A very curious wrinkle appears in this New York Times story about its defense in a libel suit brought by Stephen Hatfill, the scientist who sued over Nicholas Kristof's columns about him. The Times filed a motion to dismiss yesterday. The story by Neil Lewis and David Johnston notes that the motion revealed documents that previously hadn't come to light. But, in the 11th graf, Lewis and Johnston write:

A brief in support of the motion to dismiss the case was also filed Friday, but its contents were not made public because it included material that parties in the case agreed to keep sealed. In addition, volumes of supplementary exhibits were filed but not released. The brief and some of the exhibits could be made public as early as Monday.

What? The New York Times is agreeing to sealing court filings? And a brief, no less? No one else covered this story, as best I can tell. We'll be watching -- as early as Monday -- to see not just what was sealed, but explanations for why.

I'll admit I haven't paid close attention yet to the school-desegregation cases on the Supreme Court's docket this term from Seattle and Louisville. But Lyle Denniston's second paragraph in this story made me snap to attention:

Potentially, the outcome may turn out to be of lasting cultural significance, like another Brown. The written arguments in the cases of Parents Involved in Community Schools v. Seattle School District (05-908) and Meredith v. Jefferson County Board of Education (05-915) make it seem that portentous. And the Court, signaling the importance of the cases, will promptly release the audiotapes of each case for public re-broadcast.

One reason we might listen when Denniston makes that comparison? He's covered the Court for all but three of the 51 years that have passed since Brown II ordered school desegregation with "all deliberate speed."

Justice Stephen Breyer's appearance yesterday on Fox News Sunday featured a remarkable exchange over the substance of a hot controversy that's recently been before the Court -- and undoubtedly will return: the First Amendment and campaign finance. Breyer's ability to talk about substance without (I would argue) committing himself to future votes is Exhibit A in the case against overly restrictive readings of judicial speech codes. Kudos to Breyer for an engaging, public discussion of what judges do. Immediately following that exchange, he stiff-armed questioner Chris Wallace, refusing to go anywhere near an abortion question. Is he being hypocritical? No, I'd say he's merely choosing how far to take candor - as is the right of any interview subject (something not all judges appreciate when they fret about the dangers of public discussions). Here's the transcript.

One other notable feature of this interview: Breyer was on the air to promote his book Active Liberty. How many authors other than a Supreme Court justice are allowed to flog books that were published 10 months ago?

On Friday I asked how two highly competent legal writers could tackle the same topic at the same time and end up at opposite poles. I invited Fortune's Roger Parloff and The American Lawyer's Susan Beck to puzzle out for us why their stories on Silicon Valley lawyer Larry Sonsini turned out so differently. Parloff has now posted his comment (go here for the original post and the new comment). Beck declined to go behind the scenes on her story, except to confirm that she had not read -- or even known of -- Parloff's story before she wrote hers.

What's it add up to? A good illustration of how point of of view is not (as critics would have it) automatically a product of bias, or of laziness. It can, instead, simply vary depending on circumstances.

In a remarkably well-played piece, above the fold on today's New York Times front page (does anyone look at front pages anymore? or talk about folds???), Linda Greenhouse posits some theories for why the Supreme Court's long decline in the number of cases it hears has only quickened under Chief Justice John Roberts, who had vowed to take on more, not fewer, controversies. Greenhouse writes:

The reasons for the decline all grow out of forces building for decades. The federal government has been losing fewer cases in the lower courts and so has less reason to appeal. As Congress enacts fewer laws, the justices have fewer statutes to interpret. And justices who think they might end up on the losing side of an important case might vote not to take it. In a divided court, in a divided country, the court’s reduced role is perhaps not surprising, nor is it necessarily a bad thing.

Actually, the theories aren't Greenhouse's, or particularly new. They've been the talk of the legal world for years -- which she acknowledges in citing a number of sources, including a post last week on SCOTUSblog. What Greenhouse and her editors accomplish, however, is updating the story in a forum far more popular than brainly blawgs and law reviews.

Following up on this post, I checked the case docket sheet and learned that on Monday this brief was indeed unsealed -- but not completely. The docket calls it a "redacted public version." No word in the redacted public verison of The New York Times what is so touchy about these filings that our Most Important Newspaper sees fit to acquiesce to such secrecy provisions. Another docket sheet revelation: Yesterday the Times filed a memorandum arguing the ongoing controversy over its refusal to reveal sources. The memorandum was sealed.

At what point will we stop labeling public appearances by Supreme Court justices as "rare"? They've really been on a run lately. The latest, and an interesting one, was the face-off between Justices Antonin Scalia and Stephen Breyer in Washington on Tuesday (reports are just now trickling in, seeing as how this AP story seemed to be the only spot-news account of it).

ABC's Jan Crawford Greenburg, serving once again in her role as High Court interlocutor, led (or was led by) the two through the "activist-judge" landscape in an event sponsored by the Federalist Society and the American Constitution Society. Here's the text version of her story. And here's the ACS's video plus some rather witty lines from the inimitable Dahlia Lithwick, including:

[I]f this debate mirrors a marketplace of ideas, Breyer will make the sale through the earnest personal connection of a Wal-Mart greeter, while Scalia opts for the aloof certainty of the Tiffany's salesman: "Sure, you can buy some other, cheaper constitutional theory, but really. Ew."

Above the Law weighs in today with this breezy and partial report (more will come later, writes David Lat).

Given all the TV appearances lately by a number of justices, where they discuss legal philosophy in varying degrees of candor, isn't it all the more remarkable that they shudder at the thought of a stationary camera recording the actual work that they do?

What's with Above the Law's David Lat? He seems a bit, um, obsessed with Harold Koh (pictured here). Lat has worked himself into quite a lather over what he claims is his little scoop: that Koh, the Yale Law School dean, is giving the school's Award of Merit to The New York Times' Linda Greenhouse (though who'd know if it's true, given Lat's opaque sourcing?). Lat has surrounded that unconfirmed (but possibly true) scoop with a nifty little conspiracy theory. The theory goes like this: Koh wants so badly to be the next Democratic president's Supreme Court nominee that he'd sell himself out quite spectacularly -- by bestowing this honor on Greenouse instead of its natural recipient, Samuel Alito, Yale's latest alum to ascend to the High Court. This particular conspiracy hinges, apparently, on the next Democratic president's fealty to whatever publicity Greenhouse may give Koh.

Whew! That's a complicated one. Pretty grassy-knoll in its wackiness, if you ask me. This follows an earlier post about Koh's supposed snub of Justice Scalia (which ignored that Koh was introducing the person who would introduce Scalia). I asked Koh what he thought, but he demurred. There are a couple of facts, though, that might help usher Lat's theory firmly by the arm out to the curb, where it belongs. First, what if Yale's award were to be given next year as part of an event focused on the intersection of law and journalism? If in fact that is Yale's plan -- following a tradition of adopting a theme each year for the award program -- then Greenhouse (who has a master's from Yale's one-year legal studies program for journalists) makes more sense than Alito. Next, there's the Clarence Thomas factor. This Yale law grad has been on the Court 15 years longer than Alito without getting the award. Why is one Yalie so obviously deserving when another hasn't yet been honored? Finally, Lat's account of Koh's earlier favoritism toward Greenhouse - in giving her early access to the Harry Blackmun papers -- conveniently ignores that Justice Blackmun himself favored Greenhouse and NPR's Nina Totenberg, and Koh, a former Blackmun clerk, merely carried out his wishes (a full account of this is in Koh's upcoming Brooklyn Law Review article, which I obtained).

Why am I spending time attacking unsourced stories by a blogger who clearly is in self-promotion, not fact-finding, mode? Because I found his handling of this -- from the fictitious dialogue to the three-dimensional conspiracy -- to be supremely silly. And just as irresponsible as his last Supreme Court scoop. A little advice for our gossipy friend: Learn how to report, and to be honest with your readers, rather than simply whoring for attention if you're going to write about stuff that matters.

LawBeat has long marveled at the ability of LA's Lavely & Singer to be at the scene of so many celebrity/media crackups -- and with such hutzpah. Its threat letters are classic lawyerly overkill (for a fun archive of these, see the Smoking Gun. Here's a winner: Martin Singer's chest-thumping on behalf of his soon-to-implode author client James Frey). When I was at The American Lawyer, I indulged my curiosity about the firm by assigning a writer to profile it. Unfortunately, the writer hit a stone wall that she couldn't get around, and the story broke little new ground. Now, thanks to WSJ Law Blogger Peter Lattman, we can read about the firm on the front page of today's Wall Street Journal (subscription required). Some tidbits:

William Bastone, the editor of the Smoking Gun, has posted on the site numerous Lavely & Singer letters sent to other media outlets as well, including dispatches related to topless photos of actress Jennifer Aniston and reports called false by Lavely & Singer that actress Catherine Zeta-Jones was on the Atkins diet. "We share the letters with the world because we shouldn't be the only ones enjoying Lavely & Singer's tough-guy threats," says Mr. Bastone, who sometimes calls up a digital photo of the 54-year-old Mr. Singer on his computer. Sometimes, "you gotta poke the tiger with the stick."
***
As far as Lavely & Singer is concerned, the snide retorts [by newspapers, magazines and Web sites mocking the firm] aren't mere editors' fun; they are "mean-spirited mockery" used as "an intimidation tactic" to deter the firm and other lawyers from protecting clients' rights, wrote Lynda Goldman, a partner at Lavely & Singer, in an email.
***
"You would be stunned at how many stories out there never got published because of Lavely & Singer's threats," says TMZ's [Harvey] Levin.

Fun reading. But mostly stuff from the public domain, with little inside dope on the firm's client-getting tactics, how much money this kind of work yields, and whether the media's retaliation has gone, or could go, beyond sticks and stones. The only significant profile I've been able to dig up in searching Nexis and the Web is a story more than six years ago in Los Angeles magazine by Ross Johnson -- and the only version I've found is an excerpt on none other than Lavely & Singer's Web site. Either that excerpt cut out all the juicy bits, or the real Lavely & Singer profile has yet to be written.

Given our focus here on legal journalism, some of the stories we examine illuminate issues concerning journalists' portrayal of the courts, lawyers, and the law. But there's another vantage point: looking at how lawyers and judges themselves communicate with the public. That's what motivates our frequent comments on the public visibility of Supreme Court justices, and judges' willingness to talk to reporters. And it's nicely illustrated today by this piece by The Boston Globe's David Abel, who profiles First Circuit Judge Bruce Selya (the story appears in slightly different form, but with opinion excerpts, in the December American Lawyer).

Abel and his sources debate Selya's penchant for using fifty-cent words and other idiosyncratic flourishes in his opinions. They question whether the substance of Selya's opinions is clear enough to the average -- or even expert -- reader. Abel writes:

A graduate of Harvard Law School who spent 22 years in private practice, Selya says he often fell asleep to all the profession's "gray prose," and vowed to spice up his opinions when he became a judge. "One of the challenges I set for myself was to see if sound jurisprudence could be written in such a way that would be relatively interesting reading," he says at his chambers in Providence. "Instead of being written in all grays, you could write it in pastels, maybe even a little vermillion or puce."

Scholars of legal writing, however, accuse Selya of going too far, to the point that his opinions are too often impenetrable, or worse, self-absorbed -- preoccupied with peculiar words that serve Selya's sense of style but obscure his meaning. One clerk, for instance, remembered a decision that left lawyers asking, "Who won?"

An unusual and useful story -- one that, appropriately, sent me to the dictionary more than once (tip to readers: you'd better have a very good dictionary).

Alison Frankel's lead paragraphs in her December American Lawyer cover story make plain her story's point of view:

The power of the plaintiffs bar is on the wane in this country, and will be for a long time to come. You won't hear many tort reformers admit it. They've done too good a job demonizing trial lawyers to let their bogeymen fade away.

Does she prove it? No. It's an opinion -- it's impossible to convince everyone, or prove it absolutely. But Frankel, a longtime reporter on the tort bar -- someone who doesn't just talk about it, but digs into the cases and talks to the lead lawyers on both sides -- makes her case in my book. With asbestos litigation in precipitous decline, courts packed with judges far more skeptical toward plaintiffs, and state-law changes cracking down nationwide, trial lawyers undeniably are on the ropes. Frankel walks through the evidence, careful to point out where tort litigation still has pockets of activity. But her nut graf is nothing like an ordinary journalistic treatment of a complex subject. There's no on-this-hand-on-the-other-hand about this:

There will always be people injured by the products or actions of big corporations, and there's still money to be made representing them. But the bonanza -- the Wild West era in which mass torts was an unfettered frontier and plaintiffs lawyers seemed to have all the firepower -- is over. If you're a plaintiffs lawyer and you haven't already bought the plane and the yacht of your dreams, well, sorry, pal. You're too late.

There are books and law review articles that trudge more painstakingly through this history. And there's no shortage of shallow analysis that folks with an agenda will toss out to justify their desired result. Frankel's 6,000 words serve as an accessible, intelligent middle ground between a data dump and bumper-sticker sloganeering. It will often be cited when (inevitably) we argue over trial lawyers and torts in the future.
 
(A magazine-design P.S.: It's a shame so many readers of The American Lawyer only will see the Web version. Not only is it much less fun to read a story of this length online, but it's frustrating to see money-saving schlock-stock photography illustrating this story. In print, the story's striking illustration by Krista Brauckmann-Towns and design by Joan Ferrell and her staff make for an entirely different reading experience. Let's hope the soon-to-debut redesign of the Web site does more justice to this beautiful glossy.)

The good guys won this one. A spokesman for a county attorney in a major metro area is taken down a peg for denying the public access to a public official's press conferences, and for treating student journalists (from a fine school, no less) as the great unwashed. Good on the j-school prof who fought for access. What better way for students to learn to cover public affairs and law than to have a front-row seat?

Gary Fields' page one Wall Street Journal feature today (subscription required) spotlights a potential test case challenging executions of the mentally ill. Fields doesn't need a nut graf. A quote does it for him:

Little is straightforward in these kinds of cases. "Although there is a growing clamor to exclude the mentally ill from execution, mental illness is not easily defined," says David Elliott, who heads the National Coalition to Abolish the Death Penalty, a Washington, D.C., group. "With juveniles, you're 17 or you aren't. With mental retardation, they can do tests. Mental illness is much more complicated."

But it isn't until the 30th graf of this tightly crafted, fact-heavy narrative that we learn which law, arguably, controls whether we can execute the mentally ill who are made sane only with medication (the Eighth Amendment's bar against "cruel and unusual punishments"). Up until that mention, the issue -- like so many in stories about law -- seems to pose the issue as a policy question to be decided in a vacuum: Executing the mentally ill -- good or bad? This isn't meant as a knock on Fields or the Journal. This story explains much more than the typical drive-by story. But writers and editors both need to question their assumptions that readers already know the legal principles at stake, or are too feeble minded to appreciate them, to justify focusing a bit more on why exactly this is a case in the courts at all.

Is The New York Times' William Glaberson on a crusade? The word has ugly connotations. But a crusading journalist isn't all bad -- not when he does his reporting and arrives at his conclusions fairly. That seems to be Glaberson's case. In September, Glaberson's three-part series "Broken Bench" (parts one, two and three and my earlier post about it) documented in shocking anecdotal detail how New York's town and village courts were untethered by laws or oversight. The courts, run mostly by nonlawyers, seemed out of control, especially at the rural fringes.

Now Glaberson has telescoped in on one village justice whose methods of supervising defendants in his court are, to say the least, unorthodox. But, even if it's odd and questionable for a judge to have defendants to his home and driving his car, does the case have broader meaning? Here's Glaberson's Big Picture nut, after he explains judicial do's and don'ts:

But bedrock principles have a way of getting lost in New York's town and village courts, a sprawling world of more than 1,250 small courtrooms. Over the decades justices have illegally jailed people, threatened enemies, protected friends and made grievous legal errors, with little supervision or penalty. The law often counts for little, because three-quarters of the justices are not lawyers. Now the system is under scrutiny by state officials, who are holding hearings and taking steps to fix some of its most glaring flaws.

What has played out in this remote village in northeastern New York provides one more startling look at what can happen when meager training mixes with plenty of unchecked power.

New York's Legislature is now debating reforms. To those familiar with the state's Legislature, that does not inspire great hope -- especially considering the threat this poses to political patronage. But at least the Legislature can count on one thing: the watchful eye of William Glaberson.

How do you report on a fight about a secret document when you don’t know what’s in the document? You open your eyes, as Adam Liptak did in his story yesterday about the fight between the ACLU and federal prosecutors in Manhattan. The feds issued a grand jury subpoena demanding all copies of a document leaked to the ACLU. Administration critics are calling this censorship — a prior restraint achieved through misuse of the grand jury’s investigative powers. The government isn’t saying much.

What’s the document about? No one’s saying. But Liptak noticed a curious word in the Web addresses that the ACLU assigned to the documents that are public: “torture.” Check it out here.

That’s crafty, Liptak. Now let’s see the Justice Department seek an injunction to seize the address! Or, better yet, shut down the Times. Oh, wait, that might not work.

Update: This Dec. 19 followup shows the perils of guessing based on a seemingly meaningful clue. The document concens the military's PR policy on photographing prisoners, not torture. Of course Liptak didn't go beyond what he knew -- he only pointed out what the Web address was -- but readers like me were likely to jump to conclusions.

Most coverage of the Hewlett-Packard corporate spying scandal has focused on the company's chairwoman, Patricia Dunn, and the company's outside counsel, Larry Sonsini (see previous posts on Sonsini's role here). Now, Corporate Counsel magazine turns the spotlight, naturally enough, on HP's chief in-house counsel at the time, Ann Baskins. Baskins, an HP lifer who forfeited her job in September by taking the Fifth, didn't talk to the magazine. Perhaps as a result of Baskins' hunkered-down posture, the January cover story by Sue Reisinger is damning. Citing reams of documents disclosed so far in overlapping civil, criminal and Congressional investigations, Reisinger writes:

The spying probe became a runaway train. And Ann Baskins was the person in the best position to recognize the danger and stop it. But she didn't. In fact, the records show that from June 2005 to April 2006, Baskins raised legal questions about the tactics at least six times. But she never pushed for a definitive answer about whether the methods used were, in fact, lawful. Or, more importantly, whether they were unwise and dangerous to the company. In retrospect she could have, and should have, shut down the throttle on this train long before it crashed.

Some of this has been implied, or stated outright, in the finger-pointing that's gone public to date. But Reisinger does a good job of documenting precisely when Baskins was drawn into the fateful decision to spy on suspected leakers of confidential company information, and when Baskins failed to act. The story lays out its facts cautiously and dispassionately, but the picture it paints -- of a lawyer covering her behind rather than forcing her client to play things straight -- is ready-made for law school ethics classes. By the conclusion, Reisinger lets down her guard, first by quoting ethics experts, and then in her own voice, writing that Baskins' "downfall came because of what she decided not to see."

Slate's Emily Bazelon does a great public service with this Jurisprudence column on why courts this week ruled as they did in cases involving a Guantanamo Bay detainee's rights to challenge his detention, and a criminal defendant's rights to a fair trial when the jury might have been influenced by the victim's family's behavior in court. Too often, journalists explain only the result -- a judge said the government can do this; a court said the verdict wasn't tainted by that -- without explaining what law arguably governed the result. When stories lack that element, it's easy for laymen to conclude that courts act as mere policymakers, imposing their preferences without restraint.

By clearly explaining the federal statutes at issue in this week's two controversial rulings, and showing the balance-of-powers implications of having statutes like these on the books, Bazelon injects logic and facts into subjects that otherwise sound like referenda on our public likes and dislikes. Bazelon's coverage, graced with jargon-free clarity and brevity, doesn't endorse these particular decisions as correct. But it does explain whether judges bothered to base their decisions on the law.

Continuing a series that began with three parts last May, The New York Times' Michael Moss documents a justice system in Iraq in which due process for detainees seems a joke. The system, created and advised by Americans, is normally off limits to reporters. But Moss (who wrote or cowrote two of the three earlier installments) reports that he pieced together his portrait through interviews, a classified assessment of the system that evidently was leaked to him, court records that officials agreed to disclose, and observing proceedings in one of the normally closed courtrooms. Moss' anecdotes and glimpes at statistics include a 15-minute perfunctory trial resulting in a 30-year sentence; 14 sentences of death so far this year against American-held detainees; and a process that has made only grudging allowance for defense counsel. Here's the understated nut:

The United States established the Central Criminal Court of Iraq three years ago, envisioning it as a pillar of a new democracy. But like the faltering effort to create effective Iraqi security forces, the system for detaining, charging and trying suspects has instead become another weak link in the rule of law in Iraq, according to an examination of the justice system by The New York Times.

There's ample room for followups. Here's one angle of interest to the legal community: Are the American lawyers and judges on loan to this system enabling an unjust system, or preventing it from sliding even further into anarchy?

The Post's Howard Kurtz's third item today notes the unusual disclosure that The New York Times made about its reporter Diana Henriques, lead reporter on a remarkable series about government regulation of religion (I can't find a publicly accessible link to the series). The series has been consistently critical of the official favoritism shown toward religion in laws and regulations, questioning whether these policies cross the line into governmental entanglement with religion. Interesting, deeply reported stuff.

On Henriques' online bio, Kurtz reports, there was also this:

Throughout her life, she has been an active member of various Protestant congregations, serving for several years as an elder at a suburban Presbyterian church and currently serving as the senior warden at an urban Episcopal church in New Jersey.

Maybe Henriques and her editor, in their comments to Kurtz, are right that in this case the disclosure was relevant. It's hard to question transparency. But let me try. I worry where it leads. What if Henriques were a Jew, or an atheist, or a Muslim. Would her reporting be any less valid? But would the Times see fit to disclose her religious beliefs? Should reporters covering politics note whether they're registed as members of a political party, or whom they voted for in the last election?

The quantity, if not quality, of Supreme Court coverage by major newspapers and TV networks has been in decline for decades. But, as the full-time Court press corps dwindles to a handful of diehards, there's a surprising contender in this game of Survivor: USA Today.

The only people surprised by this, actually, might be those whose image of USA Today is stuck in the '80s, when "McPaper" got no respect from Serious Journalists. But it's no longer a news bulletin that USA Today does its job consistently well. Its Court coverage is no exception. As the Serious Journalists have seen their once-great papers cut Washington coverage like the Court beat to the bone -- leaving only the most elite daily papers, plus NPR, on the beat -- McPaper has provided smart, accessible reporting on the issues and personalities at the Court, thanks to Joan Biskupic and Tony Mauro before her.

What brought this up? Biskupic's piece today taking stock of the Court in the Roberts era. The story doesn't break new ground for Court news junkies, and USA Today runs it on page 13A (though with a fairly prominent blurb on the home page, when I checked this morning). But it's an intelligent overview of the Court's new direction -- and a darned sight more ambitious than the wire copy that so many others rely on these days.

Update: Former Scalia clerk Ed Whelan has a very different take on today's Biskupic story. While I agree with his aversion to easy ideological labels, and recognize he and I came at this from very different angles -- I'm praising the piece relative to the lack of similar original reporting by newspapers outside of the Times (NY/LA)-Post-Journal axis; he's on Ideology Patrol -- much of his "bristling" attitude seems more intent on serving an agenda than judging the piece for what it was: explaining the Court to a mainstream audience.

Norman Pearlstine seems to be making penance for caving in to the government in the Matt Cooper "Plamegate" case. No longer a Time Inc. honcho, and reported by The Wall Street Journal's Jess Bravin and Sarah Ellison to be writing a book on confidential sources, Pearlstine tells the Journal that he filed a FOIA request this week with the Justice Department seeking details on how the DOJ justified subpoenas of reporters for their records and identities of confidential sources in three cases: the San Francisco Chronicle's Balco grand jury leak, the jailing of freelancer Josh Wolf, and The New York Times' phone records in an investigation of Islamic charities. This little gem appears at the end of a Journal story on the overall debate, as the DOJ ratchets up its pursuit of the Chronicle steroid reporters and federal shield-law supporters prepare for a new push to enact a statute.

Here's one of those laughable attempts by a public official to intimidate the media, only to watch it backfire. Prosecutors are threatening criminal prosecution of Phoenix New Times for publishing the local sheriff's home address on the Internet (even though his address is accessible through a number of other services on the Web). New Times' answer is to flip the prosecutor and the sheriff The Bird. That's the name of Stephen Lemons' column mocking the heavy-handed retaliation, linking to the other places where the sheriff's address can be had, and even slapping the sheriff's address on the cover of the newspaper.

New Times may be brash, but it's not stupid. Because the prosecution threat concerns online publication of a personal address, the paper decided not to reproduce its cover on the Web. In its place, it provided this censored version.

LA Observed gets the scoop on the PR strategy of the Los Angeles City Attorney's office, and what gets the most attention is the obsession with celebrity arrests. But something else catches LawBeat's eye. Quoting from the memo as published on LA Observed:

Finally, it is essential that no one (neither deputies nor supervisors) have any substantive communications (on or off the record) with a member of the media without first clearing such communications with the Communications Department. This is essential not only because it is necessary for the Criminal Branch to maintain a clear and consistent message, but also because communications with the press may have ethical implications (see, e.g., Calf. Rule of Prof. Resp. 5-120; ABA Model Code of Resp. Rules 3.6 & 3.8, subd.(g); National Prosecution Standards Rules 33.1-35.2), and can give rise to civil liability on the part of the City and/or the individual prosecutor. (See Buckley v. Fitzsimmons (1993) 509 U.S. 259.)

So if you talk to the press, you're unethical and possibly risking a lawsuit. Why no criminal threat? The city attorney should look East to Phoenix. 

While LawBeat was away, there were some notable legal-journalism moments that we wouldn't want to let pass unnoticed...

Supreme Court

The AP's Mark Sherman documented the Supreme Court's recent media-friendliness, including this interesting insight from an oft-quoted legal scholar:

Douglas Kmiec, a Pepperdine law professor and Justice Department official in earlier Republican administrations, said Roberts' public relations effort is in line with his desire to have the court issue narrower, more consensual rulings. "I think he feels a burden of explanation. The court has become so much the storm center of cultural controversy. Roberts is committed to not having that be so," Kmiec said. "If that's the case, it requires a certain amount of public explanation."

I don't know if that's the strategy behind the recent run of public appearances and interviews, but it is a clear illustration of the link between coverage of the courts and the public's understanding of the courts' role. The challenge to journalists is to walk the line between promoting court-bashing and promoting court-worship. The standard should be openness and full, fair explanations of the courts' role.

Duke case

Coverage of the Duke lacrosse case included this piece by the Times' David Barstow and Duff Wilson -- a pair often criticized in the past for bias in favor of prosecutor Michael Nifong -- that explores what led to Nifong's decision to drop rape charges but continue with kidnapping and other sex counts in the indictment, and asks questions that everyone's been asking about Nifong's tactics and public stance. Inevitably, the Dule developments then included this: a state bar ethics complaint against Nifong concerning the fairness and accuracy of his public statements in the case, further ensuring that the Duke case will forever be remembered for its media-circus elements.

Milberg Weiss

Fortune's Roger Parloff reports that a story I previously blogged about -- a Fortune cover by Peter Elkind on mass-torts powerhouse Milberg Weiss -- directly led to a major client's decision to fire former Milberg Weiss partner Bill Lerach, because of things Elkind quoted Lerach as saying. Parloff reports that an earlier article on Lerach by William Greider in The Nation also rankled the client.

In the coverage of Saddam Hussein's execution, I've looked in vain for a clear, simple comparison of the Iraqi and U.S. legal processes -- and how one could be so much swifter than the other. This sounds overly obvious to lawyers and legal writers, but isn't at all clear to the average person. And even if that person thinks about it, he or she is likely to think there's something overly ponderous and clunky about an American system that takes many years to achieve the same result. If I were still in command of a reporting staff, I'd be using Hussein's death as a teaching moment, explaining to laymen why the systems work differently, and what that says (good or bad, in the views of different experts) about American justice.

Unless I'm missing something, the closest today's coverage seems to come to fulfilling my wish is this Chicago Tribune story by Aamer Madhani and Tom Hundley, which relies mostly on human rights critics of the execution. Close, but no cigar. We'll watch in the coming days to see if anyone else tackles this "assignment."