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Judge refuses to quash subpoena in Rwandan genocide case

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  1. Protecting Sources and Materials
A U.S. district judge in Kansas refused last week to quash a subpoena issued to a human rights group and…

A U.S. district judge in Kansas refused last week to quash a subpoena issued to a human rights group and an author who claimed a First Amendment-based reporter’s privilege in objecting to turning over research notes that included witness accounts of the Rwandan genocide.

Author Timothy Longman and the group Human Rights Watch have been fighting subpoenas served by the defense team for Lazare Kobagaya since April. Kobagaya, 81, is charged with making false statements in obtaining U.S. citizenship in 2006. The government alleges that he participated in murdering hundreds in 1994’s Rwandan genocide. His trial is set for April 2011.

This is the first case in the United States involving genocide, U.S. District Judge Monti Belot wrote in a court opinion. About 800,000 people were murdered in the ethnic cleansing, according to Human Rights Watch’s website.

Human Rights Watch and Longman have not decided if they will appeal the court's ruling, said Dinah PoKempner, general counsel for Human Rights Watch.

The defense wanted research notes from a book Longman wrote about the genocide and from the Human Rights Watch’s 1999 report “Leave None To Tell The Story: Genocide in Rwanda,” according to an AP report. At the time, Longman was the editor of the report’s chapter about the area where Kobagaya’s crimes allegedly took place, said PoKempner.

Longman, now the director of Boston University’s African Studies Center, volunteered to be the government’s paid expert in the case, unaware that doing so would mean he would have to turn over research to the defense.

U.S. Magistrate Judge Jeffrey Bostwick initially heard and rejected Longman's and the Human Rights Watch’s motion to quash the subpoena in May. After that ruling, Longman “backed out” of being the government’s expert, the court opinion said. Longman said that withdrawal represented a “changed circumstance” and asked Bostwick to reconsider his motion, according to the court opinion.

Belot refused to overrule Bostwick’s previous decision to allow the subpoenas to stand. He ruled that the reporter’s privilege was waived when Longman signed on to be a paid government expert.

The court wrote that although it’s “not mindful or insensitive” that disclosing the documents could put Longman’s confidantes in jeopardy, it found the pair's concerns “overstated and speculative.”

“We believe that Dr. Longman was placed in a terrible situation because the Justice Department did not explain to him that confidential material in his possession could potentially be subpoenaed when he volunteered as an expert,” PoKempner said.

Devereux Chatillon, the lawyer for Longman and HRW, said the case has limited relevance to reporters.

"We do not think this is a significant precedent," she said. "There were very unique facts about this case that distinguish it from reporter's privilege" issues.

Nevertheless, the ruling is a strong reminder that journalists and others cannot agree to cooperate with one side in a criminal prosecution while refusing to do so for the other side.

The dangers of such cooperation were highlighted in a 2000 California case in which journalist Dan Fost agreed to testify on behalf of a murder defendant but relied on the shield law when refusing to answer questions the prosecutor posed during cross-examination.

The trial court in San Francisco held Fost in contempt of court and ordered him to pay a fine of $1,000 per day that he refused to cooperate. The state appellate court in San Francisco eventually overturned the contempt-of-court ruling and fine, but warned that reporters who agree to testify for one side, but not the other, can face contempt charges when their one-sided cooperation threatens a criminal defendant's constitutional right to a fair trial, which includes the right to cross-examine adversarial witnesses.