pulled a gun from his pants and sprayed a crowd with bullets, killing the puncher.

In another, suspected gangbanger Antonio Jenkins — street name: Popeye — is accused of rolling up on a rival gang and shooting two dead.

Defense lawyers want access to the video to scour it for shoddy police work. Hennepin County prosecutor Mike Freeman feels obliged to supply it. By law, he must provide defense lawyers with "all potentially exculpable evidence" that could help their clients.

Freeman's also trying to preempt the possibility of a costly retrial. If a suspect is convicted before the show airs, and that episode reveals new information that invalidates the initial case, he'd have to do the whole thing over again.

"To do something, and then have it overturned on appeal, doesn't make much sense," Freeman says. "It wastes our time and energy."

Or worse. In Miami, where the show filmed hundreds of cases over 13 years, a judge dropped key evidence in a domestic violence murder trial after a detective admitted he'd felt compelled to "play act" for the show.

Another case saw a man wrongfully arrested and imprisoned for 20 months. He sued, claiming the presence of TV cameras pressured cops into making a bust. A jury awarded him $850,000.

Freeman is confident Minneapolis police wouldn't step astray just to become TV stars. But he can't be sure unless he sees the tapes.

First 48 says no. It cites Minnesota's "shield law," which protects journalists from releasing anything they uncovered during the course of reporting. And that will leave judges to decide if reality TV is the same as journalism.

The argument lands in a "gray area," according to Steve Aggergaard, a First Amendment lawyer and former reporter. On one hand, shows like this have, for better or worse, come to take the place of the nightly news, whose dwindling viewership is largely left to the aged and gray.

"The three major [television] networks are functionally dead," Aggergaard says. "Increasingly, shows like First 48 are how people are getting information on what police are up to."

But whether this show is an independent news-gatherer, a key point in shield law cases, is up for debate. The city's contract with The First 48 says it must submit episodes to police for advanced screening, accepting feedback before it airs. Few serious journalism outfits would make such a deal.

The show is also motivated to put cops in their best light. If it didn't, departments would be reluctant to allow filming again.

Minneapolis police extended their contract for another year, then backed out when the controversy bubbled. If Chief Janee Harteau regrets her decision, she's not saying.

She can't. Another term of the contract bars her from discussing the show without the producers' consent.

The TV show, owned by Britain's ITV network, is also keeping mum. Its attorney, local First Amendment ace John Borger, says the show will do its talking in court.

It's sensible, even admirable, for the notoriously secretive Minneapolis Police Department to pull back the curtain on how they work, especially today, when cops are so easily vilified. The show puts a sympathetic and human face on people we so readily lump together as "the cops."

The department rarely grants the same access to Twin Cities reporters.

In the meantime, these 12 cases look like a new test of Minnesota's shield law, generally considered one of the strongest, most press-friendly in the country. The judges' decisions will set a precedent on whether the reality shows that have come to dominate our airwaves are news or not.

The big questions at play are not lost on Mike Freeman.

"Interesting case, isn't it?" he says.

It is. It's dramatic. It's important. It's complex. And it's hard to imagine how this plot ends.

Stay tuned. 

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