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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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| Consumer controversy still off some radars |
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| Sun, February 01, 2009 |
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Two weeks ago, I marveled at the virtual news blackout that major news organizations had given a controversy that has been roiling small businesses and consumer groups for months. (I'll lazily rely on that previous post to provide background on the Consumer Product Safety Improvement Act, or CPSIA.) Now that the debate has come to a head -- the Consumer Product Safety Commission on Friday put the law's most disputed effects on hold -- how have journalists done in the intervening weeks and after Friday's vote?
Not bad, according to the blogger I've counted on for comprehensive (if opinionated) updates, Walter Olson of Overlawyered.com. Here's his comment yesterday on the news coverage of late:
In the mean time, let us note that while some sectors of the media flopped utterly in covering CPSIA in recent weeks, others distinguished themselves, with much good coverage appearing in local newspapers and also local television (the latter often belittled as a source of original reporting). Above all, this was a triumph of social media: blogs both big and small (including the 350+ who participated in CPSIA Blogging Day on Wednesday), forums (at places like Fashion Incubator and Etsy), and Twitter (which proved its worth as a means of putting concerned people in touch with each other, spreading word about useful articles, documents and resources, and serving as an early alert system on news developments).
So he singles out The New York Times, as he should, for its weird blind spot on this story (I also found this pathetic gesture, cribbed from the Bloomberg wire, published on Saturday's page B2 in the Times). But The Washington Post should not escape scrutiny. Other than this rather perfunctory spot-news story yesterday by Annys Shin, the paper of record on Washington regulators has pretty much ignored the story. As when I first looked at this story and its coverage, one positive sign was the LA Times' Alana Semuels, who continued through yesterday to stay on the story. And Olson is generally right on the big picture: many did cover this.
But, back to the Times and Post: What's going on here? I usually reject conspiracy theories by partisan media critics, based on my experience. But in this case, I do suspect a bias -- one based on big-time journalists' inability to connect to a concern voiced mainly by handicraft sellers, thrift shops, and second-hand retailers. These are small businesses serving people far outside the urban, and urbane, circles inhabited by Times or Post editors.
I hope they prove me wrong. It's not too late for a comprehensive, what-really-happened-here wrapup.
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Posted at 08:00 AM
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| Drug-war anecdote: great narrative, thin meaning |
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| Washington Post Magazine |
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| Sun, February 01, 2009 |
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Today's Washington Post Magazine cover story reminds me of a put-down that my newspaper buddies and I had for a certain type of magazine story: "pretty writing." We meant that magazine artistes were infamous for reading the product of our original news reporting, and then swooping into town to write a feature that had lots of words but not much new insight or information. After stints at a weekly and then as a magazine editor, and now as a magazine journalism teacher, I am not so quick to dismiss what magazine writers do -- even if it is, at root, just pretty writing bolstered by a telling interview or two. A good magazine feature, particularly a narrative, can make sense of a blizzard of details, and provide perspective and point of view that engages readers and serves as a memorable summary.
So it's with that mixed history that I approached April Witt's cover story in the Post Magazine. Weighing in at nearly 8,300 words, it's undeniably a good read, with a clear point of view on an important topic. A young, small-town mayor in suburban D.C.'s Prince George's County, Maryland, has his life turned upside down by a bungled police raid. The mayor, his wife, and mother-in-law are terrorized by a paramilitary SWAT team that conducted a "no-knock raid" on his home, slaughtering his two Labrador retrievers, after intercepting a box of marijuana being mailed to the mayor's home.
The guts of Witt's story is the gripping scene she portrays, from the perspective of the mayor and his mother-in-law, as the cops brutalized them (the cops aren't talking, because they know they'll be telling their story in depositions). Witt's conclusions: the cops had done nothing to investigate the target of their raid, other than read the address of the pot delivery; ignored warnings that this might be another incident of drug dealers using unwitting innocents as drop points; and lied about the need to use such brute force.
Though one-sided, the story does a good job on those angles. But it falters when it reaches for a broader point -- in the words of the deck headline, "What a SWAT team did to Cheye Calvo's family may seem extreme. But decades into America's war on drugs, it's business as usual." The supposed usualness of it is so thinly sourced -- a three-year-old Cato Institute report, a quote from an ACLU guy, and an offhand and vague mention of the frequency of such misdirected raids -- that the story marks a lost opportunity to examine whether drug police are generally trashing the Fourth Amendment and covering up botched raids on a widespread scale. The most unfortunate omission: only a glancing acknowledgment that many other victims of such tactics aren't nearly so media-friendly, or professional, or educated; and that gunshot victims in these raids aren't just limited to pets.
Witt's and her editors' casual acquaintance with police reporting shows itself in a minor but telling detail: where she mistakes SWAT as an acronym for Special Weapons Attack Teams (though a few departments have used that construction, the common phrase is Special Weapons and Tactics). It's enough to make a cops reporter cringe -- and dismiss the whole thing as pretty writing.
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Posted at 10:27 AM
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| Check out TheCrimeReport.org |
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| Mon, February 02, 2009 |
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A big part of my daily legal-news diet just moved to a new and fancier home. Here's the announcement about Crime & Justice News:
After nearly six years, Crime & Justice News is expanding and moving to a new web site. As of today, CJN is based at TheCrimeReport.org, a site being launched with the Center for Media, Crime and Justice at John Jay College of Criminal Justice. CJN also will continue to be sent out by e-mail once daily on request. The CJN Archives of about 18,000 items also is now housed at TheCrimeReport.org. Beginning today, you can read CJN items as they are posted at the new site. The site includes many other features that should be useful to journalists, criminal justice practitioners, and members of the public interested in crime and justice. We have a comprehensive guide to reliable sources in the field that is easily searchable. There will be blog by CJN editor Ted Gest and other journalists, as well as entries on notable criminal justice research and a discussion forum on controversial topics. Please join us on our new site.
A great resource just got better.
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Posted at 02:10 PM
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| Olson on me on Olson on CPSIA press |
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| Overlawyered.com |
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| Tue, February 03, 2009 |
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Walter Olson adds to his comments on anemic press coverage of the Consumer Product Safety Improvement Act, claiming to echo my earlier thoughts but actually advancing the ball because he has put much more work and thought into it. The logrolling continues.
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Posted at 06:04 AM
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| Time beats anti-death-penalty drum |
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| Time magazine |
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| Wed, February 04, 2009 |
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Reacting to Richard Lacayo's story in Time -- a story declaring that "The Tide Shifts Against the Death Penalty" -- Sentencing Law and Policy blogger Doug Berman calls the timing "interesting." And he doesn't mean that as a compliment. Berman, an oft-quoted expert, wrote:
As regular readers know, I have been documenting death penalty's decline for quite sometime. But this Time article comes out, coincidentally, when death is making a bit of a comeback.
Translated: This is not only old news -- it's outdated.
At first I thought Berman was being a bit harsh. As evidence that the retreat from the death penalty has slowed or reversed, he cites a recent uptick in executions and pro-death-penalty legislation in Virginia. He also points to the appointment of Eric Holder as U.S. attorney general -- because Holder's tenure in the Justice Department during the Clinton years coincided with the death penalty's high-water mark. Seems like a stretch.
I was ready to award the debating points to Time, which after all is a mainstream magazine for the general public, not for the Doug Bermans of the legal world. Lacayo made a pretty clear case that the long-term trend has been toward fewer executions and narrower laws allowing for capital punishment -- recent blips in the stats notwithstanding. Sure, Time may be late to the party, but is that a capital offense?
Then I looked at the Time archives -- which the magazine helpfully provides adjacent to the Lacayo piece -- where Time had already proclaimed the decline of the death penalty. At least twice. Last December, writer Hilary Hylton reported on a slowing of death penalty verdicts in Texas (without noting whether murder rates have anything to do with that), and placed that squarely in the context of a national consensus away from capital punishment. A year earlier, David Von Drehle sounded the same trend-alert in a story pegged to New Jersey's statutory repeal of the death penalty (and where, interestingly, Von Drehle said Maryland death penalty foes had the same goal and were "within a few votes of success" -- the same supposed development that Lacayo pegged his new story to). And last April, Von Drehle took what might be called a positive by death penalty supporters -- the Supreme Court's rejection of a constitutional challenge to lethal injection methods, and the lifting of a de facto moratorium on executions -- and turned it into a negative by emphasizing the Court's lack of unanimity. It was, he implied, another death knell for the death penalty.
And then comes Lacayo's new story. Add to this mix Lacayo's complete reliance on death penalty foes as sources, and what do you have? A bad case of trend-hyping. Why? Take your pick:
Laziness. The writer simply failed to dig deeper -- among experts, and in Time's own archives -- for evidence that this wasn't new or wasn't universally believed.
Bias. Maybe not the conspiratorial kind, but where the writer sees and emphasizes what rings true to him -- regardless of facts and nuances he might have discovered, and regardless of his magazine's previous "discovery" of this trend. At least twice.
Normally I'd commend a newsmagazine for persistent coverage of an important topic, even if some of its stories seem obvious to insiders. But this time, I can only wonder -- alongside Berman -- why Time thought to do this story, in this way, now.
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Posted at 03:10 PM
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| Scalia fan club decreases by (at least) one |
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| Wed, February 04, 2009 |
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Interesting Antonin Scalia outburst in Florida, according to these accounts by Tony Mauro and the South Florida Sun-Sentinel. Let's see if I have this straight: While defending an improper (but all too common) content-based decision to limit public access to Court proceedings, Scalia attacks a student for asking a thoroughly reasonable question about the Court's public accountability. Wow.
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Posted at 03:32 PM
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| Big play for leaked forensic science report |
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| The New York Times |
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| Thu, February 05, 2009 |
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The Times' Solomon Moore previews the upcoming release of a National Academy of Sciences report on flawed scientific practices that law enforcement have used to convict "thousands of defendants for nearly a century." His writing rings with authority, providing useful legal, scientific, and historical context intelligently and clearly. Given the report's potential to bolster countless evidentiary challenges, there's no denying the story's closing quote: "It's going to be big." But that quote, like much of the story, is from an anonymous source. In fact, the heart of the story is sourced so opaquely that the story requires readers to take on faith all its newsy facts.
The level of anonymity throughout the story is remarkable, considering its play (front page) and that it's not a story from the White House or CIA, where such tactics are, lamentably, routine. I'm a realist on these questions -- anonymity is a necessary evil -- but the questions here are whether Moore provided as much transparency as possible, and whether the story's news value (an early heads up on something to be released publicly in a matter of days or weeks) justifies the tactics.
Moore quotes four experts by name, and cites a fifth named expert's contribution to the report. The only direct quote from an anonymous source is the one at the story's end, identified as "one person who has reviewed the draft and who asked not to be identified because of promises to keep the contents confidential." But neither that source nor the named sources are quoted on particulars in the report. For the substance of the draft report, Moore uses a blanket attribution near the top of the story: "forensic professionals, scholars and scientists who have seen review copies of the study." Without noting how many we're talking about, he proceeds to detail the report's contents, without any direct quotes from the report, and without any further attribution. We don't know if Moore saw it, or is relying on others' interpretation of it; and if it's the latter, how many sources he has for each fact.
So how do I answer my own questions -- about whether the end justifies the means? I'm wobbly, but ultimately I say it's worth it. I'm grateful to learn the news now rather than later, and trusting that Moore was sure of his facts, even if he couldn't or wouldn't tell us why he's sure.
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Posted at 06:40 AM
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| Ginsburg coverage insensitive? Phooey! |
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| Legal Times |
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| Sat, February 07, 2009 |
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I didn't write until now about this week's news coverage of Justice Ruth Ginsburg's cancer surgery because I didn't see anything remarkable among reports by SCOTUS beat reporters or other major news organizations. But Tony Mauro's story in the upcoming issue of Legal Times suggests -- and not for the first time -- that what journalists consider routine scrutiny of the justices' lives, the Court may see as intrusive and gauche.
Mauro notes the Court's "unusual transparency" in announcing Ginsburg's surgery and revealing a few telling but cryptic details about her condition. He goes on to quote two experts on Ginsburg's probable reaction to speculation about her retirement (or death, though we dare not speak the word) and about a possibly analogous situation when Lewis Powell's illness in the 1980s had strategic effects on the Court's rulings. Here's what one said to Mauro:
"She's going to grit her teeth even harder in terms of staying," says David Garrow, a University of Cambridge professor who has written extensively about the health of justices. "And I would think the other justices are furious beyond belief" about the media speculation that followed Ginsburg's announcement. Justices resented the spotlight that shone on the late Chief Justice William Rehnquist in 2005 during his difficult battle with thyroid cancer.
Yes, and that spotlight was none too harsh, considering that Rehnquist and the Court were hardly models of transparency concerning the chief justice's grim prognosis, as we learned only later. And there's my point: If Garrow's take on this is correct -- and it's both authoritative and plausible -- then what a commentary on the Court's distorted view of its place in public life. Mauro and his competitors have been models of discretion and humanity. Stories brimmed with sympathetic, get-well wishes and cautionary quotes and reminders that Ginsburg's imminent departure is anything but a sure thing. But how could journalists not ask hard questions about how likely Ginsburg is to remain on the Court for many more years? How could they not explore the scenarios that would unfold if she were to leave soon? Why, one might ask, aren't there even more stories about enfeebled, ill justices whose decrepitude only became known long after they were gone?
If the Court truly is shocked by this attention -- and I concede that I'm shadow-boxing, since the justices would not deign to weigh in publicly -- then it is a clear reminder that the Court wants total control of its information, and seeks PR rather than transparency. And if I come off as cold and uncaring about Ruth Ginsburg the person, I do apologize. But journalists' human reaction to such stories -- to demur, to commiserate, to hope for the best -- should bow to political and legal realism when discussing what might come next at this critically important post in government. Mauro's story balances the two effectively. We need more like it.
Update: This WaPo editorial agrees.
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Posted at 08:59 AM
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| Newsflash: Obama hates freedom! |
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| The Wall Street Journal |
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| Tue, February 10, 2009 |
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Shame on Evan Perez and the headline writers at The Wall Street Journal. To report on appellate arguments yesterday in San Francisco, they spun the news as political backpedaling by the administration -- but backpedaling on the wrong thing. Here's the hed and two lede grafs:
Rendition Case Under Bush Gets Obama Backing
The Obama administration backed the Bush administration's arguments in a lawsuit involving the practice of seizing terror suspects abroad and sending them to third countries for questioning.
The case involves five men who claim U.S. operatives abducted them and sent them to be tortured in other countries. The men are suing a unit of Boeing Co., which they say provided aircraft to the Central Intelligence Agency for the "extraordinary rendition" program. Boeing declined to comment on the case.
That all but says the administration has reversed course to be pro-rendition -- that a change in rendition policy is the result that's sought. Only by the third graf do readers learn that there may be something else at work here, but the language is dumbed down to the point that it still obscures the legal import of what happened. The administration told the Ninth Circuit that it "believes state secrets and national security would be put at risk if the court allows the suit to proceed," Perez wrote. Close, but no cigar. The argument, at least ostensibly, is about a principle, and a precedent that could affect other circumstances: that is, that the government is invoking a recognized (though controversial) privilege to protect state secrets as a matter of policy. While that may have the effect that Perez describes, it's not at all the same to say that the administration favors rendition, or that it only fears this alleged security breach. One could be anti-rendition and pro-privilege in this case, or generally. More reporting might tell us what is in fact going on here -- whether it's a sham argument cloaking a newfound love of rendition, or a product of indecision, or something else. But I don't see that in Perez's story. Instead, I see a writer (and headline writer) going overboard to put the facts in plain terms, and in the process mangling the point.
Compare the Journal's approach to that of the Washington Post and reporter Peter Finn:
Justice Dept. Uses 'State Secrets' Defense: Obama Backs Bush Decision on Rendition Lawsuit
The Obama administration invoked the same "state secrets" privilege as its predecessor in federal court in San Francisco yesterday in opposing the reinstatement of a lawsuit that alleges that a Boeing Co. unit flew people to countries where they were tortured as part of the CIA's "extraordinary rendition" program.
The New York Times and its reporter, John Schwartz, took the same tack:
Obama Backs Off a Reversal on Secrets
In a closely watched case involving rendition and torture, a lawyer for the Obama administration seemed to surprise a panel of federal appeals judges on Monday by pressing ahead with an argument for preserving state secrets originally developed by the Bush administration.
Those two approaches are much truer to the story's main point, and news hook. All the stories, to one extent or another, hit on the necessary political ingredient -- that the effect of the legal argument dismays certain folks, and cheers others -- but the lack of substance in the Journal's story is a disservice to that paper's readers.
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Posted at 01:31 PM
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| CQ's new reported blog on the courts |
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| Congressional Quarterly |
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| Tue, February 10, 2009 |
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Congressional Quarterly has launched an important addition to legal reporting (and I emphasize reporting) with the new blog Legal Beat, by legal affairs writers Keith Perine and Seth Stern. The site describes itself thusly:
Legal Beat chronicles the relationship and tensions between Congress and the courts. It examines high-profile court cases that pit judges against lawmakers and takes you behind the scenes in the Senate battles over judicial nominations. It also explores lawmakers' attempts to rein in the courts and the judiciary's efforts to get more resources out of Congress.
The first posts do exactly that, in a smart way with original reporting. One in particular caught my eye. Last Thursday, the very day that the Supreme Court disclosed Justice Ruth Ginsburg's illness, Stern posted this informative bit of Court history on how illness has affected past justices' departure dates -- doing pretty much what I was wishing on Saturday more would do (unaware as I was that Legal Beat had launched). Stern is no slouch as a Court historian, as co-author of a long-awaited biography of Justice William Brennan.
Some may confuse LawBeat with Legal Beat, even though we serve different purposes. But, given Legal Beat's quality, I guess I won't mind a bit.
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Posted at 01:52 PM
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| Con-law 101: legal standing made interesting |
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| The Wall Street Journal |
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| Thu, February 12, 2009 |
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Jess Bravin provides a primer on legal standing in today's Wall Street Journal (sub. req.) -- not a sure-fire crowd pleaser, but his conversational, example-filled story does a marvelous job of explain an abstract theory to lay readers. The hook for the story is a lawsuit challenging Hillary Clinton's legal right to hold the office of Secretary of State. Bravin, without heavy use of talking-head experts, explains why such cases usually die quick deaths in court, because the plaintiffs lack legal standing. His tone is not mocking or preachy. It should be required reading for any reporter covering a publicity-stunt or partisan hit-job lawsuit. Here's the background you need for an obligatory paragraph that correctly portrays such suits as the long shots that they are.
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Posted at 10:26 AM
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| Court records access battle bursts into view |
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| The New York Times |
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| Fri, February 13, 2009 |
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John Schwartz tells a fascinating story today about a controversy over the federal courts' PACER records system. This has been going on awhile, but under my radar (I guess my ballooning blog-reading list still isn't large enough). The heart of the story -- about Public.Resource.Org's campaign to bypass PACER by putting trial and appellate records on the free-and-searchable Web -- is of great importance to legal reporters, especially freelancers who don't have a news organization's budget backing them.
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Posted at 06:35 AM
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| Autism battle still awaits a full takeout |
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| The New York Times |
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| Fri, February 13, 2009 |
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Nearly 11 months ago, I prodded the Times to dig more deeply into the autism-and-vaccines controversy -- a health story, but with a major legal angle, as parents seek compensation on claims that common vaccines can cause autism. Back then, it shocked me that the clearest perspective on developments at that time came in an op-ed, rather than through enterprising reporting. I'm still waiting. Now the Times has an even better hook: the rulings yesterday rejecting the parents' claims. Reporter Donald G. McNeil Jr. does a good job of describing the basic five W's (although it's unfortunate that the newspaper paper does not link to the rulings). But this brief story with snippet-quotes from the rulings on the paucity of credible medical evidence on the parents' side deserves a much more thoughtful and detailed followup, giving us a fuller picture of the hearings spanning more than a year. With thousands of claims in the pipeline, and a vocal and angry movement of scared parents, the public needs to know if the court got it right.
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Posted at 06:54 AM
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| Caperton resource page: pluses and minuses |
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| Fri, February 13, 2009 |
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Justice at Stake, the Soros-funded goo-goos campaigning to rein in or abolish judicial elections (that's what it means in its slogan about "working for fair and impartial courts"), has built this impressive resource site on the pending Caperton v. Massey case. The presentation is clear and ambitious, giving the public and reporters handy synopses and links to original documents. It's surprisingly neutral, considering Justice at Stake's clear position in the case, which asks whether due process requires recusal when a judge's major campaign donor is a litigant. But reporters should always be cautious about advocacy groups' summaries of cases in which they have strong beliefs. One other comment: I hope that in addition to editorials, the site will link to informative, straightforward reporting on the case.
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Posted at 10:57 AM
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| Behind NY's "merit" selection of chief judge |
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| Village Voice |
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| Fri, February 13, 2009 |
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The legendary Wayne Barrett accomplished two feats in this story about the political levers pulled to put Jonathan Lippman in the chief judge seat of New York's highest court, the Court of Appeals: he showed how uninspired the Times and other newspapers in the state have been in covering such a crucial judicial appointment; and he provided a stark reminder that so-called merit selection is not the squeaky-clean alternative to elections that it's cracked up to be -- especially in the Empire State, home of shameless machine politics and backroom deals masquerading as democracy. Nothing about Barrett's writing is neutral, but his reputation as a muckraker in touch with how politics really works in New York makes this a story worth taking seriously.
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Posted at 03:02 PM
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| Local paper revealed kickback probe months ago |
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| Citizen Voice |
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| Fri, February 13, 2009 |
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Like many readers of The New York Times, I was shocked to read today of the judicial scandal in Wilkes-Barre, Pa., where two judges stand convicted of taking millions in kickbacks for sending juveniles to a privately owned lockup. But local residents have had quite a while to get used to the shock, thanks to long-running, hard-hitting coverage of the federal investigation by Dave Janoski and his colleagues at the Citizens Voice. Since at least last June, the paper has documented the trajectory and focus of the probe (here are early stories on search warrants that brought the probe to the surface, supplemented with a bunch of journalistic digging through public documents). And, now that it's national news, the Citizen Voice is throwing all it has at the story, including reporting on efforts to get the courthouse back on its feet.
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Posted at 03:26 PM
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| When Don met Adam, and the things he said |
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| The New York Times |
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| Sun, February 15, 2009 |
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What's most remarkable about Adam Liptak's front-pager today on the pending Supreme Court case on judicial ethics and independence, Caperton v. Massey, is not simply that Liptak reported from the field rather than just from the briefs and from talking-head experts. He's done that often as the Times' legal affairs writer and now as its Supreme Court reporter. Plus, it's just basic reporting, and would be considered ordinary if we were talking about any beat other than SCOTUS.
The truly remarkable aspect of his story is just how effective he was in getting coal executive Don Blankenship to mouth off about his role in judicial politics. Blankenship's heavy contributions to the now-chief justice of West Virginia led to claims that the justice's impartiality was so compromised that his hearing cases involving Blankenship's company, Massey Coal, amounts to a due-process violation for the side that didn't contribute cash. The case has judicial-election combatants duking it out over the influences of big money in judicial contests.
So what did Blankenship tell Liptak?
That he's experienced enough to know that "politicians don’t stay bought," meaning donors shouldn't try to win corrupt influence with their money. Instead, they should use it for long-term strategic influence over ideology and policy.
He repeats the point, and undoubtedly made his Supreme Court advocates cringe, when he said his cash wasn't about one case -- but could be about winning judicial favor over the long haul: “If someone wanted to accuse me of something, they would accuse me of trying to elect Benjamin to rule in our favor in hundreds of cases, not one case.”
Ruling in his company's favor, after all, was the whole point, Blankenship admits about wanting pro-corporate, anti-plaintiff courts. Which is what everyone knows the West Virginia battles (and many others) are really all about, rather than about the subjects of commercials on child-molestation cases. But hardly anyone admits it as nakedly as Blankenship did to Liptak, who writes:
Mr. Blankenship cheerfully conceded that his real objection was to Justice McGraw’s rulings against corporate defendants. “Being the street fighter that I am,” he said, he had instructed his aides to find a decision that would enrage the public.
When they returned with an unsigned opinion in the sex abuse case, which Justice McGraw had joined, Mr. Blankenship said he knew he had hit pay dirt. “That killed him,” Mr. Blankenship said of Justice McGraw, smiling.
Liptak should get out of the office more often. He's just poured gasoline on this particular fire.
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Posted at 08:14 AM
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| Riling the viewers with a pointless story |
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| WVTM |
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| Mon, February 16, 2009 |
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In her 90-second broadcast report, and an accompanying text story on the Web, reporter and weekend anchor Jen Hale at Birmingham, Alabama's NBC affiliate, WVTM Channel 13, treats seriously a state legislator's proposal that flies directly in the face of last year's Supreme Court ruling barring capital punishment for raping but not killing a child. Hale's Web story starts:
Pedophiles who rape young children could face the death penalty in Alabama…if one state lawmaker gets his way.
State Representative Steve Hurst of Munford in Talladega County is proposing a new law that would allow a judge to use capital punishment if someone older than 21 is convicted of raping a child 6 years old or younger.
The death penalty is a punishment that - so far - has been reserved only for murderers.
Should child molesters now be included?
Should they? The readers and viewers posting comments on the story certainly have loads of opinions about that (and about God and Nazis and other sundry debating standards). But could they? It's too bad Hale didn't spend a few minutes researching the question and reading about, if not reading the decision in, Kennedy v. Louisiana. Doug Berman of Sentencing Law and Policy, who spotted this story, wonders slyly if the legislator making news with this bill has a grand strategy to achieve the national consensus that the Court in Kennedy found lacking. Alas, the legislator's excuse -- and Hale's -- is more likely just laziness and ignorance.
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Posted at 09:06 AM
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| Legal journos reap awards |
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| Tue, February 17, 2009 |
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Two recent journalism awards, including the top-shelf Polk Awards, included legal reporters among their honorees. The Polk for justice reporting went to Ryan Gabrielson and Paul Giblin for "Reasonable Doubt," a five-part series in The East Valley Tribune on Maricopa County Sheriff Joe Arpaio's campaign against illegal immigrants in and around Phoenix. The Polk for local reporting honored Jim Schaefer and M.L. Elrick of the Detroit Free Press for their "Mayor in Crisis" coverage of Detroit mayor Kwame Kilpatrick. That scandal -- which centered on misuse of public money and perjury in a lawsuit against the city -- also won a Nieman Foundation Bingham Prize for Investigative Journalism last week.
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Posted at 08:28 AM
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| Florida foreclosures, from the inside of a courtroom |
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| The Wall Street Journal |
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| Wed, February 18, 2009 |
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The Journal's Michael Corkery turns the foreclosure crisis into a vivid vignette in this piece today focusing on how Florida courts are dealing with a glut of cases. The story's brisk pace and human touches -- ending with a woman silently crying as a busy court system churns through its backlog -- belie its mastery of the relevant facts about the housing market, the law, and court-administration realities. With a photo slideshow to accompany Corkery's words, the Journal has turned an abstraction into a memorable story.
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Posted at 08:43 AM
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| Creative storytelling about the new AG |
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| National Public Radio |
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| Wed, February 18, 2009 |
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When I heard Steve Inskeep's intro of this Ari Shapiro piece on NPR's Morning Edition, I had my skeptic's hat on (it's a rather handsome piece of headwear, but I'll save details on that for another post). Shapiro's relatively lengthy report (nearly eight minutes) focused on Eric Holder's innovation as U.S. attorney for the District of Columbia, during the Clinton administration, called "community prosecutions." It's like community policing, except for lawyers rather than cops: building relationships and trust at the neighborhood level to make for more effective law enforcement and public safety. In the handoff from anchor to reporter, Inskeep provided an ostensible news hook: What would this program tell us about Holder's approach to his new job running the entire Justice Department? That's a stretch, I thought, because running the D.C. U.S. attorney's office is like none other in the country. It's the local law enforcement agency, akin to every other big city's district attorney office. That logical flaw in the story's premise grew sharper in Shapiro's first anecdotes. Although interesting and well told, they were about homicide investigations and low-level drug busts -- not common fare for ordinary federal prosecutors. But then Shapiro used sources to connect the dots -- to ask how a "holistic" approach to law enforcement in the D.C. example would translate to the national stage. He quoted close observers of Holder's methods about how the innovation illustrates broader points about Holder's ways of thinking. With Inskeep pointing out explicitly in the closing that Holder's job as attorney general is not at all analogous to his D.C. job, he and Shapiro managed to avoid the trap that I thought they had fallen into -- and gave their listeners a relevant, timely insight into the nation's new top law enforcement officer.
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Posted at 09:16 AM
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| Corporate crime reference misses mark |
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| The New York Times |
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| Thu, February 19, 2009 |
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Lynnley Browning's front-pager in the Times on the $780 million settlement between the federal government and UBS -- a deal casting a harsh light on Swiss banking practices -- contains a curious graf near the end:
The move by UBS to settle the case, on the eve of a Senate subcommittee hearing next Tuesday on the matter, signals how close the bank came to being indicted for not cooperating with prosecutors. Indictment is a near-certain death knell for corporations.
Perhaps that's true if your corporate-crime knowledge extends about as far as the Arthur Andersen case. But it's not true otherwise. Countless major corporations walk the corporate streets with serious rap sheets. And we're not just talking fringe companies. Exxon, Pfizer, General Electric, Archer Daniels Midland, Northrop, Royal Caribbean Cruises, Chevron, Georgia Pacific, Alcoa -- hundreds of big names, public companies and privately held, with criminal convictions. There are many lists (and Times archival stories) available. Here's a dated but reputable one. Browning's editors might have questioned the sentence simply on the basis that the same day's paper has this story by Kirk Johnson on a criminal trial set to start today in Montana -- where W.R. Grace & Co. is among the defendants.
With more digging, Browning might have crafted a narrower but true sentence about particular types of companies, in particular situations, that may indeed collapse the moment they're indicted. For now, readers are left with a false impression about how rare and doomed a corporate criminal defendant is.
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Posted at 05:21 AM
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| Indecent? Obscene? Whatever. |
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| Foxnews.com |
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| Fri, February 20, 2009 |
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Call me Mr. Picky. But I wonder if this dumb mistake would have been made if Fox News covered the Supreme Court regularly, or had legally smart producers reading copy before it's published or aired. In this Web report, Lee Ross confuses obscenity with indecency in a report on whether the Supreme Court will hear the Janet Jackson "wardrobe malfunction" case. Lee refers to "the supposedly obscene flash" of Jackson's breast, a mistake repeated in the story's deck headline. Lee later refers to indecency, but he never defines it and leans on a jargony quote to handle the heavy lifting:
The Third Circuit ruled the "First Amendment precludes the FCC from sanctioning CBS for the indecent expressive conduct of its independent contractors..."
As any undergrad taking media law could tell you, legal obscenity is an entirely different thing. If Jackson and Justin Timberlake had sex on camera, that might well have been declared obscene. Indecency is a standard applied only to FCC licensees for much milder stuff. It's a common mistake -- but one that you'd hope the top-rated cable news operation would make. Especially when the semantic difference really lies at the heart of the case: whether it's constitutional to punish a form of expression simply because it's aired on broadcast TV rather than in another medium.
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Posted at 04:12 PM
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| WSJ cuts lead Law Blog reporter |
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| The Wall Street Journal |
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| Sat, February 21, 2009 |
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The Wall Street Journal's Law Blog lost its primary writer to newspaper-wide staff cuts. Dan Slater posted a brief goodbye yesterday, and I confirmed that he was the one staff sacrifice that the Journal's law group was told to make earlier this month. Slater, a former practicing lawyer, joined the blog a little over a year ago from The Deal newspaper. He was the Law Blog's second staff writer since its launch in January 2006. Legal editor Ashby Jones, another Deal veteran who runs the page that hosts the Law Blog, now absorbs the role of primary blogger, joined now and then by Journal and Dow Jones writers.
Slater's departure is legal journalism's loss. He contributed original reporting (something not many bloggers can claim) and smart writing to the coverage of law from a business perspective. Jones is an able replacement. But, with one less staffer, it's obvious that law coverage in the Journal and online will suffer a net decrease.
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Posted at 11:54 AM
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| Note to Gary Condit: Our bad! |
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| The Washington Post |
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| Sat, February 21, 2009 |
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If today's news about the Chandra Levy case proves true, and D.C. police charge the suspect identified in last summer's Washington Post series that I praised here, then a few legal-reporting reminders are in order:
1. Former Rep. Gary Condit's experience at the hands of police and journalists should join the Hall of False-Accusation Shame. Remember the frenzy surrounding the congressman, and the casual assumptions of guilt that many made because he lied about an affair?
2. The Post's critics last summer -- accusing the paper of exploiting a tabloid case that lacked news value -- are proven wrong. Not only was it a good read, but it was prescient.
3. But that means only that the investigation was not closed, and that there is enough evidence to charge a new suspect -- not that the police are right this time. Let's not do it again.
Of course, the case never would have been such a sensation if an illegal immigrant were the suspect all along. Which is yet another unpleasant reminder about what constitutes news -- and what doesn't.
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Posted at 02:59 PM
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| Rochester judges: masters of their domain |
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| Democrat & Chronicle |
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| Mon, February 23, 2009 |
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Here's a wonderful example of a local newspaper's commitment to public access to court records. David Andreatta of Rochester's Democrat & Chronicle demonstrates convincingly that local civil courts -- through carelessness or worse -- have routinely kept crucial documents out of publicly accessible files. In what one expert is quoted as calling "a bizarre local process," pleadings and other filings often went straight to the judge, rather than through a central clerk's office. Judges often held onto files as if they were their personal property and didn't bother checking whether documents eventually made their way into the clerk's office files. In many cases they did not, Andreatta found, including cases in which large sums of public money were at stake. Perhaps most alarming is an undercurrent evident in public officials' comments or internal memos, where they show that they consider Andreatta's requests to be seeking favors for the media. Though the Rochester judges' lapses are extreme, they show an all-too-common attitude -- that they are helping private parties settle disputes privately, rather than behaving like public servants using public resources to dispense justice.
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Posted at 08:59 AM
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| Gag order persists despite guilty plea |
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| Houston Chronicle |
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| Mon, February 23, 2009 |
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Speaking of judges who forget they're public servants, the visiting judge hearing the unprecedented criminal prosecution of U.S. District Judge Samuel Kent persists in limiting legitimate public scrutiny of the case -- and continues to catch subtle hell from the Houston Chronicle's Mary Flood. Last September, I blogged about Flood's ability to cast a skeptical eye on the gag order imposed in the case, from within the confines of a straight-news story. She was right to wonder why visiting judge Roger Vinson felt a gag order necessary despite fairly subdued pre-trial publicity. Now that Kent has pleaded guilty to obstruction of justice -- for lying about the circumstances in which he sexually forced himself on subordinates -- the gag order is even more absurd, as Flood was unafraid to point out when noting that the women who would have testified against Kent couldn't say much today:
Gag orders are designed to protect the rights of defendants from public prejudice before trial. Kent has waived his right to appeal and it is unclear why Vinson would issue a gag order.
Unclear is one word for it. Outrageous is another. This case is the public's business, and reporters should be able to get answers about what happened and why.
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Posted at 03:18 PM
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| Prop 8 preview takes brainy detour |
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| San Diego Union-Tribune |
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| Tue, February 24, 2009 |
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Greg Moran is a brave reporter -- and, evidently, one who has his editors' trust. It's not often that a courthouse reporter can sell his editors on a story about a new legal standard that's applied to certain cases. But that's what this San Diego Union-Tribune courts reporter did to preview next week's oral arguments in the California same-sex-marriage battle. And, while his story isn't light reading, it's a lucid and important explanation of a previously obscure aspect of the California Supreme Court's ruling on same-sex marriage. Moran, without leaning heavily on sources for explanation, shows his readers how the outcome of the pending case -- which challenges Proposition 8, the voter-approved constitutional amendment overturning the court's ruling -- won't affect another aspect of the holding. The court found gay rights to be fundamental rights, and thus laws restricting them are now subject to strict scrutiny. Regardless of the outcome of the battle over Prop 8, Moran writes, the precedent set by the court will affect many other cases. Judging from the initial reader comments on the story, this may have flown right over the heads of many. But it's a valiant attempt at educating the public about important and complex legal realities.
I'm surprised I haven't read this already about the California court's ruling. Then again, it's a daunting writing challenge in a general-circulation newspaper, and not everyone is up for the task.
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Posted at 08:43 PM
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| Levy media pack reassembles |
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| McClatchy Newspapers |
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| Wed, February 25, 2009 |
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McClatchy's Michael Doyle has documented media coverage of this latest phase of the Chandra Levy murder case, adding to what he's already done on his blog in multiple posts about the Levy investigation. As usual, I'm left dumfounded over what might spark a particular news frenzy. This one, like many others, seems to take on a life of its own and serve some need that many have. I thought that the subtraction of the congressman angle would dampen enthusiasm. Wrong. Is it just because the story occurs in a media center, D.C.? I doubt it, as some equally frenzied stories have sprung from small cities or rural areas. Nostalgia for the frenzy that gripped us years ago? Maybe. All I'm sure of is that I'll never be good at predicting what sets off these wildfires.
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Posted at 08:41 PM
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| Questions in Kent case need answers |
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| Thu, February 26, 2009 |
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After a bizarre back and forth throughout the day, the Florida federal judge called in to hear the prosecution of a Texas federal judge has lifted his gag order on lawyers and witnesses in the case. Judge Robert Vinson had left the gag order in place since Monday's guilty plea by Samuel Kent, who stepped down from his judgeship when pleading guilty to obstruction of justice in a case featuring accusations that he sexually abused women who worked for him. (He admitted lying about the incidents, and that he forced himself on subordinates.) Local and national news organizations admirably challenged the gag after the guilty plea. As I blogged here, Vinson's initial stance smacked of favoritism for a defendant whose case deserves to be aired completely. Since then, reports the Houston Chronicle's Mary Flood, Kent's media-savvy defense lawyer, Dick DeGuerin, made a remarkable request: Leave the gag order in place to inhibit attacks on Kent in the news (including from impeachment-minded members of Congress enraged that Kent struck a pension-preserving deal) that the former judge wouldn't feel free to counter. In other words, protect his reputation. Flood, on her blog, rightly called that "an amazing request from an admitted felon." She also took Vinson to task:
Vinson has run a remarkably secret case. He's held more than 20 sealed hearings, issued sealed orders and had unannounced and close telephone conferences with the lawyers in this case.
He gave no justification for continuing the gag order Monday after it was clear there will be no jury, there will be no trial, there will only be Vinson himself sentencing Kent.
After days of this, Vinson lifted the order, noting that he probably could sentence Kent without getting the vapors from all this tawdry publicity. Now that the muzzles are off, we the citizens deserve to know: Why did the government cut this deal? Was Kent treated unduly leniently in plea bargaining, and in the lengthy investigation? Or was it the other way around? Did court administrators do their jobs? What do his accusers say about all of this? And what's in those sealed pleadings and transcripts? Short of identifying a sexual assault victim who wishes to remain anonymous, everything now should come out.
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Posted at 08:18 PM
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| Abrams on media and presuming innocence |
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| The Wall Street Journal |
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| Fri, February 27, 2009 |
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NBC News legal analyst Dan Abrams has a wonderfully provocative in the Wall Street Journal today (Huffington Post reprinted it, and that's the best available public link) about the role of journalists and commentators covering criminal prosecutions. His thesis goes like this: Stop demanding that the news media presume defendants' or suspects' innocence. That's not our job, and it's absurd in cases where the facts clearly point to guilt. The purpose of the presumption, Abrams explains clearly, is to place the burden where it belongs -- on the government -- to ensure a fair trial by an impartial jury. But that outcome doesn't depend on pretrial news coverage that suspends disbelief, he argues. "Demanding that all of us presume every defendant innocent outside of a courtroom," Abrams concludes, "is to demand that we stop evaluating facts, thereby suffocating independent thought and opinion."
Abrams makes some valid points and brings refreshing candor to a discussion often cloaked in sanctimony. And he does so from a position of strength, as one of the smarter, more experienced, and responsible TV legal analysts. But what he really seems to be attacking is the shorthand that lawyers and others use to critique the media. When they demand fealty to the presumption-of-innocence principle, aren't they really asking us to do what Abrams also wants -- that is, to examine the facts critically and skeptically? If you simply change their slogan from "the media should presume defendants' innocence" to "the media should not assume guilt before all the relevant facts are in," you end up at the same place. So Abrams is making a lot of noise about something that really boils down to semantics. But it's a fun read, and no doubt will cause a lot of harrumphing from the legal establishment.
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Posted at 07:14 AM
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| Courthouse reporter's confessions |
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| The Star-Ledger |
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| Fri, February 27, 2009 |
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Newark Star-Ledger's Carmen Juri wrote a touching essay -- which resonated loudly with me -- about what she tells her 6-year-old about her day at work, covering courts in Newark. She lies. She summons memories of happy stories she did before we went on the courts beat. And then pretends that's what she did all day. The lies protect her daughter from the pain on parade in the courts. Juri writes about how she can't distort her daughter's image of reality, not quite yet:
I believe that my little white lies serve a greater good. If nothing else, for a few minutes, I can at least fool myself into thinking that yes, I really did write a beautiful story with a very happy ending.
All courthouse reporters can relate. Perhaps this is why some of us could bond more with cops and prosecutors and defense lawyers than with the feature writers back in the newsroom. (Via Romenesko)
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Posted at 08:18 PM
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