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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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| Lessons from a science writer |
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| The New York Times |
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| Tue, January 01, 2008 |
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This John Tierney Science Times column on global warming isn't as off-topic as it may seem. In making a revealing point about alarmist news coverage of the weather and global warming, he makes a bigger, even more important point about news and facts in general. It's a thoughtful way to start the new year.
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Posted at 08:39 AM
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| Left up in the air on same-sex divorce problem |
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| The Washington Post |
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| Wed, January 02, 2008 |
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Dafna Linzer does a much better job of illustrating the problem than exploring possible solutions in this Washington Post story today on gay divorce. Financially and legally sophisticated anecdotes make clear what a legal tangle has resulted from Massachusett's same-sex marriage law, particularly when the marriages dissolve in other states. The law of unintended consequences -- and some intended ones, too -- makes for interesting reading. But readers must wait until the very last graf for this:
Andrew Koppelman, a law professor at Northwestern University, published a book in 2006, "Same Sex, Different States: When Same-Sex Marriages Cross State Lines." Koppelman urged states that oppose same-sex marriage to agree at least to perform divorces. "You have to have a way for people to get out of these things -- otherwise, you have multiple claims on the same property and no protections for people entering into new marriages. I think states that try to adopt these rules refusing to recognize the marriages just haven't thought it through."
What are the chances of that happening? Where have advocates pressed for legislation? Who opposes it, and why? Is this a realistic (if theoretical) solution? We'll have to wait for part two, I guess.
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Posted at 06:59 AM
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| Barrett returns to the mother ship |
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| Fri, January 04, 2008 |
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The Wall Street Journal is regaining one of its most formidable legal reporters as Paul M. Barrett leaves BusinessWeek to write news features for the Murdoch-owned daily (reported here by Romenesko). Barrett was a page one editor when he left the WSJ in 2005. Before that -- roughly eight to ten years ago -- he reigned as the last Journal writer to pay sustained, in-depth attention to the business of law (along with his coverage of litigation against the gun industry). The legal connection was evident when Journal editor turned BusinessWeek editor Stephen Adler -- once The American Lawyer editor -- lured Barrett away to head BW's investigative reporting. Adler's memo announcing Barrett's return to the WSJ says Barrett will "write on non-business topics for the front page." Does that mean more law coverage? Maybe. His coverage in the Journal of the American Muslim community has grown into this new book. But his interests, and mandate, appear broader than that. He tells the New York Post's Keith Kelly that as a "senior special writer" his stories will cover a broad range of investigative topics. We'll be watching for his byline and hoping that he turns his considerable scoop-discovery skills toward the law at least occasionally.
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Posted at 07:13 AM
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| Death penalty, in words and diagram |
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| Time |
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| Fri, January 04, 2008 |
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I'm dying to get my hands on a copy of Time (out here in the hinterlands of New York's Finger Lakes, where we think of Syracuse and Rochester as the big but distant cities, hard copies are hard to come by until maybe Monday). I'm prompted by this note at the end of David Von Drehle's provocative essay on death penalty jurisprudence and practice:
[This article contains a complex diagram. Please see hardcopy of magazine.]
Cool. I'd gratefully accept a PDF if anyone cares to waste some time at the scanner. Meantime, the article that inspired this complex diagram is itself remarkable -- and proof, to me at least, of the viability of the weekly newsmagazine. Von Drehle's inclination toward grandiose themes serves him well this time, as he finds patterns among the incremental changes and anecdotes littering the history of capital punishment litigation. This "thoroughly screwed-up system," as he calls it, is in a "slow-motion shutdown." What I most appreciate, beyond the Time-trademarked smoothness of the delivery and the smartness in handling what essentially is a preview of an upcoming oral argument, is the piece's neutrality -- open-mindedness, really -- on a topic that usually and rather predictably sends partisans to their respective battle stations. "The death penalty in the U.S. is a wreck," Von Drehl writes, "but it's our wreck--a collage of American attitudes, virtues and values." He supports that high-concept patter with detail and solid argument in a publicly accessible and important piece. Now, if I could just see the graphic representation of it.
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Posted at 03:57 PM
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| Nicaraguan justice on trial |
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| The New York Times |
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| Sun, January 06, 2008 |
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Marc Lacey's account of a media-frenzy case in Nicaragua involving an American murder defendant goes heavy on the case's procedural twists and turns, but says far too little about the substance of the case. Thus, a reader who hasn't kept up with the heavily covered case (U.S. coverage is indexed in part here by supporters of the American defendant, Eric Volz) would wonder what to make of the vehement claims by opposing sides -- that Volz was railroaded, or is a rich American getting away with murder. It's a story rich in intrigue, and drawing passionate -- critics say unfair and guilt-presuming -- local coverage in Nicaraguan media. Volz was convicted along with others of the murder of his ex-girlfriend. A Nicaraguan appeals court reversed Volz's conviction and 30-year sentence and he fled the country last month, getting some CNN and NBC coverage but surprisingly little in print, considering how many magazines and newspapers featured the case before Volz's victory.
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Posted at 04:36 PM
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| Lethal injection: examining the unknowns |
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| Los Angeles Times |
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| Mon, January 07, 2008 |
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The LA Times' Henry Weinstein takes a slightly off-center tack in this preview of today's much-watched Supreme Court oral arguments in Baze v. Rees. Weintein, in a story datelined Frankfort, Kentucky, examines the level of secrecy that shrouds -- and perhaps provoked -- the Baze challenge from Kentucky and others like it. Weinstein surveys numerous states for examples of battles over basic information about how lethal-injection executions are conducted. It's an informative, solidly reported story. The only mystery: why Weinstein bothered to trek to Kentucky, when most of the reporting was done by phone. (Via Sentencing Law & Policy blog , which is swarming the Baze arguments with multiple interesting posts.)
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Posted at 09:11 AM
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| AmLaw's newest No. 2 |
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| Mon, January 07, 2008 |
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Robin Sparkman is the new executive editor of The American Lawyer. She was named to the vacancy that was created, in chain-reaction fashion, nearly two years ago by Jan Crawford Greenburg's move from the Chicago Tribune to ABC. Greenburg's post was left vacant for 14 months, and then filled last July by Jim Oliphant, editor of Legal Times. Oliphant was replaced in September by David Brown, AmLaw's respected executive editor. Since then, Aric Press, with an able assist from deputy editor and veteran AmLaw senior writer Alison Frankel, held down the fort without a replacement.
Sparkman has been editor of AmLaw spinoff title Corporate Counsel for nearly seven years. Along the way, she added the title of deputy editorial director of American Lawyer Media's national publications. Pre-ALM, she was a writer and editor at MSNBC.com and Newsweek. She is The American Lawyer's third executive editor since I left in June 2004. I had a hand in hiring Sparkman back then for Corporate Counsel, which focuses on in-house lawyers at major corporations. She proved herself to be a talented editor for a magazine that has blossomed into a monthly editorial and business success from its roots as a quarterly supplement to The American Lawyer. Named as acting Corporate Counsel editor is Anthony Paonita, Sparkman's No. 2.
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Posted at 02:23 PM
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| Getting bloggy at the ABA Journal |
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| ABA Journal |
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| Mon, January 07, 2008 |
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Stephanie Francis Ward's feature on blogs' coverage of trials is a mishmash of anecdotes, barely making a point before rushing off to make another. Some points are old news -- Blogs are by anyone, including nuts! And they're opinionated! But they're here to stay, so we have to pay attention! -- and some are just plain old (yet another tale of KC Johnson's influence on the Duke rape case). But buried in the clutter and rambling anti-narrative is an interesting story, and question, about whether defendants will gain a strategic advantage by blogging about their cases in progress. With a little focus, that would have been worth reading more about.
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Posted at 06:19 PM
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| Programming note |
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| Tue, January 08, 2008 |
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I'm headed down south (New York City) for a conference. Returning Thursday afternoon. So my reading and blogging time will be limited. To all my NYC friends whom I did not grace with this knowledge in advance . . . um, this is awkward! Sorry, but I'm booked solid. See you next time.
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Posted at 06:37 AM
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| Throwing the book, methodically, at a victim's betrayers |
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| Los Angeles Times |
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| Thu, January 10, 2008 |
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Here's what dogged reporting and cautious, transparent storytelling can
do to shine the light of accountability on public officials -- without
giving in to the natural urge to point immediate blame until the facts
are in. Last month, a judge in Los Angeles released a man with a
criminal history of abusing his wife. Despite repeated violent
incidents and a plea from the county probation office to hold the man
in jail, the judge allowed the husband out on bail before he was to
start a 16-month sentence for his latest attack on his wife. Over the
weekend, the husband killed his wife and then himself. Too often, such
a series of events would yield screaming headlines about the judge, the
most obvious target. But a trio of LA Times
reporters -- Andrew Blankstein, Mitchell Landsberg and Paloma Esquivel
(a former student of mine at Newhouse, I'm proud to say) -- reported on Tuesday
on the many possible mistakes that led to the crime, using numerous
records and human sources from a variety of agencies. They looked not
only at what the judge did, but at the DA's failure to object to bail.
And, importantly, they disclosed to readers in that first-day story
what they didn't yet know, writing:
It was unclear Monday if Fisher [the
judge] reviewed the Probation Department report or whether she was
fully aware of Harris' criminal record. It was also unclear how common
it is for defendants in such cases to be released before their prison
terms begin.
In a followup Wednesday,
Blankenstein reported the DA's office's preliminary investigation into
a series of lapses, including failing to warn the woman that he husband
was on the loose. There's more to come -- about authorities' failure to
protect the woman when she sought help shortly before her murder, and
about the original bail recommendation -- but the Times' dedication to
pinning down the facts and not letting the story race ahead of those
known facts serves as a model of dispassionate, fact-based reporting on
a highly emotional crime. (Via Gavel Grab, the blog of judicial-independence advocates Justice at Stake.)
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Posted at 06:27 AM
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| Jena 6 portrayed in shades of gray, but incompletely |
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| The Atlantic |
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| Thu, January 10, 2008 |
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Amy Waldman makes an important contribution to the reporting and commentary on the Jena 6 controversy in the January/February issue of The Atlantic (only a tease available here). Unfortunately, she and her editors oversell what her story actually accomplishes. But, so long as readers wear a strong pair of hype-reduction sunglasses while reading her piece, they'll gain valuable insights into this race-drenched criminal case in Louisiana.
What does Waldman do well? Based on her own reporting, she explains why it pays to be skeptical of the claims that Mychal Bell, the most prominent Jena 6 defendant, was railroaded by flat-out racists, both at school and in the courts. She points out that Bell's juvenile record, including an assault that Waldman reports on more fully than before, make him less worthy of the image bestowed on him by protesters and other critics of the prosecution: that of the persecuted innocent. By the same token, Waldman deflates the prosecutor's and other whites' claims of purity, showing them to be patronizing, at best, toward the blacks in their town. Jena's "racial cliquishness" belies its white leaders' claims of racial harmony, Waldman writes. She makes her case clearly and convincingly that, as she puts it, "Neither [side's] version was correct -- and both were. The reality was complex enough that people could assemble a story line, buffet-style, to suit their outlook." She does, in this aspect of the story, what a good magazine writer should do: come in after the crisis is over to tell, through original reporting and fresh analysis, what truths were distorted or missed.
I fault her, though, for not explaining more. What were Bell's codefendants' roles in the beating? What kind of histories and reputations do they have? What was the legal rationale for charging -- pretty clearly over-charging -- Bell with attempted second-degree murder? What evidence was produced at the trial to justify, or not, the felony verdict of aggravated second-degree battery? What, besides political compromise, justified the plea deal for misdemeanor second-degree battery? And how were other beatings and fights handled by those courts? These aren't just another layer of detail, or off the core point of the piece. They are the proof to support the writer's point of view about Bell's and the DA's actions.
If Waldman fell short, her editors went overboard. The headline and deck are part of the problem:
The Truth About Jena
Why America's black-and-white narratives about race don't reflect reality
Too many questions are ignored to hold out this story as "the truth" about the case. It's only a slice of the case, more personality and impressionism than hard facts. And where did that dek come from? The story doesn't even try to broaden the focus to everything that America does with race controversies.
Now that The Atlantic has said as much as it's likely to say on this case, who else will step up with a more complete, but similarly nuanced, portrait of a race-and-crime controversy that was overblown by advocates and poorly explained by too many reporters?
For my previous posts on the Jena 6 case, go here, here, here, and here.
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Posted at 05:53 PM
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| Quote of the day |
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| Associated Press |
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| Fri, January 11, 2008 |
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"What's the difference between a bookkeeper in
New York's garment district and a U.S. Supreme Court justice? One generation."
--Justice Ruth Bader Ginsburg, speaking in D.C. about her participation in PBS' "The Jewish Americans," and quoted by AP's Mark Sherman. Ginsburg's mother, whose parents immigrated from Europe, was the bookkeeper in question. (Via How Appealing)
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Posted at 07:49 AM
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| Lewis to leave Columbia |
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| Fri, January 11, 2008 |
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Tony Lewis, one of the legends of legal reporting, is leaving the faculty of the Columbia Graduate School of Journalism at the end of 2008. Dean Nick Lemann mentioned this on Wednesday at a meeting of the schools in the Carnegie-Knight Initiative on the Future of Journalism Education (Syracuse being one of them, in part because of Carnegie's funding of my legal reporting program). And Lewis confirmed his move in an e-mail, writing:
I'll be 81 years old and will have taught that class for 25 years. Travel has become more burdensome, and I just thought it was time to stop.
That class, as a generation of Columbia grads knows, is on the First Amendment and media law, co-taught with law professor Vincent Blasi. Lewis commutes from Boston.
Of course, Lewis' version of slowing down at 81 is a relative concept. This week he publishes his latest book, "Freedom for the Thought That We Hate," a First Amendment history that builds on his existing, and excellent, history of free expression in "Make No Law: The Sullivan Case and the First Amendment." His first book, "Gideon's Trumpet," was one of my inspirations to be a legal reporter.
Update: Jeffrey Rosen's review of Lewis' book leads the Jan. 13 Times Book Review. Short version: Lewis' "heroic view" of judges and his 20th century-ness blind him to the changing nature of speech and media, but he's Tony Lewis so the book's worth reading.
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Posted at 10:18 AM
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| BusinessWeek's new DC legal writer |
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| Fri, January 11, 2008 |
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BusinessWeek has filled a long-vacant position in DC with Douglas McCollam, most recently a senior editor at Legal Times. McCollam, an American Lawyer veteran, helped run Legal Times in the interim between Jim Oliphant and new editor David Brown. A former practicing lawyer in his native New Orleans, McCollam also has written frequently for Columbia Journalism Review. McCollam replaces Lorraine Woellert, who left for Bloomberg some months ago. The beat includes any agency or court where law and business intersect. He joins quite a talent pool from The American Lawyer and National Law Journal, from the top of the masthead (Steve Adler) on down (Ellen Pollock, Mike France, Michael Orey).
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Posted at 07:26 PM
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| Hometown advantage in l'affaire Scruggs |
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| The Clarion-Ledger |
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| Tue, January 15, 2008 |
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Readers of the dead-tree version of The Wall Street Journal learned today (subscription required, for now) that the judicial-bribery investigation centered on Mississippi plaintiffs' lawyer Dickie Scruggs has widened. Citing a plea agreement unsealed in court documents yesterday, Ashby Jones lays out the basic facts: Lawyer Joey Langston has admitted to a role in an alleged conspiracy to funnel money and a federal judgeship to Hinds County Circuit Judge Bobby DeLaughter to rig a ruling on attorneys' fees favoring the already-wildly-rich Scruggs. Stroll on over to the Journal's Law Blog, which Jones edits, and you'll see posts dating back a week as the scandal's new dimension came into focus. The WSJ Law Blog generously gave credit where it's been due since Jan. 8 -- to veteran criminal justice reporter Jerry Mitchell of the Jackson, Miss., Clarion-Ledger. Mitchell broke the news a week ago, using documents and sources to track a grand jury's progress. He followed it up on Sunday and then again today as the plea deal was unsealed. DeLaughter isn't talking now, but he emphatically denied to Mitchell taking any favors from anyone.
Mitchell's renown stems from his groundbreaking investigations of unsolved civil rights murders -- one of the most famous of which put DeLaughter in the role of good guy. DeLaughter successfully prosecuted Byron De La Beckwith for the murder of civil-rights leader Medgar Evers, in a case that Mitchell breathed life into (disclosure: I unfavorably reviewed DeLaughter's memoir about the case in The American Lawyer).
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Posted at 09:34 AM
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| In praise of resource pages |
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| Sex Crimes Blog |
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| Tue, January 15, 2008 |
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The excellent Sex Crimes Blog has started a resources page on this term's Supreme Court case on the death penalty for child-rape. Beyond the pleadings in the case, it's a rich archive of the blog's previous posts (which in turn link to news stories). A variety of sites already do a good job of tracking the Supreme Court's docket. But when a legal-specialty blog dives into a case within its expertise, it's an even better resource for reporters who are localizing a national story or parachuting into the Supreme Court story.
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Posted at 09:46 AM
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| Can "The Wire" teach good journalism? |
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| The Washington Post |
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| Wed, January 16, 2008 |
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Watching my favorite show, HBO's "The Wire," has become far more than a one-hour weekly commitment, what with a non-stop yakfest among journalists over creator David Simon's depiction of his former newspaper home at the Baltimore Sun. It's a great sport -- neatly summarized today in the Washington Post by David Montgomery -- and helped in no small measure by journalists' endless fascination with themselves, and with Simon's pugilistic responses to perceived critical and personal slights. Even before this year's news theme, I've found a fix for my addiction to crime stories. The courts reporter in me hasn't been fed all that well. Lawyers and judges have played bit parts in the series (and yes, I've seen every episode, in real time, of all five seasons). But a crime reporter can feast on Simon's bleak but epic tales of social disorder, revolving around our failed war on drugs. While some of my fellow journalists bemoan a supposed caricature of newsroom types in the latest episodes, I see useful lessons for the public in what Montgomery describes as "accusations and insinuations of grubbing for prizes, gutting coverage and favoring the sweet tale over the complex truth." What kinds of lessons? The same kinds "The Wire" has taught about citizenship: by showing deeply complex people -- corner boys, cops, drug kingpins, dock workers, teachers, and politicians alike -- wrestle with good and evil. They rarely win outright. They often fail miserably. But a discerning viewer is forced to think about ethical behavior, which sometimes is left only to the imagination -- what might have been, but wasn't. When we see reporters, editors, and news executives take the wrong path, the story illuminates what is the right path. Why do we need in-depth, honest reporting about crime and poverty? We're being reminded every Sunday night.
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Posted at 08:53 AM
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| A 9-0 reversal? Sorry, my bad! |
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| Thu, January 17, 2008 |
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What a perfect example of the difference between judging and policy-making. The Supreme Court's decision yesterday in New York State Board of Elections v. Lopez Torres (pdf file) -- a challenge to New York's much-maligned system of electing trial judges -- neatly illustrates several points that I and my fellow teachers in this new course on law, politics and media were making yesterday in our first session.
Ever since a federal district judge in January 2006 ruled the state's election scheme unconstitutional, and especially after the 2nd U.S. Circuit Court of Appeals affirmed that decision, reporters covering the fallout have tended to accept without skepticism that the system is irretrievably broken. The only real issue has been what solution the state Legislature (insert snide adjectives here) would craft, now that it has a judicial gun to its collective head. Rarely if ever in that political and legislative news coverage did reporters hit the pause button and turn their attention to whether the courts that had heard the case thus far were on solid ground.
I know I was guilty of that, and more, in covering one of the legislative hearings convened after the state lost its appeal. Given one day to digest a complex political chronology, I read some news stories about the courts' decisions; skimmed the 2nd Circuit's decision; read some of the advocates' summaries of those decisions; talked to as many experts I could about what the future held; attended the hearing; and banged out a story in a couple of hours on deadline. I focused on the policy choices that would respond to the rulings, but didn't question the rulings themselves. In part, that was simply a creature of the assignment: to report on a hearing that focused on what the state should do to replace its system of electing trial judges. This wasn't, at that stage, a debate about the merits of the rulings, which held that the state's system violates candidates' and voters' First Amendment rights of access to the ballot and of the right of association.
If that sounds like the legal stretch that it is, the outcome of the decisions didn't seem nearly as far-fetched. Explicitly or not, reporters like me were thinking that the state's system of letting political bosses essentially choose trial judges who then run unopposed in sham elections is so obviously rigged and wrongheaded that the courts must be correct. A breathtaking (in retrospect) example is this line by Times metro writer Joyce Purnick, in a glowing portrait of plaintiff Margarita López Torres following her victory in district court:
An appeal is expected, but Judge John Gleeson so thoroughly discredited the cooked selection process that it is hard to see how it can survive.
Now that the supposedly perfunctory appeal has turned out otherwise -- and, in fact, the legal question (as distinct from the policy question) is a slam-dunk and emphatic "no" -- the prospects for legislative reform appear unlikely. Judicial Reports' Jason Boog, who's covered the story more heavily than most, lays out the options in this story.
More to the point of this blog, yesterday's high court decision reminds us, in Justice John Paul Stevens' words, of "the distinction between constitutionality and wise policy." Linda Greenhouse's story on the decision bluntly assesses the reformers' failure to convince "a single justice [of] the plaintiffs’ claim that the system was unconstitutional." Of course, Greenhouse told us it would be so in her story on the case's oral arguments last October. That was the consensus among experts and in the stories at that stage of the case, but by then many of us had treated court-imposed change as inevitable.
So what are the remedies? More skepticism about the legal merits and survival prospects of lower court decisions, and taking the time to examine those factors while politicians react to court-ordered reforms. Not assuming that good-government types have as solid a legal cause as they do a political one. And carefully reading the court decisions that start such debates -- with expert interpreters by our side -- to explain better what exactly a court meant when it found something unconstitutional. Was it a clear-cut conflict with the express terms of the Constitution? Or was it merely a desired outcome searching for a legal justification?
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Posted at 09:47 AM
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| A 19-year-old question produces results |
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| Times Herald-Record |
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| Thu, January 17, 2008 |
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Christine Young of the Middletown, N.Y., Times Herald-Record has produced an impressive investigation of a possible wrongful conviction. Her report -- told in an ambitious multimedia package from a team of editors and designers who are given full credit on the site -- focuses on claims of a false confession that put Lebrew Jones in prison for the 1987 murder of prostitute Micki Hall. Jones is about 19 years into a sentence of 22 years to life. The murder occurred in New York City, but Young investigated it for two reasons. First, Jones is imprisoned near Middletown. Second, and far more interesting, is Young's connection to the case: a marvelous story in itself. A journalism student in New York in 1989, her reporting on other stories led her to a Salvation Army worker who had met Hall shortly before the murder. Young also had met the lead detective, whose precinct was nearby Young's apartment. Young reports that as a result of the dual acquaintances, she stumbled upon evidence in 1989 that neither side in the Jones case made effective use of. That evidence, if true, ruins the prosecution's theory of when the murder occurred -- and exonerates Jones. Young revisited the case when she started work in Middletown. The DA has reopened the case, but has not yet announced what investigators have found. Young weaves a compelling narrative about the questionable case against Jones, and her own role in i. She interviews him and the victim's mother -- who also believes in Jones' innocence -- and develops a theory about the sort of killer who would have committed the crime. It's great stuff, told creatively. One nitpick: Neither the Herald-Record's special site for this report nor the paper's main site clearly tells when this was published. As best I could tell, it was about two weeks ago. (Via IRE.)
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Posted at 12:57 PM
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| Margolick to Portfolio's rescue |
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| Fri, January 18, 2008 |
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I've been one of Portfolio's happy charter subscribers (unlike the many commentators who mock the big Conde Nast business start-up). But one thing lacking has been prominent legal affairs stories. Now that may change, big time. The New York Observer's John Koblin reports that Vanity Fair's David Margolick is joining Portfolio as a contributing editor. Margolick covered the O.J. Simpson trial, and less notoriously the business of law and legal-affairs issues, for The New York Times. He toiled long ago toiled at the National Law Journal. Most recently he profiled New York Gov. Eliot Spitzer for Vanity Fair. His greatest legal-reporting moment at Vanity Fair was the October 2004 piece he co-authored with Evgenia Peretz and Michael Shnayerson that told the behind-the-scenes Supreme Court story of Bush v. Gore (alas, no link available). I don't always agree with him, but there's no doubt that he's among the top legal writers -- and should punch up Portfolio's legal smarts.
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Posted at 06:36 PM
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| Texas indictment provides teaching moment |
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| Sat, January 19, 2008 |
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A state Supreme Court justice is indicted. The district attorney immediately dismisses the charge for lack of evidence. Grand jurors speak out, claiming the DA is playing politics. The grand jury could keep investigating -- or not -- and keep indicting. And the DA could likewise keep dismissing the case. Those are the facts that have played out since Thursday in Houston involving Texas Supreme Court Justice David Medina. A county grand jury in Houston indicted Medina and his wife on charges related to the fire that destroyed their expensive Houston-area home last summer. The fire was ruled arson.
In all of the first- and second-day news coverage -- by the AP's Michael Graczyk, the Fort Worth Star-Telegram's John Moritz, the Austin American-Statesman's Chuck Lindell, The New York Times' Texas-based correspondent Ralph Blumenthal, and in most of the coverage by the main hometown newspaper on the scene, the Houston Chronicle. But just as I was despairing that no one was helping readers get such questions asked, I came across a Q&A by Houston Chronicle legal affairs reporter Mary Flood. Based on interviews with experts, Flood clears up the confusion in few words. Here are some highlights:
Q: If a grand jury found enough evidence to indict, can a prosecutor drop the charges?
A: Yes, a prosecutor can immediately drop the charges.
A grand jury decision does not not bind the district attorney to prosecute the case.
This is because the prosecutor is the representative of the state, responsible for proceeding in criminal cases in which there appears to be sufficient evidence to likely get a conviction. The prosecutor also has a duty not to proceed when it appears there is not enough evidence.
The grand jury is designed to protect citizens from overzealous prosecutors. It is not designed to protect the public from prosecutors who won't proceed on a case.
Now it makes more sense. Flood also followed up with helpful links to more grand-jury explanations on her blog.
As an aside, and spoken as a longtime Texas-based journalist, I can't help but express dismay when I see The New York Times deploying more staff resources to cover this story than the Dallas Morning News and Austin American-Statesman. The former appears to have used AP coverage throughout. The Statesman staffed the story on Thursday but seems to have defaulted to AP on Friday, when the charges were dropped. Unless I'm missing something on those papers' Web sites, I'm left wondering what constitutes news important enough to warrant assigning reporters to cover it.
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Posted at 09:12 AM
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| Amicus filings and conflicts |
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| The New York Times |
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| Sun, January 20, 2008 |
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New York Times public editor Clark Hoyt sides with Linda Greenhouse and Times editors in a dispute over an alleged conflict of interest. Hoyt articulates sensible policies, and takes a justified shot at Greenhouse's accuser. But what he doesn't articulate clearly enough is an ethics policy that responds directly the central questions posed by the complaint.
Hoyt's column and the complainant's blog posts (linked below) describe the background to the dispute in detail. In a nutshell: Greenhouse critic and former Antonin Scalia clerk M. Edward Whelan III, president of the Ethics and Public Policy Center, has been blogging at National Review Online's Bench Memos that Greenhouse has a conflict of interest in covering challenges to the Bush administration's military-justice cases where Greenhouse's husband has participated in amicus briefs. Her husband is Eugene Fidell, a D.C. lawyer whose National Institute of Military Justice has taken public stands against the administration in key court cases, including one that's pending at the Supreme Court. The essentials:
- Whelan calls Fidell's advocacy a direct conflict of interest for Greenhouse. Greenhouse disagrees, saying there's a big difference between covering a spouse as counsel to one of the parties or a spouse as one of many amicus advocates.
- Greenhouse cleared her actions with her bureau chief and upper-level editors. But Hoyt urges disclosure to readers (in, for example, an official bio) when Greenhouse and her husband cross paths to this extent.
My take: Whelan has raised a legitimate issue that deserves the scrutiny it's now getting. But giving him credit requires holding one's nose while wading through his anti-Greenhouse screeds (which he's most recently posted on Dec. 13, Dec. 20, Jan. 14, and Jan. 17, in parts 1 and 2). Hoyt called Whelan's tone "bullying." I'd call it paranoid. But, no matter how overwrought, at its root is a fair question: When does a spouse's public expressions of political and legal positions pose a conflict, real or perceived, for the legal reporter? Is an amicus brief "participation" in a case, or merely expressing a point of view akin to a bumper sticker or signing a petition, or something in between? And how are reporters' conflicts of interest best handled: through recusal or disclosure?
Hoyt could have done a better job of explaining the arguments and his responses. I think he arrived at a fair conclusion in this case. The rules of engagement remain murky, however. Perhaps we can count on Whelan and the rest of the Greenhouse-hating gang to bring more test cases.
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Posted at 12:49 PM
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| Canary in a Cleveland coal mine |
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| The Plain Dealer |
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| Mon, January 21, 2008 |
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That wacky Congress! Rachel Dissell and Gabriel Baird of the Cleveland Plain Dealer document the early, and messy, fallout from one state's enactment of legislation to comply with the federal Adam Walsh Child Protection and Safety Act. Their story serves as a map for others to localize the story of what's meant to be a nationwide crackdown on sexual predators. Is the story too relentlessly negative? Perhaps, but that's easily cured with more comments from proponents, and maybe a sidebar on what Congress heard before it acted. (Via Sentencing Law & Policy Blog)
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Posted at 12:15 PM
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| Greenhouse's "conflict," again and again and again |
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| Tue, January 22, 2008 |
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Ed Whelan at Bench Memos answers Clark Hoyt, the New York Times public editor who wrote on Sunday about Whelan's conflict-of-interest accusations against Linda Greenhouse. The answer is in three parts (so far), here, here, and here. Its third part conveniently indexes Whelan's dozen or so past posts on -- or, I should say, against -- Greenhouse's Supreme Court coverage. Whelan's latest postings burn with righteous indignation, but shed no new light on his mildly interesting but fundamentally trivial concern. Whelan is prosecuting this as if a public official had violated an explicit regulation or statute. If he wants to write about supposed political bias in legal reporting, he should work harder to prove, with evidence, actual mistakes and bias in the substance of news stories that Greenhouse or others feed to the public. Otherwise, all we have here is a bunch of screeching about a perceived (and vastly overblown) procedural matter. Yawn.
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Posted at 03:55 PM
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| Left-right logic on Planet Whelan |
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| Thu, January 24, 2008 |
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So now I've entered Ed Whelan's orbit, or he mine. Just one response is needed: What in my postings about the Greenhouse controversy would lead one to believe I am a lefty? Evidently we can only be one thing: Enemies or Friends, Left or Right. I thought his attack on Greenhouse to be over the top -- not unfounded, as I said at the outset, just overblown -- so therefore I am not with him, I am against him. Ergo, I'm a leftist and what I believe about journalists and their critics is driven solely by "political animus." Doesn't that simplicity demonstrate all we need to know about the intellectual integrity of Whelan's underlying critique?
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Posted at 10:26 AM
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| Jena coverage, in three takes |
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| American Journalism Review |
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| Thu, January 24, 2008 |
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Raquel Christie's analysis of media coverage of the Jena, La., incident wins points for the most words published so far on the topic. But that's about it. The story's a muddle.
Throughout the first 3,000 words of the 7,000-word story, the message is as clear as it is outdated: The national media were slow to grasp a story of racial injustice. Then the story documents why the original narrative of racism and callous, white officialdom was exaggerated, clouded by contradictions, or just plain wrong. Finally the story explores what might explain the press' laziness or jumps to conclusions. Only the last part is truly fertile ground. The debunking of the Jena myth (or at least the adding of detail and nuance to show how it wasn't a simple tale) has been told many times by now. When Christie does explore new territory, it's a quick-hit, talking-head treatment. A story of this length might have had a clear perspective on what went wrong in Jena and among the reporters who covered it. Instead, we have a notebook dump without a defined and proven point.
What's most fascinating about the Jena episode -- and Christie does touch on this, though too briefly and without focus -- is its similarities to the Duke affair: rush to judgment, fueled by activists and some reporters' attraction to white-man-bad narratives. We'll have to wait for a more coherent telling of that story.
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Posted at 09:11 PM
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| Laws on photos in soft focus |
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| Orange County Register |
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| Fri, January 25, 2008 |
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The Orange County Register's Scott Reid and Dan Albano did admirable digging to tell this story on gay-porn Web sites that thrive on photographs surreptitiously made of young boys at swim and water-polo competitions. The photos of the boys in swim suits, caught sometimes in suggestive poses, are juxtaposed with explicit sex photos. The reporters zero in on a suspect, and generally do a good public service by bringing news like this to light, as alarming as it must be to the swimmers and their parents.
But (there's always a "but"!) they could have been much clearer about what the law does or doesn't say on such matters -- and, importantly, why. The story raises a fundamentally legal set of questions -- what can be done to cure this problem? why or why not? -- so it's disappointing that this is all that's said on that score:
“With free speech and photography, there’s a gray cloud in terms of what is legal, constitutional,” said Assemblyman Jose Solorio, D-Santa Ana, chairman of the Assembly Public Safety Committee. Solorio, after being informed of the Register’s finding, said he will have the committee’s staff investigate the matter. “The courts have generally favored free speech. But (the fact) that these photos are on Web sites, pornographic Web sites, raises valid questions about its legality,” Solorio said. But Assemblyman Cameron Smyth, R-Santa Clarita, and constitutional law experts said the photographers are protected by the First Amendment. “Based on our research, we have found it’s very hard to regulate images on the Internet,” Smyth said.
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Smyth has authored the Surrogate Stalker Act (AB534), which would make it illegal to use Internet images to inflict harm on children.
The story might have touched on the long history in Congress, the courts, and the states to attempt to define illegal depictions of children in sexual situations, and access to those images and ideas on the Internet. And it might have summarized what courts have said about privacy, photographs taken in public places, and private citizens' ability to sue for embarrassment, stalking, harassment, or any other issue raised by this case. But the story doesn't go there. So it's not unreasonable for readers to lash out at fuzzy constitutional abstractions that allow for such misbehavior. And maybe they're right. But why not go well beyond an obligatory and oblique mention of the First Amendment to educate readers a bit?
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Posted at 05:17 PM
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| Capital punishment's price tag |
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| The New Yorker |
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| Mon, January 28, 2008 |
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Jeffrey Toobin's New Yorker feature on the Brian Nichols case breaks little new ground. But, for those of us outside Georgia who haven't followed every blip in the case, it serves as a thorough, thoughtful summary of a case that has ground to a halt over arguments concerning the state's financing of Nichols' defense. Nichols is charged in the murders of four people -- a judge, court reporter, deputy, and federal agent -- in a shockingly violent March 2005 Atlanta courthouse escape. Though Toobin covers familiar ground, this is no mere clip job. His on-the-scene reporting, interviews with key players and experts, and fluid storytelling render an emotional political case in nuanced detail. And he has, perhaps appropriately, no clear pro-prosecution or pro-defense point of view. Here's his nut-graf description of the message to take away from the case thus far:
The Nichols case illustrates a troubling paradox in death-penalty jurisprudence: the more heinous a crime -- and the more incontrovertible the evidence of a defendant's guilt -- the greater the cost of the defense may be. . . . [S]pending large sums of public money on the defense in capital cases is politically incendiary, and in Georgia the consequences may be cataclysmic.
Via How Appealing.
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Posted at 08:39 AM
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| Another "American Exceptions" installment |
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| The New York Times |
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| Tue, January 29, 2008 |
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I was right about the timing of Adam Liptak's next "American Exceptions" dispatch. Today's is right on schedule, and a lamentably infrequent schedule it is. Still, it was worth the wait. Liptak's curiosity this time takes him to the weird world of bail bondsmen. Rather than focus heavily on the oft-told tale of bounty hunters, he examines the more fundamental oddness of our system of privately financing pretrial release. If a bunch of veteran legal editors and writers were to examine these story ideas before they were Liptaked (Liptacked?), they'd likely label them old news. But it's refreshing to step back and ask basic questions about how our institutions work, and whether they're the only way to get the job done.
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Posted at 07:50 AM
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| Another nail in the coffin of judicial openness |
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| Thu, January 31, 2008 |
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An unguarded comment by an Atlanta judge to The New Yorker's Jeffrey Toobin gets the judge booted from the prosecution of courthouse murder-spree defendant Brian Nichols. Superior Court Judge Hilton Fuller, whose controversial handling of the case had drawn national attention in the first place, was quoted by Toobin as saying this about Nichols' mental-health defense: "That's their only defense, because everyone in the world knows he did it." Now the judge is accusing Toobin of breaking an agreement to keep the judge's comments on background. On Tuesday, the Atlanta Journal-Constitution's Beth Warren wrote:
Fuller said Tuesday the conversation was meant to be off the record and was "deeply disappointed" that his comment was included in the article. "It was a lengthy conversation for background," said Fuller, reached by telephone. "I don't recall saying that, but I'm not saying I didn't say it. He was not to quote me with any direct quotations," the judge said of Toobin. Not so, says Toobin. "The conversation was clearly on the record," Toobin said by phone Tuesday. A fact checker also verified details of the story with the judge's office last week, Toobin said.
Greg Land of the Fulton County Daily Report has the same back-and-forth in his story, with Fuller adding that the New Yorker fact checker checked other details about the case but not Fuller's comments on Nichols' evident guilt. That should be easy enough for The New Yorker to rebut, with the fact checker's statement or notes, should it come to that (and it probably won't).
The more lasting impact is the chilling effect this has on any other judge who might choose, as Fuller explained, to help a writer navigate a complex case (and put his spin on his controversial rulings). Legal ethicists, of course, shudder at the thought of a judge speaking to a reporter while a case is pending (or anytime else, for that matter). But good reporting depends on access and insight, which rightly can come -- on the sly, or in the open -- from the judge. It's certainly not Toobin's fault, in my view, that this case will be a shot across the bow of any other judge hoping to have that kind of sit-down with a writer. He couldn't ignore the comment, after all. But that is, in fact, how the case will stand as an example in the sorry annals of bench-press relations.
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Posted at 06:46 AM
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