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LawBeat watches the journalists who watch the law. It is meant to start a conversation — here and in the classroom — about the quality of journalism focusing on the justice system, lawyers and the law. All posts are by Mark Obbie unless otherwise noted. Go to this archive to read more about LawBeat's focus and to this page about what motivated its creation, and how it evolved. Go here for the 10 Deadliest Sins of Legal Reporting post. And go here for blanket disclosure of Obbie's conflicts of interest.
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| Finger on the pulse |
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| The New York Times |
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| Wed, August 01, 2007 |
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Linda Greenhouse and I must be at opposite ends of the worrywart spectrum. To me, this Supreme Court Memo today is melodramatic. "Something changed irrevocably following the 52-year-old chief justice’s momentary loss of consciousness on a vacation island dock on Monday afternoon"? Roberts has lost "the aura of invincibility that came with his youthful good looks and spectacular career path"?? "Might this encounter with illness even change the way John Roberts sees himself, his job or the world?"??? And the capper: "Could adversity temper a jurisprudence that critics of the chief justice have discerned as bloodless and unduly distant from the messy reality of the lives of ordinary people who fail to file their appeals on time?"
Wow. Isn't this a wee bit overwrought? Of course, it's hard for me to divorce my reaction to this from my own situation. The very day that Roberts had his health scare, I was on a treadmill with wires attached to me, undergoing a stress test after a fainting spell. I'd been on a long, tough hike on a hot day. My body -- not far in years from Roberts' -- rewarded me with a brief shutdown. My wife and hiking buddies were alarmed, and I've spent time reassuring them that the docs say it's probably nothing. Just one of those things. I'm relieved that no one yet has suggested that my newfound physical frailty will change my job, or the world. Of course, the press corps that cares about me doesn't have many column inches to fill on slow summer days.
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Posted at 06:52 AM
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| Dolan IPO on deck |
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| Wed, August 01, 2007 |
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Bob Ambrogi blogs about the imminent IPO of Dolan Media, linking to a story that escaped my attention when it was published July 20. It's by Neal St. Anthony in the Minneapolis Star-Tribune, and it portrays the offering as a "doozy" for Minnesota -- and, we might add, for legal publishing. Dolan publishes legal newspapers and other information services for the legal and financial industries in 15 states, including various statewide Lawyers Weekly newspapers. The company was an also-ran in the recent bidding for ALM, which I blogged about here and here, and was perceived within ALM as a potential owner that likely would run the place leaner and meaner.
As with all traditional legal newspaper publishers, the company depends heavily on legal notice revenue -- more than 22 percent of Dolan's 2006 sales, according to its SEC filings. For years this has been an endangered revenue stream, given that local governments could choose to rewrite their laws to publish public notices on government Web sites rather than paying publishers for the privilege to run all that agate type. Of course ALM faces the same risk, but it no longer must disclose the legal-notice monkey on its back. Publishers have successfully protected this cash cow for years. Evidently ALM's new owners and Dolan's hoped-for shareholders have to bank on the status quo, or on the publishers' ability to diversify their revenues more than they have to date.
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Posted at 05:54 PM
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| Idle minds |
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| Wed, August 01, 2007 |
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So The American Lawyer's Associates Survey is out, and of course all the attention at Above the Law is focused on how high starting salaries may go, and whether the firms are peaking and may start slashing and burning, as they tend to do in cycles. But here's the thing: If associates want to complain endlessly about how hard they work for their $160k+, why were more than 80 comments posted in well under four hours, starting a mere four minutes after the original posting, and all during the mid- to late-afternoon, which some of us consider "working hours"? Someone has time on his and her hands!
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Posted at 06:22 PM
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| Black verdict, from a northern angle |
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| Maclean's |
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| Wed, August 01, 2007 |
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I've been carrying around last week's Maclean's and finally finished plowing through the 28-page special report on the Conrad Black verdict. As I blogged here at the trial's outset, Black's fraud trial was conducted in Chicago but was much bigger news across the border in Canada. Maclean's has done a superb job in covering every inch of the trial in print and online. This piece in particular -- the last in the monster July 30 issue's verdict package -- is a fascinating read. Trial lawyer Steve Skurka, the legal analyst covering the trial for CTV, looks at an American federal trial through Canadian eyes and notes the stark procedural differences. It's a good read, meaning Maclean's is well edited or Skurka is an uncommonly fine lawyer-writer. Or both.
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Posted at 08:32 PM
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| Spector science |
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| Los Angeles Times |
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| Sat, August 04, 2007 |
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Peter Hong, the Times' lead trial reporter in the Phil Spector murder trial, takes an enterprising spin through the forensic evidence in the trial. The story provides a thorough summary of the evidence and how both sides are handling it. And it helpfully puts such disputes into a broader context: as Hong puts it in a journalistic cliche, "The Spector case is unfolding against a backdrop of growing national scrutiny of forensic science...." Luckily Hong's reporting is more original and interesting than his nut-graf crafting.
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Posted at 06:52 AM
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| Pointless noise about the B-word |
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| The New York Times |
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| Tue, August 07, 2007 |
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Michael Grynbaum's playful look at a proposed legislative ban on the word "bitch" in New York City has the cultural issues covered. But, other than an offhand and unexplained acknowledgement that a legal ban on the word would be "unenforceable," he makes no attempt to examine why a city ordinance of this sort has zero constitutional chances of survival. And, because of that, it strikes me as a pure waste of time to speculate -- even idly -- about what effect a ban would have on the language.
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Posted at 09:09 AM
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| ABA vote set on sealing criminal files |
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| Tue, August 07, 2007 |
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Kudos to the Reporters Committee for Freedom of the Press for rallying opposition to an American Bar Association proposal that would urge lawmakers to close a vast number of criminal files to the press and public. Bob Ambrogi blogs about the dispute here, with an excellent list of links. Though the list is one-sided (on the side opposing the ABA resolution that goes to a vote later this week), the Reporters Committee story on the debate by Loren Cochran does a good job of reporting both sides. There's no contest, as far as I'm concerned: Crime reporting isn't just about pending cases or proven cases (those that the ABA wouldn't seek to seal). It's about the workings of the justice system overall -- including its failures, and patterns of minor violations that add up to meaningful observations about people and law enforcement. The ABA proposal, perhaps well-meaning, is wrongheaded and dangerous.
(The Reporters Committee's News Media & the Law covers these topics thoroughly and expertly. In the previous issue, Spring 2007, the magazine had a package of stories on court secrecy that I'm quite tardy in noticing. More on that once I've perused it a bit.)
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Posted at 06:07 PM
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| Holes in a portrait of YouTube nemesis |
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| The Wall Street Journal |
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| Wed, August 08, 2007 |
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Kevin Delaney has an interesting, front-page look today (subscription required) inside a company that's paid by copyright holders to spot pirated videos on YouTube. The story and (of course) companion video have loads of useful detail -- with a major exception, concerning the laws that make this a story in the first place. To the extent that the story refers to the law, it gets it right. But those references are general and extremely brief. There's only the barest allusion to the Digital Millennium Copyright Act's basic logic -- a site like YouTube avoids liability for infringement by responding to "takedown" notices -- and no mention of the law's name. There's also no speculation about liability theories that would end-run that process, by claiming YouTube and its ilk should do more to screen out illegal postings, which is a live issue in the courts and Congress.
Should a business story that focuses on how this vendor, BayTSP, gets paid by the Viacoms of the world to be their pirate-spotters also serve up a helping of legal policy and litigation strategy? Yes, if even in a sidebar or explanatory box. Otherwise, readers are only vaguely aware of the rules and battles that brought BayTSP into being.
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Posted at 07:24 AM
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| City liability made interesting |
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| The Virginian-Pilot |
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| Thu, August 09, 2007 |
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For reporter Marc Davis, Virginia Beach city liability records are the gift that keeps on giving. As reported by IRE, Davis has been mining the city's records on civil liability to report on July 21 that Virginia Beach pays above average in the region for damages caused by backed-up sewers; on August 5 about the millions paid by the city for auto accidents and other mishaps; and on August 6 about horror stories wrought by the city's sovereign immunity. In all the stories, Davis fleshes out the stats with real people and explains just enough about the law and insurance to ground the stories in fact and context without bogging down. It doesn't hurt that Davis is a seasoned journalist, including in courts coverage. But his ongoing liability-story blitz shows what any modestly equipped newsroom can do with public records on lawsuits and other legal claims to inform taxpayers about how their money is spent, and how victims of the city's screwups are treated.
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Posted at 04:09 PM
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| A shot across the bow |
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| SCOTUSblog |
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| Fri, August 10, 2007 |
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Lyle Denniston's latest piece on the potential Second Amendment shootout at the Supreme Court next term is labeled "analysis." But its chief value is its reporting: a preview of a book that Denniston touts as a revealing look at the cultural significance of a gun-control ruling. The book -- "Out of Range: Why the Constitution Can't End the Battle Over Guns" by Harvard constitutional scholar Mark Tushnet -- is due out Oct. 1, just as the Court's term opens. So how did Denniston get the jump on the rest of us? He doesn't say. But if Tushnet or his publisher (Oxford University Press) shot Denniston an advance copy, they got their PR money's worth. Which is not to say that Denniston flacks for Tushnet. He calls some of Tushnet's statistical analyses "numbingly dull" and the core argument in the new book its "least readable chapter." But the upshot of Denniston's report is that Tushnet makes a "scrupulously fair" comparison of the arguments about the meaning of the Second Amendment, which is what's at stake in the D.C. case seeking Supreme Court review. And he cautions against thinking that legally imposed gun control will lessen violent crime or survive public backlash.
Bonus points to anyone who can provide an accurate tally of the number of gun puns in this post!
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Posted at 08:40 AM
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| The Tenth Justice and cameras |
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| Fri, August 10, 2007 |
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The New York Times' veteran Supreme Court reporter, Linda Greenhouse, has just handed critics some new ammo. Greenhouse, who's often accused of an over-inflated view of her importance and effect on the Supreme Court (often by the same folks who accuse her of slanting the news leftward), objected yesterday when she learned that her appearance on a panel about Supreme Court reporting was to be televised on C-SPAN. Romenesko links to reports by CJR and the Association for Education in Journalism and Mass Communication. Invited to appear on the panel at the AEJMC's annual convention in D.C., Greenhouse was on a panel with SCOTUSblog's Lyle Denniston, The Washington Post's Chuck Lane (who's recently been replaced on the beat by Bob Barnes), Slate's Dahlia Lithwick, Legal Times' Tony Mauro, McClatchey's Stephen Henderson, and NBC's Pete Williams. The moderator, Amy Gajda of the University of Illinois, informed the Thursday morning panel on Wednesday night that C-SPAN would carry the discussion. Greenhouse says she didn't get the e-mail, and reacted with fury (according to an anonymous observer quoted by CJR's Gal Beckerman). Beckerman quoted Greenhouse as saying later, “I told her [Gajda] she had a choice, either she could have me on the panel speaking candidly or she could have C-SPAN there.” Greenhouse said that she had come prepared to speak to a “room of academics.” She added, “I didn’t want to have to modulate my comments for a national audience.”
Greenspan claims that she did not demand the camera's removal. But once she complained to Gajda, C-SPAN was shown the door.
C-SPAN's Terence Murphy wrote in protest later that Greenhouse's position wasn't the only hypocritical one: "If professors of journalism and working journalists taking part in a journalism education conference don’t stand up for open media access to public policy discussions, who will?” CJR quotes from Greenhouse's response to Murphy, in which she called the dustup an issue of "communication and simple courtesy." She continues:
There is a difference between appearing before a room of 50 or so professors and speaking on national television, as I’m sure you recognize. I did not agree to do the latter, and notwithstanding my willingness -- as you note -- to appear on C-Span dozens of times in the past, whether to do so remains, it seems to me, a matter in which I still have a say. I am neither a C-Span employee nor a public official. My past voluntary appearances do not give C-Span rights in perpetuity to broadcast events at which I appear, whether I agree or not. In fact, you may or may not be aware that over the years I have from time to time declined to appear at events that I had assumed were to be private when, at the last minute, I was informed that C-Span coverage was a fait accompli.
I admire Greenhouse's abilities and think that her critics generally are ideologues who don't recognize or want honest reporting. Greenhouse has compromised her stature on occasion by speaking out publicly on political issues, always a mistake in my book. But her work speaks for itself, and it speaks of quality and intelligence.
So why is she acting like Antonin Scalia, who famously and peremptorily turned a First Amendment talk into an off-the-record session? Or like David Souter, who quipped that cameras would cover the Court's public sessions "over my dead body"? A public discussion, at a conference of journalists and journalism professors no less, is hardly the time to split hairs over different degrees of openness. And it implies, however unfairly, that Greenhouse harbors opinions that she doesn't share with the public -- which is, after all, who she's supposed to serve.
Update: Jack Shafer makes good points in this impassioned defense of Greenhouse. But he doesn't convince me on -- or even directly address -- the central question of whether public remarks are qualitatively different when televised on C-SPAN.
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Posted at 01:04 PM
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| Programming note |
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| Fri, August 10, 2007 |
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I'm headed for the hills for a week, to the Land of No Internet. Back on the 20th.
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Posted at 05:13 PM
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| ABA II: Good guys win? |
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| Sat, August 18, 2007 |
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I'm back from a week in the mountains, where the chipmunks had surprisingly little to say about legal journalism, and the corner store only remembered to save a copy of the Times for me about half the time. So I have more catching up to do.
But I do want to make note of one positive development that I already know of: the ABA's decision to back down from a proposal that might have led to a dramatic clampdown on public access to criminal court and police records (which I previously blogged about here). The death of this dreadful idea ought to be cause for rejoicing. But, as Tony Mauro reported here, the public interest -- which we'd like to think good crime reporting represents -- may not have been the deciding factor. Rather, business interests finally got the ABA's attention, after months of inaction on the Reporters Committee's pleas. That's rather typical of the ABA, alas. But at least we ended up at a just result.
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Posted at 10:10 PM
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| SCOTUS homework-helper |
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| Sun, August 19, 2007 |
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SCOTUSblog's Marty Lederman has this to say about new Supreme Court policies requiring parties and amici to file electronic briefs, which the Court promises to post online within a day of filing:
That database will be an enormously helpful resource -- to litigants, counsel, scholars, students and researchers alike. The difficulty of finding all briefs in a readable format and a timely fashion has been a fairly obvious online gap for a while now, especially for those who have no access to Westlaw or Lexis. Many thanks to Bill Suter and the Clerk's Office for establishing the database.
To his list I'd add the obvious: reporters. Imagine how much better legal reporting would be if all reporters -- not just the small, full-time Supreme Court press corps -- went to the bother to read the briefs before reporting on oral arguments or decisions. These briefs have long been accessible, on expensive services like Westlaw and Lexis, or on free sites like FindLaw or the ABA's. But not all briefs in all cases were published there, nor were they always accessible so promptly. This development, like the decision not so long ago to make available same-day argument transcripts (and identifying which justice is speaking), gives lazy reporters fewer places to hide.
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Posted at 09:41 AM
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| Challenging copspeak |
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| Rocky Mountain News |
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| Mon, August 20, 2007 |
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Julie Poppen shows what a smart reporter can produce with a little curiosity. Using several recent Denver-area criminal investigations as her starting point, she asks what exactly cops mean when they label someone a "person of interest." Criminal defense lawyers and police expert-sources help her explores the difference between "suspect" and "person of interest." The story questions in a neutral way whether the latter label harms the reputations of the innocent (or at least of those not yet proven guilty). It's not a simply euphemism, as Poppen points out:
Though persons of interest often graduate to suspects and are charged with a crime, police may use the phrase because they're trying to find someone of a certain description who happened to be near the scene of a crime. It could refer to a suspect's friend, they say. Sometimes a person of interest can be ruled out as a suspect after investigation.
What's wrong with "potential witness"? Anywho... Poppen's story is destined for a Wikipedia entry all its own. (Link found via Criminal Justice Journalists' daily news summary.)
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Posted at 07:04 PM
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| Earth to Times: Buy a litigation playbook |
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| The New York Times |
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| Tue, August 21, 2007 |
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Alex Berenson does a good job of detailing why Vioxx plaintiffs haven't yet seen a penny from Merck in the litigation over the controversial pain-killer. But there's a big, gaping hole in his story -- and it's exacerbated by the hyped play the Times gives the story, above the fold on A1. Big verdicts for plaintiffs almost never yield immediate riches. Cases always are appealed. Big awards always get chopped down. Defendants always drag their feet. That doesn't undercut the truth or necessity of this story. But without this context, the story screams "scandal" and "surprise" where it shouldn't.
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Posted at 10:14 AM
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| Call the cliche police |
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| The New York Times |
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| Fri, August 24, 2007 |
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The Times' Public Lives feature quite often is a delight. Not so today, with writer Anthony Ramirez resorting to the lamest cocktail-party questions asked of criminal defense lawyers.
The hook for profile of New York criminal defense lawyer John Lauro is his representation of Tim Donaghy, the former NBA referee caught in a gambling scandal. Ramirez recounts Lauro's previous work as a federal prosecutor. Then come the banalities:
But is it important to Mr. Lauro for his clients to be innocent?
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Scanning his résumé, it would seem like quite a leap for Mr. Lauro, 49, from his role as a federal prosecutor in Brooklyn who pursued the government’s targets with all the zeal of his office, to today, when he comes to the ardent defense of whom? The bad guys?
Oy. The answers aren't any better. But at least we aren't treated to a homily about Clarence Darrow and everyone's right to a defense ... zzzzz. Oh, wait, we are.
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Posted at 07:54 AM
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| Power-tripping in South Texas |
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| San Antonio Express-News |
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| Fri, August 24, 2007 |
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Sigh. Yet another state trial judge who hasn't read the wee bit of First Amendment case law on prior restraints. Romenesko links to the story of San Antonio district Judge Alex Gabert's hissy fit over the Express-News' decision to publish a story quoting from sealed court documents in a wealthy rancher's estate battle. The paper says "the article was based in part on documents obtained outside of the court process," a lawyerly way of saying the paper didn't break the seal to snoop into the records, but obviously not disclosing if the leaker was aware they were sealed. The judge ordered the paper not to publish more stories based on the documents, regardless of where they came from, and to turn over all such documents in its possession.
Here's veteran John MacCormack's cautious, straightforward account of the order against his paper -- which, significantly, does not link to the offending article. MacCormack wrote the original, which was published July 22. I located it in a search of the Express-News site, but -- funny thing -- the link doesn't work for me.
Fortunately, the Express-News is owned by Hearst, a company with the guts and budget to fight an obviously unconstitutional order. Our concern on this blog isn't First Amendment law, but rather how judges act toward the press when their orders are flouted or sidestepped. When will they learn that certain things -- say, a free press -- are out of their control?
Update: Maybe the Express-News' archives and I are having a more general problem, because I wasn't able to click through to any articles in a search. But the story is still on Lexis, where I snagged a copy. Juicy bits:
MacCormack laid out the nasty fight over hundreds of millions, citing as his source "court documents obtained by the San Antonio Express-News" -- news shorthand for "none of your beeswax where I got them."
The squabble concerns the rancher's mental capacity in his waning years. The story quotes from testimony, a psychiatric report, and legal motions, including details of a mediated settlement -- a "hush-hush deal," in MacCormack's words, approved by the same Judge Gabert -- that a cynic, reading between the lines, might see as suggesting that Gabert had ruled hastily and under suspicious circumstances.
So this has the usual key ingredient: an ass-covering judge (allegedly). We'll be watching for appellate updates.
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Posted at 05:13 PM
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| Assignment desk: Criminal intent and Larry Craig |
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| Wed, August 29, 2007 |
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Maybe I've missed it, but I am still waiting for an enterprising legal reporter to tell us what it takes to prove criminal intent in a case like Sen. Larry Craig's. Here's the description of the police report in today's Times story:
According to the police report, first obtained by Roll Call, the Capitol Hill newspaper that disclosed the episode and the guilty plea on Monday, the incident began with Mr. Craig’s peering into the undercover officer’s stall several times through the crack in the door.
Then, Mr. Craig reportedly entered the stall to the left of the undercover officer “and placed his roller bag against the front of the stall door,” a move the officer said was intended to block the view from the front of the stall.
When he was seated, Mr. Craig tapped his right foot in a signal used by people wishing to engage in lewd conduct, the report said.
After the officer moved his own foot up and down, the report said, Mr. Craig moved his right foot so that it touched the side of the officer’s left foot under the stall divider. Mr. Craig also reportedly swiped his left hand under the stall three times before the officer held his police identification down by the floor so Mr. Craig could see it.
How many such cases are there? How many are contested (I imagine very few, for the same reasons that led Craig to hope this would all disappear without a trace)? Is Minnesota law typical of other states' laws on such things? What's the history of police excesses in hunting down desperate, closeted gay men? These questions obviously matter because an alleged personal indiscretion became a police matter based on someone's interpretation of toe-tapping and hand-waving. Let's learn more about the law, and figure out if it's fair.
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Posted at 09:02 AM
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| Law in the men's room |
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| Minneapolis Star-Tribune |
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| Wed, August 29, 2007 |
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Following up on my earlier post about coverage of l'affair Larry Craig, it seems on day two of such a story, a good local paper at the site of the arrest would be the first to explain how such arrests and prosecutions work, and what the law actually says. Maybe even quote prosecutors, cops and defense lawyers on the ease or difficulty of making such charges stick. Not so. After letting the wires handle first-day coverage, the Star-Tribune comes back with this story today by David Chanen and Tom Ford.
Its legal IQ is pretty low. For example, we're told the original charge -- "The gross misdemeanor of interference with privacy" -- was dropped, but we're not told anything else about that charge: what proof it requires, or the penalties. The jargon "gross misdemeanor" goes undefined. Then we're told that Craig's disorderly conduct charge meant that he was "engaging in conduct which he knew should have known tended to arouse alarm or resentment of others." I take it that's the definition of disorderly conduct, but the writers don't bother spelling that out, much less explaining what kinds of proof does or doesn't work in such cases. On the Web site, the paper links to the complaint and police report. But neither comes close to answering my questions.
I can hear a city editor complaining, "let's not get all technical." But if the technical can be explained clearly to the non-lawyer reader, it might actually show the difference between the two charges and lead to an informed discussion about whether the game of footsie and hand-waving could get one convicted if the charges were disputed.
Update: Ashby Jones bails out the Star-Tribune and everyone else with this post on the Wall Street Journal's Law Blog (which he runs and where he rarely gets a byline). It's not a mainstream, general-interest newspaper in Minneapolis, but it'll do. Still, I have questions. Given what Jones reports is the standard under Minnesota law, how could the recipient of the suggestive toe-tapping be offended, since the only way you'd understand the signal in the first place is to be hip to the toe-tapping, bathroom-sex culture that it supposedly represents. Where's the crime?
In any case, I remain a skeptic about such laws, and such police actions, not on entrapment grounds necessarily but because they're ostensibly about protecting the public but really seem to be about enforcing a moral code. Regardless of how one feels about that, the question remains: Would Craig, or anyone in similar circumstances, actually be in jeopardy of criminal conviction if they contested the charges?
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Posted at 01:26 PM
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| Prison rape and coverups |
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| Seattle Post-Intelligencer |
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| Thu, August 30, 2007 |
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Ruth Teichroeb used federal records to document allegations by female inmates against guards of rape and other sexual improprieties. She finds, at a Seattle-area federal prison, large numbers of complaints -- and no prosecutions. That alone is a story. But she does much more. Teichroeb's interviews with former inmates who claim they were raped are powerful stuff. As are the non-denial denials from one notorious former guard. The stats enable any other reporter to attempt the same story. Whether they can duplicate the quality of these interviews is a question mark -- and a challenge. (Link found via IRE.)
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Posted at 05:52 PM
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