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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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| First legal reporting fellows named |
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| Fri, October 03, 2008 |
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Drum roll, please .... announcing the first Carnegie/Newhouse School Legal Reporting Fellowships. The program, described more fully here, subsidizes the work of four freelance writers with $3,000 awards -- and then sweetens the deal by paying Newhouse School journalism students to serve as the reporters' research assistants. The program has two goals: helping writers pursue important legal stories in the public interest, and helping students learn more about doing quality legal reporting.
Without further ado, here are this year's fellows and research assistants:
Fellows:
- Jim Edwards of Jersey City, N.J., who is researching a Web-based project to survey judicial conflicts of interest.
- Chandra R. Thomas of Atlanta, whose project focuses on the mass incarceration of the untreated mentally ill.
- Anita Wadhwani of Nashville, who is working on a prospective series that will look at how family courts are handling allegations of domestic violence in child custody disputes.
- Sharon Weinberger of Washington, D.C., whose project will examine a legally murky intersection between ethics and fraud in military contracting.
Research assistants:
- Melanie Hicken, a senior majoring in newspaper journalism, history, and political science, from Stevenson Ranch, Calif.
- Timothy Martinez, Jr., a senior majoring in newspaper journalism and political science, from Alhambra, Calif.
- Jamie Munks, a senior majoring in newspaper journalism and political science, from Granby, Conn.
- Kristen Putch, a senior majoring in newspaper journalism and history, from Ilion, N.Y.
- Cynthia Schweigert, a senior majoring in broadcast journalism and political science, from Cuba City, Wis.
- Claire Zillman, a senior majoring in newspaper journalism and history, from Maywood, Ill.
Once the fellows' work is published, we'll happily share more details on their projects. Meantime, wish us luck as we conduct this experiment in professional/student collaboration.
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Posted at 07:28 AM
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| O.J. sentencing math: SI wins |
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| Sports Illustrated |
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| Sun, October 05, 2008 |
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Coverage of the O.J. Simpson verdict in Las Vegas is largely guilty of breaking one of the most basic legal-reporting rules. Rather than explain what sentence Simpson realistically faces -- what discretion the judge has to impose minimums, and whether it's common to stack sentences in such a case with such a defendant -- we're told endlessly about his possible life sentence. Because, of course, it's easy to write that he "faces up to life in prison."
Who took that easy way out? AP's O.J.-ologist Linda Deutsch, the LA Times' Ashley Powers, Washington Post's Karl Vick (who copped out with a "two years to life" range, failing to explain any nuances in that absurdly long span), and the NY Times' Steve Friess (whose folo today merely cites the auto-pilot "fact" that "guilty verdicts on robbery and kidnapping charges . . . may send him to prison for the rest of his life." At least Friess' verdict story on Saturday tackled some of the nuances:
Kidnapping is punishable by five years to life, and the armed robbery conviction requires a mandatory sentence of at least two years and up to 30 years. The presence of a weapon at the scene adds years to the minimum sentences for 9 of the 12 charges, which include conspiracy to commit robbery, burglary, assault and coercion.
That's more detail, but without a filter. We still can't tell what really might happen because the reporter is reading from a rule book without a translator who knows how the system works. The local paper, the Las Vegas Review-Journal, does not appear to have done a separate story on sentencing options since Simpson's indictment last year. Brian Haynes' verdict story avoided the easiest shorthand -- explaining that the convictions "include two counts each of robbery with a deadly weapon and first-degree kidnapping with a deadly weapon, the latter carrying a minimum sentence of 15 years in prison, with the possibility of parole after five years." But, again, that doesn't definitively state what all of the charges together might realistically yield.
Leave it to a legal analyst for Sports Illustrated to lend more perspective than any other reports that I found. Here's the relevant part from Michael McCann's legal FAQ:
Even if she opts to impose the most lenient possible sentence under discretion, Clark County District Judge Jackie Glass will sentence Simpson to at least 15 years in prison. His conviction alone of first-degree kidnapping with a deadly weapon carries a minimum sentence of 15 years, with the possibility of parole after five years, and a maximum sentence of life of prison with the chance of parole. Judge Glass could run the sentences for each of the 12 charges concurrently or consecutively, the latter of which would be disastrous for Simpson, as he would then serve time for each sentence, one-after-the-other.
Working in Simpson's favor is that judges normally refrain from imposing the maximum possible sentence for first-time offenders and, despite the many controversies surrounding him over the last two decades, Simpson has not previously been convicted of a crime (though he did plead no contest in 1989 to a spousal abuse charge, meaning he neither contested the charge nor admitted guilt). Then again, at age 61, there is a strong probability that, absent a successful appeal and regardless of Judge Glass' leniency, Simpson will spend the remainder of his life in prison.
Sentencing isn't simple. Some reporters opt to ignore the complexities altogether, with the legal equivalent of a weather reporter telling us that life as we know it could end tomorrow because an asteroid could strike Earth. Readers deserve something closer to the truth than the bogus math of stacking sentences that might run concurrently, and citing maximums that might never be levied.
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Posted at 06:34 AM
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| Totenberg and the runaway lede |
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| National Public Radio |
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| Mon, October 06, 2008 |
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Who can blame Nina Totenberg for trying to entice listeners to pay attention to her Supreme Court preview by looking for a device to make the very unsexy theme of this term so far -- pre-emption -- a little sexier? But her attempt at perspective on today's Morning Edition ran into some troubling facts. Here's Totenberg's lede (which differs very slightly from the text version on NPR's Web site):
While abortion and gay rights may ring people's chimes and fuel political campaigns, the fact is that Supreme Court decisions determining whether individuals have the right to sue at all, and on what grounds -- those decisions actually affect the lives of far more people, and shape the conduct of business in America.
First, I'm totally with her in spirit: that consumer and commercial cases, while less attention-getting, can have more far-ranging effects than social issues. But the facts get in the way of her making the point. The cases she alludes to, and goes on in her report to explain, won't determine comprehensively the right to sue and the conduct of business. They obviously pose much narrower questions. And what about cases (hypothetical at the moment) governing abortion or gay rights? Those, too, would almost certainly carve out pieces of those debates rather than tackling them head on. But, since we're in hypothetical territory anyway, we can assume it's possible that the Court could rule in ways that affect all women seeking an abortion, or all homosexuals. I'll bet that's a lot more people than might sue in state court over "light" cigarettes.
So what is Totenberg saying here? That all people affected by the right to sue outnumber all people concerned with abortion rights and gay rights? Not likely true, and clearly not the case this term. Or is she saying that this term's pre-emption cases eclipse any abortion or gay-rights cases that might come along? Or just that they overshadow those issues on this term's docket thus far? In any case, the logic falls apart with barely a nudge.
She would have been better off framing her story in simpler terms: While the presidential campaigns fret about the Court's role in social issues like abortion and gay rights, the Court's main agenda so far is on a topic far less volatile -- but critically important to many people and businesses.
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Posted at 08:24 AM
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| Preview most likely to wake you up |
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| Chicago Tribune |
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| Mon, October 06, 2008 |
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I've been stifling yawns or going into OCD mode with the past few days' worth of Supreme Court previews. But Jim Oliphant snapped me out of my trance with his entertaining and smart storytelling in this story today. Simple labeling and packaging elevate dry material to something readable by the average hockey mom or average Joe.
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Posted at 08:49 AM
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| Stohr catches Breyer's switch |
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| Bloomberg News |
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| Mon, October 06, 2008 |
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I'm just now coming up for air from the workday, so I'm not up on what everyone else might be reporting from the first Monday in October at the Supreme Court. This Greg Stohr story strikes me, though, as smart and enterprising. Using Stephen Breyer's latest financial disclosure form, context on Breyer's history of finance-related recusals, a good eye for cases Breyer is participating in (despite his past holdings), and good questions that got direct answers from the Supreme Court press office (on Breyer's recent stock sales), Stohr gives his business readers important intelligence. So good on him. Of course, I'll retract my gushing praise if it turns out that everyone caught this story today. But Stohr certainly wrote this in a way that suggests it wasn't a handout. And, I'm reassured by a last-minute check at Legal Times -- home of Tony Mauro, the next most likely reporter to have zeroed in on this -- where Bloomberg gets the credit for this scoop. (Via How Appealing.)
Update: Lyle Denniston also gives Stohr the nod for this.
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Posted at 05:19 PM
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| The Docket: 10/06 |
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| Mon, October 06, 2008 |
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If you have come across any examples of compelling legal journalism lately, please send them to rsmascarenhas [at] gmail [dot] com. Not that this week's edition is wanting: we have soured financial deals, immigration snafus, and mackerel dollars.
Over at The American Lawyer, Andrew Longstreth has compiled a good summary of the Citibank-Wachovia dispute, with obsessive linkage to court documents and story updates. Keep an eye on this case; more than one observer has noted that it could end up being the new Pennzoil vs. Texaco (as if we haven't had enough bankruptcies).
The Washington Post exposes some of the failings of Virgina's illegal immigrant detention program, as a "broken system" -- to use one judge's words -- struggles to keep up with the numbers. The story performs a great public service, but it's also a dramatic read, stitched together by interviews with lawyers, judges, and immigrants.
And finally, every economist knows that bad money chases out good money, but what would mackerels do? The Wall Street Journal reports that the fish has become the currency of choice in prisons, ever since cigarette packets were banned in 2004. Hilarious, but unexpectedly thought-provoking as well.
-- Rohan Mascarenhas
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Posted at 11:19 PM
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| When they say it's not about the money. . . |
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| National Public Radio |
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| Tue, October 07, 2008 |
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We're hearing a lot these days about evil, biased "mainstream media" who are best bypassed so that newsmakers can speak directly to the public. That's a crock in politics, and likewise in business. Case in point: today's Q&A on NPR between host Melisssa Block and Daphne Hereford, owner of the descendants of Rin Tin Tin. Hereford has sued the studio that made the film Finding Rin Tin Tin for alleged trademark infringement. The studio wouldn't talk to NPR, but that didn't stop All Things Considered from airing an interview with Hereford on the suit. Here's an excerpt from the Q&A between Block and Hereford:
Q. Well, Ms. Hereford, what are you asking for from the the studios here?
A. We would like the product to be destroyed. And then the normal process of law that's due to us.
Q. Financial, in other words?
A. This lawsuit is not about money.
It is, she goes on to say, about upholding the integrity of the trademark system. Block, who asked natural and clear questions up to this point in the interview, goes mute. She lets Hereford spin without challenge. Why? Because, in a Q&A, we're somewhat hamstrung. We can't narrate the story and provide other voices to put self-interested puffery and lies in perspective. I'm not saying that Q&As always are bad, or are constantly manipulated. But this story is a good example of how it isn't necessarily journalism, when a source decides to blow smoke, knowing that she won't likely be contradicted.
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Posted at 09:07 PM
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| Mob gossip on the Times site |
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| The New York Times |
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| Fri, October 10, 2008 |
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Famed mob reporter Jerry Capeci is holding court this week on The New York Times' site to answer questions from readers. There's been no shortage of such questions, and Capeci has tackled a number of them in two takes (so far). Capeci, whose Gang Land News site adopted a paid-subscription model about four months ago, is getting some promotional mileage, and sharing some of his voluminous knowledge of New York's mafia families.
Two thoughts: First, I'm in awe of Capeci's recall or research skills. As with his columns, he taps a vast database of names and dates to dish about who's allied with whom, who likely killed whom, and so on. It's a testament to decades of dedicated beat reporting and source development. But that leads to my second point. Capeci's sourcing sometimes is transparent, such as where he cites court records to lay blame for this murder or that drug deal. But just saying "court records" hardly seems enough. Are we talking about unsupported allegations by unnamed FBI sources that happened to make it into an affidavit? Or evidence-rich proof? Even worse, he will sometimes rattle off names and conclusions about criminal activity with no sources at all. Mob reporting -- of which I'm a longtime reader and fan, and occasional practitioner -- is infamous for such opaque sourcing. Even in the hands of such an experienced reporter as Capeci, the tactic is inherently untrustworthy.
Final point: I don't see an explanation on the Times page for the Capeci-Times collaboration. But it strikes me as an interesting model: an entrepreneurial, independent, Web-based reporter drops by a high-traffic news site to share some content, and pull in new readers.
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Posted at 08:05 AM
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| "Not about the money" cliche archive |
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| Overlawyered.com |
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| Fri, October 10, 2008 |
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In kindly linking to my earlier post that mocked NPR's unquestioning acceptance of a plaintiff's claim that her lawsuit was "not about the money," Overlawyered's Walter Olson reveals his archive of "not-about-the-money" claims by plaintiffs. Genius! Courts reporters, could we please consider a ban on such quotes because they simply don't pass the laugh test? Thanks!
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Posted at 06:15 PM
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| Greenhouse still enduring Q&As, and still worth listening to |
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| Radar magazine |
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| Fri, October 10, 2008 |
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Charles Kaiser interviews Linda Greenhouse at Radar Online, and finds her in a feisty mood about her ethical dustups at the Times. There's nothing really new here, but Greenhouse is perhaps more pointed and quotable about the well-known episodes concerning her participation in a pro-choice march and her talk at Radcliffe. I don't agree with her on the effect that private expressions of opinion have on reporters' professional roles -- I'm much more of the strict-separation school -- but the quality of her work demands that we listen to her views on journalistic ethics, especially now that she has nothing holding her back. (Via Romenesko)
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Posted at 08:07 PM
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| ChiTrib domestic violence probe, in brief |
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| Chicago Tribune |
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| Sat, October 11, 2008 |
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When I saw the words "lengthy article" used by the ABA Journal to describe a Chicago Tribune story, and then saw the story itself emblazoned with the telltale term "Tribune Investigation" and touting a "Tribune analysis" of court records, I braced myself. Newspaper tradition (very much including the Trib) means that this will be a monster story, perhaps spanning a week of monster stories. And, even if that's a prescription for a tiny readership, the subject certainly deserves probing treatment: low conviction rates in domestic violence cases.
But this story, by Liam Ford, shows that probing doesn't demand tens of thousands of words. The story (even with a sidebar) weighs in at fewer than 1,200 words. It's a solid, interesting 1,200 words -- with a page of links to past stories (though not evidently a series) -- but the brevity is remarkable. So is the in-your-face headline, "Courts are failing battered women," which sounds more like the traditional accompanying editorial that is carefully kept at a distance from the reporting.
Even though some of these touches cause me to lose my bearings, and even though I can think of many ways to examine the issue more closely and colorfully, I admire this example of accountability journalism. It does what journalism should do to evaluate the poor record of a system designed to improve women's chances of putting their abusers in jail.
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Posted at 05:30 AM
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| Recalling "a stitch in time saves nine" |
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| The Wall Street Journal |
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| Wed, October 15, 2008 |
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Jess Bravin has this readable, brief constitutional-law sidebar today to the ongoing story of the government's intervention in the banking industry. It's old hat to con-law scholars and even first-year law students. But, to the average reader, it's an enlightening and engaging history lesson about the clash between competing constitutional and policy views that tilted us toward an activist government in the Depression. He explores why there have been few attempts to rethink the liberal reading of the Constitution, and quotes skeptics who recognize a political inevitability when they see one. I know the ordinary reader -- even the ordinary Wall Street Journal reader -- didn't wake up today intent on studying the legal philosophies operating just beneath the surface of the Treasury's bold moves. But thanks to Bravin's research, reporting, and writing, the Journal made it easy to stumble across a little legal-history gem that puts current events in an understandable context.
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Posted at 07:35 AM
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| The Docket: 10/15 |
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| Wed, October 15, 2008 |
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Unlike the rest of the university, I took Columbus Day off, which means I missed my Monday deadline. Thankfully, the rest of the profession has picked up for my slack, giving us some powerful examples of legal journalism this week:
Eyewitnesses often are a crucial part of crime investigations, but how reliable are they? The Dallas Morning News looked at robbery trials in Dallas County over two years and found a disquieting reliance on eyewitness testimony, even when corroborating evidence was weak.
The Chicago Tribune points to another big hole in the legal system: low conviction rates for domestic violence cases. In Cook County, only 17% of 19,000 such cases resulted in a conviction, leaving victims with little reason to resort to the judicial process for protection.
And finally: the Supreme Court justice picked up the pen. Shadows fell on his face. He clenched his fist. Chief Justice John Roberts has raised eyebrows with a dissent from a denial of review, in which two paragraphs give the best mystery writers a run for their money. (Okay, maybe it's not that good, but it's still better than his recollection of Bob Dylan lyrics.)
-- Rohan Mascarenhas
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Posted at 07:27 PM
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| Cameras invade federal courts. Film at 11. |
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| The American Lawyer |
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| Thu, October 16, 2008 |
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American Lawyer's Litigation Daily (fifth item) reports that the ingenious argument by Boies, Schiller's Jonathan Sherman to crack open federal courts to camera access has won two trial judges' support. AmLaw's report, by Andrew Longstreth, links to the two orders. I blogged at more length about this in July.
This is an important, albeit ad hoc, experiment that provides the first hope in years that our federal courts will be subject to the same public scrutiny that's given to many state courts. Related weather prediction: The sky will not fall when the cameras start taping.
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Posted at 11:11 AM
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| Times too quick to see trial lawyer PR boost |
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| The New York Times |
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| Sat, October 18, 2008 |
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Jonathan Glater takes a savvy look at the litigation potential in the financial crisis today. He examines the potential deep pockets, theories of recovery, and other strategic calculations now being made by investors and lawyers. The net effect is a solid legal sidebar to the Wall Street mess. But I have one nit to pick, and that's with his lede. After this punchy first graf -- "Nothing makes lawyers more popular than bad times" -- Glater goes on to say that the litigation fallout from the financial crisis, and the hunt for corporate bad guys, will revive the tattered image of trial lawyers. The rest of the story proves nothing of the sort. It proves only that trial lawyers are likely to be busy, and to smell opportunity, and to face juries and judges made newly sympathetic to claims of corporate greed. But I don't see that his syllogism -- if financial victims are mad, corporate image suffers; if corporate image suffers, plaintiffs' lawyers image improves -- makes any sense.
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Posted at 06:14 AM
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| Lat dumps notebook from Lithwick UVa talk |
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| Above the Law |
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| Sat, October 18, 2008 |
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Above the Law's David Lat has this report -- almost a transcript, really -- of Dahlia Lithwick's talk at the University of Virginia Law School. It's notable at this blog because it's all about legal reporting, and about Lithwick's role as Slate's columnist at the Supreme Court. No startling revelations, but definitely worth reading if you think about what a Web reporter does, and what the Web has done to other reporters.
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Posted at 08:22 PM
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| Cleveland rocks: crack, prison, and race |
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| The Plain Dealer |
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| Mon, October 20, 2008 |
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Cleveland Plain Dealer's Bob Paynter powerfully combines anecdotes and his paper's own statistics to document disparate treatment of black drug defendants. It's convincing and damning stuff, told in part 1 Sunday and part 2 today. Paynter is transparent about his methodology -- which cases he's considering, and why -- and gives law enforcement ample opportunity to poke holes in the stats. Such a project, while terribly involved, is eminently practical in any city.
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Posted at 09:08 PM
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| The Docket: 10/20 |
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| Tue, October 21, 2008 |
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Before we get to this week's excellent samples of legal journalism, I wanted to remind readers to feel free to send any thought-provoking articles to rsmascarenhas [at] gmail [dot] com. The internet's just too big for this intern to handle.
While Gov. Sarah Palin has quickly become Alaska's most famous export, it's hard to keep the state's other luminary, Ted Stevens, out of the picture for too long. The 84-year-old senator took the stand during his corruption trial, and the Legal Times and the New York Times happily describe the ensuing drama.
Meanwhile, in Nebraska, the law of unintended consequences strikes again. The state, hoping to reduce the number of abandoned infants and newborns, passed a statute that unwittingly allows Americans from all states to hand over even their teenagers to authorities. The Detroit Free Press reports on one local mother's decision to abandon her child.
And finally, with elections around the corner, more attention has been paid to the future of the Supreme Court. The Chicago Tribune focuses on Justice John Paul Stevens, who, like Sen. Barack Obama, hails from Chicago. His advanced age has led many to assume he will retire sooner than later, but this article suggests he has a little spunk left in him yet.
-- Rohan Mascarenhas
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Posted at 12:54 AM
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| A thousand-word legal history lesson |
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| Los Angeles Times |
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| Thu, October 23, 2008 |
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David Savage, the veteran Los Angeles Times Supreme Court correspondent, used a recent Sarah Palin controversy to expose readers to some legal history in this story today. It's a creative idea, and done well under tight time and space constraints. But I wish Savage had added one or two more grafs of explanation to make the lesson for laymen that much more valuable.
Savage was inspired by one of Palin's uncomfortable moments under questioning by CBS' Katie Couric. Because Palin was unable to name a Supreme Court decision other than Roe v. Wade that she disagreed with, Savage -- without condescension -- offers 14 other decisions, mostly from modern times, that scholars of the right or left consider among the "worst." Each ideological team from Savage's reasonably balanced survey of 15 Court and constitutional scholars suggests notorious nominees for worst designation. Savage gives each case a few words -- that's all he has time for -- before concluding with two that transcend partisan boundaries: Gonzales v. Raich (2005) on federal regulatory power and Buckley v. Valeo (1976) on cash as political speech.
Witty premise, well-executed, by a smart legal writer who says more than I'd expect about the Court's reasoning in each case in remarkably few words. The omission: Explaining to non-lawyers the whole eye-of-the-beholder business. When critics (even scholars) hate the result of a Court ruling, they find ways to hate the reasoning. Laymen (who don't know any better) and journalists or cable commentators (who should know better) usually pay no attention to why a court reached a particular result -- what legal principle or rule arguably led to the hated result. They simply pound on the court for not making the case turn out as the critic wished. That angle would have put the critiques, and the underlying controversy, in a more complete context.
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Posted at 06:41 AM
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| Playing catch-up to bloggers on child-porn story |
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| The Wall Street Journal |
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| Thu, October 23, 2008 |
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Amir Efrati's story in the Journal today takes a look at a law-enforcement controversy that's been percolating for some time, and that has received heavy attention already by law bloggers. Noting a growing judicial backlash against mandatory-minimum sentences for downloading child pornography, Efrati quotes judges and advocates on both sides while using Justice Department stats to good effect. One expert he quotes, Douglas Berman, is one of the more prominent bloggers who's paid attention to questions about how harsh is too harsh when punishing men (obviously they're mostly men) who download images but are not caught abusing children. Berman posted about the Journal story, at his Sentencing Law and Policy blog, with links to his past commentary on this topic. Another blog that's tracked the issue is Corey Rayburn Yung's Sex Crimes blog, which hasn't yet weighed in on Efrati's story but has an archive of past comments.
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Posted at 09:48 AM
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| Pro bono hater, or victim of a misquote? |
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| Thu, October 23, 2008 |
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Did a legal newspaper rip a judge's comments about pro bono out of context, and did critics then rush to judgment about the judge's meaning? I'm still trying to figure out the answers to both questions. Walter Olson reports at Point of Law that 2nd Circuit Chief Judge Dennis Jacobs claims he was quoted "grossly" out of context when he made critical remarks about pro bono work and impact litigation at a Federalist Society event in Rochester. In her coverage of the judge's talk, Elizabeth Stull wrote in the local legal paper, The Daily Record, on Oct. 8 (no link available):
Pro bono work primarily is an "antisocial" and self-serving activity lawyers use to develop their skills, firms use to recruit and "give solace" to associates, and nonprofits use to further a political agenda, Judge Jacobs argued.
In particular, litigation against the government and government officials and impact litigation are attempts to improperly expand the courts' reach in legislative matters, the judge said.
"No public good is good for everybody," Jacobs said.
The Jacobs-bashing has been predictably spectacular, climaxing in a National Law Journal op-ed by Erwin Chemerinsky, dean of the University of California, Irvine School of Law, that called on Jacobs to "apologize to the profession" for his "misguided" and shameful remarks. When The Wall Street Journal's Dan Slater blogged about all this yesterday, Jacobs evidently had had enough. He had an aide issue a statement to the WSJ Law Blog calling the Daily Record's account wrong. He wrote:
I support, endorse and solicit pro bono work, and my talk said just that. The talk identifies abuses.
I asked Daily Record editor Tara Buck to respond. She declined, but thus far the paper has not run a correction (other than an unrelated one on another out-of-context quote from the same event).
My first reaction is the same as Olson's: that it's literally unbelievable that a circuit chief judge -- in particular one from New York, who has a history of pro bono work in Big Law -- would denounce all of pro bono work. And so the story is immediately suspect, as are the critics' denunciations. But I'm trying not to commit the same error of jumping to conclusions. The complete story from the Daily Record goes on to quote Jacobs at length with thoughtful but highly critical comments about misplaced priorities in pro bono. Did the judge not express himself clearly? Did the reporter clumsily and inaccurately overstate what he was saying, or trying to say? Did partisan critics pounce without thinking skeptically enough about what might actually have been said? I don't know, but I feel safest in answering the last question as a big, fat "yes."
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Posted at 01:15 PM
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| Anatomy of a smear: pro bono version |
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| Thu, October 23, 2008 |
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There's nothing like a recording or speech text to serve as a check on faulty reporting. As I and others suspected, 2nd Circuit Chief Judge Dennis Jacobs' remarks to a Federalist Society gathering in Rochester were wildly misinterpreted by the reporter covering the event, and then by critics who seized upon Jacobs' supposed views as evidence of his hate for all pro bono (and by implication for all poor people in need of free legal help).
The Federalist Society posted the full text this afternoon. Reading Jacobs' words side by side with the story is enough to make one gag. Reporter Elizabeth Stull of The Daily Record in Rochester cherry-picked Jacobs' remarks to reflect a sweeping condemnation of pro bono and impact litigation that simply isn't what he said. He instead made a thoughtful argument about supposed abuses of pro bono causes. And he explicitly, repeatedly praised certain traditional forms of pro bono.
Some undoubtedly will declare Stull a member of the Liberal Media Conspiracy. I don't know her, and her editor won't comment on the record. But I am willing to bet that the truth about Stull is depressingly less interesting. She simply didn't grasp the nuance and depth of the judge's brainy, contrarian comments about the nature of big-time pro bono. The judge is no ogre, as it turns out. And neither is Stull. She was in over her head, and her mistake -- naively or cynically embraced as true by commentators -- has caused a needless controversy. What a shame. But at least some good comes of it. Now more readers will be aware (I hope) of Jacobs' actual remarks, which deserve a reasoned debate rather than partisan rants.
Let this be a lesson to reporters who want to get stories right but who are taking imperfect notes and find comments too hard to follow: Tape record and give it a few listens. Or get the written version from the speaker. Ask questions about what the speaker meant. Don't trust your ears, especially as you're rushing to jot down quotes on something complicated while racing to make a daily deadline that forces your story into too-small a space. Some things are more important than speed and brevity. Like accuracy.
Jacobs prefaced his speech with the quip that he had "some remarks that are perhaps more than usually provocative." If only he knew. Now, if only The Daily Record will read the transcript and run an appropriate correction -- followed by apologies from the critics who took the original story to the bank.
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Posted at 05:27 PM
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| Fact checker fails to explain abortion fight |
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| The Washington Post |
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| Sun, October 26, 2008 |
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This Washington Post "Fact Checker" column by Michael Dobbs purports to explain the truth behind an abortion-related controversy in the presidential campaign. Trouble is, I read it a few times and I still don't know what the facts are. Call me dense, but the piece -- which acknowledges the "legally complex" issues surrounding Barack Obama's opposition to Illinois' "born alive" legislation -- does not make clear what changes the bills would have made from existing Illinois law. It doesn't clearly explain what federal law is now. And it doesn't convincingly support its argument that it's unfair for the McCain campaign to accuse Obama of supporting the denial of medical services to babies born alive in a botched abortion. By the end of the short article, I can't distinguish one set of facts from another, and the only thing I really understand is the "did so/did not" squabble between opposing camps rages on.
I'm one of those voters who hasn't followed this debate as it developed, and who distrusts partisans' versions of the facts. Accusing a candidate of "infanticide" is so extreme and emotional that I want to understand what it's really all about. I wish Dobbs had made it clear. Can anyone point me toward a clear and demonstrably unbiased statement of the facts?
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Posted at 07:02 AM
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| Stevens sentencing math: a triumph of good PR? |
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| Tue, October 28, 2008 |
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Every high-profile criminal verdict brings a new opportunity for reporters to explain how sentences really work. The O.J. Simpson verdict earlier this month served as a reminder of a very old and very stupid journalistic habit: adding the maximum possible sentences on all counts and treating the sum as the possible sentence. So I approached the coverage of Sen. Ted Stevens' guilty verdicts yesterday with my "gotcha" glasses on. How many reporters would write that the 84-year-old senator, convicted on seven felony counts of making false statements of gifts he received, faces up to 35 years in the clink?
The answer: None! Every account I read made clear the realities of sentencing in a case like this. In fact, the reports were so consistent that I see the invisible hand of public relations at work. Some smart flack -- fearing Stevens' election-eve conviction woes would be compounded by visions of him doing hard time -- got to the trial reporters in advance. How else to explain this sort of consistency -- invariably attributed, if at all, to unnamed sources?
Stevens faces up to five years in prison on each count when he is sentenced, but under federal guidelines he is likely to receive much less prison time, if any. ( AP's Matt Apuzzo and Jesse Holland) ... guilty on seven felony counts, each with a maximum penalty of five years in prison. The senator, who probably will face a less severe penalty under federal sentencing guidelines.... ( Del Quentin Wilber, Washington Post)Given his age, clean record and history of public service, Sen. Stevens is unlikely receive a long prison sentence, and may not serve any time, observers said. ( Brett Kendall, The Wall Street Journal)Each count carries a maximum sentence of up to five years in prison, although he is not expected to get anywhere near that term. Some experts said there was a chance he could get probation, given his age, years of public service and other factors. ( Richard Schmitt, Los Angeles Times) Under complicated guidelines that are no longer mandatory, Judge Sullivan has wide discretion in setting a sentence, although lawyers familiar with the subject said it was difficult to conceive of a situation in which Mr. Stevens would not be required to spend time in jail. ( Neil Lewis, The New York Times) He faces up to five years in prison on each of the seven counts. Under federal sentencing guidelines he would likely receive much less prison time or only probation. ( Randall Mikkelsen, Reuters) Each count carries a maximum penalty of five years in prison, but judges have leeway in sentencing. ( Matt Kelley, USA Today) Stevens also risks jail time. The seven felonies each carry a penalty of five years in prison, though it’s unlikely a significant prison sentence, if any, would be imposed on an 84-year-old, first-time offender with a long record of public service and a longer list of character references. ( Erika Bolstad and Richard Mauer, Anchorage Daily News)Though jail may be looming for the senator, many D.C. criminal defense lawyers believe he will get no more than six months in prison, if that. They point out that his age and public service will weigh on the sentencing decision. ( Mike Scarcella and Joe Palazzolo of Legal Times)
Somewhere, a Williams & Connolly associate or Senate press aide is taking a bow.
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Posted at 05:26 AM
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| The Docket: 10/29 |
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| Wed, October 29, 2008 |
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From the criminal to the profane, this week's portfolio of thought-provoking legal journalism has it all. Feel free to send your own thoughts to rsmascarenhas [at] gmail [dot] com.
When 15-year-old Bukhari Washington was shot and killed in Newark, police quickly realized that identifying his killer was only the start of the mystery. The Star-Ledger dug deeper and tried to answer the bigger question: how did a military-style SKS rifle registered in 1992 in Georgia end up in New Jersey?
National Public Radio has produced a moving three-part series on a 1972 murder that took place in isolated Angola, LA. Laura Sullivan looks around the small town and how the case still haunts the place, not least because the two men convicted of the crime have been held in solitary confinement there for a record 36 years.
And finally, talk about a hall of mirrors: the Supreme Court will hear oral arguments in the so-called "fleeting expletives" case tomorrow. There's some question in the Legal Times, however, as to whether C-SPAN, which might release audio of the proceedings, will run afoul of the very FCC regulations being challenged in the proceedings. (For an interesting anthropological -- and deeply explicit -- take on the statute's wording, see Steven Pinker's piece in the New Republic.)
-- Rohan Mascarenhas
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Posted at 05:44 PM
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