When the journalist becomes part of the story
By Sheila Regan, TC Daily Planet
March 05, 2010
Back at the beginning of November, Brian
Hokanson, a writer acquaintance of mine from TC
Indymedia, wrote me and asked me if I would be
interested in covering the story of Carrie
Feldman and Scott Demuth, two animal rights
activists who had been subpoenaed to a grand jury
in Davenport Iowa. I had read a little bit about
the case on TC Indymedia, and I passed along
Hokanson's email to my editor, Mary Turck, and
asked if she wanted me to write about the two
cases. Little did I know then that I would
eventually become a part of the story myself.
I met Feldman and Demuth on November 12 at a
potluck fundraiser for them at the Seward Café. I
had ridden my bike there and realized as I was
parking that I was wearing my down winter coat,
which might not have boded so well with a
gathering of animal rights activists. "Oh well",
I thought. "They'll eiter talk to me or they won't."
It turns out that the pair were both gracious and
charming. Feldman is a shy, fresh-faced young
woman who had a look of trepidation as she
prepared to drive down to Iowa. Demuth, with long
hair and rosy cheeks, was earnest and articulate.
They told me that they hadn't been told why they
were being subpoenaed, but they had a guess.
Feldman said she had gotten a call from her high
school teacher who told her that government
officials had asked for Feldman's attendance
records for 2004. Feldman did a google search,
typing in "communiqué" (a term commonly used for
activist actions) "Iowa" and "2004" and concluded
the subpoena must be about an incident at the
University of Iowa in 2005 in which animals were released from labs.
As a reporter, it's not my job to decide if
Feldman and DeMuth are guilty or innocent. I just
report what happens. If they had been involved in
the incident, that would be a story: two high
school sweethearts, freeing animals together. If
they weren't involved, that's a story too: two
twenty-somethings wrongly accused of a crime that
happened when they were young teenagers in a city where they didn't even live.
It turns out the story I ended up writing about
was the unusual court process that the two went
through, and continue to go through. They were
not originally charged with any crime at all.
They were instead
to appear before a grand jury.
jury meets and hears testimony in a private room,
with no judge or attorney for the witness present
-- only a prosecutor. Both Feldman and Demuth
felt that the grand jury process was
ideologically unsound and both planned to refuse to testify.
A witness can assert the Fifth Amendment
protection against self-incrimination in refusing
to testify before a grand jury. If the court
grants immunity, the witness can still be ordered
to testify. Immunity means that the testimony
cannot be used against that witness, so, under
the law, that means their testimony will not be self-incriminating.
The prosecutor got the court to grant immunity,
but both Feldman and Demuth still refused to
testify. Feldman said she didn't trust that
immunity would protect her. Demuth said that he
was not willing to risk his academic integrity by
being forced to answer questions about his
research. He is a graduate student at the
University of Minnesota in the Department of
Sociology and has conducted many interviews with
animal rights and environmental activists.
eventually charged in November with conspiracy
to commit animal enterprise terrorism in
connection with the break-in. He is currently
back in Minneapolis, out on bail and wearing an ankle bracelet monitor.
Feldman, meanwhile, was jailed for contempt of
court for refusing to testify before the grand
jury. She could be held until next October. (When
witnesses refuse to testify, they can be jailed
until the term of the grand jury is over.)
I have written a number of articles about Feldman
and Demuth's cases. In January, my editor asked
me to do an update. Feldman was being held in
jail for what seemed an indefinite amount of
time, and I was going to write about that.
However, as I started to do some research I
realized that writing about the case was going to
be very difficult, because all the court documents were sealed.
Feldman's lawyer, Jordan Kushner, told me that he
found the secrecy regarding Feldman's case
extremely problematic. He said the prosecuting
attorney, Cliff Cronk, was allowed to enter
evidence against Feldman which would prevent her
release but which Kushner, as her lawyer,
couldn't see He said one of the appellate judges
wrote a very strong dissenting opinion against
the court's decision. However, I could not read
that dissenting opinion because the court's opinion, too, was sealed.
Kushner put me in touch with Ben Rosenfeld, an
attorney from San Francisco who had been working
to unseal the documents. Kushner said that it
would be helpful if a journalist affiliated with
an official news organization would file a motion
to unseal the court dockets and filings for the
case. After conferring with Mary Turck and with
my father, who advises me on all legal matters, I
decided that I wanted to file a motion.
Before filing the motion, Rosenfeld advised me to
first take action myself to access the documents.
So on January 25 I attempted to access the docket
for Carrie Feldman's case through PACER, an
on-line access to federal court records, only to
read the message: "case under seal".
Then I called Michael Gans, a clerk for the
United States Court of Appeals for the Eighth
Circuit. I asked him why the documents were
sealed and he said that the case was "not a
public matter," and that it "happens all the
time," for court documents to be sealed. "That's
a decision for the judge to make," he said.
Realizing that attempting to see the court
documents was indeed not going to get me any
access, I gave Rosenfeld the go ahead to add my
name to the motion he had drafted.
The motion that Ben Rosenfeld filed for me on
January 26 contains this paragraph:
A search of the Federal Rules of Appellate
Procedure and this Court's Local Rules reveal no
rule or practice which provides for the automatic
sealing of a recalcitrant witness appeal such as
this one, nor any such rule requiring the blanket
sealing of procedural appeals related to grand
jury matters. Quite the contrary, opinions in
grand jury related appeals, published and
unpublished and often titled "In re Grand
Jury...," are legion and abound throughout the
public record in all of the appellate Circuits including the Eighth.
I entered the story. On February 25, Rosenfeld
emailed me and told me that the court had ruled,
granting my motion to unseal, but at the same
time giving the government an extra three weeks
to state any specific objections. One judge
voiced dissent in the decision. Judge Kermit Bye
wrote that while he agreed that certain portions
of the court documents should remained sealed, he
didn't agree that the entire motion be sealed. He
also disagreed with the three-week wait, saying
that the government had already been given ample time. He wrote:
Finally, I echo the third party movant's
suggestion that this court review its general
procedures for handling grand jury related
appeals. Such appeals should be treated as
presumptively open to the public unless and until
one of the parties specifically brings a
meritorious motion to seal portions which reveal secret grand jury information.
I wholeheartedly agree with Bye's last statement,
because I think that if we are to exist as a
democratic society, we should, whenever possible,
keep court proceedings and documents open to the public.
I talked to my editor the day that I found out
about the court's ruling, and she suggested that
I write a first hand account of my experience. I
was a little irked when I discovered, via
Twitter, that Abby Simons from the Star Tribune
me to the chase and written about me before I
could write about myself. On the other hand,
though, I am glad she did, because as a larger,
more mainstream news organization, the Star
Tribune does reach a wider audience than the Twin
Cities Daily Planet. Because I disagree so much
with the secrecy involved in Carrie Feldman's
case, I hope that other news organizations will
also cover the issue and show their support in
keeping our court system open to the public.
Saturday, March 06, 2010
When the journalist becomes part of the story