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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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| Behind the press-release stats |
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| Corporate Counsel |
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| Thu, November 01, 2007 |
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In this feature by Daphne Eviatar, ALM's Corporate Counsel magazine refuses to take at face value the Justice Department's accounting of its Corporate Fraud Task Force, the government's organized response to the wave of corporate financial scandals. When the DOJ refused to provide details of the cases its task force handled -- and even claimed that it couldn't color in the details underlying then-Attorney General Alberto Gonzales' recitation of victory stats at a July 17 press conference -- Corporate Counsel and ALM's researchers combed the public record and other sources for scraps of details about which cases the task force handled. Then it built a database (samples are provided here, but the rest is for subscribers only) of the outcomes from 124 investigations and indictments against 440 executives. The bottom line, Eviatar writes: "a long litany of achievements punctuated by disappointment and controversy." And, alongside 337 convictions, some notable failures, sometimes attributable to questionable DOJ tactics.
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Posted at 06:17 AM
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| Witness for the defense |
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| The Village Voice |
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| Thu, November 01, 2007 |
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When veteran crime reporter Tom Robbins realized that he had evidence that could turn a major mob trial upside down, he published his revelations in The Village Voice -- despite promising a decade ago not to. Now his report, contradicting the key prosecution witness, is bringing the case to an inglorious end, according to the Daily News' Scott Shifrel. No doubt, Robbins will now spend a good bit of time explaining how he came to the decision to burn a source instead of watching a possible frameup of a murder defendant.
The case centers on Linda Schiro, the star witness in a Brooklyn trial of former FBI agent Lindley DeVecchio. DeVecchio is charged with feeding confidential law-enforcement information to mobster Greg Scarpa Sr. Those tips resulted in four murders of suspected FBI informants. Schiro took the stand this week to lay out in elaborate detail how DeVecchio provided the crucial information to Scarpa. The only problem, Robbins' wrote in his Voice story published yesterday, is that Schiro -- when interviewed in 1997 by Robbins and fellow mob reporter Jerry Capeci -- told a "dramatically different" story about the same events. Robbins writes:
Which puts us in no small bind. The ground rules when we spoke to Schiro in 1997 were that the information she provided would only be used in a book—not in news articles. She also exacted a pledge that we would not attribute information directly to her. And in a cautious but not unreasonable demand for a woman who spent her life married to the mob, she required a promise—however difficult to enforce—that we not cooperate in any law-enforcement inquiries stemming from said book’s publication.
Robbins and Capeci never published the book. But the Times' Michael Brick reports that the defense knew of Schiro's inconsistent stories and subpoenaed several writers, including Capeci. The judge quashed the subpoenas under New York's shield law. Still, Robbins came forward in print and then provided tapes of the interviews to DeVecchio's prosecutors. Why? He makes his case:
If convicted, DeVecchio, 67, faces life in prison. Those are the kind of high stakes that take precedence over contracts and vows of confidence, no matter how important they may be to the business of reporting, and regardless of how distasteful it may be to violate them. The threat of a life sentence trumps a promise. Lin DeVecchio may be guilty, or he may be innocent. But one thing is clear: What Linda Schiro is saying on the witness stand now is not how she told the story 10 years ago concerning three of the four murder counts now at issue.
As a witness, Schiro has "shed her former concerns about confidentiality," Robbins adds. That's highly debatable. But I'm a great admirer of Robbins' work, and found him -- when he spoke to a class I taught in New York -- to be a serious, committed investigative reporter. His decision in my book isn't a slam-dunk either way. But I probably would have done the same thing under these circumstances.
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Posted at 08:42 AM
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| Astronaut ruling makes rough landing |
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| Sat, November 03, 2007 |
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This looks like trouble. A judge in the media-frenzy-inducing Lisa "astronaut-in-diapers" Nowak case throws out key evidence against her. It's ready made for public backlash. There goes that crazy legal system again, letting truth and justice get trumped by silly technicalities. Maybe the judge, Marc Lubet, is right about the law. Maybe he's wrong. The question for us is: How clearly do reporters explain why the judge ruled this way? How informed will we make today's breakfast-table news commentators ("Didja see this, Marge? What's the world coming to?")?
Sadly, most news organizations fumble, if not drop, the ball. Most reports include only sketchy descriptions of what evidence Lubet based his ruling on, and next to nothing about what the law requires. None of the articles that I read explains the purpose of suppressing illegally obtained evidence -- a controversial remedy, to be sure, but it is the law of the land and perhaps its purpose, once explained, might make sense to our readers. In any case, here's how key reports on the ruling handled the substance of the decision:
AP's Travis Reed writes only that the judge found "Investigators took advantage of 44-year-old Nowak, who had not slept for more than 24 hours, coercing her into giving information in a lengthy arrest interview." The very short (282-word) AP report in The New York Times, with no byline, does better, at least in explaining the relevant facts:
Judge Lubet said that Detective Chris Becton of the Orlando Police Department answered evasively when Captain Nowak asked about a lawyer and that he had not read her Miranda rights before he started questioning her.
“Detective Becton failed to answer defendant’s question regarding whether she needed an attorney in a truthful and straightforward manner,” the judge wrote. “There was a concerted effort to minimize and downplay the significance of the Miranda rights by referring to these constitutional rights as mere ‘formalities.’”
Judge Lubet said Detective Becton wrongly made “direct and implied promises of benefit,” promising to talk to prosecutors on her behalf if Captain Nowak cooperated. “He made threats and used coercive psychological techniques,” the judge wrote.
Reuters' Barbara Liston also went heavy on the facts:
Judge Marc Lubet ruled police violated Nowak's constitutional rights by the way they interrogated her on Feb. 5 and searched her car
In the hearings, Becton [an Orlando detective] said Nowak consented to talk to him and allow her car to be searched but acknowledged her consent was either inaudible on the tape recording or amounted to sounds like "mmhmm."
Nowak said she had requested a lawyer but was given the impression her car would be searched whether she consented or not.
In his order, Lubet said only about half of Nowak's interrogation was recorded by Becton and many of Nowak's answers on the tape were inaudible.
Lubet cited other grounds for suppressing the evidence, including Nowak's physical and emotional state, the length of her nine-hour detention and six-hour interrogation and promises and threats made to Nowak by Becton.
He also said Nowak gave no written waiver of her rights and no written permission to search her car.
How did the hometown paper do? Like her competitors, Sarah Lundy, in the Orlando Sentinel, explains important facts but doesn't show why they have a bearing on whether evidence gets suppressed. She writes at the end of her fairly brief story:
[Nowak's attorney Donald Lykkebak] argued that Orlando police took advantage of Nowak, who was sleep- and food-deprived. Becton confused her, Lykkebak said, when he wouldn't clarify what he meant by certain statements, such as that she could face a carjacking charge. Prosecutors disagreed, saying Nowak was trying to portray herself as a confused woman but understood what she was doing. They also argued that police would have discovered Nowak's car even without her help.
The Washington Post's Peter Whoriskey does a better job than others at putting a key quote (which many use) from the judge's opinion in a clearer context:
Lubet wrote in his decision that he took into account Nowak's emotional and physical condition at the time of her arrest, the promises of help police made to Nowak in exchange for her comments, and their failure to clearly inform her of her constitutional rights and protections. "It is incumbent upon this court that every citizen, whether a prince or a pauper, be treated equally," he wrote. "Unfortunately in this case those protections were not as thoroughly followed as the law demands."
And what might that law be? Sorry, no time for that. But, before we close on this reporter-bashing note, we wonder if the judge himself helped matters by explaining clearly why he felt he had to rule this way, and why suppressing evidence achieves any useful purpose. Unfortunately, his court hasn't bothered to post the ruling on the Web page it created for the Nowak case.
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Posted at 08:07 AM
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| Taking a cue from a science guy |
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| NPR |
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| Mon, November 05, 2007 |
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What can we learn from good science writing? I asked my class that question last week, as we wrapped up this short course and talked about common flaws in legal reporting. One example I cited of a journalist who can make the complex interesting and enjoyable -- while still wrestling with the actual substance that explains why things are as they are -- is NPR's Robert Krulwich. And then on the drive in this morning, I found myself delighted once again by Krulwich's touch in this piece about the science of tastes and the story of how a chef taught scientists that there is a fifth taste, umami, in addition to the four that we're taught are the fundamental sensations our tongues can detect. Often when I'm offering a critique of legal reporting, I'm kvetching about an habitual refusal to explain to the average reader or listener why particular facts led to a particular outcome -- because the law has been interpreted (or ignored) in a certain way. Taking Krulwich's science writing as the model, why can't we make the law more accessible and interesting, and less like homework? Why do we tend to assume that the common touch must be a trashy, maudlin one? Is there a Robert Krulwich of the law out there?
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Posted at 08:11 AM
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| We're here. We're ambiguous. Get used to it. |
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| New York magazine |
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| Wed, November 07, 2007 |
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Slate's "Other Magazines" feature tells us to skip this Robert Kolker feature, "When Is a Hate Crime Not a Hate Crime?" Slate critic Elizabeth Gumport accuses Kolker of waffling. The story, she writes, "leaves us hanging" by not answering its central question. My take is the opposite: It's worth reading because it leaves us hanging. Kolker, the longtime New York writer, has produced an intelligent, nuanced piece that looks at the vagaries of New York's hate-crime statute and how its language and statutory history don't necessarily coincide with the popular conception of what hate crimes are. The story focuses on interviews with Anthony Fortunato, a young Brooklyn man convicted in an alleged gay-bashing that led to a man's death. Fortunato's lawyer tried to turn the tables on prosecutors by announcing that Fortunato was secretly gay, and therefore couldn't be guilty of a bias crime against gays. The jury voted guilty on a lesser manslaughter charge, but also found that it fit the definition of a hate crime. Was the defense strategy a ploy? Should it matter under the law? Kolker lays out the details but doesn't tie a ribbon around them and tell us what to think. That's why I like the story.
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Posted at 12:26 PM
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| Confessions of a clueless wonk |
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| Thu, November 08, 2007 |
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When I was invited by my friend, lawyer/author Cam Stracher, to appear on this panel at New York Law School's Program in Law and Journalism, I hit the books -- well, the Web -- to be able to speak knowledgeably about press coverage of the biggest cases. As the only non-lawyer on the panel, speaking to a law-school audience, I figured I'd better have something halfway legal-substantive to say about which cases got covered well, and which didn't. I critique this coverage episodically, but can't pretend to have a firm enough grip on the arc of jurisprudence, or on any given case's finer points, that I could definitively parse the full scope of the coverage. My typical critique here is just to spot apparent holes, unanswered questions, and wonder why a particular story didn't explain things more clearly. A few tours around SCOTUSblog and Legal Times later, I had refreshed my notoriously leaky memory about the Supreme Court's latest pronouncements on abortion, race discrimination, punitive damages, and a handful of other gems.
When the discussion began, though, I quickly figured out that I remained outgunned and clueless -- because, by "biggest cases," the moderator meant "biggest tabloid-trash/celebrity-obsessed cases." Ill-equipped to debate the details of l'affairs O.J., Ana Nicole, Britney and Lindsay (and something concerning Hulk Hogan's son that I didn't quite follow and don't have the stomach to Google after the fact), I could only mumble a few retro-sounding comments about pandering to low tastes and working harder to make truly important cases more interesting to more people. TV-friendly law, I was reminded, is more -- far, far more -- about the legal travails of dysfunctional actresses than about Anthony Kennedy's doctrinal struggles.
There's no way to say this without sounding like a snob or an ingrate or both. But if we ivory-tower types won't naively bemoan the cultural and journalistic void that's left by a single-minded focus on that which gets the biggest ratings and newsstand sales, then who will?
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Posted at 04:41 PM
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| Vioxx settlement: Who scooped whom? |
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| Fri, November 09, 2007 |
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Reuters, CNNMoney.com and TheStreet.com give The Wall Street Journal top billing when crediting the source of reports on Merck's $4.85 billion Vioxx settlement. But The New York Times' Alex Berenson beats the Journal's Heather Won Tesoriero (subscription required) with the details in his version of the story. While Tesoriero calls Merck's settlement decision "somewhat surprising" in light of its courtroom wins, and puts details of Merck's defense costs at the end of her relatively brief story, Berenson portrays the plaintiffs, not Merck, as the party that's capitulating and reminds readers that Merck's exposure to damages once was considered much higher. He also goes into more detail about what each plaintiff is likely to net and what a significant factor defense costs were in Merck's calculation. The differences are subtle. Both papers essentially hit the mark. Neither scored a major scoop over the other. But in sheer heft, Berenson's story deserved top billing.
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Posted at 05:42 AM
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| New perspective on Virginia Tech |
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| The Washington Post Magazine |
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| Sat, November 10, 2007 |
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Liza Mundy's cover story in tomorrow's Post Magazine asks an old legal question: What good can a lawsuit do to help a parent cope with the death of a child? And she asks the questions in a story that hasn't exactly lacked for coverage: the Virginia Tech shootings. Her answers -- rather, her search for answers -- are anything but trite.
Mundy, a staff writer at the magazine, focuses tightly on the family of 20-year-old Virginia Tech shooting victim Leslie Sherman. Mundy travels to a Tech football game with parents Holly Adams and Tony Sherman, of Springfield, Va., and tells the story of their different responses to unimaginable loss. Adams is enmeshed in the world of the activist parents, and debates whether to join a lawsuit brought by other parents -- even though her husband and their younger daughter (also a Tech student) don't want to sign on as plaintiffs. For readers who haven't followed the Virginia Tech-aftermath story closely, the story serves not only to explain one family's journey, but also to explain many families' anger at the university for its mistakes and lack of accountability.
The story works because of the deep intimacy readers share with the subjects as they wrestle with policy questions wrapped in stark emotions, and because it avoids the talking-head syndrome -- this parent or lawyer says this, others say that -- in favor of examining the arguments inside one family's conversation. The story includes this photo slide show, with family and news photos, plus original photos of the Adams/Sherman family by Carol Guzy. Beautifully written and deeply reported, this story makes the case for using long-form narrative to cast new light on old news.
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Posted at 08:39 AM
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| Piercing the 5th Circuit's veil of secrecy |
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| Houston Chronicle |
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| Sun, November 11, 2007 |
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Lise Olsen's incendiary report in today's Houston Chronicle on the case of U.S. District Judge Samuel Kent -- the Galveston, Texas, judge recently reprimanded by the 5th Circuit following sexual harassment allegations by a court employee -- uses numerous named sources to reveal a 10-year history of alleged workplace harassment and assaults. The primary reporting tactic is a tried and true one: quoting people who spoke to an accuser, even though the accuser herself isn't talking. Why didn't court officials investigate sooner? The story only implicitly addresses that issue, and never comes close to answering it -- in part because of 5th Circuit secrecy surrounding the disciplinary action already taken against Kent. The story is careful to the point of understatement, no doubt a calculated decision by the Chronicle and its lawyers. That's prudent, considering the nature of the charges. But now it's time for prosecutors and Congress to take the Chronicle's lead and decide whether the accuser and others are telling the truth. Because if they are, the 5th Circuit's reprimand of Kent falls far short of what he has coming to him.
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Posted at 05:49 PM
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| Another legal writer wins Chancellor Award |
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| Mon, November 12, 2007 |
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Ofra Bikel, the PBS Frontline producer with a string of reports on America's justice system (pictured here), is the fourth legal journalist in a row to win Columbia University's $25,000 annual John Chancellor Award. The award is not legal-specific -- it describes its mission to reward "a journalist whose reporting over time shows courage, integrity, curiosity and intelligence and epitomizes the role of journalism in a free society" -- but the past three years' winners have been the LA Times' Henry Weinstein, Clarion-Ledger's Jerry Mitchell, and New York Times' Linda Greenhouse. The logic is inescapable: legal journalists do more than anyone to epitomize the role of journalism in a free society!
Here are some snippets from the press release on Bikel's award, which will be given tomorrow in New York:
In a career of over 30 years as a documentary filmmaker, Ofra Bikel's work has freed more innocent prisoners than many professionals in the criminal justice system. Powerful, persuasive and relentless, her documentaries reveal hard truths about an American justice system that is at times vulnerable to ambition, racism, inertia, pride, haste, hysteria, corruption and a host of other human frailties.
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Thirteen men and women walk the streets today because Ofra Bikel wouldn't let the public forget about them. "People pay attention to death row prisoners when they try to make a case for their innocence because the stakes are life or death. If you are imprisoned with a sentence like 15-to-life then it is easier for the criminal justice system to turn the page and write you off," says Bikel. In eye-opening documentaries such as Snitch, The Case for Innocence, and The Plea, Bikel has reported on what really happens when the wheels of justice break down in America. Her journalism has explored how the criminal justice system relies on aggressive plea bargaining to secure convictions and avoid the process of jury trials, how eyewitness testimony can turn out to be terribly wrong, and how judges and prosecutors sometimes resist acknowledging mistakes even in the face of irrefutable DNA evidence.
Here's her bio page on Frontline's site, with links to some of her documentaries.
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Posted at 12:25 PM
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| Joe McGinniss' return to true crime |
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| The Washington Post |
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| Tue, November 13, 2007 |
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Reviewer Carolyn See traces author Joe McGinniss' on-again, off-again history with true crime in this review of his latest contribution to the genre, and his first in many years. See calls Never Enough a "rancid drama" about loathsome, monied Manhattanites whose deep character flaws play out in a murder plot. There's more than enough greed, sex, and villainy to guarantee another McGinniss TV miniseries. I'm debating: Do I hold my nose and read about people who sound so thoroughly dreadful, all for the chance to experience another McGinniss crime narrative? I just might! McGinniss is that good.
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Posted at 06:44 AM
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| O'Connor "love story" gets cold shoulder |
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| Wed, November 14, 2007 |
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Veronica Sanchez produced a scoop that evidently has made some major news organizations squeamish -- or they're simply blind to the sort of news that ordinary people care about. Sanchez is the reporter at KPNX-Channel 12 in Phoenix who produced this report last Thursday on Sandra Day O'Connor's husband John, an Alzheimer's patient in a Phoenix nursing home who has formed a relationship with another woman. Sanchez handled the report with sensitivity and intelligence, showing the O'Connors' son Scott on camera describing his dad's "high school romance" with a woman shown on camera and identified only as "Kay." The former justice did not speak to the station, and has declined comment since then, but Scott O'Connor portrays her as comfortable with her husband's infidelity -- because, obviously, of his mental condition. The video is worth watching. I braced myself for a "this-just-in" wallow in self-promotion, but instead saw a touching story told well.
Since then, the most prominent pickup of the story was Joan Biskupic's on the front page of yesterday's USA Today. Biskupic, Justice O'Connor's biographer, quotes from the KPNX report, as does the AP report that has been picked up in the Washington Post, Chicago Tribune, and on The New York Times' Web site (though evidently not in print). Two Times blogs, the newsy Lede and a health blog, have picked up on the story, but without original reporting on the O'Connors' situation. The Tribune's Supreme Court reporter, Jim Oliphant, blogged about it, calling it a "rather stunning tale" but only quoting briefly from the USA Today story quoting from the Channel 12 report. Similar treatment from the Post's Andrew Cohen here. Not one Supreme Court reporter seems to have followed Biskupic's lead to acknowledge the TV report in print, much less done his or her own reporting on the story.
What's with such a tepid response? The big Supreme Court players aren't in the hunt for the story, and seem to have little stomach for even obligatory mentions. Is it because it's merely gossip? I don't understand how they could see it that way. As the tasteful original report and a follow-up in the Arizona Republic point out, Alzheimer's patients often form such bonds, which may or may not be met with understanding from spouses and other families. It's an interesting and touching issue, in other words, and the O'Connors' willingness to have the story told undoubtedly helps others understand the disease. It's also newsworthy in its own right, as Justice O'Connor stepped down to care for her husband, her law school sweetheart. Does that put his health in play? You bet it does. You have to hope that coverage would be subdued and respectful -- as it has been, even given the story's surprising twist.
So what else explains the general discomfort with the story? Fear of offending O'Connor? Why, when her own son made the story possible? Refusal to chase someone else's scoop? Maybe that's it -- though not for the usual reason (unwillingness to give credit to a competitor), but for reasons of taste (not wanting to harass the family asking questions that were adequately answered already). Perhaps that's understandable, but it's also a reminder that this is one beat where the reporters give their subjects wide berth -- maybe too much so.
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Posted at 01:39 PM
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| "Misdemeanor murders" in Big D |
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| Dallas Morning News |
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| Thu, November 15, 2007 |
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Brooks Egerton and Reese Dunklin do a thorough, readable job of putting the lie to Dallas' reputation for merciless treatment of criminals. In "Unequal Justice: Murderers on Probation," a five-part series that ended yesterday, the reporting team documents multiple surprises found in 47 local cases (among 120 statewide) in a six-year span where murder charges yielded probation or deferred adjudication.
The series -- which includes case files on 56 North Texas cases at the center of the inquiry -- has a real-world, gritty feel, and is written in an accessible, flashy style. But nothing about it reeks of vigilante rage or simplistic prescriptions. It examines the statutory quirks and strategic ploys that have created a sentencing anomaly. The series is sophisticated without being stuffy (which isn't the Dallas Morning News I knew so well in the 1980s and '90s).
Most interesting is the series' dissection of a prosecutorial strategy called "back door to prison" -- a modification of the old game that police interrogators play ("tell us what happened and you can go home"). Defendant pleads to a probated sentence, offered because the DA banks on said defendant screwing up and getting a probation violation that yields a long prison sentence. It doesn't always work out as planned. But it is consistently cynical and manipulative. Kudos to Egerton, Dunklin and the Morning News for exposing it.
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Posted at 08:59 PM
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| The making of the O'Connor love story |
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| Sat, November 17, 2007 |
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Poynter columnist Al Thompkins airs the backstory to the John O'Connor story that I linked to and blogged about here. KPNX-TV's Veronica Sanchez, who broke the story last week, and her producer Bert Sass explain that they were working on a story about the issue -- Alzheimer's patients falling in love (aka "mistaken attachments") -- and only later learned that one of the families willing to share their story was Sandra Day O'Connor's. Sanchez tells Thompkins:
The question of whether this is news or "too personal" is very simple for me. The family said they wanted to bring awareness to the reality of Alzheimer’s, that they are not alone. From the moment the camera rolled, that was our objective.
That casts new light on the harrumphing that the story, and comments on the story, have attracted from folks made uncomfortable by its personal nature. At the ABA Journal site, various readers call the Journal's coverage of the coverage a "disgrace," "gossipy" and "shameless." My own views (that the SCOTUS beat reporters were wrong to ignore the story in the days after it broke) were called "astonishing" (and worse, in private e-mails).
I understand readers' squeamishness. But I'll bet a lot of the commentators haven't even bothered to watch the Sanchez/Sass report, told in such a human, moving way. It's not exploitation. It's news because it's about life. But (here I go again), it's also news because of the role that John O'Connor's illness played in changing history. Justice O'Connor's place in history, as the first woman and longtime swing vote, puts her a notch above the average Supreme Court justice. She forfeited that position to care for her husband. That doesn't mean that the family then loses all privacy, but I'm arguing, astonishing though it may be, that John O'Connor's attachment to another woman, and Sandra O'Connor's peace with that decision, is news even stripped of its obvious value in teaching us about Alzheimer's.
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Posted at 07:03 AM
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| Post and CBS: The I-Team effect |
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| The Washington Post/"60 Minutes" |
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| Sun, November 18, 2007 |
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Some investigative reporters wait in vain for any sign that their dirt-digging has prompted positive change. John Solomon, Steve Kroft and their joint investigative team from the Washington Post and "60 Minutes" didn't have to wait. They drew blood without even firing a shot. The TV version of the report airs tonight. The Post starts a three-part series on today's front page. It's undeniably important news, and its impending publication and airing caused the FBI to change a questionable policy. But I have issues with the way in which the Post's John Solomon tells his story. The story suffers from excessive hype, and probably from a rushed edit on the eve of publication. The end result: feeling I was hoodwinked by the kinds of silly I-Team tricks used by local broadcasters whose stories may be less than meets the eye. Which is a shame, because this report is impressive and well-done overall.
In a first-time collaboration, the Post and "60 Minutes" documented evidence that the FBI buried a problem that could cast doubt on hundreds of criminal convictions. At issue is how FBI analysts used bullet-lead analysis to help convict criminal defendants. Using chemistry to compare the lead composition of crime-scene bullets to the bullets in a suspect's ammo cache, analysts testified in hundreds of cases that they had found a likely match. Then, in 2004, independent researchers discredited the technique -- not so much because the chemistry was flawed, but for how the FBI interpreted the comparisons. A year later, the FBI abandoned the practice. But, the Post-CBS investigation found, the government didn't do nearly enough to re-examine cases in which the technique possibly contributed to a wrongful conviction.
The trouble for Solomon began just days ago, when the FBI -- evidently fearing a "gotcha" report in the Post and on "60 Minutes" today -- changed course and essentially agreed to do everything that the report would criticize it for not doing. Solomon's revelation of this "problem-solved" turn in his story comes too late, in the 13th graf, after 12 grafs that seem to say the problem persists and is being addressed for the first time publicly in this story.
So, for the remainder of today's long story, and presumably the rest of the series that it starts, Solomon is left to write about the government's "past inaction." Should the government's change of course kill the story? Of course not. It's still a story that the government wasn't playing fair, and that it changed its mind only when forced to by journalists' questions. But there are more transparent ways of dealing with the switcheroo that the FBI pulled here: such as leading with that as the news, and then filling in the backstory of what led to the change of heart.
Then, in the 21st graf, comes another troubling sign that the urge to hype has won out over clarity. Here we're told that a group called Forensic Justice Project, run by a former FBI lab whistle-blower, has been pursuing the same facts since 2005. In other words, the Post and "60 Minutes" didn't discover this injustice. They're merely drawing attention to it -- which is a fine ideal, but not the same as a true expose of the sort that the original 20 grafs implied. True, the journalists did an original and painstaking analysis of cases nationwide that might have been corrupted by the bullet-lead testimony (and then helpfully publish the state-by-state analysis here). But the chest-thumping tone of the report suggests a level of originality that, it turns out, is lacking.
I plan to watch tonight's TV report and read the rest of the series, not only to critique the work but because it's good and important work. I'll just have to wear sunglasses to cut the glare of the hype.
Update: If the Post ran a yellow caution light in its rush to hype this story, "60 Minutes" blew through a red light -- then backed up and did it again. Tonight's Steve Kroft report provided a powerful historical look at the Justice Department's failings. But not until the conclusion of the report did Kroft inform his viewers that on Friday, the Justice Department agreed to do what the report accused it of not doing. The whole story was exactly upside down, because telling viewers at the outset that the problem was solved would have taken the fun out of it.
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Posted at 09:06 AM
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| Insurance fights made compelling - minus the heds |
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| The Wall Street Journal |
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| Tue, November 20, 2007 |
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Vanessa Fuhrmans' front-pager today (subscription required) does what The Wall Street Journal does best: turn a complicated legal and financial tangle into a clear, compelling story about real people. The story's topic is about as off-putting as one could imagine -- insurance subrogation cases. Fuhrman and her editors, however, strip the jargon and minutiae from their explanation, leaving a readable tale about the clash between plaintiffs who successfully sue for injuries suffered in accidents and their health insurers, who seek reimbursement for what they spent already to care for the victims.
The most remarkable aspect to the story is that there are no clear bad guys -- despite the natural pull in favor of a brain-damaged car-crash victim and her family, when facing the muscle of perennial bad guys Wal-Mart (the lead anecdote's employer) and the insurance industry. Both sides sound reasonable once their motives and the law are aired by Fuhrmans' lucid writing. The only problem is that no one told the headline writer that the story had achieved such balance. Here's what the heds say:
Accident Victims Face Grab for Legal Winnings
Wal-Mart Paid Bills For Mrs. Shank, Then Sued for Money Back
They have a kind of Snidely Whiplash feel to them, which is too bad, because the story isn't burdened with such caricatures.
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Posted at 07:29 AM
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| 'Tis the season to get caught up |
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| The Washington Post |
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| Fri, November 23, 2007 |
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Today's story by Darryl Fears -- an overview of the controversy over lethal injection -- made me wonder how long he or his editors at the Post held this story. Wasn't this issue pretty well hashed out in the news over the past two months as the Supreme Court issued stays in cases from various states while a constitutional challenge to lethal injection is pending? Once the Court repeatedly stayed other cases in October and early November, the next obvious hook for the story -- lacking a fresh angle, as Fears' story does -- would be when the main challenge, Baze v. Rees, is argued Jan. 7. Is the Post simply publishing a story that had been in the can for a while? The answer comes implicitly in this graf:
Lisa McCalmont, a consultant to the Death Penalty Clinic at the University of California at Berkeley law school who recently committed suicide, said the idea that an inmate gently dies during a lethal injection procedure may be a false one. She added, "I don't think everybody knows that two of the drugs are capable of causing excruciating pain." (emphasis added)
Henry Weinstein's Nov. 14 obit on McCalmont in the Los Angeles Times reports that she died Nov. 1. So this story was evidently in the works back when it was news, which it isn't at the moment. If it's weird for the Post to run Fears' story now -- on page A3, no less -- it's doubly weird to quote an expert source so long after her death. I guess it's just a continuation of that holiday tradition of cleaning out the queues of old, somewhat timeless stories on days when news is slow but Christmas-shopping ads yield a big newshole.
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Posted at 08:13 AM
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| What happens to the exonerated? |
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| The New York Times |
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| Sun, November 25, 2007 |
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A team of dozens from the Times uses masterful storytelling techniques to show what life is like for wrongfully convicted inmates who are exonerated and released. It's hard-core enterprise journalism, methodically documenting individual stories and group patterns after the daily-news headlines fade. And it's told subtly and deeply.
It's hard to imagine picking a more revealing, moving central character than Jeffrey Deskovic, whom reporter Fernanda Santos and photographer James Estrin follow to document his struggles after release in September 2006 from 16 years in prison for a murder he did not commit. The main story is understated and effective. And an overview of the findings, by Janet Roberts and Elizabeth Stanton, succinctly summarizes the justice system's treatment of the wrongfully convicted.
But where the package really shines is online, with audio slide shows like the one on Deskovic plus a database showing the findings of the Times' efforts to show what happened to the 205 people exonerated through DNA evidence since 1989. Santos and a team of 25 other reporters and researchers tracked down 137 of them, and in this methodology explain the huge project's details. Web designer Tom Jackson and the other writers, researchers, and editors who put "Free and Uneasy: A Year in the World" together have given us a powerful tribute to the advantages of multimedia storytelling.
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Posted at 08:48 AM
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| Doing sleaze with class |
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| People |
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| Wed, November 28, 2007 |
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I picked up this week's People with hatchet in hand. I planned to take a few whacks at the magazine for joining the Drew Peterson media circus in such a spectacular way: with a cover that oozes detective-tabloid seaminess. But I have to admit that the story by Alex Tresniowski and Nicole Weisensee Egan -- with reporting by Steven Gray, Wendy Grossman, Crystal Yednak and Jeff Truesdell -- turns down the volume level set on the cover, and proceeds to tell this admittedly tawdry tale in a measured, reporter-driven evenness that deserves praise rather than accusations of exploitation. (The online version is only a sample. The full story is available only in print.)
The Peterson saga is already a cable staple, and has reached the obligatory hand-wringing stage when we do stories on how many stories have been done (see examples in the Chicago Tribune here and here and Washington Post here). Even the lede of People's cover story tacks that tack (opening scene: the satellite trucks firing up their generators in the wee morning hours). But People puts a team on the story and comes up with a bunch of on-the-record, reported facts (though some key interviews are attributed to the Tribune), including the essential: "a wide-ranging, two-hour interview Nov. 18" for People with Peterson.
If we're going to obsess about yet another missing-woman, low-down-man story -- and of course we always are -- then it's better that it be told the old fashioned way, with reporters on the ground feeding facts to skilled magazine storytellers, than the cable or blogging way of merely blabbing about facts that others have gathered, or about theories pulled from thin air.
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Posted at 01:59 PM
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| Shameless self-promo |
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| ABA Journal |
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| Thu, November 29, 2007 |
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The ABA Journal knows a thing or two about getting bloggers to talk about a magazine. Write about the bloggers! And put them in a magazine-y list, with a public vote on the "best." The Journal has winnowed the list of what it says are 2,000 to 3,000 law blogs to 100 -- the "Blawg 100" -- where LawBeat is included among 13 general-interest law blogs. As of this writing, LawBeat has a humbling three votes -- evidently my mother, wife and daughter have voted, but my son and siblings are on the fence. Still, it's cool enough just to be mentioned (even though I'm something of a poseur on a list that touts itself as "the best Web sites by lawyers, for lawyers"). The real value of such a report, obviously, is that the Journal's Molly McDonough and Sarah Randag have done a fair bit of scouting to help you refresh your law-blogroll. And they've profiled seven of the most prominent law bloggers.
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Posted at 07:24 AM
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| Citing the law in 61 words |
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| The New York Times |
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| Fri, November 30, 2007 |
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Too many stories about the law don't explain the law. The lame excuse we often hear is that space constraints and readers' impatience with technicalities force us to dumb down our reporting. The Times' Richard Perez-Pena today provides a neat little demonstration of how that ain't necessarily so. A complex mix of copyright and procedural law and policy yields a story under 450 words. Perez-Pena at first simplifies greatly -- focusing on the result (the 2nd Circuit has thrown out a settlement of freelance writers' settlement with publishers) -- and quotes one of the parties railing against this "outrage." If the story ended there, it would be yet another example of how we shortchange readers by not revealing why a court has done what it did. But then Perez-Pena wraps up all the complicated wrangling in these 61 words:
In his decision, Judge Chester J. Straub wrote that federal copyright law allows claims for damages only by writers who have registered their work with the United States Copyright Office. The vast majority of freelancers did not register, so he said the courts had no jurisdiction over their disputes, and the case should not have been approved as a class-action suit.
Undoubtedly there's more to it. Undoubtedly there are arguments pro and con (the story then quotes from the dissent, which says the law isn't the final word on jurisdiction). And perhaps the Supreme Court would rule otherwise. But Perez-Pena isn't in the business of analyzing the law and saying who's right. His job is simpler: to reveal the reasoning and legal authority the court used to reach its controversial result. And he did it well.
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Posted at 05:33 AM
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| In your face(book) |
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| 02138 magazine |
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| Fri, November 30, 2007 |
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When I first read freelancer Luke O'Brien's story in the independent Harvard alumni magazine 02138, I thought about slamming it for a host of misdemeanors. The story recounts the allegations of entrepreneurs who claim that Facebook founder Mark Zuckerberg ripped them off. It's an interesting read if you're interested in the Facebook phenomenon. But it's really light on the law -- nowhere does the story explain that business ideas rarely are protected by law, especially in cases (as in this one) where the creators neglect to get a nondisclosure agreement in writing -- and it only mentions briefly, near the end of the story, that the plaintiffs have made a copyright claim against Zuckerberg for allegedly stealing software code. The story never notes the reality of success in business: that someone inevitably comes out of the woodwork to claim that you made your billions (on paper) from their idea. O'Brien's and 02138's real sin is this classically wobbly nut graf:
The media have mostly glossed over ConnectU Inc. v. Facebook Inc., now unfolding in a Boston courthouse. Most articles depict the case as either a cash grab or a blip on Facebook’s march to global domination. But interviews with people familiar with the lawsuit, and a close examination of court records, suggest that, at the least, the case raises troubling questions about the ethics of this new billionaire.
Well, duh! Any lawsuit alleging that you screwed a business partner "raises questions" about ethics. Calling them troubling only moves your foot one inch further out on a limb. So it's a weaselly way of pretending to state a conclusion without really stating one, a flub that's further compounded by a mostly factual account that doesn't do nearly enough to wrestle explicitly with those ethics questions.
But today's Wall Street Journal has a story that puts all that behind us. Because O'Brien and his magazine face a ridiculous attempt by Facebook's lawyers to censor the publication of documents related to the litigation that 02138 has published online here. Facebook claims the documents were sealed and wants, in addition to an emergency order removing the documents from the Web, an explanation of how the magazine obtained them. 02138 founder Bom Kim gives the Journal's Vauhini Vara the answer: O'Brien walked into the court clerk's office, asked for the file, and was handed it, disputed documents included.
Luke, we've got your back. We suspect a number of readers are downloading the documents this very moment. And if the judge does something dopey like granting the motions, then the documents should start popping up elsewhere -- to demonstrate the absurdity of trying to seal evidence that's already been published.
Update: Constitutional crisis averted! Richard Perez-Pena reports in the Dec. 3 New York Times that the judge turned down Facebook's demands that 02138 remove the documents from its Web site. O'Brien and Kim also explain more about how O'Brien got the documents and what went into their decision to publish them. The ruling is a relief. Now I can go back to disliking the article on the merits.
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Posted at 08:17 AM
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| Just what the doctor ordered |
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| Legal Times |
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| Fri, November 30, 2007 |
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Tony Mauro performs an important public service by pressing Chief Justice Rehnquist -- er, I mean, Roberts -- on the state of his health, and writing a story on his failure to answer. As two legal scholars are quoted by Mauro as saying, the press has a duty to ask such questions of Roberts. This is not mere voyeurism. Roberts' health and use of medication affect us all. Whether he can function in the job is of no small concern. His predecessor did the public no favors by concealing the severity of his illness. Let's hope that Roberts realizes his privacy zone has shrunk since he took one of the highest appointed offices in the land.
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Posted at 12:06 PM
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