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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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What led up to latest church scandal revelations
National Catholic Reporter
Fri, April 03, 2009
Tom Roberts has done some valuable and enterprising work in recent weeks to cast a light on historical insights into the Catholic church pedophile scandal. Today's story by Laurie Goodstein in the Times, which graciously credited Roberts' National Catholic Reporter story on Monday, tipped me off to Roberts' work. His most recent story, like the Times', looks at the role of a whistleblowing insider named Rev. Gerald M. C. Fitzgerald, founder of the order Servants of the Paraclete, who started trying in the 1950s to wake the church up to the presence of child molesters in the ranks of priests. His warnings are documented in letters that have come to light in recent litigation. Both papers link to them (here's the Times'). What's the significance? Here's how Roberts explains it:

Fitzgerald's convictions [about the problems] appear to significantly contradict the claims of contemporary bishops that the hierarchy was unaware until recent years of the danger in shuffling priests from one parish to another and in concealing the priests' problems from those they served.

Back in February, Roberts -- in a story datelined from Costa Mesa, Calif. -- gave a heads up about efforts by journalists and plaintiffs' lawyers to pry open the church's documents vault. He wrote of

years of legal maneuvers by the [Los Angeles] archdiocese to keep documents sealed and by a small but determined segment of the plaintiff’s bar dedicated to seeing the full story told, particularly through disclosure of thousands of diocesan documents still under wraps. In several days of interviews here with plaintiffs’ lawyers and others who have been close to the scandal for years, it became clear that despite the massive settlements and an archdiocesan system now in place to protect against a recurrence of abuse, a deep frustration still exists among many who believe the whole story hasn’t begun to be told.

Thanks to work by Roberts and others, readers now know more about a coverup that still has the capacity to shock, years after the church starting paying big settlements to put this all behind it.
Posted at 04:04 PM
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Stevens v. DOJ takeout
Legal Times
Mon, April 06, 2009
Mike Scarcella and Joe Palazzolo have this standout story (registration req'd) on the Ted Stevens prosecution mess in this week's Legal Times. It excels at three things in particular:
  • Explaining the case's meltdown at a level of detail I haven't seen in other reports. But it's also a narrative (and I'm a sucker for those). It's a good read!
  • Asking how the fallout from the Justice Department's errors may affect prosecutorial misconduct in general. It's speculative, of course, but the Stevens case promises to be the poster child in future discussions of accountability for prosecutors who don't play fair.
  • Naming names. Too many of the stories about misconduct and mistakes in this case have treated DOJ as a nameless behemoth. This story calls out the many veteran prosecutors who now are answering for their alleged sins.
Now what we need is a story that examines what facts remain indisputable concerning Stevens' conduct. How much of this outcome is true vindication of his behavior, and how much is simply punishment for the other side's errors? That will take some hardcore reporting on the trial record, sorting out what remains as fact.
Posted at 09:13 AM
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'Church and state' just doesn't cut it
Student post
Wed, April 08, 2009
I derive no pleasure from criticizing the legal coverage in my hometown paper, The Syracuse Post-Standard. But I was dismayed by a story about a new appeal in Peck v. Baldwinsville Central School District, printed on Tuesday, April 7, and first published on the web on Friday, April 3. The case stems from a 1999 lawsuit over whether kindergartener Antonio Peck's First Amendment rights were violated when school officials covered a displayed picture of Jesus that Peck drew for a class assignment on the environment.

In nearly 400 words, the sole quoted source is Matthew Staver, an attorney for Liberty Counsel, representing the plaintiffs, whose quotes are from a previous interview and a press release. The reporter, Tom Leo, does not reference any precedent cited by District Judge Norman Mordue other than "church and state concerns." Compare what Leo wrote to an October 2008 New York Law Journal article about the third appellate court ruling.

The Post-Standard:

In 2000, Mordue ruled the school had the right to censor the poster because of "church and state" concerns. In 2001, the Second Circuit Court of Appeals reversed the decision 3-0 and sent the case back to trial court. In 2004, Mordue again ruled in favor of the school district, but that decision was again reversed 3-0 in 2005, when the appeals court ruled that public schools may not censor a student's viewpoint on a permissible subject matter when it is responsive to a school assignment or program.

NYLJ:

In February 2000, he [Mordue] granted summary judgment to the defendants on all of the claims brought on Antonio's behalf by his mother Jo Anne Peck. They alleged violations of the boy's First Amendment right to freedom of speech and religion and of the equal protection and establishment clauses of the U.S. Constitution.

Following remand for discovery by the 2nd U.S. Circuit Court of Appeals, Mordue again dismissed the action in its entirety in August 2004.

The 2nd Circuit then remanded the case a second time to the judge.

A circuit panel agreed with the judge's finding that the actions of school officials did not represent state inhibition of religion and violate the establishment clause.

But the appeals court held there were disputed factual questions surrounding the plaintiff's First Amendment claim, namely whether the school would have censored Antonio's poster had he used a nonreligious image and if the actions by the school officials and Baldwinsville Central School District amounted to viewpoint discrimination.

Following the framework outlined by the U.S. Supreme Court in Hazelwood School District v. Kulhmeier, 484 U.S. 260 (1984), Mordue last week again dismissed the claim of a free speech violation in his third review of the case.    

Admittedly, a law journal is a completely different medium, and its article was three times the length of the Post-Standard's. But that doesn’t absolve the Post-Standard from covering more than just what Mordue ruled, and quoting from one side in the case. How Mordue ruled and why the appellate court overturned is just as important, if not more so.

And to compound matters, Liberty Counsel is referred to as "Liberty Council" in the Post-Standard's article. This was not corrected for the print edition.

As a graduate student in journalism, I understand the constraints local newspapers are facing, especially in regards to legal reporting, which can be a complex and time-consuming subject. And I've read the Post-Standard for as long as I can remember, and consider it a good local newspaper. But given what we've discussed in Law, Politics, and Media, and how most people learn about court rulings through the media, this article disappointed on a number of levels.

-- Nate Smith
Posted at 07:16 AM
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Lessons from a wrongful conviction
Wed, April 08, 2009
Last night, Syracuse University was privileged to play host to a public screening of a documentary on a local wrongful conviction, followed by a Q&A with one of the filmmakers and with freed convict Roy Brown. Blanchard Road: A Murder in the Finger Lakes (watch the trailer here) was made by Newhouse School graduate Alex Dunbar and Andrew Wolf. Brown served 15 years in prison for the 1991 murder of Cayuga County social worker Sabina Kulakowski. He was cleared by DNA and other evidence pointing to another man, who committed suicide when confronted by Brown -- 12 years after the murder, four years before Brown's exoneration and release, and long before local law enforcement showed any inclination to follow leads pointing to the suspect.

The film and the Q&A aired several important points about wrongful convictions:

The power of persistence (and public-records access)

Brown himself proved his innocence by using New York's Freedom of Information Law to discover witness statements that never were disclosed to the defense at trial. His repeated attempts at getting a hearing and DNA tests based on his innocence claims were barred for years by state and federal courts. But, by discovering procedural flaws in his trial, Brown and his lawyers were able to win an order for DNA testing of evidence. Brown eloquently described his refusal to give up, and his continued faith in the system. "The system worked," he told a large crowd of students, but systems can be easily thwarted by people who betray their duty to justice.

The value of enterprising reporters and public pressure

Dunbar was quick to point out his debt to WSTM-TV's Jim Kenyon, the investigative reporter whose coverage of the case for more than a decade helped shame Cayuga County officials into permitting DNA testing, after years of refusing. Kenyon, who attended the screening and answered questions, appears on camera extensively in the documentary. Among his anecdotes: the DA's hostile and threatening reactions to Kenyon's dogged reporting. When asked about the role of journalists in his case, Brown pointed out that investigators used the press to portray him as guilty, freely lying about evidence without contradiction, before a jury was even seated. Although he praised the press (Kenyon especially) for its coverage of the exoneration battle, he would have every right to be bitter about the initial coverage for its lack of skepticism and fairness.

The necessity of quality legal assistance

Although Brown made himself into a first-class jailhouse lawyer, his success depended on the talent and hard work of pro bono counsel Peter Neufeld and Nina Morrison of the Innocence Project and Syracuse attorneys Katy Karlovitz and James McGraw. As Brown pointed out in the Q&A, how many inmates don't get such help because there isn't enough to go around, in our current post-appellate system, or simply because no one pays attention to their claims of innocence?

The Carnegie Legal Reporting Program sponsored the event, along with SU's College of Law and the Institute for the Study of the Judiciary, Politics and the Media. Congratulations to event organizer Sanjay Chhablani, of the College of Law faculty, and to the good guys portrayed in Blanchard Road.
Posted at 08:07 AM
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Picking through shards after Stevens case collapse
The New York Times
Sun, April 12, 2009
Last week, in praising a Legal Times story on the Department of Justice's screwups in the Ted Stevens prosecution, I wondered which reporter would ask the next logical question: To what extent was Stevens truly exonerated (because the allegations against him went unproven)? Neil Lewis of the Times provides the first story I've seen of that sort, and the results are unimpressive.

He frames (pun!) the story clearly enough. Here's how he starts it:

When a federal trial judge tossed out the ethics conviction of former Senator Ted Stevens last week, his lawyers promulgated the story of an innocent man victimized by unscrupulous prosecutors.

But the five-week trial of Mr. Stevens offered a different version of him, and only a discrete part of that was directly affected by the discovery of repeated instances of prosecutorial misconduct.

The disclosures that prosecutors had withheld information from the defense did little to erase much of the evidence that Mr. Stevens, who had been a powerful and admired political figure in Alaska, regularly and willingly accepted valuable gifts from friends and favor-seekers that he did not report.

And, in this quote --  "His name is cleared. He is innocent of the charges as if they had never been brought" -- Stevens' lawyer, Brendan Sullivan, provides a perfect distillation of the lawyerly fiction that nothing is a fact until it meets the procedural tests of a trial. It's the ideal setup for Lewis' examination of the facts.

Lewis even ponders more philosophical realms when he writes, "The dismissal of the charges, a victory for Mr. Stevens and his lawyers, raises the question of what it means to say that someone is innocent."

This is the sort of story I love because it pits the journalistic/common view of facts against the legal/procedural view. Merely asking the question that Lewis' story is based on is enough to drive lawyers wild, and that gives me great joy.

But when it comes to the hard part -- showing what evidence stands unshaken by prosecutors' unfair discovery tactics -- Lewis can offer only one example: a gift of a massage chair. We learn that Stevens likes it so much he often falls asleep in it. Much of the evidence of unreported gifts to Stevens, Lewis concedes, concerned renovations of Stevens' vacation home in Alaska. And that's the evidence that Sullivan could have undermined more effectively if given a fair chance.

Lewis offers supporting quotes for his thesis by two jurors. One wrote on her blog that Stevens is still guilty in her mind. She offers no argument about why some evidence was untouched by the hidden exculpatory evidence. The other is only an alternate (so he didn't sit through deliberations). He tells Lewis there was so much evidence. “I mean he had the chair,” the juror offers.

So we're left with ... a vibrating sleepy chair. Perhaps the "news analysis" bug on this story meant only that the Times didn't have reported facts to back up its read-between-the-lines conclusion that Stevens is still a sleaze.
Posted at 06:30 AM
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