Wednesday, January 22, 2014

CNN and CBS should be forced to turn over unaired footage of interviews with sexual assault accuser

Naval Academy midshipman Joshua Tate of Nashville, Tenn. faces a court martial (a military trial) for sexual assault. The alleged rape victim claimed she didn't remember being sexually assaulted after a night of heavy drinking but heard from others she had had sex with multiple partners at a party. The men, including Tate, were all football players at the academy at the time.

Last June, the woman gave interviews to CNN's Christiane Amanpour and Anderson Cooper, and the network aired portions of both interviews, but there was much unaired material. CNN claims that Amanpour's interview lasted 21 minutes, of which about 7 1/2 minutes were aired. Cooper's interview lasted 34 minutes, and approximately four minutes were aired.  The woman also was interviewed by CBS' Jeff Glor and portions of the interview were aired on "CBS This Morning" on June 17 and June 20 as well as in other CBS reports. A lawyer for CBS, Michael Berry, did not say how much footage the network has in addition to what it aired.

The CBS and CNN interviews all aired around the same time that the U.S. Naval Academy's superintendent decided to move ahead with the military equivalent of a preliminary hearing or grand jury investigation in the case, called Article 32 proceedings.

Now Tate's lawyer is asking the presiding military judge, Col. Daniel Daugherty, to force CNN and CBS to hand over interview footage of the alleged victim, arguing it is relevant to prepare for Mr. Tate's trial, which is scheduled for March. But lawyers for the two networks contend that the footage is irrelevant and duplicates already available material, and that, as journalists, their clients shouldn't have to turn over material gathered in the course of reporting. The issue, in fact, has already been decided. The network's lawyers acknowledged the judge is bound by a 2009 Navy appeals court ruling where the court refused to recognize a reporter's privilege. The lawyers claim that case was wrongly decided.

While television "journalists" sometimes invoke a newsgatherer’s privilege, arguing that if they are forced to turn over the product of their investigation, it will have a chilling effect on the press, at other times television reporters readily cooperate with subpoenas from law enforcement in turning over unaired footage of interviews with persons of interest in criminal investigations. See, e.g., here.

COTWA has serious concerns about the network's insistence of withholding the unaired interview footage in this case.

Mr. Tate's attorney is not asking the television networks to turn over footage of a confidential source who spoke on condition of anonymity. (Although the networks didn't publicize the alleged victim's identity when they aired the interviews, the accuser was fully aware that the persons involved in the case -- including the judge and the defendant -- know who she is.) Nor is the defense asking the networks to turn over notes or other records containing the mental impressions of the journalists.

The unaired footage of the interviews should be turned over because it contains the recorded statements of the accuser concerning very serious allegations she's made that could destroy the life of a man who might be innocent.  We don't know what the unaired interviews contain, but to the extent the accuser spoke about the incident in question, the defense should have the right to use her statements to help it gather information and to test her credibility. If, for example, she said things in the interview that contradict other statements she has made about the incident, that is something the defense needs to be able to use in their case.

Here, the statements in the interviews were voluntarily made by the accuser with every expectation that the networks could air them in their entirety. That the networks chose not to air the interviews in their entirety was entirely their decision, and that decision was likely dictated by time constraints inherent in commercial news broadcasts and by ratings considerations. No one questions that the portions of the interviews that were aired can be used by the defense. It seems terribly arbitrary, and unjust, that the defense can't use the portions that were not aired just because CNN or CBS didn't think those portions were sufficiently interesting to the general public.

We must also look with a jaundiced eye on the networks' insistence that the defense should simply trust them when they claim that the unaired portions of the interviews are irrelevant and duplicate already available material.  We don't make any judgments about the way CNN and CBS has covered this matter, but television news often does not cover allegations of rape cases fairly. A case study of this unfortunate phenomenon can be found in the Hofstra false rape case. Many people think there is a pro-prosecution bias that colors reporting of rape cases. (Spend a few weeks reading Prof. KC Johnson's iconic blog on the Duke lacrosse case -- it is replete with examples of this.) Reporters routinely label accusers as "victims," and the coverage of rape cases never, or hardly ever, includes equal coverage of the defendant's side of the story (there is a good reason for that: defense counsel typically instruct defendants not to speak with the press). Reporters often become little more than stenographers for police, who typically do not publicly reveal weaknesses in their case until they announce that charges against the accused have been dropped. In this case, it is certainly possible that the networks excised portions of the interviews that didn't fit a preconceived notion about the case or even a preferred narrative.