|News Media Update||COLORADO||Confidentiality/Privilege|
Military rape case, newspaper subpoena dropped
- An Air Force subpoena of a reporter’s notes of interviews with an alleged rape victim was dropped after the victim decided not to pursue the rape case.
Dec. 9, 2004 — A subpoena issued to The Denver Post by a U.S. Air Force court for notes of interviews with an alleged rape victim and other related documents was dropped Friday, but only because the rape case will not go forward. The subpoena was issued at the request of military defense attorneys in Texas in court martial proceedings against Airman Matthew Monroe, who was accused of participating in the gang rape of then-Airman Leah Kaelin. The case was dropped when Kaelin agreed to administrative punishment for the alleged rapists.
Military courts have jurisdiction to issue subpoenas anywhere in the United States or its territories, although subpoenas of the news media by military courts are rare, according to Eugene Fidell, president of the National Institute for Military Justice. Steven D. Zansberg, attorney for the Post , has identified only three other military cases involving news media subpoenas.
The subpoena arose from a March 12 Post story by reporters Miles Moffeit and Amy Herdy titled “Delays on rape-case evidence bring new scrutiny to military.” The story, part of a series by Moffeit on sexual assault in the military, was largely based on Moffeit’s interviews with Kaelin and detailed her frustrations with and emotional reaction to the lack of progress in the Air Force’s investigation. Although she immediately reported the alleged June 21, 2003 rape, Kaelin did not hear from investigators until February, after the Post began publishing its stories. Investigators blamed the delay on laboratory tests.
On Nov. 17, Monroe’s attorney, Air Force Capt. Sandra J. Morris, subpoenaed the Post for “all notes, memoranda, video tapes, audio tapes, and any other information and documents” related to the article. The subpoena did not require Moffeit or Herdy to testify.
“I promised Ms. Kaelin that Denver Post would not publish information attributed to her which she did not expressly agree to have published,” Moffeit said in a sworn statement to the court. “The unpublished information provided by Ms. Kaelin during the course of interviews with me is highly confidential, personal information that she expressly chose not to have disclosed by the Newspaper.”
Failure to comply with the subpoena is a criminal offense and can be punished by a $500 fine and six months in prison.
The “breadth of the subpoena has all the characteristics of a classic ‘fishing expedition,’ casting a net as widely as possible on mere conjecture that there might possibly be something helpful for impeachment,” Zansberg said in a motion to quash the subpoena, filed Nov. 23.
Military courts apply the privileges recognized by other federal courts, but because of the split in the federal circuits over the existence of a reporter’s privilege, Fidell said it is difficult to tell whether a privilege would have been recognized in this case. Department of Justice guidelines which limit when federal prosecutors may subpoena journalists do not apply to the military.
A privilege was recognized in all three military cases identified by Zansberg, but in one recent case, U.S. v. Rodriguez , the Court of Appeals for the Armed Forces in August vacated and remanded the ruling for more fact-finding to determine the applicability “if any, of a newsgathering privilege.”
Because Kaelin agreed to administrative punishment for her alleged attackers, the punishment and any other discipline will remain confidential.
“I would have much preferred it resolved and achieved by a ruling that said the relationship between reporter and sexual-assault victim as a source is protected,” Thomas Kelley, an attorney for the newspaper said in the Post . “Particularly when the victim has reason to be frustrated with willingness of prosecutors to seek justice.”
(U.S. v. Monroe; Media Counsel: Steve Zansberg, Faegre & Benson, Denver) — GP
- Military attorney subpoenas newspaper reporter (12/1/2004)
© 2004 The Reporters Committee for Freedom of the Press