[Ppnews] Carrie Feldman, Scott DeMuth - When the journalist becomes part of the story

Political Prisoner News ppnews at freedomarchives.org
Sat Mar 6 20:38:25 EST 2010

When the journalist becomes part of the story

Regan, <http://www.tcdailyplanet.net/partners/tc-daily-planet>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. 
<http://en.wikipedia.org/wiki/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.

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 
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.


©2010 Sheila Regan

Freedom Archives
522 Valencia Street
San Francisco, CA 94110

415 863-9977

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