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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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| Fetal-homicide followup: enterprising, but a few holes |
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| McClatchy Newspapers |
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| Tue, September 02, 2008 |
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Kudos to D.C.-based Michael Doyle for asking whether the claims, pro and con, that were made when Congress debated the Unborn Victims of Violence Act have proven true. The answer: No, on both counts. Neither the great benefits nor the horrors that proponents and opponents predicted have happened, Doyle reports. The law -- also known as Laci and Conner's Law for the Laci Peterson case that inspired it -- is pretty much a dud so far. Doyle turns that fact into a story by examining why the law hasn't fulfilled various hopes and fears; looks at a handful of cases where the law might have been used, but hasn't been; and talks to advocates on both sides to ask whether the law has had more subtle effects than a pile of prosecutions. Doyle could have been clearer on a few crucial details: when the law took effect and why prosecutors aren't using the law in particular cases. He also doesn't explain whether his source on the lack of prosecutions, the Bureau of Justice Statistics, is definitive and up to date. But the story generally holds up as a smart, enterprising followup. (Via How Appealing)
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Posted at 09:33 AM
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| Newsweek critic shoots, misses |
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| Romenesko |
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| Tue, September 02, 2008 |
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A University of Texas-El Paso psychology professor, who volunteered his consulting to the defense in the Mineola Swingers case in Tyler, Texas, used the well-read Romenesko letters section to accuse reporters covering the case of "shallow, sensationalistic coverage." The professor, James Wood, likens the case to the hysteria in past cases over unreliable sex-assult allegations by children against adults. But Wood's one named target, Newsweek.com's Gretel Kovach, objects to Wood's depiction of her August 23 story as uncritical of the prosecution. She's right. Although the central character in her story believes the child-witnesses' stories of being raped for the entertainment of patrons at the sex club, much of the story focuses on doubts about the evidence and claims that the witnesses were coached to railroad the defendants. And what of Wood's broader point? Let's hope a reporter with access to the extensive background on the case, and the time to explore the story, will evaluate the coverage.
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Posted at 12:20 PM
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| Law in the Green Zone |
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| The American Lawyer |
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| Tue, September 02, 2008 |
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Discussions between magazine writers and their editors aren't always fit for public consumption. But this one is: Robin Sparkman interviewing Ben Hallman about his cover story in the September issue of The American Lawyer. Sparkman, the magazine's executive editor, walks Hallman through a how-he-did-it discussion that's a useful and interesting lesson in telling complicated, deeply reported tales. Hallman's story (which is currently available only to paying subscribers, unlike the audio interview) examines the U.S. effort to build a stable legal system. He tells the story through Wilson Myers, an "unlikely nation builder" who's serving in the Green Zone as a civilian lawyer helping with the rebuilding campaign. Hallman, who blogged from Iraq back in April, weaves details about the unflashy Hallman into a story stuffed with details about a legal makeover that sounds as challenging as Iraq's security makeover.
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Posted at 02:30 PM
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| Brandweek writer's two-year quest for court file |
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| Judicial Reports |
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| Tue, September 02, 2008 |
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Jim Edwards may have just screwed the pooch. But I applaud his moxie -- not only pressing for access to public court files for two years, in a New York civil suit that's newsworthy and inexplicably kept private, but now he's taken it public in this Judicial Reports story. Access to public court records should not be so difficult. Reporters, as proxies for the public, are not the enemy. Now we'll see if the judge has any sense of shame.
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Posted at 08:24 PM
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| Glater exonerated in yachting-story mishap |
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| The New York Times |
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| Wed, September 03, 2008 |
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On Sunday, I dinged Jonathan Glater of the Times for incompletely telling the tale of an America's Cup yachting dispute between two billionaires. Today's Times puts the blame where it belongs: on Glater's editors. The updated version of the story includes a correction that explains what I found lacking. It's the responsible thing for the Times to do for its readers, and for Glater. But what's with the passive-volce construction -- "the details of the legal dispute were deleted during the editing process"? As if it was all a mystery, rather than saying an editor deleted the details. This reminds me that I shouldn't assume that the bylined writer committed a writing crime. I sometimes speculate that the blame lies either with the writer or his editors, but I didn't do that in this case, and so I apologize to Glater.
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Posted at 04:07 PM
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| Kristof's readers write a valuable P.S. |
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| The New York Times |
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| Thu, September 04, 2008 |
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When I praised Nick Kristof for the way he handled his Steven Hatfill apology, I promised to revisit the public comments on his column. And they're worth everyone's time. On a single day, before the Times closed the discussion, the board filled with 149 comments that remind me why we journalists need more direct exposure to our readers. Too often, I and others dismiss the public conversation as useless noise. Certainly there are many dismal examples to support that. But this thread supports the opposite notion: that our readers can be thoughtful and can provide much different perspective on what we thought we knew when we published a piece of reporting or commentary.
The comments cover a wide range: Gratitude and respect for Kristof's humility and for his hypotheticals that illuminated tough ethical decisions. Disdain for arrogant or ignorant journalists. Healthy skepticism for, or trust in, law enforcement -- and wildly extreme doses of both. Not everyone appreciates the journalist's impulse to reveal details from a criminal investigation, as explained in this thoughtful post:
As some commenters have pointed out, the Times & other respected media outlets too often have erred on one side or the other when it comes to what is fit to print.
Writing as a person who once had a comparatively minor "Richard Jewell moment," I can tell you there is little that is more unsettling than being suspected of a crime one did not commit, especially when the suspicion was created by a (in my case very slightly) heroic act -- in some ways, I imagine it is worse than being caught for having actually committed a crime.
To have that suspicion made public, to be known in the public arena only as "a person of interest" would be mortifying & life-altering.
And many took issue with Kristof's quotation of the old muckraker's creed, put most succinctly in this post:
"The job of the news media is supposed to be to afflict the comfortable and comfort the afflicted." [Quoting Kristof's column]
NO, that is NOT the job of news media. The job is to report news. That construction presupposes the "comfortable" are blameworthy and responsible for the "afflicted". It presupposes the "afflicted" are blameless victims, not responsible for their plight.
The most valuable theme: smart readers refusing to buy everything Kristof asserts as true, and discussing important issues in a civil tone. Too many journalists ignore the existence of such readers, and reading the comments will help us keep them in mind as we do our work.
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Posted at 10:52 AM
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| The death of legal journalism (slightly exaggerated) |
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| Washington Lawyer |
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| Thu, September 04, 2008 |
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Journalist Sarah Kellogg wrote a long reported piece in the September issue of Washington Lawyer, published by the D.C. Bar, on the decline of traditional legal journalism and the rise of citizen media and other forms of Web-based legal information outside the confines of mainstream news media. The piece is loaded with stats and examples. Its central premise -- "The days are waning for in-depth coverage of the courts by the mainstream news media," as she puts it -- seems a tad overstated. Wherever did she get such a notion? Well, I'm quoted to that effect. So much for Kellogg's expert sources. Despite the lack of nuance on that point -- where she sees "general legal news . . . limited to celebrity arrests, occasional political scandals in Washington or statehouses, and explicit details of nasty homicides," I see tons of examples daily of enterprising, in-depth coverage of legal issues and serious cases -- I agree with her that the trends are in the wrong direction: fewer courthouse reporters and legal-policy pieces, more missing-white-women sensational "news" yak-fests. The story asks useful questions about how the public is served by citizen journalism of undetermined credibility, or when information comes from government, business, or advocacy groups unfiltered.
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Posted at 11:38 AM
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| Final reminder: Monday's fellowship deadline |
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| Thu, September 04, 2008 |
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There's still time to apply for a $3,000 legal-reporting fellowship. The deadline is Monday. If you want to get all legalistic about it, that means by 11:59 p.m. EDT on Monday. Let your freelancer friends know.
Update: We're having a bad Internet day here. The page with the forms disappeared, and the link in in the navigation bar above goes to the wrong page. Here is a link to the guidelines for the program, and a link to the application form.
Update II: The Internet gods smile on us (thanks, Greg). The main page for this program is back up. Good applications already have come in. Many more are promised. You have until Monday night. Contact me if you need any info on this over the weekend or on Monday.
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Posted at 07:33 PM
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| New book on Nebraska Press case |
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| Legal Times |
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| Fri, September 05, 2008 |
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In his post about a panel discussion in Washington last night, Tony Mauro breaks the news -- well, news to me -- that a University of Nebraska historian, Mark Scherer, has written a new book on one of the most important Supreme Court cases for legal reporters. The book, Rights in the Balance, examines the Nebraska Press Association v. Stuart case, which effectively banned censorship aimed at preserving defendants' fair-trial rights. Along with the Richmond Newspapers case on a First Amendment right of access to criminal trials, the Court gave legal reporters and the public powerful tools to watch their legal system at work. I look forward to reading the book.
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Posted at 01:02 PM
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| Conservatorship: the mystery of the day |
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| Mon, September 08, 2008 |
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So, by what authority can the U.S. Treasury take over the two publicly owned mortgage-finance giants, Freddie Mac and Fannie Mae? Good luck finding the answer in first-day coverage by the big three that you'd expect have more answers than others: the Journal, Times, and Post. In roughly that order, the papers' coverage is in many ways ambitious and comprehensive. But it's long on finance and politics, and short on law.
The Journal's lead story, by James Hagerty, Ruth Simon, and Damian Paletta, calls the move the government's "most dramatic market intervention in years." The Times' lead, by Stephen Labaton and Edmund Andrews, calls it "an extraordinary federal intervention in private enterprise." Where does the magic wand come from? We learn in various stories -- such as this unsigned fact sheet in the Post -- that a conservatorship is sorta like bankruptcy, and the rescue plan is sorta like a prepackaged bankruptcy. No explanations go beyond that, unless you count the Times' link to a fact sheet from the Federal Housing Finance Agency, giving a dreadfully dry and citation-riddled explanation of conservatorship.
Post business columnist Steven Pearlstein hints at the dealmaking realities -- the companies' legal options to fight were limited by their financial weakness, and so the government made them an offer they couldn't refuse -- but he also skips past the details as though they are an afterthought. We get precious few reminders of Treasury's trip to Congress earlier this summer for the authority to do what it's doing. The papers provide no explanations that I can find of whether that policymaking round created this solution, or if it's from existing law.
Maybe those details are beside the point. But then why not make that point? A sentence or two explaining that the legal authority for this is or isn't murky, and that the legal procedures have been short-circuited by the financial realities (if that's the case); or that reporters couldn't find all this out on short notice; or whatever the case. Instead, taxpayers are handed a puzzling word, conservatorship, and evidently must imagine the details -- or simply see government as having the brute force to do what it wants.
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Posted at 08:06 AM
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| Chron scrutinizes Kent case gag order |
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| Houston Chronicle |
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| Tue, September 09, 2008 |
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The Houston Chronicle's federal courts reporter Mary Flood reports on a strict gag order imposed in the pending criminal case against federal judge Samuel Kent. Flood's straight-news approach is nonetheless transparently skeptical about how far the visiting judge in the case, Roger Vinson of Pensacola, will go to inhibit publicity -- and public information -- including his revelation in the gag order that he intends to hold some hearings in chambers. Flood writes:
This gag order is an unusual move for a federal judge. Though the Houston Chronicle and the Galveston County Daily News have covered the case for some months, the coverage of Kent has not been particularly vast, compared with other Houston stories. No gag orders were issued in the multiple Enron criminal trials where media coverage was far more extensive and federal judges here repeatedly sat juries from the 13 counties that feed the federal Houston jury pool.
Chron metro columnist Lisa Falkenberg chimed in with a bold, clear-eyed column making plain what's at stake:
Of all trials, one involving a public servant charged with violating the very laws he was appointed to a lifetime bench to uphold should be conducted in the light of day.
Light, after all, is what got this case to the courtroom in the first place.
She's referring to reporting by the paper's Lise Olsen, which brought the accuser's story into public view -- and took a case that had been dealt with internally, and leniently, to a new level. Bravo to the Chronicle's team for giving scrutiny to the way the Kent case continues to unfold.
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Posted at 04:47 PM
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| Greenburg and veep race: now it makes sense |
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| ABC News |
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| Tue, September 09, 2008 |
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Back when Jan Crawford Greenburg announced she was pulled from the Supreme Court beat to cover the vice presidential races, I groused about ABC's lack of support for the law beat. But Greenburg's remarkable Legalities blog post today -- cheekily titled "Girltalk" -- wipes away any regrets. In the long post, Greenburg dishes about the Sarah Palin selection process, but more importantly uses her own experiences as a reporter, and interviews with another groundbreaking female appointee, Sandra Day O'Connor, to make a poignant, moving statement about women and history and politics -- remarkably, without sounding at all partisan, pro- or anti-Palin. It's a memorable piece of analysis and revelatory writing. ABC, I forgive you.
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Posted at 08:55 PM
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| Symposium explores new media and legal reporting |
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| Wed, September 10, 2008 |
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A University of Arizona Rehnquist Center symposium, "New Media and the Courts," held yesterday in Tucson, looks like it was a thoughtful, star-studded affair, with reporters Joan Biskupic and Tony Mauro, among others -- not to mention a Supreme Court justice (Stephen Breyer) for added spice. Several panels discussed the changing role of the journalist and blogger, and courts' increasingly active attempts to use the Web to inform the public. The program's Web site promises symposium materials at some point (no mention of video). So far, the most complete account is this newsy news release by La Monica Everett-Haynes. (Via How Appealing).
Update: Tony Mauro posted a detailed and informative report from the Tucson conference, and promises more to come in future posts. He reports on the discussions citing courts' increasing willingness to play publisher:
Some federal and state courts are already putting a lot out there — all court documents, streamed audio of hearings, everything except what the judge ate for lunch — and that trend is spreading.
Of course that's good for the public -- unless the news media dry up and blow away and all that's left is official handouts, as Mauro notes. This is not the first discussion of the trend, nor is the last. But it sounds like it was an unusually thorough one. I hope there's video, or there are papers and outlines to be published.
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Posted at 08:21 AM
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| Blogger reminds AmLaw to tell whole story |
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| The American Lawyer |
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| Thu, September 11, 2008 |
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Overlawyered's Walter Olson wins the legal-journalism editor's award of the week. When Olson read Brian Baxter's report in yesterday's AmLaw Daily about the $688 million legal-fee award to plaintiffs' class counsel for their work in the $7.2 billion Enron class action settlements, he zeroed in on Baxter's use of one source: John Coffee. Baxter quote Coffee, a heavily used quote-meister among business and legal reporters, justifying the fee award. He set up the quote by saying praise had come from "some unlikely legal circles" and called Coffee "a professor at Columbia Law School and frequent class action critic." Once Olson reminded readers that Coffee wasn't all that unlikely -- he worked as a fee consultant for plaintiffs' counsel in the case -- Baxter updated the story by early evening to disclose that and to describe Coffee as among "some who have criticized the class action process in the past."
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Posted at 05:48 AM
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| Hype alert: A trend in search of solid proof |
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| USA Today |
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| Thu, September 11, 2008 |
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Donna Leinwand and her editors should have looked a little more closely at the headline and lede of this USA Today story, which race beyond the evidence that she has dug up. Headlined (at least online) "Public Defenders Reject New Cases," the story starts:
Public defenders are being hit so hard by budget cuts and growing caseloads that offices in several states are refusing to take on more cases because they say defendants' rights are being hurt. Other jurisdictions say they may follow suit.
She quotes an official from a criminal-defense advocacy group as saying that she "has heard from public defenders in more than a half-dozen states who are considering challenging their growing caseloads in court." That's a thin reed to support the second sentence of the lede, and of course it's not the same to say they're refusing to do something if they merely ask for a court to authorize the move for future case assignments. Then Leinwand provides three examples (several? barely) where it's happened so far, except in two of the three cases the public defenders have gone to court rather than acted preemptively. Only one is characterized as having actively refused cases. So the story falls short of being literally true, much less supporting the gist, which is that this is a trend.
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Posted at 01:03 PM
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| Two very different takes on Larry Craig arguments |
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| Star Tribune/Pioneer Press |
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| Fri, September 12, 2008 |
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Give a reporter a decent amount of column inches -- and a gift for explaining complex legal arguments in plain English -- and his readers are much better able to form an opinion about a news event that otherwise invites snap judgments. That's the lesson from today's coverage of appellate arguments in the Larry Craig airport-restroom case. There's a stark contrast between the longer and better-explained report by St. Paul Pioneer Press' David Hanners and the shorter, clunkier version by Minneapolis Star Tribune's Rochelle Olson. It's not that Olson's report is an abomination. Far from it. But a side-by-side look reveals Hanners' work to be superior -- right from the start. Here's Hanners' lede:
Rather than being a man who tapped his foot to solicit gay sex from an undercover cop in an airport bathroom, U.S. Sen. Larry Craig is trying to protect the rights of Minnesotans who plead guilty to misdemeanors by mail, his attorney said Wednesday.
And here's Olson's lede:
U.S. Sen. Larry Craig's attorney argued to have his disorderly conduct conviction thrown out for lack of evidence during arguments Wednesday before the state Court of Appeals.
So Hanners draws us in with a promise of a surprising legal twist that might affect other citizens, while Olson's more routine summary promises only a rehash of supposedly well-known facts. Her article of fewer than 600 words then proceeds through a mostly fact-focused slog, about the senator's encounter with a police sting in an airport restroom. Hanners doesn't ignore the background, but in his more than 1,100-word version he manages to explain what the legal challenge is really all about:
The law says a judge has to find a person guilty beyond a reasonable doubt, and there's no indication in the court record of enough evidence to do that, [Craig's lawyer Billy Martin] said.
In pleas in felony cases, such findings of guilt are usually accomplished through a colloquy between the judge or an attorney and the defendant. Standing before the judge, the defendant is asked questions and admits to the crime.
But there is no such colloquy in a guilty plea by mail. Martin argued that without a judge's signature, there is no way to demonstrate that a court had found enough evidence to prove guilt beyond a reasonable doubt, even if the person voluntarily enters the guilty plea.
When Olson tackles the same topic, she fails to translate enough from legalese, and leaves readers far less enlightened:
When Martin talked about how the senator used a mail-in plea form rather than appear in person, losing a chance for an on-the-record discussion before the court about the charge against him, [appeals court Judge] Kalitowski asked, "Didn't [Craig] waive the right to a colloquy when he signed the form?"
Martin said he did but that Craig did not waive the legal right that the complaint against him be adequate. He also argued that Craig's behavior didn't meet the standard for disorderly conduct because the law requires behavior to affect others.
It's easy it is to laugh off the senator's legal challenge to his guilty plea as a desperate, PR-driven move that has no legal merit. But if we do a good enough job of explaining what's really going on, we might actually inform the public discussion with relevant facts. (Via How Appealing)
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Posted at 07:46 AM
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| Book excerpt: Gellman advances NSA story |
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| The Washington Post |
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| Sun, September 14, 2008 |
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What with all of the books published on the National Security Agency's warrantless wiretapping -- see a good starting point on related posts here -- I would not have assumed there were many new stories to tell about the lawyers involved, and the events surrounding their drafting and debates. The Washington Post's Barton Gellman proved me wrong, in excerpts published starting today from his new book, Angler: The Cheney Vice Presidency (Penguin Press). The book started as a Pulitzer-winning series in the paper by Gellman and Jo Becker. I haven't read the book yet or compared the series to what we now know about the events surrounding the administration's lawyering of the wiretapping program. But I believe Gellman breaks new ground, beyond his series and others' revelations, about the behind-the-scenes legal and human drama. Even though some of it is familiar, the narrative is compelling and instructive.
True to the long-form narrative form of a book, source material is often disclosed in footnotes or endnotes. Sometimes newspaper or magazine excerpts from books ignore those fine points. Not this one. Kudos to the Post for publishing the endnotes with links in the excerpt at the appropriate passages. That enables readers not only to judge the information's crediblity, but also whether it's truly new.
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Posted at 10:34 AM
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| Did Gellman shamelessly recycle Cheney material? |
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| The New York Times |
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| Tue, September 16, 2008 |
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Was I too quick to see fresh insight in Barton Gellman's excerpts from his Dick Cheney expose Angler, published Sunday in The Washington Post (and followed up with part two yesterday)? Yes, according to a review today in the Times by Michiko Kakutani, who all but accuses Gellman of a clip job -- one bordering on story-theft:
“Angler” grew out of a Pulitzer Prize-winning series of the same title that Mr. Gellman and Jo Becker (now of The New York Times) reported for The Washington Post in 2007, and this book remains heavily indebted to those articles. For that matter, this volume builds upon the pioneering work of many other reporters (most notably, Seymour Hersh and Jane Mayer of The New Yorker, James Risen and Eric Lichtblau of The New York Times, and Bob Woodward of The Washington Post), whom Mr. Gellman mentions only glancingly, if at all, or in cursory notes at the end of the volume.
Harsh! I don't pretend to know the truth because that would require actual time and hard work on my part, which is in short supply right now while I focus on my day job. But it sure is fun to watch the fireworks set off by a hard-nosed book of investigative reporting -- particularly when the criticism comes from somewhere other than the usual partisans.
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Posted at 07:17 AM
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| Leen dusts off old notes for remembrance of cocaine cowboy |
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| The Washington Post |
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| Tue, September 16, 2008 |
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Search the Washington Post's site for bylined articles by Jeff Leen, and you'll come up empty. He has a desk job -- but a critically important one in the paper's devotion to public-affairs journalism -- as the assistant managing editor in charge of investigative reporting. Today Leen penned a brief piece for the Post's investigations blog on a figure from his own reporting past. When he heard that Max Mermelstein had died, Leen wrote about Mermelstein's notoriety as one of the leading smugglers of South Florida's "cocaine cowboys" heyday. Mermelstein then became the Valachi-like turncoat of the Medellin cartel, testifying in key cases against his Colombian coconspirators. Leen and his co-author Guy Gugliotta (now a freelance science writer) documented all this in the Miami Herald, and then in their book Kings of Cocaine, which I enthusiastically devoured as a fellow drugs-beat reporter of that era. So I was pleased to see the old reporter haul out his old notes and put them to good use -- proving something that major newspapers these days seem to have a hard time remembering, or affording: the value of experience.
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Posted at 06:30 PM
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| The Docket: 9/17 |
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| Wed, September 17, 2008 |
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Since there's no such thing as too many lists, we're happy to announce a new blog feature that will highlight some of the best investigative and interesting legal reporting out there. If you have any suggestions, feel free to send them to rsmascarenhas [at] gmail [dot] com.
Now, for the first installment:
The Columbus Dispatch has deservedly won plaudits for its special report, "Immigration Crackdown." Unfolded over four days, the series examines nearly every facet of the immigration debate, especially the variety of legal challenges the issue poses to the system. Watch out in particular for the gripping description of a mass deportation.
Do you know what North Carolina's Retaliatory Employment Discrimination Act covers? It doesn't matter, because the labor law doesn't appear to be working well at all, according to a report in The Charlotte Observer. Many things appear to have gone wrong: budget cuts; lack of enforcement; complaining workers being laid off.
And finally, the things you can FOIA! The Detroit News decided that its readers would be interested in how soon-to-be ex-Mayor Kwame Kilpatrick spent his solitary night in jail. It's engrossing -- in a guilty pleasure kind of way -- because of the level of detail, and, paradoxically, because nothing much appears to have happened. He did have a hearty breakfast, though.
-- Rohan Mascarenhas
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Posted at 10:36 PM
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| Murky handling of Palin e-mail hack |
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| The Washington Post |
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| Thu, September 18, 2008 |
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Did the hackers who broke into Sarah Palin's Yahoo e-mail account break the law? Michael Shear and Karl Vick don't help put their readers anywhere near an answer to that question in this Washington Post report on the hacking incident. They quote John McCain's campaign manager as saying it's "a violation of law." And they imply that there's no doubt about the legality of e-mail intrusions with this:
Michael Allison, chief executive of the Internet Crimes Group, a private company specializing in Internet security, said the hackers may have accessed Palin's account by using publicly available information to guess her password, or by using a small program called a trojan to capture her keystrokes.
"I would hope the authorities would be all over this," Allison said. "The only deterrent is that people know the certainty of being caught."
But caught for what? A story ostensibly about the wrongness of the hacking might have benefited from a bit of explaining about the law on electronic communications. And, while the story mentions that the incident stems from controversy over Palin's use of a private e-mail account, wouldn't it be helpful to talk to experts about where public-records laws (mandating disclosure of certain e-mails) leave off and criminal privacy-protection laws kick in?
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Posted at 06:46 AM
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| American Exception: the book? |
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| The New York Times |
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| Thu, September 18, 2008 |
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Say goodbye to the Times' extraordinary American Exception series. Its author, Adam Liptak, confirmed in an e-mail that today's installment probably was its last -- which I had pretty much guessed, since Liptak is busy preparing for the new term on his new beat, starting in less than three weeks. We're lucky that Liptak managed to pound out six installments of the 10-part series since he was named as Linda Greenhouse's replacement. The series -- comprised of relatively timeless reporting on aspects of American law that are unique in the world -- is ready made for a book. I asked Liptak about that, and he answered in this e-mail:
I certainly should think about a book, and in due course I will. The series has been a lot of fun to pull together, and it's gotten a good response. But for now I'm focused on preparing for my new job.
Now, let's hope that his bosses are focused on filling his legal-affairs beat, which they've had nearly six months to prepare for.
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Posted at 11:26 AM
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| Where did all the laws go? A reporter explains. |
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| The Washington Post |
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| Sat, September 20, 2008 |
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WaPo's Jerry Markon has a smart folo on last week's Virginia Supreme Court ruling striking down a state law that punished e-mail spammers. Markon notices a pattern where the state passes aggressive, boundary-pushing legislation, and then gets slapped down by state or federal courts. Rather than indulge critics who focus only on the usual target -- activist courts -- he turns the political spotlight back on the policymakers, but without a scolding tone. It's just business in the policymaking world, they say:
... [L]egal experts pointed to the General Assembly's passage of a host of far-reaching laws regulating areas as diverse as gangs and state employees' access to sexually explicit Web sites along with spam and late-term abortions. Some of those measures, enacted or amended over the past decade, put Virginia at the forefront of national legal trends, exposing the commonwealth to challenges from a variety of activist groups.
While the story is short on named "legal expert" sources, it still does a good job in limited space, for a general audience, of explaining the dynamic among activist lawmakers, courts enforcing contemporary constitutional standards, and advocates challenging one side or the other. It's a lesson in real-world politics -- one that refreshingly avoids enflaming ideological wars with quotes by hand-wringing sources whose method of debate is to accuse the other side of bad faith.
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Posted at 06:13 AM
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| Times comes clean about flawed report |
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| The New York Times |
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| Sat, September 20, 2008 |
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When Adam Liptak's Sidebar column gave national exposure to a new Tulane Law Review study last January, it set off much blog chatter and followup articles elsewhere. This month, with Sidebar still on hiatus and Liptak busily diving into his new Supreme Court beat after moving to D.C., some might forgive him if he ignored an inconvenient fact: the law review has repudiated the study that Liptak based his story on. Here's how the standard journalistic copout would go: It wasn't our error. We were right when we reported on what the study said. And that was a long time ago. Not our problem.
But Liptak and his editors deserve praise for considering it their problem. They remember whom they serve: their readers. The Times thought the study believable and important enough to inform readers of it, and now has a duty to correct the record. Especially given the point of the Tulane study, which supposedly documented a cause-and-effect link between campaign contributions to Louisiana Supreme Court justices and the outcomes in particular cases. The study practically damned the court as corrupt. Liptak's column on the study was restrained in tone, but clearly credulous about what the study's data showed. Months later (the Times only says it was recent, and Tulane doesn't say on its site when it was added) came this note on the home page of the Tulane Law Review, titled with the weasely "Erratum" rather than the plainer "Correction":
The Louisiana Supreme Court in Question: An Empirical Statistical Study of the Effects of Campaign Money on the Judicial Function published in Volume 82 of the Tulane Law Review at 1291 (2008), was based on empirical data coded by the authors, but the data contained numerous coding errors. Tulane Law Review learned of the coding errors after the publication. Necessarily, these errors call into question some or all of the conclusions in the study as published. The Law Review deeply regrets the errors.
Not exactly a model of transparency. But it was enough to prompt an an editor's note today in the Times (also attached to the original article online). It started by reminding readers what the original report was about. It continued:
The law review recently posted a note on its Web site saying the study was based on flawed data that called its conclusions into question. Vernon Valentine Palmer, the study’s principal author and a law professor at Tulane, acknowledged the errors, but said the corrected data appear to continue to support the study’s general conclusions. He also said that he was seeking an independent review of the study.
So it's a bit of a followup story, and mostly a disclosure to readers that what we once relied on we can no longer trust. Why not call it a correction? Close call, but without conducting its own intense data-driven study, how can the Times declare the Tulane article actually false? All it knows is that it may be false. And that's what it's told its readers. Now, how many bloggers who enthusiastically jumped on the story thanks to Liptak's report will do the same?
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Posted at 12:52 PM
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| Wall Street bailout and the courts: an early heads-up |
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| SCOTUSblog |
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| Mon, September 22, 2008 |
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One of journalism's leading constitutional experts (self-taught category) has weighed in on the emergency financial bailout plan with this fascinating analysis of the role that the courts might play in any legal challenge. SCOTUSblog's Lyle Denniston did what he's so good at -- reading a document (in this case, the administration's legislative plan racing toward a vote in Congress this week) and running it through his enormous database of Supreme Court precedent (that would be his brain). His essay is brief, not explicitly sourced, but clearly fact-based rather than just What Lyle Wishes Would Happen. It's a great example of how a beat reporter can advance the story using his vast experience to lend perspective.
Update: The story has since disappeared from SCOTUSblog. Was it something I said? I'm trying to find out why.
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Posted at 08:14 AM
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| The Docket: 09/22 |
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| Mon, September 22, 2008 |
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As week two of the Wall Street crisis dawns, all the talk is still of bailouts, acquisitions, and questionable assets. That's as it should be, but the legal background of this story cannot be ignored for long either. This week's Docket gives the meltdown's lawyers the spotlight:
Law.com has done a fantastic job compiling press reports of last week's legal implications and from all sorts of angles. Go here to find out what's in store for corporate law firms and all those Wall Street lawyers out of work, or -- my favorite -- how a group of lawyers in Washington, D.C. helped detail the bailouts of Fannie Mae and Freddie Mac as Tropical Storm Hanna drenched the capital.
Dean Starkman has a scathing critique of the press's coverage of the crisis in the current issue of the Columbia Journalism Review. He argues that not enough attention has been paid to the deceptive marketing ploys that financial firms used to sell sub-prime mortgages, and he cites lawsuits filed against Countrywide Financial -- joined by several states -- to great effect.
And finally, Jeff McCracken of the Wall Street Journal provides a gripping description of the Lehman Brothers's bankruptcy hearing, the country's largest ever. Read as the courtroom nearly descends into a maelstrom of anger and confusion, while the presiding judge struggles to keep up. -- Rohan Mascarenhas
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Posted at 05:25 PM
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| Mystery solved: a blog with (gasp!) editorial standards |
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| SCOTUSblog |
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| Mon, September 22, 2008 |
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I raved this morning about a Lyle Denniston story on SCOTUSblog, and by the time I got back to my computer late in the day it was gone. I asked Denniston why and got this response:
After I put up the post, early this morning, we had a conversation about it -- initiated by me, incidentally -- that follows from some recent efforts we have been making to keep the blog more focused on the Supreme Court -- that is, on activity directly before the Court, on the way predictably to the Court (for example, the domestic detention case from 4th Circuit), and in direct reaction to the Court (for example, the Guantanamo followups to the Boumediene decision). With the rising popularity of our blog (the numbers last term were staggering for a blog), we are finding ourselves under a lot of pressure to cover more things -- reach out to issues we cannot be sure are Supreme Court material, announce meetings, do book reviews -- and so we have had to give some new thought to just what our niche is and ought to be.
On the bailout story, while no one had any problems with the substance of the post, it just was a little too remote -- at this stage -- from the Supreme Court so we thought it better to lay down an internal marker. We do that sometimes because we think we are a responsible blog. No one here likes to kill a story. But no one here has the illusion that we can cover all of the legal world, even though, quite frankly, it might increase our audience if we tried to do that. There are times when I would like to do a constitutional thinkpiece, on some issue that really fascinates me, and I think that is what got hold of me last night after reading the text of the Treasury bailout plan. But I usually refrain from such impulses, remembering that scotusblog has to be true to its name, and its mission.
You and our readers (bless 'em all) can rest assured that if there is a lawsuit over the bailout, and we judge it is on its way to the Court, we will be all over it like a January snowfall in upstate New York.
This is quite remarkable. A blog that employs a legendary reporter who posts something deep and meaningful, but that has the editorial focus and discipline to toss it out. I'm impressed. So many blogs are little more than self-indulgent rants. Anything that crosses the author's mind gets posted, no questions asked. SCOTUSblog is, instead, running itself as a publishing outfit with vision and standards. It's enough to let me forgive Denniston for his little dig about our (alleged) snowfall.
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Posted at 09:02 PM
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| Dreaming of "the enlightened newsroom" |
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| Miller-McCune |
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| Tue, September 23, 2008 |
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Steve Weinberg has just published a major contribution to the literature of criminal justice journalism. Writing in Miller-McCune magazine, Weinberg -- a freelancer and veteran University of Missouri journalism professor -- turns the tables on the usual tales of heroic investigative reporters freeing innocent prisoners. The real question, Weinberg writes, is why so many reporters are "enablers" of a system that all too often condemns innocent people to prison or lethal injection on flimsy evidence. "They should all know the warning signs of wrongful prosecution by now," Weinberg writes, "yet their coverage (and absence of coverage) suggests little learning from experience."
He starts the piece with a St. Louis wrongful-conviction case -- that of Ellen Reasonover, who came far too close to execution, and spent too many years imprisoned on such shockingly weak evidence that reporters covering the case had to have harbored doubts. He writes:
Why had the journalists who knew about the Reasonover case failed to question a police investigation, a prosecution and a conviction so obviously flawed? Why hadn’t somebody written an exposé before the guards hustled Reasonover to the waiting prison van?
The article is partly a catalog of research and arguments about wrongful convictions -- and of the journalism that has occasionally documented them -- and partly a prescription for change. Some of Weinberg's advice strikes me as so ambitious that it's unworkable, namely his call for newsrooms to track all felony arrests through guilty plea, dismissal, or trial, so that reporters are more aware of each case's strengths and weaknesses. What he describes might only work in a mid-sized or small city (where media resources are thinnest). He gains traction in his call for ad hoc improvements focused on getting reporters into the legal and law enforcement communities to know their beats more intimately:
Some of those efforts would lead to feature stories that entertain and educate news consumers about important, interesting people within the criminal justice system. While preparing those stories, though, the reporters could also be looking for the police crime laboratory technician distrusted by defense lawyers because of an obvious prosecution bias; the sex crimes detective who’s racist; the defense lawyer who misses appellate deadlines, closing legal doors for possibly innocent defendants; and the prosecutor who refuses to institute an open-files policy for defense lawyers, leaving decisions about evidence that might point to innocence entirely in the state’s hands.
Weinberg's work in this field spans decades and carries great weight. I plan to make his story, and some of those he links to, required reading in our courses devoted to improving legal journalism. And I hope, despite the relative obscurity of where this was published, his words ripple out into newsrooms and journalism schools. (Multi-dimensional disclosure: I recently wrote for Miller-McCune and have another assignment pending. Weinberg was my mentor at the Missouri School of Journalism, he remains a friend, and I edited his first article on the Reasonover case for The American Lawyer.)
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Posted at 08:53 PM
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| Times out of Gitmo-leak loop |
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| The Washington Post |
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| Thu, September 25, 2008 |
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The New York Times' William Glaberson has ruled the Guantanamo-justice beat for quite some time. But today was an off day.
He and everyone else covering detainee prosecutions from Guantanamo Bay, Cuba, have the story today of the resignation of a prosecutor in the detainee cases at Guantanamo Bay, Cuba. Lt. Col. Darrel Vandeveld quit over objections to the government's tactic to withhold certain evidence from defense attorneys. He put his allegations in writing in a filing in one case. The filing is sealed. So which reporters can score a copy?
Glaberson's lede says the prosecutor quit over what was "described as a dispute over the ethical handling of a war crimes case here." He quotes a defense lawyer on the details, paraphrasing him that Vandeveld's resignation stemmed from "disputes with his superiors about whether to give him information that might help the defense," and goes into a bit more detail later in the story. He also writes:
Prosecutors and defense lawyers said [Vandeveld] had made his assertions in a filing in the Guantánamo tribunal that, like all filings here, can be released only by a military judge.
Or, the Washington Post's Peter Finn and AP's Mike Melia might add, they can be leaked if you have the right contacts. In Finn's third graf, he whips out a direct quote from Vandeveld's filing, which includes a pithy putdown of the "slipshod, uncertain 'procedure' for affording defense counsel discovery." He does not allude to where he got the document. Melia doesn't make quite as much use of direct quotes, but he makes sure everyone gets the point that he is not relying on second-hand reports of what's in the document. A copy, he says in the traditional passive-voice language of the leak, "was obtained Wednesday by The Associated Press."
The substance of the stories differs in only minor ways. But the quotes -- and what they signify about the reporters' ability to tell the story from the source rather than from one step removed -- make all the difference.
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Posted at 07:03 AM
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| The Docket: 9/29 |
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| Mon, September 29, 2008 |
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While not on the level of today's dramatic bailout vote, this week's stories still pack a punch, featuring GITMO detainees, damning government e-mails, and jury snooping. If you have any other links to compelling legal journalism, please send them to rsmascarenhas [at] gmail [dot] com.
TPMMuckraker has the latest on the Inspector General's report on the the U.S. attorney scandal that landed Alberto Gonzales in so much trouble. The site has combed through the 392-page document for the best tidbits and is well worth a visit for updates.
The Chicago Tribune tells the story of GITMO detainee Huzaifa Parhat, a Uighur from China, who, despite having his detention ruled invalid by a federal appeals court, still remains locked in Cuba. Catch-22, personified.
The Washington Post has the background story of the "biggest embezzlement scandal in the District government's history." The article nicely details the personal histories of those involved, and how they slowly linked together in a conspiracy worth millions.
And finally, students are forever warned at Newhouse to scrub their online profiles clean before applying for jobs. According to the L.A. Times, however, prospective jurors might also want to watch out. Lawyers are using whatever they can find about jurors online to decide how to proceed during trials, and any little scrap helps.
-- Rohan Mascarenhas
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Posted at 09:17 PM
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| Mauro picks up fallen SCOTUSblog banner |
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| Legal Times |
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| Tue, September 30, 2008 |
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Thanks to Legal Times' Tony Mauro, I now have a more-than-adequate substitute to link to for the missing Lyle Denniston analysis of the Supreme Court's possible role in the financial crisis. Mauro's story is more traditionally and explicitly sourced than Denniston's off-the-top-of-his-brainy-head article. And Mauro's starts with a colorful anecdote and is littered with authoritative sources and background. It's curious that the major newspapers haven't, so far as I have noticed, delved deeply into the prospects for legal challenges to the plan (which, I grant you, is a moving target, but still). Maybe now their reporters will jump in, after reading Legal Times this week. Or maybe it'll just show up as a graf or two in the soon-to-come curtain-raisers for the new Supreme Court term, noting only that that's one big controversy not on the docket. It's worth more than that, I think.
P.S. -- I'm feeling guilty for the low posting volume here lately. Too much real work to do! Thank goodness I now have an able backup. (Reminder of the disclosure over there on the left rail of the blog: When posts are unsigned, they're by me -- Mark Obbie. For the past couple of weeks, Newhouse grad student Rohan Mascarenhas has been posting his creation, The Docket, to increase the scope of the stories noted here.)
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Posted at 06:07 AM
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| Bashman watches the setting Sun |
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| The New York Sun |
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| Tue, September 30, 2008 |
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How Appealing's Howard Bashman gets wistful over the loss of The New York Sun -- specifically over his admiration for two law-beat reporters, Josh Gerstein and Joseph Goldstein. I, too, have noticed the little paper's ambitious, national legal coverage, and have had it on my to-do list to do enough research of the archives that I could come to some sort of conclusion about the quality of that coverage. I waited too long. But, as a parting gift, I'll my off-the-cuff verdict: that it was good, and enterprising. And it will be missed -- at a time when not even The New York Times has seen fit to fill a vacancy in its legal-affairs beat.
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Posted at 07:24 PM
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