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Press Releases; Politics & Judges Carl Kaplan Patti, thanks for the cite to Judge Kaplan's opinion, which I'll fetch and read. My pie-in-the-sky view is that it would be better if bar associations or judges attacked the concept of the pre-trial fact-specific press release from the prosecutor (who is supposed to seek justice, not a win) as unethical and unfair and an abuse of power, rather than making sure that both sides have equal PR firepower. Surely the result of Kaplan's remedy will be an arms explosion. See, for example, a story I read today about the Michael Jackson case. The DA said he is delaying issuing some document until a special prosecution website-for-the-public is up and running. I imagine MJ will have his own special litigation website, if there is not one already. I wouldn't be surprised if there is a nich business designing litigation web sites for public consumption/spin. Gevalt. Garrett, I agree that the judicial partisan affiliation angle is often played up by reporters -- even when there is much less than meets the eye. As you say, it's easy to look up. But more than that: it's an easy point for an anxious reporter to grasp. How many reporters on deadline can actually read an appellate decision and understand it to level-three of knowledge, even if the eventual article slides along level-one? Maybe some reporters for the Times, WSJ, etc. But not the vast majority, surely. That's the real problem. 4:56 PM | | link to this post | what's new in Law Reporting | go to JURIST
Politics and judges Garrett Epps I am glad Patti picked up my post about the way "partisan affiliation" is often treated by media in reporting judicial decisions. I think the problem is often even worse when cases come out of the federal Courts of Appeals. Reporters--and the public--often know nothing about the judges who decide high-profile cases in the Circuits, and as a result they fall back on the one thing they can look up easily--the name of the president who appointed the judges. The 9th Circuit's handling of the California recall was a particularly egregious example. The three-judge panel that ordered the vote delayed was made up of "Democratic" jusges, and so their opinion was reported in terms of its effect on the race. But I read the opinion and found it a careful and respectable legal argument, with no trace of result orientation. I wasn't sure it was correct, but it didn't seem suspect to me. When it was overturned by the en banc panel, this too was assessed in terms of partisanship, which, I am convinced, was not even remotely the motive for vacating the panel decision. Their opinion was also careful and motivated by genuine legal concerns like deference to the political branches. Most reports missed these nuances altogether. The net result was confusion about the basis for the decision and a small increase in public cynicism about law and courts. 11:18 AM | | link to this post | what's new in Law Reporting | go to JURIST
Justice and PR patti waldmeir Carl, what a great story you are following! I don't know if you saw the ruling from Judge Lewis Kaplan on this issue in June: he was ruling in a sealed case that sounded like Martha Stewart's (but wasn't). The gist of his ruling was: justice these days is a matter of good PR. He ruled that conversations between PR people and defense lawyrs should privileged. -- that's how important they are to an effective defense. Judge Kaplan lashed out at prosecutors who, he says, commonly try to “color public opinion”, even at risk of jeopardizing a defendant's right to a fair trial. He is in favor of giving the rest of us the tools we need to fight back against the prosecutors -- with press releases! But what a sad world where so much of every trial takes place outside the courtroom! 8:06 PM | | link to this post | what's new in Law Reporting | go to JURIST Politics and Law patti waldmeir I'm so glad Garrett raised the issue of the relationship between politics and judicial rulings. Coverage of the Supreme Court is a great example: as journalists, we have woefully misled the public by consistently pretending that the only thing that motivates the justices is politics. It's not - except in the most extreme examples, like Bush v Gore, and even there, other factors were at work. Some reputable court watchers would even argue that politics was not the greatest of them. But having convinced our audience, for so many years, of the knee-jerk conservatism of the court, we had severe problems explaining the apparently liberal rulings which marked the last term. Countless articles were written about whether the court had "changed its spots". Personally, I don't think it had spots to begin with. And the sooner we forget about the camouflage, the better... 7:50 PM | | link to this post | what's new in Law Reporting | go to JURIST
D.A. Press Releases Carl Kaplan Hi Garrett, Stephen, Wendy, Larry and Patti. Glad to be aboard. I've been following a lurid story in New York: John Dexter, former headmaster of the Manhattan prep school Trevor Day, was charged on October 27 by the Westchester D.A., Jeanine Pirro, with two counts of attemped dissemination of indecent material to minors, an E felony. On November 12, he was additionally charged with 10 counts of possessing an obscene sexual performance by a child. The New York papers have been full of this story and yesterday I was interviewed on background by a print reporter who was clueless about criminal law, obscenity/indecency, Internet stings, etc. My rant is this: Pirro's office has been issuing extremely detailed press releases, which are stored on her splashy Web site. On Oct. 27, in a release proudly announcing "the 78th arrest in the Undercover Internet Pedophile Stings conducted by the High Technology Crimes Bureau of the District Attorney's Office" (how many convictions from these arrests?), she alleged that between June 3, 2003 and October 22, 2003, Dexter had sexually explicit online conversations with two girls ages 14 and 15, and that the girls were really undercover cops. News stories that picked up the release stated that the conversations involved attempts at mutual online masturbation and the exchange of nude pictures. That must have been leaked by the cops or the D.A. The Nov. 12 release stated that pursuant to a warrant cops searched Dexter's home and obtained allegedly "ten images of children less than sixteeen years of age in which the children were involved in an obscene sexual performance." Stories that picked up on the release carried additional details about the 10 pictures -- i.e., they depicted children who were displaying their genitals -- and that they were located on a floppy disk discovered somewhere in the house. Again, likely that the leaks came from the cops or prosecutors. Both releases, incidently, contain a final sentence: "In compliance with Disciplinary Rule 7-107A of the Code of Professional Responsibility, you are advised that a charge is merely an accusation and that a defendant is presumed innocent until and unless proven guilty." In my opinion, this press release stuff by prosecutors has gotten completely out of hand. Plus, the reporters are content to be spoon fed by the D.A.; they are not questioning the PR practice. Prosecutors should bring an indictment, issue a simple release stating the charges that have been filed, and then shut up. If they get a conviction, they should say so in a release. If they lose, they should shut up and not go on about how the defendant got away with it. Pirro's releases and leaks, containing precise information about the evidence to be presented at trial, and knocks at the defendant's character, are an abuse of a prosecutor's powers, prejudicial to the administration of justice, damaging to the jury pool, and unfair to a defendant. The tag line about D.R. 7-107A is a figleaf. I am amazed the press just accepts this practice, even if it has been okayed by an ethics board. In England, for example, these press releases would be a national scandal. 3:11 PM | | link to this post | what's new in Law Reporting | go to JURIST
Two good articles in THE NEW YORK TIMES Garrett Epps Yesterday's TIMES carried two good stories. The first was a profile of a lawyer named Ravi Batra, who has become a courthouse fixture in Brooklyn by involving himself in state trial-court judicial selection and who is being investigated by the DA for his role in that process. (So far nothing has been uncovered.) It's important not as a scandal story but just because it gives a glimpse of the culture of the local trial courts and the lawyers who practice before them. Media outlets pay far too little attention to the day-to-day work of the courts, other than to report the proceedings of high-profile cases. The second piece, by Linda Greenhouse, gave her take on the Supreme Court's grant of cert. in the Guantanamo detainees case, and presents it as an institutional clash between the Court and the Executive Branch, with the Administration having taken a confrontational course by asking the Court to rule that it has no jurisdiction. Again, an excellent glimpse of how the Court selects cases to hear and how the lawyering of those cases shapes the results. 11:04 AM | | link to this post | what's new in Law Reporting | go to JURIST
Partial birth (cont'd) Garrett Epps Steve, I take your point that this is a lot of detail to expect from a journalist and a medium. But I picked the "partial-birth" issue precisely for this reason, because this is a high-profile statute that is already under challenge, and so any reporter could be expected to have the space (or airtime) to discuss possible arguments for and against it. I think that media could do a better job of preparing their readers for legal issues that could emerge--and of course law profs like you and me are usually available to talk to them about it in advance if they want to do that. What too often happens is that a law is passed, a challenge ensues, the law is struck down, and the entire case is reported as if the only legal issue was whether the judge or judges deciding the case approved of the policy behind the law. This has given rise to the increasing practice of just counting the partisan affiliations of the judges who decide a case and implicitly proffering that as the explanation for the result. 11:15 AM | | link to this post | what's new in Law Reporting | go to JURIST
Partial Birth Ban Stephen Wermiel Garrett raises important points. I wonder, though, to what extent it is reasonable to expect reporters to discuss these issues. And if it is a reasonable expectation, is it more reasonable if we are talking about Congressional correspondents? Local federal courthouse reporters? Supreme Court reporters? 7:20 PM | | link to this post | what's new in Law Reporting | go to JURIST
"Partial-birth" statute--cont'd Garrett Epps A couple of things that have seemed to me to be missing in the reporting on the "partial birth" statute: (1) No story that I have read or heard has mentioned that the basis for the ban is the commerce power. Reporters seem to take it for granted that the federal government has plenary criminal authority to make anything a crime. When we consider that the commerce power has been one of the primary battlegrounds of the Rehnquist Court, it seems to me noteworthy that Congress relies on it in this case. It at least raises questions about the federalism debate. If a federalism challenge is brought against the act, it will come as a surprise to most reader/viewers. (2) No story that I have read or heard reports the degree to which the bill as passed seems to be an instruction to the Supreme Court to reverse Stenberg v. Carhart, in which the Court struck down a state "partial birth" statute that, like the one passed by Congress, does not include an exception for the life or health of the mother. The Congress in its findings simply tells the Court that the lower court in Stenberg, which found such an exception necessary, was wrong and that the Court is to defer to Congress's contrary findings of fact. This raises interesting questions about who decides a contested case. Again, the ordinary reader/viewer would not suspect that this issue is lurking under the surface. These may seem like "inside baseball," but either point could become important in final adjudication of court challenges to the act, and the public might be mystified by the importance of the issue. Any thoughts? 12:33 PM | | link to this post | what's new in Law Reporting | go to JURIST
the basics Wendy Leibowitz One thing that strikes me about both Aric Press's rules for working with the media, (thanks for the summary, Uncle Lar), is how basic they are. People still need to be learn what their papers' deadlines are, and they need to read the publications? Stop the presses. And the flip side is true of reporters: Stephen Wermiel's insight about what is missing from some of the reporting about the abortion injunctions is how basic facts are missing: how broad is an injunction? What is the impact of an injunction? Why are these injunctions issuing? All I've heard is that the new law does not contain an exception to preserve the life of the mother. Well, didn't the president know that when he signed the bill? We have miles to go in legal reporting, on matters great and small. Looking forward to using this blog to move us all forward. --Wendy Leibowitz 12:00 PM | | link to this post | what's new in Law Reporting | go to JURIST Reporting on Partial Bith Cases Stephen Wermiel I wondered as I read news accounts of judges issuing injunctions against the new federal Partial Birth law whether there was a good explanatory opportunity missed or whether my concern is too technical. The injunctions all stressed that they applied only to the parties before the courts and were not halting the effect of the law in every corner of the nation. I wondered about why that was the case and then whether other readers of these news stories might have the same question. So my question is whether this is too arcane a detail for the daily media (not the legal publications) to tackle, or whether that is precisely what journalists covering cases like this should try to explain. 9:02 AM | | link to this post | what's new in Law Reporting | go to JURIST
AmLaw Editor's 9 Rules for Working Effectively with the Media Larry Bodine Aric Press, the Editor in Chief of The American Lawyer magazine, offered several tips to lawyers and marketers as he spoke at the program "How to Work Effectively with the Media" at the Law Firm Marketers' Roundtable sponsored by LexisNexis and Mealey Publications in Phoenix, AZ on November 3, 2003. Based in New York City, Press is the editorial director of American Lawyer Media's national publication group. He is a former senior editor at Newsweek, where he worked for 19 years. He offered the following rules that law firms and marketers should follow when dealing with his publication and the media in general. 1. Read the publication. "Before you decide to reach out to a media outlet, you should read the publication. We all have certain missions by which we define ourselves, and if you know it, that establishes credence on your part." Your story pitch might not be appropriate if you don't know the editorial focus. "Calling me with an article by leading securities lawyer on Sarbanes Oxley is just not part of our focus." 2. Have a relationship with the magazine. "This way, the first time you have to call the media there's some prior knowledge," Press said. "You want to know who's on the other end of the telephone when you call. If I know you somehow, I'll take you more seriously when I pursue your question." This doesn't mean he will honor a request to kill a particular story, "but you'll have a chance to speak up." Press gave the example of a lawyer at an AmLaw 200 law firm who became notorious for "aberrant behavior" at a law firm retreat. "We had the story cold. In our first call to the law firm, they said that 'this never happened, we never had a retreat.' In the second call they said 'how dare you call us about this.' The reporter was sharpening his knife and it was going to be fairly ugly. Then I got an apologetic call from the chairman of the firm. He said that 'yes it did happen and that the underlying cause was that he had a nervous breakdown.' "Because Press knew the chairman he pursued the information and ended up not publishing the lawyer's name in the story. "The fact that I did know the chairman and took him seriously was very useful," Press said. 3. Choose your messenger with care. "I'm surprised that law firms decide to choose messengers that they wouldn't trust to deliver a message on a bicycle. You can't have people talking on behalf of the firm that are incompetent, whether they're inside or outside spokespeople. It behooves you as you hire outside consultants that you ask questions about what they know, their track record, what's their reputation," Press said. As a corollary to that rule, Press added that "it's good not to paper us with junk press releases. The worst is the call I get saying, "I just saw your story about a trend, and we have something very similar happening here right now. When are you going to write about this again?" The answer is usually "before the next solar eclipse." The better call would be "we have something different gong on here." Press said that publications also do not want to get follow-up calls to press release, which they're probably not interested in to begin with. "We understand you're under pressure to make the call; to the extent you can avoid this, I welcome it," he said. 4. Give notice you're opting out of a survey. "When we send out surveys it would be good if you read them and responded," Press said. "If you are choosing not to participate, it would be helpful to send us an email saying you don't have time." 5. Know the publication's time elements. Your first question should be "by when do you need a response?" The news cycle is continuous now. "If there's an opportunity to capitalize on something you're going to miss it if you don't understand the reporter's deadline," Press said. 6. Use your most likeable and articulate people to pitch a story idea. "It's very rare that I spend an hour with a lawyer who has something to say where I don't learn something. We're in the business of meeting and talking to people. I can't emphasize enough how appreciative I have if you send around people with an idea to share," Press said. 7. Assume you're on the record why you're talking to the press. "When I talk to one of your lawyers, I assume everything's on the record. It's no good calling me two hours later and to tell me that everything was off the record. This happens all the time." If you establish up front that we're talking "on background," this means the reporter can use the material but not attribute it to you. If you're talking "off the record" it means they can't use the material unless they discover it through another source. "But the assumption is that, like in a court room, everything is on the record," Press said. 8. Realize you're not in control. "The biggest problem that lawyers have is the emotional question of who's in control. Lawyers want to be in control of any and all situations. That's fine, I respect it, I'm married to a lawyer," Press said. "But in a media situation, the lawyer isn't in control." The lawyer can't control whom the media calls or doesn't call, which the questions they will ask and in the end how they write the story. 9. Don't lie. "If you decide to lie, please decide in advance how easy this lie can be found out. It's not helpful that you say something and we find out otherwise. Please, it's insulting, it's time wasting. If a couple of phone calls will make it clear what's really going on, don't do it," Press said. "It's such bad form to be found out that easily, that it's not worth the effort." 6:05 PM | | link to this post | what's new in Law Reporting | go to JURIST Comments by Haloscan |
