Reporter Defies Air Force Subpoena

Airman accused of rape wants notes for court-martial defense

Unlike other journalists who have defied subpoenas recently, Miles Moffeit is not protecting a high-level government source or someone accused of a serious crime. He's protecting Leah Kaelin¹, an 18-year-old woman who says she was gang-raped at Sheppard Air Force Base in Texas by four fellow airmen in June 2003.

Moffeit and fellow Denver Post reporter Amy Herdy (both of whom are Dart Ochberg Fellows) wrote about Kaelin in a March 12, 2004, story, "Delays on rape-case evidence bring new scrutiny to military," which describes the attack and its aftermath. After Kaelin reported the assault, in June 2003, she endured intimidation and ridicule from her peers and commanders, and she was forced to accept a discharge from the Air Force. By the time military investigators had finally processed Kaelin's forensic analysis — the results of which appeared to confirm her allegations — eight months had passed.

Earlier this month, according to a Post report, Moffeit's "notes, memoranda, videotapes, audiotapes and any other information and documents" were subpoenaed for the defense of Matthew Monroe, one of the airmen charged in connection with the rape. The Post refused to surrender the notes and filed a motion to quash the subpoena last week. The judge is expected to decide this week whether to quash the subpoena or call for a hearing.

"It's difficult enough for a rape victim to come forward, especially military women who have, essentially, no privacy rights," Moffeit told the Dart Center yesterday. "If the government succeeds in prying open reporters' notebooks, other victims will be too fear-stricken to come forward."

Attorneys for the Post characterized the subpoena as a "blatant fishing expedition" by Monroe's defense. In an affidavit that accompanied the motion to quash the subpoena, Moffeit noted that he "was not an eyewitness to the alleged crime, nor do I possess any physical evidence. On the contrary, I simply interviewed Ms. Kaelin long after any of the underlying events at issue in this case."

In the affidavit, he also explained the care he takes when reporting about rape victims (Moffeit and Herdy produced a lengthy series, "Betrayal in the Ranks," examining how the military handles rape and domestic violence allegations): "Because Ms. Kaelin brought allegations that she was raped, I was especially concerned not to retraumatize her. A principle I abide by in this kind of trauma reporting, and one I strictly followed with Ms. Kaelin, is to fully disclose to women making rape allegations what to expect in print and to allow them to decide what materials they feel comfortable about disclosing to the public."

In a civilian court, a blanket request for all of a reporter's unpublished materials would likely be ruled too broad and would have to be narrowed, said Richard Kielbowicz, who teaches Mass Media Law at the University of Washington. Typically, he said, in order to compel a journalist to hand over unpublished material, the government must show (A) that the reporter is likely to have information relevant to the crime, and (B) that there are no alternative sources for that information (these conditions come from the Branzburg v. Hayes U.S. Supreme Court decision).

Military courts don't always follow civilian court precedents, however. According to the Post report: "This is believed to be one of only a handful of cases in which the military has sought the unpublished materials of a reporter. In most of the cases, the military courts have ruled such materials are protected from disclosure."

The impact of the judge's ruling in this case could reach well beyond Moffeit and Kaelin. With a significant number of reporters embedded with military units in Iraq and elsewhere, Kielbowicz said that one can imagine a situation where military investigators would seek a reporter's notebook or raw video footage to aid in a criminal investigation.

Mental health experts and victim advocates say it can be beneficial for rape survivors to voluntarily share their stories with reporters. "Telling a trauma story is part of recovery," says Dr. Frank Ochberg, a member of the Dart Center executive committee and a psychiatrist who has worked with victims of sexual assault. "So, a victim of rape — the most intimate of assaults — who finds the resolve to tell her story to a reporter, is completing a stage of healing and recovery." These stories can also help others, Ochberg notes, by reducing the stigma and shame associated with rape.

However, Ochberg says, "there is a vast difference between giving a personal account voluntarily, for a purpose, and having an intrusive inquisition after being traumatized." Such intrusions can be harmful to the individual involved, he says, and they can make it less likely that other victims of rape will come forward in the future.

Affidavit of Miles Moffeit

This is the affidavit of Miles Moffeit in support of motion to quash subpoena duces tecum served upon third-party Denver Post Corporation, pertaining to United States vs. Airman Basic Matthew R. Monroe.

MILES MOFFEIT, being duly sworn, hereby testifies as follows:

1. I am a reporter for the Denver Post newspaper, published by the Denver Post Corporation. I am over the age of 18 years, and have personal knowledge of the facts set forth herein.

2. Attached to this Affidavit as Exhibit 1 is a true and correct copy of the article entitled "Delays on rape-case evidence bring new scrutiny to military," that was published in the Denver Post on March 12, 2004.

3. Attached to this Affidavit as Exhibit 2 is a true and correct copy of the article "Rape cases rise at Texas air base," that was published in the Denver Post on February 11, 2004.

4. I had an agreement with Ms. Kaelin that I would carefully review with her exactly what would show up in the published article, such as her direct quotes, names of supervisors, and so forth, prior to publication.

5. Ms. Kaelin and I carefully went over each paragraph attributed to her recollections in the article to be published.

6. Because Ms. Kaelin brought allegations that she was raped, I was especially concerned not to retraumatize her. A principle I abide by in this kind of trauma reporting, and one I strictly followed with Ms. Kaelin, is to fully disclose to women making rape allegations what to expect in print and to allow them to decide what materials they feel comfortable about disclosing to the public.

7. I promised Ms. Kaelin that Denver Post would not publish information attributed to her which she did not expressly agree to have published. 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.

8. In addition to Ms. Kaelin's determinations concerning what information would be published that she had provided to me, the Newspaper exercised its own editorial judgment in preparing the final version of the article for publication based on all the information the Newspaper had, from all the various sources that the Newspaper had.

9. I was not an eyewitness to the alleged crime, nor do I possess any physical evidence. On the contrary, I simply interviewed Ms. Kaelin long after any of the underlying events at issue in this case.

10. Absent some protection for non-confidential resource materials:

1. reporters' relationships with their sources will be undermined;
2. reporters may well avoid reporting on newsworthy stories that are or are likely to be the subject of litigation for fear of being compelled to testify or produce their resource materials;
3. the burdens on the press, whose institutional role is to collect and disseminate information for the benefit of the public and not for the government or private litigants, will mount to the point that the free flow of information will be impeded; and
4. the editorial process -- control over which lies at the heart of a free press -- will be interfered with.

11. Forced disclosure of non-broadcast material by journalists creates a chilling effect that threatens to deter future non-confidential sources from coming forward with important information. When a non-confidential source speaks "on the record," experience shows that the source will provide the reporter with raw comments, some considered and some ill-considered, on the understanding that these comments will be boiled down fairly and accurately into a polished form for publication. It is because the non-confidential source trusts the reporter to be fair, sensitive and accurate in the condensation of the raw material that the source consents to the interview in the first place. If there is no trust, often there will be no interview. If the raw materials are taken from the hands of the journalist, the implied condition of trust is compromised, and future non-confidential sources may be deterred from speaking to a reporter, for fear of having the unpolished bulk of their comments circulated indiscriminately.

12. Sexual assault victims' communications with journalists, in particular, must be protected. In my experience as a journalist, in recent years victims have sought to expose improper handling of their cases by entrusting private information to reporters with Denver Post and other newspapers. Some of these published accounts have triggered prosecutions and governmental reforms. If the government is able to demand details from sexual assault victims' private communications with journalists, I believe it will only further degrade victims' privacy rights and discourage them from seeking justice.

13. Forced disclosure of non-confidential material may discourage reporters from investigating and exposing matters at issue in litigation. Rather, reporters will likely opt to concentrate their efforts on other stories, where they will not be subject to the expense and inconvenience of complying with subpoenas. This chill to the exercise of vigorous reporting caused by the threat of subpoenas for journalists' information would be especially pernicious when it impairs the free flow of information concerning trials and legal disputes. For better or worse, many provocative issues of the day routinely wind up in court. Reporting fully and fairly on them is often impossible without interviewing the parties and their attorneys. News organizations should not be dissuaded from covering those stories -- stories like Ms. Kaelin's. Alternatively, reporters who persist in covering trials despite the risk of becoming enmeshed in disclosure requests may be prompted to destroy research materials that would otherwise be useful in follow-up investigations.

14. The compelled disclosure of non-broadcast materials constitutes an intrusion into newsgathering and editorial processes, which are significant aspects of a free press. This is so because the compelled disclosure of non-broadcast materials provides an entry into the thought processes of reporters, and an opportunity to second guess why certain material was published, while other material was not. For the press to function vigorously and fearlessly, its independence in the selection and choice of material for publication must be maintained.

15. News organizations will have a difficult time informing the public if they are routinely called upon to produce non-published resource materials. The contention that the burdens imposed on news organizations in having to comply with subpoenas is no different than that imposed on other businesses is simply wrong. By the nature of their work, journalists collect vast amounts of information about matters of public concern. Because journalists routinely report on matters involving court proceedings, they will be frequently called into court to act as professional witnesses, or otherwise assist parties eager to exploit journalistic resource materials -- all to the detriment of the autonomy and vigor of the press.

FURTHER YOUR AFFIANT SAYETH NOT.

Miles Moffeit

Subscribed to and sworn before me

this ____ day of November, 2004.

Notary Public

M2:20672760.02

Air Force Rape Case Dropped

Air Force prosecutors have dropped charges against an airman accused of taking part in the gang-rape of a fellow service member. The decision also means that a subpoena served to Denver Post reporter Miles Moffeit has been dropped.

Moffeit and fellow Post reporter Amy Herdy wrote about the alleged victim (Leah Kaelin, an 18-year-old woman who had said she was gang-raped at Sheppard Air Force Base in Texas by four fellow airmen in June 2003) in a March 12, 2004, story, "Delays on rape-case evidence bring new scrutiny to military."

Defense attorneys for Matthew Monroe had subpoenaed Moffeit's "notes, memoranda, videotapes, audiotapes and any other information and documents" earlier this month.

Moffeit reported the dismissal in an article in yesterday's Post:

Leah Kaelin, who alleged she had been assaulted by Matthew Monroe and three other airmen at a hotel last year, decided "not to go forward with a criminal proceeding," according to a news release issued by Sheppard officials. Kaelin was not available for comment. Monroe and his lawyers could not be reached. "The alleged victim concurred with a result that did not include a court-martial," according to the statement from Sheppard. The airman's punishment will be handled administratively by commanders, said Mike McKito, spokesman for the base. He also disclosed that the other men will not face criminal charges but did not elaborate on the reasons. Monroe's punishment - and any other administrative disciplines given to the others - will remain confidential because they are protected by federal privacy laws, McKito noted. Administrative penalties are a common disposition of rape cases in the military, according to research by the Denver Post.