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 summoned to appear before a grand jury. A grand 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.
Demuth was 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.
So that's how 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 had beat 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.