Judge orders college newspaper to hand over videotape

Thursday, November 18, 1999

(Editor’s note: Judge David A. Nichols released the videotape of the break-in to campus police on Nov. 18, a day after denying Assistant State Attorney General Wendy Bohlke’s motion to reconsider his Nov. 10 decision. Officials with The Western Front have not decided if they will appeal.)

A Western Washington University newspaper editor has turned over a videotape of a campus break-in to authorities after a judge denied her motion to quash the subpoena requiring the hand-over.

The video, however, will remain sealed in the court clerk’s office pending appeal.

In a special inquiry hearing on Nov. 10, Whatcom County Superior Court Judge David A. Nichols ordered Western Front editor Erin Becker to give the tape to court officials by noon that day. Becker’s lawyer, Assistant State Attorney General Wendy Bohlke, turned over the tape in a sealed envelope to the court clerk’s office.

“I’m disappointed because I still think that we’re right,” Becker said.

Bohlke has filed a motion asking the judge to reconsider. If Nichols refuses to reverse his judgment, Bohlke plans to take the case to the state Court of Appeals, Becker said.

“I think [Nichols] rendered a decision he thought was correct based upon the law,” Bohlke told the Front. “I think The Western Front position has significant merit and would like to give [Nichols] the opportunity to change his mind.” Bohlke did not return calls from the First Amendment Center Online.

The eight-minute video shows a break-in at a university psychology laboratory by the Animal Liberation Front, an animal-rights group that has claimed responsibility for the break-in and the tape. The break-in occurred sometime between 10:30 p.m. Oct. 23 and 10:25 a.m. Oct. 24, Western Front reported. Members of the animal-rights group stole 37 rats and four rabbits and vandalized several offices, causing at least $15,000 in damages.

Becker became aware of the tape after portions of it aired on KIRO-TV, a Seattle television station. KIRO had received the tape from the animal-rights group.

The Front requested a copy of the tape from the station and received the original on Oct. 28, Becker said. The paper copied it and returned it to the station.

After learning that the Front had a copy of the tape, Assistant Chief of Campus Police Dave Doughty called the paper and asked Becker to hand it over, Becker said. When she refused, Whatcom County Prosecutor David McEachran issued a subpoena ordering her to appear before the special inquiry judge. Neither Doughty nor McEachran returned calls for comment.

A special inquiry hearing — a closed proceeding “for evidence-gathering in ongoing criminal investigations in which no one has been charged with a crime,” according to The Bellingham Herald — was held in Nichols’ chambers. Only McEachran, Bohlke and Becker were allowed to be present.

Attorneys for The Bellingham Herald tried to petition Nichols to allow arguments in open court on the motion to quash the subpoena. They knocked on the door to Nichols’ chambers, but he refused to hear their argument, Becker said.

In her motion to quash the subpoena, Bohlke wrote that the police had not met the three requirements for forcing a reporter to turn over confidential information as set up by State of Washington v. Theodore Rinaldo, the Front reported. According to Washington v. Rinaldo, authorities must first insure that the information is critical to the case, that the claim has merit and that they have tried to get the information from other sources.

Bohlke argued that the third requirement had not been met because university police went directly to the media, the Front reported.

McEachran, however, argued that Washington v. Rinaldo didn’t apply in this case, according to the Front. In a memorandum concerning the subpoena, McEachran said that Animal Liberation Front gave up confidentiality when it sent the tape to KIRO.

A subpoena for the tape was also sent to KIRO. Station officials could not be reached for comment. The Herald reported that McEachran would not comment on how KIRO had responded to the subpoena.