LawBeat

LawBeat on hiatus

Sun, 10 May 2009 16:34:15 EDT

Why has this blog been so quiet? Two reasons: Until today, I've been in a long, dark tunnel of work, more intense than even past end-of-semester crunches. But on top of that, I've been debating whether to continue producing LawBeat. The debate is over. I've decided to quit it, and I owe my reader(s) an explanation. I also can legitimately hold out hope that it will resume under new management soon. Here's the deal: In 30 months, I have written nearly 900 critiques of legal reporting on this blog (plus I've hosted some valuable contributions from students and an alumnus). In many ways, the experience exceeded my expectations. I've never lacked for material: legal reporting that lent itself to positive or negative critiques, with lessons about the craft. LawBeat has attracted loyal readers and attention to the Carnegie Legal Reporting Program at Newhouse. It has kept me in touch with colleagues, many of whom were kind enough to speak to students on campus. It renewed my pride in certain segments of journalism, and reminded me why I am a reporter. I've enjoyed writing it.But I'd rather be doing journalism than commenting on it. I left my previous life and came to the Newhouse School with two priorities: to teach new journalists professional skills and to get back to reporting and writing, after too many years editing and managing. I have largely neglected the second half of that equation, having spent so much time pouring myself into teaching and running the legal reporting program (with its associated blog). To focus on my own reporting and writing, I will shed my role in the legal reporting program. And with that goes the blog. The Newhouse School is now deciding who will lead the program in the coming year. My replacement may decide to blog here, in which case LawBeat will live on. I thank the many readers who've provided tips and encouragement these past years. See you in the trenches.--Mark Obbie

Painting oral arguments as mere politics

Sun, 26 Apr 2009 16:07:13 EDT

Dana Milbank's April 23 column "The Supremes Sing the Oldies" in the Washington Post is hardly what some would categorize as pure legal journalistic writing. In his column, Milbank pokes fun at the Supreme Court justices hearing the oral arguments of Ricci v. DeStefano. Twenty firefighters -- one Hispanic and 19 white -- in New Haven, Conn., sued the city on the basis of reverse discrimination for throwing out the results of an exam in 2003 that would have promoted some of them to lieutenant and captain positions. Milbank sets his narrative in the framework of a highly politicized courtroom stage where the justices, not the lawyers and clients, are the main actors. He pits the liberals (Justices Souter, Ginsburg, Stevens, and Breyer) against the conservatives (Chief Justice Roberts and Justices Scalia, Alito, and Thomas) with Justice Kennedy playing Devil’s Advocate. Milbank’s rendition of the Supreme Court hearing has action, drama, and suspense: nine justices with a long history of petty squabbles and ideological conflicts and differences who are determined to fight each other out for the final votes until the bitter end � in June. Readers will understand that Milbank’s column is subjective. The trouble arises when objective news reports like those in the Wall Street Journal, Christian Science Monitor, Hartford Courant, and USA Today choose to focus on the politics of the case instead of the actual case itself. In these articles, the writers focus on Kennedy and his swing vote. The CSM article included a deckhead about Kennedy’s deciding vote. The WSJ article had a sketch of Kennedy, highlighting his importance in the final vote. Very few of these articles explained in full detail the underlying legal principles and impacts that the results of the case could have on Title VII of the Civil Rights Act. Even Robert Barnes' news article in the Washington Post was awfully similar in content and perspective to Milbank’s opinion column. These problems -- treating the case as just another political horse race -- get compounded when news reports essentially assume the outcome will be 5-4. Their only supporting evidence for this assertion was the 5-4 majority decision made in another civil rights case a year ago that struck down the use of race to determine the assignment of children to public schools, which again, pitted the liberal justices against the conservatives. It is somewhat of a sad state of affairs when the biggest civil rights lawsuit this year has been watered down to whether liberals or conservatives will prevail, and even sadder to see that a swing vote is considered big news. At the end of the day, legal reporters should be focusing their efforts on finding out the legal implications of a case and its impact on the general public and not on the politics of the courtroom and its judges. --Mimi Liu

Fortune hypes an already-good feature

Sat, 25 Apr 2009 10:32:50 EDT

The new Bernie Madoff narrative in Fortune by James Bandler and Nicholas Varchaver is a hell of a page-turner. I haven't devoured every Madoff detail -- and who can, judging only from the CNNMoney.com Madoff archive -- so I'm not the best judge of how much new ground this nearly 11,000-word feature actually breaks. But I do know that the story promises something specific that sounds new and interesting. After using the opaque attribution that "Fortune has learned" of a key Madoff aide's plea negotiations, the writers cite "a person familiar with the matter" as the source for saying that the witness, Frank DiPascali, "has no evidence that other Madoff family members were participants in the fraud." DiPascali will name names -- certain Madoff investors who knew of the Ponzi scheme or at least manipulated investment results for their own needs -- the writers quote their anonymous source as saying. Here's the nut graf:

The emergence of this potential star witness may well stand assumptions about the case on their heads: Some people widely assumed by the public to have been involved in the fraud may not have been, and a small group of Madoff investors who appeared to be innocent victims may not have been entirely innocent after all. But then, few things about the life of Bernie Madoff turn out to be as they seem.

That sets up a chronological narrative that spends relatively few words on the workings of the scheme itself, or adds much more detail to what DiPascali supposedly will testify to. Note the many qualifiers: DiPascali "has no evidence" is not the same as saying that he has proof that they were uninvolved. The word "may" makes three critically important appearances in the nut. And it's all pegged to one anonymous source.And all of that is fine. The writers carefully frame the story as one that concerns what one witness may say, and about what led up to this. Here's where I have a problem -- with the hed and dek:

How Bernie did it

Madoff is behind bars and isn't talking. But a Fortune investigation uncovers secrets of his massive swindle.

That's not really what the story is about, or what it can deliver. Yes, the dek doesn't say "the secrets"; it says merely some secrets. But there's no mistaking the tone -- that this is the real story, finally. It's a shame that a good story ends up falling short of its hyped heds (though I don't know if the magazine's editors or the web editors are to blame for this particular set of heds). Still, I recommend the story, sans display type.

In an instant, the Court camera tide turns

Thu, 23 Apr 2009 16:52:53 EDT

It's hard not to feel a tingle of excitement when reading Tony Mauro's report of today's appearance at a House hearing by Justices Clarence Thomas and Stephen Breyer -- an annual budget ritual that unexpectedly became a forum on the Supreme Court's transparency and public accountability. Mauro paints the scene as Rep. John Culberson (R-Tex.) persistently and playfully confronts the justices with a simple plea for modernity and openness in the form of Internet video. Mauro writes:

Thomas and Breyer must have left the hearing feeling the momentum on cameras coming from Congress and from technology was heading strongly toward openness. If the Court eventually, finally, says yes sometime in this century, today's hearing of the financial services and general government subcommittee of the House Appropriations Committee will have played a significant part.

And Mauro's description of that moment, with Culberson wielding his digital camera, will be the official account of the moment the tide turned.

In Lackey story, an opportunity lost

Thu, 23 Apr 2009 14:07:06 EDT

It is almost unheard of that an acquittal receives more media attention than the case that predicated it. But this is the case for Dan Lackey, a developmentally disabled man who was wrongly accused and convicted of sexually assaulting a woman in 2003. Lackey spent 3 and a half years in prison before the judge overturned the judgment in the case altogether. The Syracuse Post-Standard covered the Lackey acquittal extensively. In this article, staff reporter Jim O’Hara gives an in-depth, play-by-play look at the circumstances that led to Lackey’s wrongful conviction. The story is a heart-wrenching one, to be sure; it’s fit for the big screen, or at least a made-for-TV Lifetime docudrama. All of the classic characters are here: the unwitting idiot duped by a legal system hungrier for a conviction than actual justice, the unbelieving parents who fought in defense long after Lackey was put behind bars, and even the mentally troubled woman who claimed to be assaulted and recanted her testimony years later. O’Hara vividly paints the thoughts and actions of these characters one by one in this long-form piece. While O’Hara’s attention towards detail is commendable, this particular story lacks one essential element: a focused analysis of the court system itself, or of the underlying flaws that were responsible for Lackey’s wrongful conviction. O’Hara’s piece does much to incite the ire of the reader -- how, in this day and age, could a person so obviously innocent spend 3 and a half years of his life behind bars -- it fails to even attempt to answer this question, or to examine the larger cultural context that the case operates within. Lackey’s case is sympathetic enough not to need overly descriptive editorial injected into the plotline. By pandering to the dramatic elements of the case while simultaneously failing to examine the legal underpinnings of the Lackey trial, O’Hara misses a valuable chance to educate an audience that might not otherwise have any interest in the field of wrongful convictions and the lives they often ruin.-- Brenna Cammeron

The Docket: 04/22

Wed, 22 Apr 2009 14:27:15 EDT

This week's edition covers an impressive range, from torture to witty banter among Supreme Court justices. As always, send comments and suggestions to rsmascarenhas [at] gmail [dot] com. As we've seen since the release of the Bush Administration torture memos, covering detention policies well requires extensive knowledge of medical and legal issues. Atul Gawande, The New Yorker's health reporter, set an impressive standard a few weeks ago in his piece on solitary confinement. The article provocatively asks if the practice constitutes torture as it combines chilling testimony from former prisoners, a discussion of neurological evidence and interviews with legal experts. The Justice Project recently released an ambitious report that calls for clearly defined rules and procedures and more transparency in prosecutor's offices across the country. It's a timely document in light of the Ted Stevens drama, as well as an informant's revelations in the Philadelphia Inquirier that may overturn over 50 narcotics cases. And finally, the Supreme Court faces a slew of controversial cases in the next two weeks. As always, Tony Mauro has been up to the challenge, producing excellent copy on Twitter, his blog and in the Legal Times. He captured a nice moment in one oral argument when Justice Scalia started to question Justice Breyer rather than attorney Kenneth Starr, forcing Chief Justice Roberts to step in. (Incidentally, this pair has sparred in this fashion before, as Adam Liptak of The New York Times noted in January.)-- Rohan Mascarenhas

When a child porn charge isn't what it seems

Sun, 19 Apr 2009 07:26:14 EDT

This article in today's Washington Post Outlook section should be required reading for every legal reporter and journalism student. Ting-Yi Oei, a Virginia high school administrator, recounts his indictment and the news coverage of his case. Here's how he starts it:

The Channel 4 Newsbreak was meant to shock: "High school assistant principal in Loudoun County arrested for child pornography," announced WRC's Jim Vance. "Details following the Olympics."That was last Aug. 20. The assistant principal was me. And the story on the late evening news that night was how many people who knew me -- and countless others in the Washington area who didn't -- learned that I was the subject of a prosecution that over the past year has turned my life upside down and ruined my reputation and my career.

The Washington Post covered the indictment in a relatively long story. While that story, by Brigid Schulte, gave Oei's lawyer ample opportunity to respond, it's one of those where-there's-smoke-there's-fire stories. Except there was no fire. All charges against Oei were dropped months later because he had an innocent -- even commendable -- explanation for why his cell phone had a photo of a disrobed youth: He was investigating "sexting" by his students, and explains in great detail why and how the image ended up on his phone and why he didn't immediately call police in. Once a judge dismissed the case, the Post responsibly followed up, in this story by Michael Birnbaum. But the "innocent" story is shorter and less detailed than the indictment story, and lacks the convincing detail that Oei's op-ed has. Washington's WRC Channel 4 gave the dismissal fairly ample coverage (at the link, which hosts a skimpy AP story, click on the video of the broadcast report). Both stories were made possible because a judge took the time to spell out his reasons for dismissal in writing, and because Oei and his attorney had the PR savvy to hold a press conference and then to follow it up with the op-ed in the Post.Even when journalists follow textbook rules on fairness -- with or without helpful cues from a judge or defendant -- a story like this should send a shiver down the backs of editors and news directors who might feel inclined to hype an initial accusation. The lessons of this case are obvious but bear repeating: Police and prosecutors aren't always right. An accusation is not the same as guilt. Imagine in any case where there's room for an innocent explanation that there just might be one. Be skeptical.

1st Circuit nixes court cameras

Thu, 16 Apr 2009 19:56:37 EDT

That ends that. I guess it was wishful thinking to expect to find a loophole in the federal ban on cameras in the court.

Gerstein gives DOJ its due -- and then some

Thu, 16 Apr 2009 16:08:46 EDT

On his blog today, Politico's Josh Gerstein shares the backstory to a report he wrote on Attorney General Eric Holder's speech at West Point last night. Justice Department officials, he writes, were "pretty unhappy" that he emphasized a portion of Holder's speech where the AG cautioned that government transparency has its limits. Gerstein thought the AG was saying something new, and significant, particularly given the timing -- the eve of a deadline to decide how much to disclose of war-on-terror legal memos. He left some of that in his second take, but after rereading the speech he decided to give more attention to the substantive focus of Holder's speech: a critique of the Bush administration's policies. But that's where the story gets even more interesting. Gerstein, a veteran legal affairs writer (formerly of the New York Sun), didn't just oblige Holder's handlers. He went them one better. He writes:

Even as I wrote that second version, though, I had a nagging sense that some of Holder’s West Point broadside at the Bushies wasn’t that new. Late Wednesday night, I found the speech that must have been triggering that sense of d�j� vu.

It was a speech from the 2008 campaign, obviously before Holder was named AG and had to watch his words carefully. Gerstein carefully compares Holder's critiques, and finds significant omissions in the AG version, which he spells out on his blog. That's solid, independent, smart reporting.

The Docket Returns

Thu, 16 Apr 2009 05:58:57 EDT

Near the end of last year, I briefly wrote The Docket, a weekly feature on this blog that highlighted some of the best legal journalism around the web. I ended my modest effort (the ABA Journal's kind review notwithstanding) to concentrate on a new job as the Newark Star-Ledger's night cops reporter. I've found some time on my hands of late though, so let's begin the Docket anew:Joanna Connors' heart-stopping series "Beyond Rape" in the Cleveland Plain-Dealer deserves too many plaudits for me to fully list here. Connors, who was raped in 1984 while covering a story for the paper, memorably recounts the incident and her recent efforts to find the man convicted of the crime and his family. The series is a public service, a personal testimony, and -- along with its numerous multimedia elements -- an unforgettable account of a crime that all too often goes under-reported. Former Illinois Gov. Rod Blagojevich was charged Tuesday with a number of federal corruption crimes. Soon after his scandal broke out last year, however, NPR's Talk of the Nation hosted an extremely interesting discussion on the fluid legal boundaries between trading favors and political corruption, as well as the broader ethics of quid pro quo in everyday life. And finally, in honor of tax season, The Big Money cheekily profiles an I.R.S. unit that includes "the most badass number crunchers on the planet." Think accountants with guns and shiny badges. -- Rohan Mascarenhas