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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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| Law blog list duped once again |
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| ABA Journal |
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| Mon, December 01, 2008 |
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I'm flattered that the ABA Journal's editors didn't vote me off their law-blog island. For the second year in a row, LawBeat is among the Journal's 100 best law blogs (even though it's more a journalism blog, and even though it doesn't fit the list's description of by a lawyer for lawyers). I'm even more flattered that on day one of the voting, I have five votes. And that's not even including my mother, who doesn't do the Web!
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Posted at 09:11 PM
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| Camera ban = pen ban = eyesight ban? |
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| Wed, December 03, 2008 |
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A holiday gift idea for the court that has everything: those memory-erasing flashy things from Men in Black. Evidently a D.C. Circuit panel could have used one last week when its attempt to control news from its court was foiled by an artist with a good memory. Thanks to this post by Mike Scarcella at the Blog of Legal Times, we learn that longtime sketch artist Bill Hennessy, Jr., tried to cover arguments in a noteworthy Guantanamo-detainee case, and was barred by court clerk Marilyn Sargent from entering court with his drawing tools. So he returned with only an ordinary pad, on which he noted descriptions that he later used -- with that memory of his -- to draw the scenes, one of which Fox News bought and used. Scarcella writes:
The panel judges—or at least one member—apparently were not pleased after seeing Hennessy’s sketch. Sargent called Hennessy the next day to express the dismay of the panel. “I was baffled. I didn’t get it,” Hennessy says. “That starts to weigh into the right of free expression.”
Starts? I'll say. We don't know Sargent's side of the story, or whether all three of the judges -- A. Raymond Randolph, Karen LeCraft Henderson, and Judith Rogers -- concurred in the decision to control what members of the public may do with their hands while observing the public's business. But we do know that this is what happens when courtroom access policies are left to judges' whims.
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Posted at 02:21 PM
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| Language corner: Indicted in? Or indicted for? |
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| Thu, December 04, 2008 |
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It's nitpicking time. I used to argue with writers about this all the time. I won, because I was the editor. But I never quite convinced them of my point. Let me try it out here.
If I say you were indicted FOR a crime, I am saying that I have decided you did it. The implied rest of the phrase is that you were indicted for committing it -- no question about whether you committed it. Instead, if I say that you were indicted on charges of, or indicted in a crime, or simply indicted, then it means that you are merely accused. You feel me?
So The New York Times headline (at least online) on this story from Las Vegas caught my eye:
No. 2 Official in Nevada Is Indicted for Fraud
I read that as saying that the official committed fraud and was finally caught. Not good! Others' heds (again, these are the Web versions, which may not be identical in print) got it right:
Nev.'s lieutenant gov. indicted over college fund - AP
Nevada's lieutenant governor indicted - USA Today
Lt. Gov. Krolicki indicted - Las Vegas Review-Journal
Nevada Lt. Gov. Krolicki indicted in misuse of funds - Reno Gazette-Journal
Why is "indicted in" any better? Doesn't it still imply that there was indeed a fraud, but we don't know if the defendant committed it? Yes, I suppose so. But, in the tight confines of headline-writing, I'll take that form of overreaching because it at least does not target an individual.
The root of the problem is that indict is a stronger, more dramatic verb than charge. If the Times had written "No. 2 Official in Nevada Charged With Fraud," it lacks the punch -- but also the problems -- of the actual hed.
Final question: Do I need to get a life? Yes!
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Posted at 06:53 AM
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| A justice's speech falls in a forest |
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| Thu, December 04, 2008 |
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This is wild: A Supreme Court justice talks about judicial philosophy, with comments on a recent landmark decision. He makes his speech at a politically flavored public event. And yet the SCOTUS press corps is practically silent, as best I can tell. Last night, Justice Samuel Alito was the keynote speaker at The American Spectator's annual Robert L. Bartley Gala. According to the AP's Mark Sherman and Politico's Alexander Burns, the only news to come from Alito's appearance were some rather vague and only mildly naughty jabs at Vice President-elect Joe Biden, who tormented Alito during his Supreme Court confirmation hearings. The rest, Burns sniffed, was an "otherwise dry legal discourse." But at least they wrote something. I found no other news reports. Not even The American Spectator bothered to document it yet.
Here's what Robert VerBruggen wrote at National Review's Bench Memos blog:
I thought his most interesting remarks had to do with how the Supreme Court is increasingly returning to Blackstone's "text first" method of interpreting laws — before trying to imagine what legislators might have had in mind, and before implementing their own policy preferences, judges should read the law and apply the plain language to the situation at hand. Only if the language is unclear, or if the meanings of words have changed over time, should judges move on to other methods of interpretation.
He had two examples, an anecdote and a statistic, to back this up. The anecdote was that in the Second Amendment case D.C. v. Heller, both the majority opinion and the dissent were originalist; both took the language of the law and asked what those words meant at the time they were written. The statistic was that in recent years (I forget the exact time frame), judges have used dictionary definitions more often than they have through the entire history of the court.
Doesn't that deserve some thoughtful, deeper news coverage? True, it doesn't sound as though Alito broke particularly new ground. But policy and philosophy statements by justices are still rare enough that we ought to know what they say.
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Posted at 03:50 PM
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| Gridiron jabber replaces legalese at Legalities |
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| ABC News |
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| Fri, December 05, 2008 |
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Maybe this is why the Supreme Court press corps is so distracted lately. A sizable chunk of it -- namely, ABC News' Jan Crawford Greenburg and the Washington Post's Bob Barnes -- have been trash-talking each other over at Greenburg's Legalities blog yesterday and today. I suppose I would enjoy it if I spoke football, but it's a foreign language to me. Evidently there's something going on involving Alabama and Florida. I hope they work it out.
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Posted at 03:51 PM
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| O.J. prison bids open at six, climb to 33 |
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| Fri, December 05, 2008 |
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Today's sentencing of O.J. Simpson in his Las Vegas robbery case produced utter confusion over his sentence and parole eligibility. With multiple counts, consecutive and concurrent terms, deadly-weapon enhancements, and parole factors, reporters were all over the place in trying to pin it down.
The AP's Ken Ritter, whose report will get among the heaviest distribution worldwide, complained in his story that there was "such a complex series of consecutive and concurrent sentences that even many attorneys watching the case were confused as to how much time Simpson got." Ritter put it in his lede at "as many as 33 years in prison" and only later in the story, published by the Washington Post at 3:23 p.m. (all times Eastern), explained that Judge Jackie Glass' clerk explained that Simpson is eligible for parole in as few as nine years.
Elsewhere on the Post's site, "NFL Crime Watch" blogger Emil Steiner wrote at 1:51 p.m. that the sentence is at least 15 years, and then confusingly added: "Simpson will be eligible for parole in five on the kidnapping count, but with addition concurrent sentences it is unlikely he will serve fewer than 10 years."
The two local papers -- the Review-Journal's Carri Geer Thevenot and Sun's Melissa Arseniuk -- agreed on 33 total and parole-eligible after nine. Those numbers also appeared in Scott Michels' ABC News report.
People's Stephen Silverman at 1:35 p.m. didn't quite know what to make of it, writing ambiguously: "O.J. Simpson has been sentenced to 15 years in prison, with consecutive terms that could extend his time behind bars 2½ years or more."
Bloomberg's Erik Larson and Lindsay Fortado, in a third take, at 2:19 p.m., put it at 16 years, eligible for parole in six. CNN's Paul Vercammen and Kara Finnstrom couldn't decide on the minimum, writing that it is "at least 15 years," but parole could come in nine.
Steve Friess, on the New York Times site at 3:50 p.m., called it at "a minimum of nine years in prison" with no mention of a maximum.
This is embarrassing. It's not clear yet whose fault it is, or who's right. I'm guessing that the judge did little to explain the sentencing realities in English, and reporters rushing to distill the details made a mash of them. Let's hope the reports clarify in the coming hours and days.
Update: This AP video of Judge Glass' sentencing statement makes it perfectly clear now where the blame for confusion lies -- with the judge, assuming that this was her only prouncement, followed belatedly by her decision to send her clerk out to clarify what all the numbers add up to. Imagine sitting in that courtroom and trying to make sense of this blizzard of confusing detail to find the bottom line -- something reporters would have to do within minutes. I'm not saying that judges have to write a news lede on their courtroom utterances, but simple public service would dictate that she play translator to help journalists and their audience -- not to mention the defendant -- understand what just happened.
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Posted at 04:57 PM
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| WaPo zooms in on circuit courts |
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| Washington Post |
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| Mon, December 08, 2008 |
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Today's Washington Post shines a light on a judicial-nomination battleground -- in the circuit courts -- that usually is overshadowed by potential Supreme Court picks. It's an ambitious and deeply researched package. One story by Jerry Markon briefly but smartly makes the case for the circuit courts' importance, and why they're at a tipping point ideologically. The story relies on a mix of original reporting and others' research on the numbers of vacancies, and on which courts the Obama administration's choices will shift control to Democratic appointees. While the story places great weight on partisan affiliation to predict judges' leanings, it warns that labels aren't entirely reliable predictors of case outcomes. A companion piece by R. Jeffrey Smith concentrates on the 6th Circuit's partisan battles, not a new story but told in illuminating detail, with considerable original research on case outcomes and judge-panel makeups. And an appealing graphic tracks the makeup of each circuit court during the Bush years. Unfortunately, the Smith story is marred by two references to appellate "verdicts," as though an appeals court conducts a trial -- a clumsy inaccuracy in an otherwise legally smart package of stories. A Redskins photo and story dominate above the fold, but the Post deserves praise for at least serving a courts side dish with the football main dish.
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Posted at 10:46 AM
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| Kozinski cover-up: I plead guilty |
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| Los Angeles Times |
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| Mon, December 08, 2008 |
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Scott Glover's latest revelations about 9th Circuit Judge Alex Kozinski's sense of humor brought back some memories -- and a little discomfort. Did I betray my journalistic mission? I don't think so, but I'll tell the story and let my reader(s) judge.
Glover, who broke the story last June about Kozinski's image archive on the Web, followed up today with revelations about the judge's longstanding e-mail joke list. Those jokes, Glover wrote, went to "a group of friends and associates, including his law clerks, colleagues on the federal bench, prominent attorneys and journalists" (emphasis here on the last word). In his best imitation of a Victorian prude, Glover characterizes the most risque e-mails:
Other jokes, labeled "P&T" in the subject heading to indicate they were "puerile and tasteless," were cruder and more sexually explicit and used language that defies quotation in a general circulation newspaper.
Oh my! So who were those journalists? Michael Kinsley and Stuart Taylor are named, and quoted in Glover's story. I wasn't cool enough to be on the list, but I was a pass-along reader -- a journalist friend on the list frequently forwarded Kozinski's messages to me. And I didn't think at the time that this was remotely scandalous behavior by a public official. All I remember are two reactions: fleeting curiosity about a federal judge who was casual enough to engage in such banter, and a fervent wish that the messages would stop cluttering my in-box. Remember, this was the mid-1990s. E-mail was a fairly new thing. What now seems retrograde behavior struck me then as ... well, normal guy stuff. Even today, some of my normal guy friends (that is, not in the professional world) still send these. I find it remarkable that Kozinski sent them to his own list until six months ago. But a dozen or so years ago? I never imagined that this was compromising behavior by a judge. We're not talking about extreme material. At their edgiest, they were jokes about sex, from a guy's point of view.
Glover's already run into credible accusations that he hyped the nature of Kozinski's material. My memory is fuzzy, so perhaps I am glossing over some truly questionable behavior, but I can't help but think that this reeks of hypocrisy. Considering how widespread Internet porn is, the notion that a federal judge is somehow in jeopardy for trading in lame jokes about sex is hard to stomach. As a journalist, it never once occurred to me in the 1990s that Alex Kozinski's behavior was newsworthy. I haven't read anything yet to change my mind. Nor do I wonder why I and other journalists simply hit the delete key without a second thought.
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Posted at 07:44 PM
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| Three levels of detail on Blackwater test case |
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| McClatchy Newspapers |
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| Tue, December 09, 2008 |
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The Times' Ginger Thompson and James Risen, covering the indictment of five Blackwater security guards in the shooting deaths of 17 Iraqi civilians last year, made me hungry for more legal details. Thompson and Risen forecast that the case will revolve around "the first test of the government’s ability to hold private security contractors accountable for what it considers crimes committed overseas." The story then goes into a paragraph or two of detail about how the government's power is defined in the case by a vague provision of the Military Extraterritorial Jurisdiction Act. Want to know more? McClatchy's Michael Doyle makes good use of his new blog to take the curious reader more deeply into the topic. In just a few grafs, he explains through legislative history what has led to this point, and then graciously links to an extensive analysis by Glenn Schmitt, published in 2005 by Army Lawyer. Burrowing down one more layer was enough for me, but the added detail will undoubtedly delight others.
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Posted at 09:13 AM
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| Pat Fitzgerald's quote spree |
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| Tue, December 09, 2008 |
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What a day it was for legal reporting in Chicago. On the one hand, U.S. Attorney Patrick Fitzgerald is a reporter's dream come true. The man is a quote machine! Behold:
Governor Blagojevich has taken us to a truly new low. Governor Blagojevich has been arrested in the middle of what we can only describe as a political corruption crime spree....
Blagojevich and others were working feverishly to get as much money from contractors, shaking them down, pay to play, before the end of the year....
At the end of the day, the conduct we have before us is appalling....
His press-conference sidekick, the FBI's Rob Grant, was almost as good:
If it isn't the most corrupt state in the United States, it's certainly one hell of a competitor....
the FBI agents that participated in this wiretap investigation, were thoroughly disgusted and revolted by what they heard, and I think even the most cynical agents in our office were shocked....
On the other hand, I must ask: WHAT THE HELL???? For decades, DOJ officials have played the demure, rules-bound mute, declining to answer questions, much less make closing arguments, when charging defendants with crimes. So what explains today's flood of colorful -- some might say highly prejudicial -- language? And how might this change future press-prosecutor relations? Some themes emerge from the day's events:
It's a strategy: The Justice Department wants to force Rod Blagojevich into a quick plea agreement by burying him in incriminating evidence that is so damning politically, not to mention criminally, that he has no choice but to flip or cave.
It's spin: Given how damning the cumulative effect of the charges and wiretap quotes are, it's hard to imagine that we're watching one side simply play the press against an opponent. But a skeptic might wonder whether the government, as advocate and adversary, is hiding something not quite so favorable to its case. Today's reports are so hopelessly pro-government, the whole thing reeks of a preemptive move.
It's anarchy -- and a headhunter's gift: Fitzgerald works for a lame-duck administration. Playing Eliot Ness one last time buffs his resume. And who's going to come down on him? Some short-timer White House hack or DOJ "boss"?
It's just good government: Perhaps Fitzgerald, by most accounts the straight-shooter prototype, was so offended by what he saw -- understandably -- that he dropped all pretense of fair play and pretrial discretion, and simply told Illinois voters what was what.
Whatever prompted the onslaught, how can DOJ ever claim again with a straight face that it cannot comment beyond the spare language of the charges? Evidently the rules are a hypocrite's refuge, as we always knew they were.
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Posted at 08:05 PM
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| Innuendo watch: Jackson gets Blago'd |
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| Thu, December 11, 2008 |
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Jesse Jackson Jr. is rightfully a key figure in second-day coverage of the Rod Blagojevich scandal. But too many reports have unfairly buried Jackson in buzzwords and innuendo that will forever link his name to public corruption, and the only proof made public so far is the unchecked, surreptitiously taped word of Blagojevich himself. Hardly a reputable source.
The coverage generally lays out the facts known so far -- that Jackson is "Senate Candidate 5" from the FBI affidavit, that he denies wrongdoing and is cooperating with the investigation, and that only Blago's words implicate Jackson or his allies in a pay-for-play scheme -- but those details are overshadowed by headlines and ledes that play an old and disreputable game: the casual smear. The worst offender today is The Wall Street Journal, which leads A1 with this guilt-by-association classic:
Graft Case Touches Jackson Jr.
The lede on the triple-bylined story by Jonathan Weisman, Clare Ansberry, and Douglas Belkin plays the same game:
The scandal surrounding Illinois Gov. Rod Blagojevich's alleged attempt to sell President-elect Barack Obama's former U.S. Senate seat widened on Wednesday, threatening to taint a rising Democratic star and pull in one of the nation's biggest labor unions.
Others' headlines (and these are all Web site versions; I don't know if they differ in print) are more cautious:
But some of their ledes wade into the swamp with the Journal. The Times says Jackson "found himself tangled up on Wednesday in the fallout...." The Sun-Times says the Blago tapes "have landed U.S. Rep. Jesse Jackson Jr. in the middle of a federal investigation...." This reminds me of an old FBI trick: labeling men as "mafia associates" or "linked to the mob" in public documents that reporters then could quote without legal jeopardy -- and without bothering to question the assumptions and evidence. Here, at least, we know the evidence that's been revealed so far. And so we should keep our enthusiasm for "touches" and "taint" and "tangles" in check.
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Posted at 08:43 AM
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| Schwartz gets NYT legal beat |
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| The New York Times |
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| Thu, December 11, 2008 |
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For eight months I've been razzing The New York Times for not immediately naming a replacement on the legal affairs beat for Adam Liptak, once Liptak moved to the Supreme Court beat. True to the word editors gave two weeks ago, the Times finally came through -- with a great pick.
John Schwartz, lately on a space and science beat, is a smart, creative, lively reporter and writer -- one I've admired for many years, since he freelanced regularly for The American Lawyer (during his days at the Washington Post). He's a lawyer. More important, he's written a ton about what lawyers do, and he has the curiosity and heft to keep this beat among the top-tier beats at the paper of record. He'll trade off with Liptak in the newly revived Sidebar column.
Here's the announcement:
Reporters here are sometimes described as adventurous when they write for other sections.
And then there's John Schwartz.
In his career here, he has experienced zero-gravity twice, flown a jetpack, ridden in a prototype of a lunar truck, driven a car shaped like a cupcake, gone down into the sewers of Albuquerque, ridden out a hurricane in New Orleans in the Corps of Engineers bunker, gotten zapped with one million volts of electricity by a giant Tesla coil while wearing a metal suit, and drunk water made from recycled urine and sweat. And he has done it all with an effusive combination of serious science and learned mirth that has made his byline a cult favorite among readers and assignment editors around the paper.
Now, we're proud to announce, John will undertake the greatest adventure of them all: working for the National Desk as the paper's national legal correspondent.
There are, in fact, many flavors of Schwartz. Those who have only known John in his incarnation as the paper's own Tom Swift may not be aware that he is also a lawyer (JD '84 from UT), who wrote extensively about legal issues during his time at the Washington Post. He covered the dozens of suits brought by states against the tobacco industry, and profiled the law firms that work for big tobacco. He was also there for the early days of cyberlaw, writing about the evolution of First Amendment law on the Internet and the Communications Decency Act.
That makes him the perfect candidate to replace the nearly irreplacable Adam Liptak in covering the law and alternating with Adam in writing the weekly Sidebar column. John will continue the paper's franchise coverage of courts and legal issues around the nation, from gay marriage to capital punishment to the latest thinking about executive power. His deep understanding of science and the online world will help us expand our legal coverage into those areas, especially as we integrate more closely with the web. And he will do so with his trademark clarity and cleverness.
As you can see from the accompanying photo, he was elated to get the job, and we feel the same way.
Suzanne Daley and David Firestone
That's Schwartz, floating on air. Let's hope he finds ways to have as much learned fun on his new beat.
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Posted at 03:56 PM
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| California judges: a little thick? |
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| Reporters Committee |
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| Thu, December 11, 2008 |
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Yet another California trial judge has issued a blatantly unconstitutional prior restraint to protect a defendant's pretrial rights, reports the Reporters Committee for Freedom of the Press. This one's against the Ventura County Star. Several weeks ago, for similar reasons, the Orange County Register was censored, temporarily -- until a higher court with better legal research skills overturned it. That assuredly will happen again. But why do we have to go through this, and always on the same question?
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Posted at 08:22 PM
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| Chicago dailies barely glance at law angle |
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| Sun, December 14, 2008 |
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Until Illinois Gov. Rod Blagojevich announces whether he's resigning, the central question in the state's political crisis is fundamentally a legal one: Can Blagojevich's opponents remove him through impeachment or through a novel action filed with the state Supreme Court by Illinois Attorney General Lisa Madigan? So how have Chicago's dailies done in covering those questions? Pathetically, at least so far.
The Tribune's most direct run at the story is in this one yesterday. The triple byline -- Ray Long, Monique Garcia, and James Janega -- identifies the story as the grab bag that it is. Amid a confusing mix of other themes -- notably the jockeying over naming a Senate successor to President-elect Obama -- the story barely touches on what it lamely calls the "state legalese" at stake:
Madigan's filing suggests Blajojevich might be removed under a clause stating governors are replaced if "unable to serve because of death, conviction on impeachment, failure to qualify, resignation or other disability"—the "other disability" here being that lawyers and political foes would challenge in court any action he takes.
But there are no clear standards for how justices would determine a governor's fitness to serve, said John Marshall Law School professor Ann Lousin. A bill to set them out was abandoned in the 1970s. "Nobody thought it was that important," she said.
Legal experts doubt the court will wade far into a deep political morass given those flimsy legal handrails to grasp.
That, essentially, is all that the state's leading newspaper says about a groundbreaking and fascinating clash between the impeachment powers of the legislature and untested constitutional and court powers concerning the survival of the state's chief executive.
The Sun-Times barely tops that. Mary Wisniewski more clearly and plainly explains Madigan's strategy to prompt the court to act immediately under doubtful authority while the legislature's impeachment machinery grinds on. She also reveals that a member of Madigan's legal brain trust is Chicago legal lion (and Obama advisor) Abner Mikva, whom she quotes on the strategy choices. But Wisniewski's brief story devotes only two grafs, and one named source, to the substantive question of the day:
Some legal experts have expressed skepticism about Madigan's move. Mark Rosen, professor at Chicago-Kent College of Law, said it's questionable whether the court should act as an alternative to the Legislature on the question of removing a popularly elected governor.
"Given the awesomeness of what impeachment is and given all the members of the legislative branch that have to play some role, it would be surprising if there were such a streamlined alternative," [Rosen] said.
Blagojevich may short-circuit this angle of the story as soon as tomorrow. If he doesn't -- or even if he does -- perhaps the Trib and Sun-Times will put a little more energy into pondering the laws of Illinois governance.
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Posted at 07:01 AM
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| Speaking out against sex-offender notification laws |
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| Houston Chronicle |
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| Sun, December 14, 2008 |
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Lisa Sandberg's Houston Chronicle story today sticks up for a politically dicey group: registered sex offenders who say their sex with minors wasn't all that bad. They may have a valid point, but it's a tough sell. Which is what makes Sandberg's contrarian story all the more thought-provoking. She focuses on Texas Voices, a group arguing that Texas' 15-year-old law requiring lifetime registration of sex offenders is bad policy. Like many states' laws, it was passed in response to a horrible sex crime against a child that might have been prevented by community awareness of an offender's proximity. Sandberg summarizes:
The group believes community notification laws fail to protect the public, because they don't distinguish dangerous predators from otherwise harmless men and women who foolishly had sex with underage lovers, served their sentences and don't need a lifetime of public scrutiny.
The story is heavily reported, but gives short shrift to the other side. Other elements that would make the story more complete: if it explained clearly which offenses qualify now for registration; what change reformers seek; and to what extent Texas' policy mirrors other states'. But it's a good head start on a rational conversation that seems to be needed. (Via Sentencing Law and Policy blog)
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Posted at 08:58 PM
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| Note to Sy Hersh: Get a listed number |
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| Newsweek |
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| Sun, December 14, 2008 |
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One of the juicier journalism tidbits in Michael Isikoff's Newsweek cover story -- profiling the former Justice Department lawyer who says he was The New York Times' whistleblower source for the infamous National Security Agency wiretapping story in 2005 -- shows how fate can be so random. The self-proclaimed source, Thomas Tamm, tells Isikoff that when he was anguishing over whether to leak the program's existence to the press, he thought of The New Yorker's veteran investigative reporter, well known for his reporting on intelligence escapades and the Abu Ghraib scandal:
Tamm says he initially considered contacting Seymour Hersh, the investigative reporter for The New Yorker, but didn't know where to reach him. He'd also noticed some strong stories by Eric Lichtblau, the New York Times reporter who covered the Justice Department—and with a few Google searches tracked down his phone number.
Doh! That's one of the few light moments in an otherwise grim story of a criminal suspect's ruinous -- and ongoing -- clash with his superiors over policy, secrets, and loyalty. Isikoff's lengthy story -- packaged with a shorter piece by Daniel Klaidman touting new revelations about the DOJ revolt over secret surveillance -- includes on the record revelations by the former chief judge of the Foreign Intelligence Surveillance Act court, Royce Lamberth, and an extensive narrative about Tamm's journey from good soldier to rebel to tortured suspect. Isikoff quotes Eric Lichtblau, the recipient of the reported leak, as predictably demurring when asked if Tamm is his source. The other Times reporter, James Risen, refused to comment, Isikoff writes.
In light of that, is the story solid? I would imagine -- or hope -- that Isikoff and his editors sought corroboration that isn't necessarily reflected in the story before taking Tamm's word for everything, considering that he admits his lawyers urged him to stay quiet; that he suffered from depression and left the DOJ under an unrelated cloud; and that he harbors partisan bitterness toward the Bush administration. It's a good read, but like all cloak-and-dagger journalism, a bit opaque.
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Posted at 09:48 PM
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| Haberman muffs line on Blago charges |
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| The New York Times |
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| Tue, December 16, 2008 |
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How bad is the newspaper business? The New York Times can't even get its own writers and editors to read it. Columnist Clyde Haberman was having some regional fun with the Rod Blagojevich scandal -- chiding New Yorkers for letting Illinois reap all the government-corruption glory -- when he used this line:
It’s not easy topping someone who, if the federal charges against him are true, tried to sell the Senate seat of the president-elect.
By now, anyone halfway paying attention to the details would know that Blagojevich is not charged with a crime in connection with the Senate appointment. And even if the Metro desk missed all that, it could have looked across the newsroom at another story in the works for today's paper: this smart analysis by David Johnston pointing out that authorities may lack evidence to file such charges at all.
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Posted at 06:28 AM
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| Walsh "news" turns reporters into tools |
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| Wed, December 17, 2008 |
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Why is practically every news organization falling for the fake news event in Hollywood, Florida, in the Adam Walsh case? It's one thing for police to pull a PR stunt, announcing with a flourish (and with America's Most Wanted cameras rolling) that after 27 years they "solved" the case by naming the same suspect who was the chief suspect all along. It's another for so many news organizations, even good ones, to play along. Too many barely mention -- if at all -- that the police have no new evidence and that this isn't the first time they "solved" the case by naming serial killer Ottis Toole as the culprit. At least the Miami Herald's David Smiley spent some column inches recounting the Toole-Walsh history. And South Florida Sun-Sentinel's John Holland called the massively covered press conference "long on drama and compassion for the Walshes" and short on any, you know, news. But those aren't the headlines hogging news sites across the Web. I can already hear John Walsh's hyped intro for the America's Most Wanted show in the making.
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Posted at 06:15 AM
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| LAT, SF Chron shine in latest on Prop. 8 |
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| Sat, December 20, 2008 |
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When California Attorney General Jerry Brown yesterday changed his legal position in the Proposition 8 case, he threw journalists a challenge: Could they explain this latest twist in more than just raw political terms?
The political story is obvious: Which side are you on? No matter what legal basis the AG provides for his position, it's clear that he has shifted his support to the anti-Prop. 8 side. If news stories were only about the politics, they would focus exclusively on who's come out for or against same-sex marriage. In that horse race, all eyes are on the outcome of the next phase of the battle, when the state Supreme Court decides whether to side with gay rights supporters by throwing out the ballot initiative.
If that were the focus of today's stories, I would call that a journalistic failure to explain the substance of the legal arguments. Fortunately, some of the first-day stories on Brown's announcement are much better than that. Some of the leading news organizations covering the battle tried hard to go beyond the horse race to explain the rule-of-law angle: what both sides argue, based on their interpretations of specific laws.
The best mainstream-news reports that I saw were by the San Francisco Chronicle's Bob Egelko and the LA Times' Jessica Garrison and Maura Dolan. Egelko did a slightly better job of explaining the arguments in plain English, and of giving both sides in the battle a fair hearing. Garrison and Dolan, meanwhile, dug a little deeper into the substantive arguments, although they relied a bit too heavily on multiple direct quotes rather than simpler journalese. In both cases, though, the reporters resisted the natural impulse to dumb their stories down to a mere tug-of-war.
The New York Times' Jesse McKinley and this CNN report (no byline) did a fairly good job, though in less depth than the LAT and Chron stories. Less impressive was this AP dispatch by Lisa Leff, the most complete AP story I could find. It's mostly reaction quotes, after an overly brief explanation of what just happened.
I judge the stories based on how clearly they explain Brown's new argument, laid out in a lengthy brief filed with the Supreme Court, and the opposition's argument by lead lawyer Kenneth Starr. I'll let Egelko summarize:
Brown, who is required to defend state laws unless he cannot find reasonable legal grounds to do so, said after Prop. 8 passed Nov. 4 that he would support the initiative before the state's high court.
But in a lengthy filing late Friday, he argued that the constitutional amendment was "inconsistent with the guarantees of individual liberty" in California's governing charter.
"Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification," Brown said.
The authors of the state Constitution, he said, did not intend "to put a group's right to enjoy liberty to a popular vote."
Where does Brown base that argument? Egelko doesn't explain, which is a significant weakness. Garrison and Dolan get a little closer to that question, examining what they call Brown's "novel" legal argument. Partisans will no doubt have strong views about whether Brown simply invented this constitutional requirement. But at least the reporters are trying, within tight time and space constraints, to explain.
Here's Egelko's summary of the other side and of what got us to this point:
Prop. 8 "does not broadly seek to diminish or eliminate the constitutional or civil rights of gays and lesbians," but is simply "about restoring and maintaining the traditional definition of marriage," Starr said. Decades of legal precedents, he said, require "judges - as servants of the people - to bow to the will of those whom they serve."
The court ruled 4-3 on May 15 that California's ban on same-sex marriage violated the constitutional rights of gays and lesbians to marry the partner of their choice and discriminated on the basis of sexual orientation. Prop. 8 amended the state Constitution to overturn the ruling and declare that only marriage between a man and a woman is "valid or recognized in California."
There's more in his report, and in others', on what both sides had to say yesterday. Undoubtedly there are much deeper analyses elsewhere. But I'd say that the reports relied on by the public that matters most -- Californians -- avoided the easy route. They tried, instead, to give neutral, substantive attention to news that matters greatly, in terms of public policy and as a lesson in civics at the intersection of law and politics.
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Posted at 08:24 AM
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| Assignment Desk: Rehab reform, state by state |
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| The New York Times |
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| Tue, December 23, 2008 |
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The New York Times series "The Evidence Gap" turns its gaze toward a quasi-legal topic today: drug-rehab programs mandated and paid for with public money. The series is rooted in science, "exploring medical treatments used despite scant proof that they work and are examining steps toward medicine based on evidence." Benedict Carey's installment today states at the outset that the billions in tax dollars spent on drug and alcohol treatment -- a number expected to grow with changes in federal law -- form a big question mark:
. . . [V]ery few rehabilitation programs have the evidence to show that they are effective. The resort-and-spa private clinics generally do not allow outside researchers to verify their published success rates. The publicly supported programs spend their scarce resources on patient care, not costly studies.
And the field has no standard guidelines. Each program has its own philosophy; so, for that matter, do individual counselors. No one knows which approach is best for which patient, because these programs rarely if ever track clients closely after they graduate. Even Alcoholics Anonymous, the best known of all the substance-abuse programs, does not publish data on its participants’ success rate.
The story interestingly looks at the efforts by a handful of states -- it cites Delaware, North Carolina, and Oregon, focusing on the latter -- require more accountability through evidence-based methods of tracking and reporting. A curious legal or government reporter could read the story as a road map to a useful regional story that questions the requirements under state law; whether a debate over these methods is taking place, or ought to; and the role of the courts in mandating treatment (a factor that Carey's piece doesn't touch on).
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Posted at 08:34 AM
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| Woodstein in the data-mining age |
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| Miller-McCune |
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| Fri, December 26, 2008 |
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Miller-McCune editor John Mecklin clued me in to the latest rage inside the geek branch of investigative reporting: "computational journalism." He explains this nascent movement -- the next-generation computer-assisted reporting, using data-mining tools to help investigative reporters spot patterns in documents -- and ponders its potential to preserve accountability journalism in a hostile economy. I'm struggling to get my head around this, and would need a bunch more examples for it to sink in. But it seems to have clear relevance to covering the justice system. Take the reports that my colleagues at TRAC are renowned (by journalists) and denounced (by government) for: those that analyze a mass of data on charges filed or sentences issued. What if sophisticated algorithms could detect patterns that the eagle eye of David Burnham had missed, or would take much longer to see? Thanks to Mecklin, I'll be on the lookout for signs of life in this new field.
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Posted at 08:59 AM
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| Madoff report is just empty hype |
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| The New York Post |
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| Sun, December 28, 2008 |
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The New York Post's business report is on my regular daily rounds -- not for its legal coverage, but for its coverage of the media business. Today provides a fresh reminder of why I should stay focused when I visit the tabloid's site. The headline on this story by Kaja Whitehouse seems pretty clear:
LEGAL PROS GET PRIMED FOR A PAYDAY FROM MADOFF SCANDAL
Instead, the brief story only purports to show that Bernard Madoff's investment-scam victims are racing to court ("lawsuits are swirling," the story claims enigmatically), with no mention whatsoever about how many lawyers or which lawyers are getting work as a result of said swirl. It ends on the contradictory note that contingency-fee lawyers may avoid the mess because some sense they'll never get paid.
Don't blame the headline writer for empty bluster or for missing the point. Here's where he or she got that idea -- from the lede:
Leave it to the lawyers to find a silver lining in the Bernie Madoff scandal.
Just as it began to look as if the credit crunch was going to put the squeeze on attorneys, the alleged $50 billion Ponzi scheme by Madoff swooped in and is breathing new life into the legal profession.
Why hype a story with a claim that you don't even bother trying to document? Wouldn't an equally valid hype-worthy angle focus on the messy litigation aftermath of the scandal? I am aware that I shouldn't be trying to puzzle out the logic of what the Post chooses to do. But once in a while it's enlightening to turn our sights away from the best news organizations, where the problems are usually more subtle, to this kind of low-hanging fruit.
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Posted at 07:32 AM
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| Herald questions Walsh "news," belatedly |
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| Miami Herald |
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| Mon, December 29, 2008 |
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When police in Florida two weeks ago announced they were closing the investigation into the murder of Adam Walsh, I criticized news coverage in general for playing along with a publicity stunt. But I did at least give a positive shout out to David Smiley of the Miami Herald for recounting the history that put the cops' announcement in its proper context. Now, Smiley and the Herald have shown more independence, recounting in this Sunday story what makes the investigators' sudden confidence questionable. The story is a laundry list of doubts about the chief suspect, the deceased serial killer Ottis Toole. The story would be stronger and more interesting if it explored related questions, such as:
- What are the typical procedures for closing an investigation under these circumstances, and did Hollywood police follow them?
- What role did the Walsh family play in the run-up to the announcement?
- Who benefits from closing the case, and what is the real point?
Without reporting out those elements from a number of perspectives, I have to wonder why it took the Herald nearly two weeks to add one critic's quote and several grafs of details from its archives to the skepticism that was peeking through in its coverage of the Dec. 16 press conference.
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Posted at 11:20 AM
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| WSJ scores with Gonzo interview |
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| The Wall Street Journal |
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| Wed, December 31, 2008 |
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The Journal's Evan Perez scoops everyone else on the DOJ and Gonzo beats with what he bills (and I have no reason to disagree) as former Attorney General Alberto Gonzales' "most extensive comments since leaving government." Perez leads with the not-so-surprising news that Gonzales plans a score-settling book, but goes on from there to quote the former AG with such zingers as these:
"What is it that I did that is so fundamentally wrong, that deserves this kind of response to my service?" (referring to widespread pans of his performance in office)
"[F]or some reason, I am portrayed as the one who is evil in formulating policies that people disagree with. I consider myself a casualty, one of the many casualties of the war on terror."
"He didn't have the decency to notify anyone what he was about to testify. That was extremely disappointing." (referring to Jim Comey's testimony about Gonzales' role in trying to strongarm an ailing Attorney General John Ashcroft into reauthorizing a secret surveillance program)
The Journal accompanies its story with interview excerpts. But one notable gap in the story is reaction quotes from critics and supporters. Perhaps that bit of conventional storytelling wasn't necessary, with Perez's narration serving as the only needed context. Or maybe the rationale is that Gonzales is the one getting the opportunity to respond, after months of unreturned volleys. Given the self-serving and debatable claims Gonzales makes, I would have sought others' comments for balance.
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Posted at 07:37 AM
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| Voice mistreats a legal-reporting treasure |
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| Village Voice |
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| Wed, December 31, 2008 |
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When I first became interested in legal reporting, as a grad student at Missouri in 1980, Nat Hentoff's was one of the bylines I gravitated to. I came to admire his passion for civil liberties -- animated by reported fact, not just opinion derived from someone else's work. By then, Hentoff had been reporting and writing about civil liberties and the law at the Village Voice for 22 years -- all of my life, plus a year. He has continued with vigor and intelligence to add to that body of work.
But, 28 years down the road, the news that the Voice has laid him off, at age 83, is not just a cruel and sad commentary on the newspaper business, as if we needed any others to close out this bleak year. It is also reveals a rank hypocrisy. Soon after New Times acquired the Voice three years ago, company executive editor Michael Lacey put the Voice's cantankerous, lefty staff on notice, as reported in the New York Observer:
“I want our writers to start reporting,” Mr. Lacey said. “One of the things that happened with the Internet and blogging is that it made simple punditry in newsprint irrelevant. It’s no longer timely.”
(“Everything I do is reporting,” Voice columnist Nat Hentoff said by phone. “I have no patience for people who write off the top of their heads based on what other people have said.”)
“I’m going to change the dynamic,” Mr. Lacey said. “It’s true for any paper we operate: We have a reputation for doing hard news. We call people up and get the information. We dig the records up. If people aren’t comfortable with that, they’ll have to find employment elsewhere."
At the time, I was cheered by the Lacey mandate, and proud of my legal-reporting hero Hentoff for mouthing off a bit while taking the side of reporting vs. punditry. And now he's been screwed by Lacey and company. My only hope is that Hentoff quickly finds a new home, to continue inspiring young journalists. Perhaps it will be as simple a home as a blog -- which is fine by me, so long as he keeps reporting.
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Posted at 01:57 PM
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