by Jarrett Murphy
by Jarrett Murphy
A military court, an alleged rape victim, and the question of reporters' rights
When Leah Kaelin was allegedly gang-raped at a U.S. Air Force base in June 2003, the military didn't seem to care. She wasn't provided a victim's advocate, wasn't updated on forensic tests, and tried without success to learn what was happening in her case.
But Denver Post reporters Miles Moffeit and Amy Herdy did care, and they detailed Kaelin's case in one of their series of articles about abuse in the military. It was only after the reporters began asking questions at Sheppard Air Force Base in Wichita Falls, Texas, that an investigator contacted Kaelin with the lab results of her rape analysisóeight months after Kaelin came forward.
Eventually, the Air Force prepared to court-martial Airman Basic Matthew Monroe for the alleged attack. It looked like Kaelin would see justice done. But what Moffeit saw was a subpoena from the military court: Monroe's defense lawyer asked the court to force Moffeit to turn over his notes from reporting the story.
In a scenario that has played out in other courtrooms in recent months, Moffeit has refused the court's demand. He said the notes contained conversations with Kaelin, her mother, and her husbandósome of which Moffeit agreed not to make public. The Post fought the subpoena, citing First Amendment rights, the need for sensitive handling of rape victims, and the fact that the defense was not specific about what it sought from the notes.
Moffeit faced the possibility of going to jail if the court upheld the subpoena and he continued to resist. That risk was lifted when the prosecution fell apart last week, apparently because Kaelin decided to pull out. (The military will handle Monroe's case "administratively.")
But similar threats to other reporters remain. On December 8, The New York Times' Judith Miller will argue her appeal of a jail sentence she received for contempt of court because she refused to say who named the CIA operative Valerie Plame to her. Miller never published a story on the agent, but columnist Robert Novak did in July 2003. The person who leaked Plame's name might have violated federal law. It is unclear if Novak has talked to the feds.
The day after Miller's hearing, Rhode Island television reporter Jim Taricani will learn his sentence for refusing to say who illegally leaked a videotape that was part of a corruption investigation. Even though the leaker has come forward on his ownóand claimed that he never demanded confidentialityóTaricani could still go to jail.
Amid the rash of cases in which courts are squeezing reporters to name sources, Democratic senator Chris Dodd of Connecticut recently proposed a federal shield law protecting reporters' unpublished information from the courts. Veteran First Amendment lawyer Floyd Abrams said the time for such a law has come.
"Taking them all as a whole, I do see an explosion of efforts to coerce reporters into revealing their sources around the country in a wide range of cases," said Abrams, who is representing Miller. He's not sure why it's happening.
"What's clear is that each one that is added on the pile encourages still more prosecutors and defense counsel alike to try to use the courts to force disclosure of the names," Abrams said, "and it seems to me that each additional case makes the case more strongly for a federal shield law."
photo caption and credit
Moffeit: Hassled by a full-court press
(photo: The Denver Post)