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On Message? Jack Ayer The subject of the blog? Well hey, we've had OJ (gloves) Simpson and Martha (handbags) Stewart. What can be more central to the life of journalism-in-law? But I admit it; if the entailment of this assignment is that I spend endless hours with Kobe, Michael, Scott Peterson, Robert Blake, etc., etc., then I would leifer take up a career as blood donor. I'm not sure my cable company even offers Court TV. I do think that the crowds who cheered while Michael danced on the SUV -- forget Michael, the crowds ought to be denied the right to vote -- but I will concede that counts as political, not legal. Heck, I'm not even sure my cable gets Fox. Unless you count Jon Stewart, most of my exposure to TV news comes from leaving CNN on as wallpaper behind me on the other side of the room. I am willing, however, to invite comment on a general observation: call it the blurring of categories between sports, law and war (probably other things as well, but I can't identify any just now). That is: in all three cases, one consequence of more efficient transmission is that we are now treated to more or less constant voice-over strategizing, play-by-play. I guess it struck me first with baseball: I don't watch much baseball on TV either, but a coupla years ago I was stuck in a hotel room with no other choice, so I gave the ball game a try. Imagine my delight when I found that not only did I get the shot, but I got commentary, suave and avuncular, no make that oracular, telling me why they were doing that they do. I know we used to have radio announcers, but believe me, Red Barber never counted comment and analysis as part of his job, at least not in the modern mode. You can see where this is going: we get something similar on the law. I guess you could say we got even more of it before "Burden of Proof" was cancelled. But--commentary and analysis of courtroom strategy: surely this is (one) function of Jeffrey Toobin? I don't know, maybe it was a function of Mark Geragos before he found another line of work. And of course, without laboring the point, it was more or less what Wesley Clark and others offered during the late cakewalk, i.e., before /he/ found another line of work. I don't know, maybe I'm burying myself in a box canyon. Somebody help me on this. Am I right on the fact of the commentary? So, what do we make of it? An advance in human welfare, or the End of Western Civilization as We Know It? Addendum: I see that both sides have asked to bar cameras from the courtroom in the Peterson trial. So much for rants about vulgarizing the process. 8:19 PM | | link to this post | what's new in Law Reporting | go to JURIST Focus Stephen Wermiel Anyone want to get back to talking about legal journalism, which is the purpose of this blog? I am ready to join in when we get back to our subject matter. 7:51 PM | | link to this post | what's new in Law Reporting | go to JURIST The press trying to report on itself Wendy Leibowitz I think there is little more embarrassing that the press trying to report on itself. Cringing, I post these links about the reaction within the BBC to the resignation of its managers and one reporter. (Perhaps appropriately, this is under "entertainment" on the BBC site): "It is not often you hear hundreds upon hundreds of staff affectionately chanting the name of their departing boss, or yelling at the tops of their voices "come back!" But within hours of director general Greg Dyke's resignation on Thursday, there were unprecedented scenes of spontaneous support and raw emotion from BBC employees outside Television Centre. Passing drivers would have been forgiven for thinking they were witnessing a mass walkout in protest against the bosses...." The whole article is here. A different take is from spiked-online, one of my favorite perspectives on the British media: "It was hard to see the demonstrations, which looked like a few dozen twentysomethings smiling for the camera, as the authentic expression of disquiet at the heart of the BBC. But that was the way it was spun, as if it were really important for the public to know that a handful of researchers were still putting two fingers up to the governors and government. Greg Dyke, meanwhile, said the demonstrations made him feel like a 'mixture between a politician and Madonna'... Which is an apt metaphor for how the BBC, as an institution, sees itself - as a sexier, glitzier political opposition. But it is not. The BBC has no responsibility for politics or policy, and it is not accountable to the public. It is a media organisation, whose responsibility is to produce good news and other programmes. If it could talk about something other than itself for once, it might even be worthy of our attention. The entire article, with different perspectives, (OK, one pro-BBC article) is here. For a legal analysis, check out The Belgravia Dispatch, the blog of an American diplomat in London. Excerpt (scroll down beneath screed on Yasser Arafat): "Former BBC director general Greg Dyke today hit out at Alastair Campbell, calling him "remarkably ungracious", and said Lord Hutton's conclusions were "quite clearly wrong" on some points of law." [emphasis added] Later: "I would be very interested to see what other law lords looking at Hutton thought of it. There are points of law in there in which he is quite clearly wrong." Mr Dyke said he agreed with the departing BBC chairman, Gavyn Davies, that one could not "choose the referee" and had to accept his decision but quipped: "The government did choose the referee." [my emphasis] Clearly Dyke is eager to don his legal cap and engage in a spot of legal analysis. But, unlike Lord Hutton he, er, isn't an eminent lawyer (in fact he has no legal background at all). Put differently, it's hugely arrogant for him to say Hutton's report was "quite clearly wrong." And insulting and inappropriate in the extreme to suggest that Hutton's law lord peers would reach a differing result. Of course, this breathtaking arrogance is an old story (the linked story details Dyke's previous stubborn recalcitrance to pursue reforms at the Beeb). But back to Dyke's recent comments. What Dyke has done today is two things. He's called into question Lord Hutton's competence as a lawyer--amazing given the tremendous respect for Hutton as a top-notch jurist that exists in large swaths of the London legal community. And, even worse, he's called into question Hutton's integrity (by suggesting that the Lord was not impartial as the "government chose the referree.") Put simply, he's pretty much doing to Hutton what what he did to Blair--doing the very kind of thing, yet again, that necessitated the Hutton inquiry to begin with. He's again crudely maligning people's character and competencies. The only difference is that, this time, he is doing it himself. The last time he allowed subordinates, with impunity, to do so. The link is here. 6:12 PM | | link to this post | what's new in Law Reporting | go to JURIST The L-Word Jack Ayer Why change the name of the Lawyers' Committee? An obvious reason would be to get rid of the L-word. I remember a New Yorker cartoon that shows a van full of guys in suits rolling through a minefield: the van bore the label "lawyers without borders;" evidently the editors thought their readers would find this funny -- "avocats sans frontiers," not to be confused with "avocat farcis." But I do not agree that private enterprises are any more disciplined about name changes. Companies change names all the time for no reason more intelligible than -- than I don't know what, than to enrich the PR firm, than to tickle the ego of the CEO: Garrison Keillor had a cute skit a while back about the merger of Easter into Halloween: the new name was "Hello (somethingorother, I forget)!!" OTOH, I suppose the most dramatic recent name-change story was when Arthur Andersen's consulting practice split off and fought tooth and toenail to keep the good name of Andersen. Of course they lost, and had to rename themselves "Accenture." And then came Enron ... 3:36 PM | | link to this post | what's new in Law Reporting | go to JURIST Andrew Gilligan has resigned Wendy Leibowitz Andrew Gilligan, the BBC reporter whose "unfounded" allegations about the Blair government handling of intelligence reports and alleged leaking of the name of an anonymous source to the media, has resigned. Finally. In other events which are more difficult to explain, the Lawyers Committee for Human Rights has changed its name to Human Rights First, at humanrightsfirst.org. This leads me to believe, probably wrongly, that they are now affiliated with Earth First? Of course they do not explain why the name change is taking place. (I have a call in to their press person). But generally, non-profits do not feel a sense of accountability to the public, so long as their finances are well-run. If LCHR were a publicly-traded corporation, it would have to explain why it was wasting money on a silly name change that makes the organization seem less serious and less distinctive, and Jack would discuss the organization in his business law classes. 2:56 PM | | link to this post | what's new in Law Reporting | go to JURIST Why Does Public Broadcasting Get a Bye? Jack Ayer Let's stick with the public broadcasting issue for a moment because it seems to conflict with a fundamental prejudice of mine (and we can't allow that, now can we?). Anyway, the question would be--why does public broadcasting get so little scrutiny in the "other" media (compared, again, to the Beeb -- but I'm not really as Anglophile as I sound this week)? My friend Roy would say: aha, just one more demolnstration of the media's liberal bias. As you might guess, I am not one who believes in any general "liberal bias" in the media -- or conservative bias either, come to that. I think the media has a "media bias" that transcends parties or even issues. There is a wonderful bit in one of Ed Banfield's books where he is describing how the Chicago Tribune campaigned for a new (Stadium? Concert hall? I forget). At some point,our reporter asks: but why did you /work so hard/ on this project? Answer: blah blah blah, blah blah -- and besides, it was good for the people to know that the Trib could do this kind of thing. A version of this theme is a crack I heard from Mark Shields: the press is like a caged animal: you can tease it, you can torment it, you can do almost anything to it -- but you do have to /feed/ it. This would explain, e.g., why the press is so seemingly eager to destroy Howard Dean for the non-scream: every so often they need a blood sacrifice and he happened to be in the wrong place at the right time. But if this is true, you would think that some entrepreneuring young fireball would have discovered that there is a reputation to be made in bloodying up public broadcasting. But so far it has happened which leaves me, argh, having to admit that it looks like Roy is right. But we can't have that, can we? All this is separate, of course, from whether public broadcasting does have a liberal bias. I can offer some thoughts on that another time, but this post has gone on long enough. 11:45 AM | | link to this post | what's new in Law Reporting | go to JURIST BBC, NPR: who are these guys? Wendy Leibowitz You've identified a real problem with the publicly-funded news organizations, Jack: their organization and management are much more lightly covered than private news organs. I guess there's some kind of deal to share resources between the BBC and NPR, both on the radio and on television. But the only thorough reporting is when there's talk of a merger--remember when NPR and Public Radio International (PRI, home of a Prairie Home Companion) were thinking of combining efforts? The deal fell apart in large measure because of personality differences. An article about it is here. I think the competition is probably best for listeners, but good lawyers should be able to overcome personality differences if the deal makes sense. This fuzzy approach to the publicly-funded media (are they a business, or a public service?) makes it difficult to hold them accountable when they trip up. (I am a devoted listener of NPR and of the BBC, but their biases are increasingly annoying. But when I criticize their reporting, I worry whether their funding will be cut.) A recent article on Poynter, "Seven Steps toward more ethical environments," by Aly Colón, cites an article (http://www.miami.com/mld/miamiherald/news/opinion/7796745.htm) about the media by Edward Wasserman, who holds the Knight Chair in Journalism at Washington and Lee University. Wasserman examines the resignation of reporter Jack Kelley from USA Today following Kelley's admission that he had misled his editors in their investigation of accusations that his stories included fabrications and plagiarism. "Wasserman points out that other reporters at USA Today were aware of the allegations for years. Some wondered about Kelley's ability to come up with the quotes and information that appeared in his stories. Others attributed such questions to professional jealousy. Regardless of what Kelley's colleagues knew, their concerns apparently failed to reach the ears of editors who might have acted upon them sooner. And that, in part, resulted from the way newsrooms operate, Wasserman asserts: ..(T)he ability to root out journalistic wrongdoing is hobbled by the way news organizations are run. The people with the keenest understanding of what's wrong with a reporter's work may well be other reporters. But they typically have scant opportunity to review and comment on coverage, as well as little institutional role in newsroom management. Editors meet regularly; reporters rarely. He goes on to chronicle the ways that the newsroom hierarchy inhibits communication from the lower levels. He also notes out that reporters "get paid to focus on their own stories, not on the quality and integrity of the organization they serve." And that prompts them to complain anonymously, he adds. --end excerpt-- At a firm I worked with, we set up a hotline where people could call in to report problems they faced. Our clients were far-flung sales people in a very competitive environment. Calls to our firm were of course protected by attorney-client privilege; they were not transcribed (no written record, unlike e-mail) and people could report suspicions of price gouging, encroachment on another salesman's turf, sexual harassment, concerns about a colleague's drinking, etc. We could investigate privately without creating a Stalinist atmosphere. I wonder if more newsrooms couldn't benefit from something similar. There is currently no mechanism in most newsrooms to handle such problems, which of course can easily escalate into lawsuits. Many newsrooms arequite unhappy places, too. Returning to the BBC's problems, the organization has formally apologized to Tony Blair for what Hutton called "unfounded" reports of tinkering with, (or 'sexing up') intelligence reports. I do not ever recall the New York Times apologizing to, say, the police or prosecutors in the DC sniper case who were the subjects of Jayson Blair's made-up articles. (If they did apologize, then I apologize for missing it). Frequently all people want is an apology, and they sue if they don't get one. But lawyers do a poor job of getting clients what they want: an apology. But I don't want to whitewash the BBC here, despite the high-profile resignations: the problematic reporter, Andrew Gilligan, is still employed at the BBC, even though he has not appeared on the air. Americans know him as the reporter who stood about 1/2 mile from the Baghdad Airport and said that while Americans claimed to have taken the airport, that is actually not true (on another network, news footage showed the troops in the airport as Gilligan spoke) and then he added something like, "Americans have a tendency to exaggerate their successes." Basically he was accusing the US military of lying, or sexing up, their achievements, in the same way he accused the Blair government of lying. Of course the BBC said it was sticking by its star reporter. Jeff Jarvis of The Buzz Machine has assorted links to the BBC/Hutton report fallout. His prose is not polished, and you'll look hard for objectivity, but his blog is one of the checks on the sanctimonious self-righteousness of much of the media, particularly that of the BBC. Here's his take: BBC honcho Greg Dyke resigns. This is the same sanctimonious prig who lectured U.S. media: "For any news organisation to act as a cheerleader for government is to undermine your credibility. They should be... balancing their coverage, not banging the drum for one side or the other." Mr. Dykes, for any news organization to act as a cheerleader against government is to undermind your credibility, wouldn't you say? Next: Bring us the head of Andrew Gilligan. The Economist's take on the scandal is here. I do hope there's some lasting positive fallout from all this, but the press is already playing the victim ("There will be a chilling effect in all newsrooms!") and unless they codify the response into a practice or policy ("stand in the airport if you're going to report on the airport"; "don't accuse the government of lying absent a least a hint of evidence"), I don't think there will be any changes, let alone improvements. 9:51 AM | | link to this post | what's new in Law Reporting | go to JURIST
More Hutton Jack Ayer Topic: government control of press; subtopic: the Hutton inquiry, again. There is a remarkable dispatch here at the website of Juan Cole arguing that the Hutton report "whitewashes" the conduct of the Blair government in the David Kelly affair (not a direct link, but go to the Cole site and do a "find" for "whitewashes"). It's the kind of item you might take with a grain of salt at first look except for the source: Juan Cole is a famously well informed commentator on Middle Eastern affairs in general and the Iraqi occupation in particular (though I don't suppose he claims any special knowledge about the inner workings of Whitehall). Cole also links to this Guardian report, even more critical in tone. Interesting that for all the complaints about public broadcasting in this country, we haven't yet had government inquiries that lead to the chairman the board of NPR falling on his sword. Come to think of it, who /is/ the chairman of the board of NPR? Update: Looks like I was hasty to single out the remarkable Juan Cole. Get a load of the front page of the Independent (hint: it won't take you long to read it). Indeed, complaints about the report seem to be cropping up all over the place. Tony Blair's acceptance of a BBC apology is also of interest. He said (I'm transcribing from the video link): "I have no doubt that the BBC will continue as it should do—to probe and question the government in every possible way." To an American ear, this has to be extraordinary: I am not saying we /should/ have any such institution, but we certainly /do not/ have any institution in the US with the distinctive status of the Beeb. 11:10 AM | | link to this post | what's new in Law Reporting | go to JURIST
What's With the BBC? Jack Ayer By the way, can anyone clarify for me what's happening with BBC and the US market? I note that my local NPR station now identifies itself with some kind of combined logo as "NPR and BBC" (I may not have that quite right -- but I think that is what they want me to think). NPR gives us an hour of BBC news each morning at 10 am -- but meanwhile, I find I can pipe genuine BBC-4 into my computer all day long via my DSL (and my wi-fi connection -- lots of hi tech toys at Chez Jack). Owen Bennett-Jones as the new Walter Cronkhite? I assume this has little or nothing to do "BBC America," the TV caper which I suspect is nothing more than a scheme to induce my wife to buy more DVD's of old Mawsterpiece Theatre episodes. And this recalls to mind an amazing story I remember reading exactly once, a few months ago, maybe on Slate. It was the suggestion by a BBC pooh-bah that the Beeb might just put all of its library in the public domain. Can this really mean what it says? Then if so, why haven't I heard more of it? My own guess was that the managers figured Tony Blair wanted to sell the network to Murdoch, so they figured they might as well degrade the brand as fast as they could. And speaking of "degrading the brand," this mght be a good time to go back and read Monroe Price's great article on "The Market for Loyalties" -- about using, e.g., state controlled broadcasting apparatus to shape national identity. (Note to Bernie: there is a law and journalism angle here somewhere, you just have to look for it). 6:36 PM | | link to this post | what's new in Law Reporting | go to JURIST BBC Head to Resign Wendy Leibowitz I can't comment right now on the critical Martha Stewart handbag issue (needs more careful thought), let alone the London restaurant critic sued for libel. But the head of the BBC, Gavyn Davis, has just resigned in the wake of revelations of poor news management and exaggerated facts in the most important story of recent times: the Iraq war. The BBC reporters' log about the issuance of the report is here. Very honest and much better than any analysis of the report could be. Here are two sample comments: "I think there will be people who will try to gently exploit this, to bully the BBC, to get rough whenever we are at odds with them. I think they will be a little bit more aggressive with us in the future. " "The Governors have a key role in that they regulate how the BBC operates. Lord Hutton says that when the complaints began, they should have started their own investigation and not just relied on what the management were telling them. So that is a very strong criticism indeed because it gets to the heart of their role. It will be interesting to see if the BBC brand can recover from this. " Now, the BBC is publicly-owned, and paid for by a public tax on televisions, so there was a public inquiry headed by Lord Hutton, a man known as fair-minded in Northern Ireland, which is presumably a tough neighborhood. But I wonder if any television station or newspaper in the US would ever be subject to a such a searching, objective inquiry. After the Jayson Blair scandal, the NY Times conducted its own examination, and it was excrutiating and thorough. But there's self-examination and there's a Lord Hutton outside inquiry. The closest thing we can do is rely on the blogosphere to try to keep newspaper coverage balanced. I think we are failing. There are numerous blogs devoted to BBC Bias. (The Beeb Watch is a little outdated). They tend to be snarky, snide and ineffective. But when well done, they can have an effect. I used to get e-mails from "smartertimes.com" monitoring the NY Times. The authors went on to found their own newspaper, the NY Sun. Are there other monitors of the US press, legal press or television? Of course in-house counsel are supposed to monitor the publication, but they basically review individual stories to make sure the paper doesn't get sued. Their mandate rarely extends to "here's how you failed in your coverage of the Iraq war, even though you did not break the law or get sued." The increased coverage from people in all walks of life, in the blogosphere, via ombundsmen, and of course via cameras in public proceedings, can only have an educational, uplifting effect. 6:25 PM | | link to this post | what's new in Law Reporting | go to JURIST "Of Course, Jack Probably Disagrees With ..." Jack Ayer etc. You are too kind. That is, you give me credit for more coherence than I have on this issue, or any other, or ever have had. Indeed, one function of this blog is to (further) expose the similarity between my brain and the pudding they serve at that London restaurant ("This is your brain. This is your brain on Brussels sprouts."). I guess my real agenda, if I have one, is the proposition that the press is (the media are? the blogosphere may be?) an independent political force, and it is not fun to see the judicial process bent or distorted by its pull. This can happen in all sorts of ways, and is surely nothing new--Trollope has a wonderful aray of loathsome journalistic snakes, who remind you of the defense lawyers on Law & Order. The bendng goes both ways, of course: politics is always a question of "who is using whom?" Bob Woodward courts George Bush, and vice versa. But--particularly when it involves judges--it is not a pretty sight. The particular difficulty is that on issues like those before us--e.g., cameras in the courtroom--ithe press has a dog in the fight, and there is no independent arbiter, so you're never really going to get a fair-minded critical account of what is at stake. I know that the move to ombudspersons, and the Howardkurzification of the journalistic workplace was supposed to level the playing field, but it seems to me that these guys are being coopted faster than you can say "stop the presses, I've got a story that will blow this town wide open." One advantage of the blogosphere is that it is still non-homogenized. This will change--indeed I guess I was admitting it is changing, when I argued that the blogistocracy was falling into a rather narrow political spectrum. As you suggested, at least it is not dull. I can remember how boring it was to travel across country in an earlier time and read the same insipid AP story in every newspaper in every jerkwater town (the Waltermearsification of America?). I had been planning to weigh in on Martha. Actually, I'm a big Martha fan, but that doesn't stop me from assuming that she is guiltyguiltyguilty (note to lawyers: this is a wholly untutored opinion, with no reasonable basis--that I know of--in fact). My knowledge of the trial comes from the fact that I tend to leave CNN on as wallpaper in my office. I am intrigued by the fact that the most important issue so far seems to be whether she should carry her $6,000 handbag. 11:12 AM | | link to this post | what's new in Law Reporting | go to JURIST No deal, but if you accept Martha Stewart blogs Wendy Leibowitz I'm not a huge Ted Danson fan, but I didn't mean to accuse of him murder. I was referring to Charles Manson. The chronology of Manson's trial is here. Reason number 1,232 why reporters need editors: they catch those Danson/Manson mix-ups. Speaking of trials, Martha Stewart blogs are proliferating. Martha’s own take on her trial is here.: / (don’t kick her when she’s down, Jack!) A brief note about the lawyers is here. Notes from the Legal Underground (which asks the important question unasked by much of the legal media, Can Lawyers be Entertaining?) links to most of the Martha Stewart blogs. Of course, Jack probably disagrees with all this informal, unedited coverage from the underemployed residents of the blogosphere. The only people who have the credentials to cover Martha’s trial are reporters from prestigious newspapers who would never make stuff up. Except for Jayson Blair. And Janet Cooke. And a few others that we haven’t heard about yet, until they star in movies like Stephen Glass. How about using these blogs as a check on the dull, predictable legal journalism that we grew up with? We don’t have to settle anymore for the filtered, biased, dull accounts of a trial of an independent woman. (Go, Martha!) Jack, if you accept the worth of the blogosphere in covering a trial probably considered too gossipy and celebrity-strewn for the mainstream legal press, and too technical (insider trading, snore) for the mainstream press, then I'll try to accept that Samuel Taylor Coleridge was a better poet and artist than Ted Danson, though the latter's Web sites have cuter photos. And the pictures matter A LOT in journalism. Just watch what photos they choose as the Martha Stewart trial unfolds--you won't even need to read the articles. I can't give up on insisting on cameras in appellate courts, particularly the US Supreme Court; I think cameras are an important monitor of, and check on, the Court's power, especially since the vast majority of the mainstream legal press gives the institution coverage that is 'way too respectful and distant. Linda Greenhouse of the NY Times even prides herself on this. We could try to negotiate a different deal. Is there a lawyer in the house? 10:57 AM | | link to this post | what's new in Law Reporting | go to JURIST "That Would Be Tea, Sir, the Coffee Tastes Like Dishwater" Jack Ayer I assume our writ runs beyond the borders of the US. Therefore may we pause in respectful silence at the spectacle of a London restaurateur threatening to sue a critic over a bad review (I haven't learned to do links yet, but go to Google News and punch in London restaurant critic sued). I really can't imagine you could write a review bad enough to do justice to an old fashioned Westminster neighborhood eatery popular with Tory members of Parliament, but I guess "meals of crescendoing monsttrosity" has possibilities. The Telegraph (aka "the culprit") writes that "It is almost unheard of to sue over a bad restaurant review, and no British restaurateur has ever successfully sued a food critic for libel;" still, the aggrieved is demanding money (for a charity of his choice) and a chance to write a rebuttal. For our purposes, let me use this as a launching pad for what really intrigues me--the compare/contrast of British and American government-press relations. Several core propositions: (1) "we" (who, exactly?) take it for granted that an unfettered press is a cornerstone of our constitutional system--indeed, I suspect New York Times v. Sullivan would be on almost anyone's list of major 20th Century Supreme Court cases (stipulate to a catlog of pornography cases, also Pentagon Papers, blah blah). The Brits, by contrast are, at least in our view: famously repressive--far more restrictive on what you can say about the government, or about ongoing legal proceedings (I'm aware that a Westminster chop house, or even slop house, is not, strictly speaking, "the government," although the distinction may blur under the mayonnaise). And libel, at least from my perspective, is far more visible in the British courts. The nearest thing I can think of to a British-style defamation case in the US was when Oprah got sued in Texas for defaming a cow -- but she won, and brought back Dr. Phil as her trophy. And so, the Brits have a tame, cowed and humbled press, right? Okay, a leaden irony. But you get my point: the London tabs set a world standard for vulgarity and tastelesness--for tastelessness, right up there with the Brussels sprouts. And whatever you may think of the Brits, you really can't say they have a restricted market for ideas, or for calumny. Do I have a point here, or is it only that comparative law is always trickier close up than it appears from a distance? Postscript: further evidence of the free market for calumny, note that many loyal customers of the offended restaurant have spoken up in its defense, or offense. "I find these journalists absolutely loathsome," wrote one. "What a sad, meaningless life they must lead." 10:39 AM | | link to this post | what's new in Law Reporting | go to JURIST
Hey, we can deal Jack Ayer You give up on cameras, I give up on anonymous questions. Deal? Take the long view -- at the beginning of the republic (sic) it was argued that the Supremes not put their opinions in writing -- after all you put something in writing, just give your enemies ammunition. This is consistent, I assume, with the view that we should not define crimes too clearly because it just gives dishonest men (sic) a chance to figure out ways around the rules. And if a gentleman has to ask what the rules are, he isn't any gentleman anyway. And wasn't it a crime in the 18th century even to report the debates of Parliament? A few more spasms of overripe howling post-adolescents, no telling what we can accomplish (refresh my memory, didn't Aristotle say that we shouldn't even be permitted to study politics until we were, say, 35?). Am I a democrat? You mean in the sense that I favor 24-hour plebiscite on the O'Reilly show? Ah, you've found me out -- no. Hey, I even accept the finality of Marbury v. Madison. But we're agreed on the parameters, aren't we, which means we are just arguing over details? >"the serial killer Ted Manson, was not televised." Were you thinking of-- a) Ted Danson, who was televised? b) Charles Manson (who, as I recall, was not a serial killer -- didn't he get others to do his dirty work?)? c) Ted Manson, who is guilty of nothing that I know of beyond overacting? >"why let the facts get in the way of your opinions?" Glad we can agree on this, at least. Coleridge again: one should never forget "how mean a thing a mere Fact is, except as seen in the light of some comprehensive Truth." By the way, this /is/ decaf. 6:08 PM | | link to this post | what's new in Law Reporting | go to JURIST Try the decaf Wendy Leibowitz My goodness, Jack, tell us what you really think about cameras in the courtroom. I have supported cameras in APPELLATE courtrooms ever since a group of law students (grrr) camped out on the steps of the High Court overnight and took all the seats---except for those reserved for spouses of the justices, of course. These were left empty on the day I wanted to attend the Court. We grubby members of the public without sleeping bags were allowed to stay in the courtroom for three minutes before being funneled out to the gift shop. There's a decent article in the Columbia Journalism Review about why cameras are needed in the High Court here. It begins with one of my favorite Justices, Sandra Day O'Connor, who, because she is not predictably conservative or liberal, is vilified in the low, opinionated portions of the blogosphere that Jack Ayer seems to frequent. But I digress. Here's an excerpt from the CJR: As Justice Sandra Day O'Connor writes in her memoir, The Majesty of the Law, the U.S. Supreme Court "is not a bad place from which to get some sense of the nation's concerns . . . ." TV people have tried for years to get their eyes and ears into that national court. While all fifty states permit electronic media in courtrooms, federal courts have experimented with cameras, but currently hardly any allow them. The Supreme Court issues transcripts (without justices' names), and releases audiotapes at the end of the judicial term. But it has never let cameras or microphones into proceedings. Some justices cite privacy concerns. Others worry that cameras would inhibit the rigorous debate that characterizes oral arguments. [DOES ANYONE BELIEVE THAT LAWYERS BEFORE THE SUPREME COURT WOULD CARE WHETHER OR NOT THEY ARE VIDEOTAPED? THEY'D LOVE IT--wendy]. Some disapprove of cameras in any courtroom for fear they may trivialize the lofty atmosphere of their own. Chief Justice William Rehnquist told a 1992 judicial conference that cameras "would lessen to a certain extent some of the mystique and moral authority" of the Supreme Court. Legal scholars are more pointed, noting that the Court's very power depends on the public's perception of it as an autonomous, apolitical unit. "If the public comes to see the justices as simply a collection of individuals with particular views about various issues, they will lose some of their capacity to speak as an institution," Michael Dorf, a Columbia University law professor, told the AP. "The justices are probably the most powerful anonymous people in the United States, and having their faces on television would undermine that." --end excerpt-- So the argument boils down to: they are powerful and anonymous, so they must remain hidden and mysterious. Hmmm. I thought in a democracy, that powerful people must take public responsibility for their actions. The justices don't even allow their names to be attached to the questions they ask during oral arguments (the transcript from the exclusive court reporting agency just reads, "the Court.") During any appellate argument or proceeding, there is no jury to intimidate, no evidence being presented--just the polished oral arguments and discussion of the issues in a different fashion from talk radio. I support broadcasting appellate proceedings. The arguments asserted against it are the same as those C-SPAN faced when it wanted to broadcast from the floor of Congress. Somehow, the Republic survived, and polls showed that the public's respect for the institution INCREASED thanks to the broadcasts. Interestingly, Ken Starr, the former federal judge and Starbucks-drinking prosecutor who has argued 20-some cases before the High Court, wants to see cameras in the Supreme Court, according to this. But the justices don't care and they answer to no one in this regard. If you wanted to see three Supreme Court justices on television, you could have tuned into the Washington Opera a few weeks ago: Supreme performance: Justices take stage at opera From Yvonne S. Lee WASHINGTON (CNN) --Supreme Court Justices Ruth Bader Ginsburg, Stephen Breyer and Anthony Kennedy played a role in the opening night of the Washington Opera's 2003-2004 season Saturday night, at the DAR Constitution Hall. They came on stage during the raucous party scene in Johann Strauss Jr.'s comedic opera "Die Fledermaus," about mistaken identities and romantic temptations at the hands of a friend seeking revenge. Wearing judicial robes, they were introduced as distinguished guests of Prince Orlofsky. Except for a colorful fan carried by Justice Ginsburg, they looked as if they had walked right off the bench onto the stage. The justices sat on stage while they were treated to performances by tenor Placido Domingo, who is also the Washington Opera's director, and other distinguished singers. -- Read it and weep here. And we're supposed to believe that the justices don't want cameras in the courtroom because they prize their anonymity? The opera (which was superb) was broadcast repeatedly on local public TV. As you note, Jack, it's at the trial level where the abuses are most rampant, and ironically this is where we allow cameras. Of course, abuses happen without cameras, as the Sam Sheppard case illustrates. One of the longest trials in American history, that of the serial killer Ted Manson, was not televised, so I don't think that you can blame cameras for either a zoo atmosphere (Sheppard) or for delaying the proceedings (Manson). But why let the facts get in the way of your opinions? If you can drag yourself away from the libertarian sites you seem to frequent (and don't forget andrewsullivan.com and oxblog.com), Stuart Taylor has an interesting article in the National Journal about the diminishing power of judges as Ashcroft pushes for more prosecutorial powers. Thanks to Howard Bashman’s Appellate Blog, ”How Appealing,” for the pointer. I have to get back to work now---my editor is a lot like you, alas. : > 2:00 PM | | link to this post | what's new in Law Reporting | go to JURIST
Public Hangings, etc. Jack Ayer Wendy, did I hear you cheering cameras in the courtroom? Is that a mature and considered opinion, or is it a youthful fancy that goes back to your days under the palm trees in Palo Alto? How far would you press it? Do you want to call one of your lifelines? Would you allow closed jury selection? Would you like cameras in the jury room? The grand jury room? Would you require appellate judges' conferences to be open? Real-time publication of clerk's memos, so that Matt Drudge can correct errors before they get out of hand? How about public ha--okay, that's a cheapshot, I didn't say it, I didn't say it. I know that cameras in court have been part of the reporter's catechism ever since there were cameras. I don't think I have ever quite signed on. I happened to be in Cleveland back when Louis Seltzer with the instrumentality of the Cleveland Press was busy trying to lynch Dr. Sam Sheppard. No, he didn't have his cameras in the courtroom, but I hate to think what it would have been like if he had. I certainly thought of myself as a sophisticated young wiseguy. I thought Seltzer was misbbehaving but I took it for granted that Sheppard was guilty. No more, of course: indeed it is kind of a wry joke among my age-mates: did you ever expect to live long enough to think that Sam Sheppard was almost certainly innocent and that Alger Hiss was probably guilty. And if I didn't have Sam Sheppard, heaven knows there's still OJ--the trial that did more than anything I can remember to discredit the functioning of our court system. Bad example? Well -- the vices on display in OJ were certainly not the ordinary vices you see in courtrooms every day. But that is the point: they are the vices of public spectacle, and courts have trouble enough on their own without adding publivc spectacle to the mix. Of course, not every judge is as easily cowed by celebrity as Lance Ito -- but lots are, and more will be if it becomes part of the ordinary life of the ordinary judge. BTW for clarification I am not necessarily complaining about the result here. Indeed I think the man who won the OJ case was the one least distracted by the celebrity sideshow -- I mean Barry Scheck, whose unglamrous, unspectacular hammering-away at the DNA evidence did just what a good defense attorney is supposed to do. Indeed, I have suspected that it never occurred to F. Lee Bailey or Robert Shapiro that the case was actually winnable: their goal from the start seems to have been to milk it for all they could and let their client look out for himself. And Scheck, God love him, has done less than any of them to capitalize on it all (no "Dancing Schecks" on Letterman). Indeed, I see from the Law Prof studbook that he doesn't even have an email address. Getting the cameras in Delaware has a special angle. Of couse Delaware is corporate central. And one of the features of court life in Delaware is the dudes in $2,000 stone-washed jeans with cell-phones -- the arbs, trading securities on the strength of what they see in court. I suppose if you let in the cameras, they can stay back in Lichtenstein or the Grand Caymans and watch it in the comfort of their private screening room. 11:13 PM | | link to this post | what's new in Law Reporting | go to JURIST Is There a Blogosphere? Jack Ayer Oh dear, did I really say "underemployed and undersocialized geeks?" Perhaps I did. I guess I am lucky that nobody seems to be paying attention (like basic cable?). And I concede I have evidence that it is not true: after all, any number of first-team bloggers expend bandwidth bragging about their kids. Anyway--I suppose it is true (but how true?) that more and more people get their news from the web. I'm not sure it follows that there is no blogosphere. I'm struck by something that is (I think) a bit different: I mean the growing network of opinion-makers or opinion-maker-wannabees who, well, who "network" in the sense that the write to each other, backbite each other, praise, blame and play gotcha with each other. They are a phenomenon taking on a life of its own. They surely want to, and in a certain sense I think they do, drive a broader news agenda. Law professors are prominent: Eugene Volokh, Glen Reynolds, Jack Balkin, Michael Froomkin not least among them. And note a nice cross-over: Michael Froomkin's brother is running the new White House quasi-blog at the Post. These guys spend a lot of times having hissy fits over each others' politics, but in fact their substrate is rather narrow: most are either mid-to-heavy-duty libertarians with a disposition to military solutions, or mild-to-moderate libertarians with a soft spot for the UN. An awful lot of them are former judicial clerks, including Supreme Court clerks. I think this is new, but I will make the case that it is old: every society organizes itself, and you always have this network of process people who play the game 24 hours a day. The French have a saying (I am told) that "there is more difference between two socialists, one of whom is a deputy and the other of whom is not, than there is between two deputies one of whom is a socialist and the other of whom is not." The operative word here is "beltway" as in "inside the beltway." Or for news purposes, "a beltway story." As in: outside the beltway, how many people can name even four Supreme Court justices? Three? Two? Who was that guy on TV a few years back, talking about Coke cans? I think this is on point: my exercise bike reading for the moment is Richard Holmes' magisterial biography of Samuel Taylor Coleridge (no, not a Supreme Court justice--the poet). Among an almost infinite number of schemes and fantasies, Coleridge hatched the idea of founding a journal of opinion. He described it to a friend: "I do not write in this Work for the /Multitude/; but for those who by Rank, or Fortune, or official Situation, or Talents or Habits of Reflection, are to /influence/ the Multitude. I write to found true PRINCIPLES, in Criticism, Legislation, Philosophy, Morals, and International Law." Yours in Rank and Fortune, and Have a Nice Day--j 10:35 PM | | link to this post | what's new in Law Reporting | go to JURIST Web blog news; courts opening up Wendy Leibowitz Here's a better site to read a synoposis of the section of the USA Patriot Act that was struck down today. Declan's politech site seems to having server trouble. The court's decision is here. As to Jack's point that the blogosphere is inhabited by the underemployed and undersocialized geeks, I assume that includes the folks at the Washington Post who staff a "Continuous News Desk" (a blog by any other name) that garnered praise by Steve Outing in his column in Editor & Publisher magazine. He dissects how a sports story (yawn) was broken and updated continuously on the Web. I guess he's never heard of the radio. I just think this continuously-updating of the news is routine in every area but the law, where courts are used to guarding information jealously, and lawyers are used to seeing polished synopses of public information, usually in a well-worn format. What will break the walls down between the public and the legal community is real time information. So I'm delighted by the news that the Supreme Court of Delaware will allow cameras in the courtroom. Read about it here. Excerpt: Still cameras, broadcasting equipment and audio recording devices will be allowed into non-jury proceedings in Delaware's Superior and Chancery courts on a six-month experimental basis, the state Supreme Court decided last month.... Media will be allowed to capture live footage of civil, non-jury trials in the state's three Superior courts and three Chancery courts, which hear commercial affairs cases. TV cameras and audio-recording devices were previously only allowed in arguments in the Supreme Court. The Radio-Television News Directors Association and Foundation has long rated Delaware's court system among the worst in the nation in terms of camera access. The Supreme Court had argued that bulky camera equipment and the potential for "sensationalized" coverage would be distracting in court proceedings. However, in a Dec. 16 opinion letter concerning the court's experiment, Chief Justice E. Norman Veasey said recent renovations to the state's courtrooms have eliminated the possibility that media equipment would be an intrusion. "Importantly, for the first time in Delaware history, these new courtrooms were designed to accommodate electronic cables under the flooring so that there would be no media cables and wires cluttering our courtroom floors," Veasey wrote, of his court's Dec. 10 decision. --end excerpt-- Of course, public proceedings should be as public as possible--C-SPAN, anyone?--but the legal community, especially the courts, lags far behind that in fact and in thought. Still, we must applaud incremental progress, so three cheers for Delaware. Now, if only a judge, court clerk, bailiff or party to an action had a blog, we would get a real insider's look at the proceedings. Until then, we'll have to deal with a reporter's synopsis, as filtered by editors and copyeditors, and edited for space. Sigh. 6:26 PM | | link to this post | what's new in Law Reporting | go to JURIST The Mounties, the search and the press Wendy Leibowitz Jack, in writing about the Mounties' raid on the reporters' home, you make a distinction between coverage in the mainstream print media, and coverage in the blogosphere. I think the distinction is fading as more people get their news via the Web. For example, I just heard that part of the USA Patriot Act was struck down. My news came via Declan McCullough's Politech site and e-mail service. I get much of my news about legal publishing from a Wired Librarian, Sabrina Pacifi, whose blog is wonderful and far-reaching. There are actors who discuss how difficult it is to make the transition from TV to movies or whatever. From my perspective, they are all actors: sometimes they're on TV, sometimes they're on the big screen. In the UK these distinctions are not as important as in Hollywood. Similarly, I think to print-rooted people, the difference between a print newspaper and a blog is quite real. But to many people, news is news. The blogsters are just more open about their opinions and biases than newspapers are. As to the coverage of the Mounties' raid, I read about it quite a lot, considering it's a Canadian news item and most US newspapers couldn't care less about Canada. In addition to coverage in the major papers, (the Chicago Trib, the California papers, the NY Times, the WaPo), the Reporters Committee for a Free Press covered it well here. Here is the RCFP's explanation of the raid: The raids were triggered by O'Neill's Nov. 8 front-page story detailing a Canadian intelligence dossier on Maher Arar, an Ottawa telecommunications engineer who was arrested in New York in 2002 by U.S. authorities. Arar was then deported to Syria, where he said he was tortured by Syrian military intelligence in an effort to link him to Al Qaeda. He was released and allowed to return to Canada last fall. He has not been charged with any crime. O'Neill's article cited to an unnamed "security source" and a leaked document detailing Arar's statements to Syrian military intelligence officials. She reported that Arar confessed that he attended an Al Qaeda training camp in 1993. Arar says that the confession was extracted from him under torture. The police are seeking the identity of O'Neill's confidential source. In addition, O'Neill may face criminal charges under Canada's Official Secrets Act, passed after the Sept. 11 attacks on the United States. The law prohibits the distribution or unauthorized possession of sensitive government materials and carries a maximum sentence of 14 years in prison. -end excerpt- When the victim is a fellow reporter, I think the press is all over the story. Additionally, the officers had warrants. I don't mean to be difficult (it just comes naturally), but reporters aren't immune from contact with the police. If the cops have a warrant, which they did in this case, they're entitled to search the premises and seize anything that is described in the warrant that might lead to the discovery of a crime. I understand that those procedures were followed here. I am horrified that the man deported might have been tortured, but that deals with Syrian criminal practices, not Canada's. 4:23 PM | | link to this post | what's new in Law Reporting | go to JURIST
The Most Powerful Woman in America Jack Ayer Some comments from John Yoo on Sandra Day O'Conner (from a Jim Lehrer Interview, January 12): She doesn't really have a consistent theory that she brings to the law, she just likes to, I think, be in the middle, to be in the center of a court that's fairly polarized, that makes her the center of attention, people craft arguments at the Supreme Court to appeal just to her. But that isn't really law, is it, that's more politics. It deprives the court of speaking with a consistent, coherent judicial ideology. Interesting in its own right, of course, bu also because it seems to be making its way around the blogosphere. Matt Yglesias calls her "the friendly dictator." Unlearned Hand says she "has highjacked the court." The Curmudgeonly Clerk stands up "In Defense Of O'Connor, Sort Of." IOW, this story seems to have more life in the blogs than it can ever expect out of the boring Jim Lehrer. Once again, I pose the (happily unanswerable) question whether this makes any difference to anyone except the underemployed, undersocialized geeks who write and read blogs. 10:38 PM | | link to this post | what's new in Law Reporting | go to JURIST
Mounties Raid (Blogosphere Angle) Jack Ayer Wendy, given your commendable alertness to stories about government searches, I wonder if you have been paying attention to the case of Maher Arar, the Canadian citizen who was detained by the United States and then shipped off to Syria where he was (at least by his own account) tortured -- and in particular, of the raid by the Royal Canadian Mounted Police on the home of an Ottawa Citizen reporter, searching for evidence of government leaks in the case. The law-and-journalism angle would be: from a Google search, I gather the Canadian press has been all over this baby (and indeed, that the search may have backfired as a tactic). US attention seems to have been a lot thinner on the ground -- and indeed this may be one of those stories that gets its legs not from the "press" or the "media" but from the blogosphere (I got onto it via Brad de Long, who got his from Obsidian Wings). A related question would be: on what authority do the Mounties go crashing into a reporter's home? I haven't seen anybody knocking down Bob Woodward's door to find out where he got all the stuff in the Bush book -- nor, indeed, the Robert Novak's door to find his source in the Plame case. 8:22 PM | | link to this post | what's new in Law Reporting | go to JURIST
Yes, everyone but you knew Wendy Leibowitz Yes, we all knew. But if you ever wanted to know what being raided by the FBI is like, the raidee has posted an account on his blog. His first-person account includes posting the FBI warrant, which was under seal. The SF Chronicle writes of the raid and the blog here. The early morning raid, in which the man's computers were seized, was related to--no, not terrorism, they have other priorities in SF--the source code of a video game which somehow appeared on the Internet. Boy, do we take intellectual property seriously now or what? I think the young man's blog and the hundreds of (expletive-filled) comments that follow his account will change legal reporting--especially criminal reporting. You rarely hear from the accused; lawyers usually hush them up right away. Wait until the accused have blogs! Even if he'd given an interview to a skilled reporter after the fact, the filters through which the account of the raid would have been placed would change the chronicle. I love this: live, subjective, "you are there" legal blogging. 10:02 PM | | link to this post | what's new in Law Reporting | go to JURIST Does Everyone but Me Know Jack Ayer That there is a website called "Murdertoday.com," and that, yes, they have the Arnason story -- with a link to, heaven knows why, the Indianapolis Star. And did I mention that the duck hunting is great around Modesto? The things you learn while observing law and journalism. Now pardon me while I go check out Murdertoday's companion site, "rude_girls.com." 5:00 PM | | link to this post | what's new in Law Reporting | go to JURIST context is critical Wendy Leibowitz I agree with Garrett that providing context to a judge's actions is critical. Does Scalia go duck-hunting regularly with Administration officials? The judge I clerked for was very close to media mucka-mucks, and enjoyed getting published in the New York Times ("above the fold," he'd insist), dined often with the editors (in the Punch Sulzberger days) but ruled on cases involving the Times. By contrast, a judge in Belgium investigating a horrible child abduction and porn ring was removed from the case because he had a spaghetti dinner with the victims' families. Does having dinner with someone automatically disqualify you from ruling on their case? If it does not, why should hunting for dinner disqualify you? SHould Supreme Court justices not be allowed to socialize with Administration officials, who by definition will probably have cases pending before the High Court? And how would you go about enforcing that--by trying to embarrass them in the media, I suppose? Depending on the publisher's bias, the media would be happy to oblige. Today, the prosecution in the Scott Peterson murder case requested that the judge be removed from the case, a day after he was assigned to it. Under California law, no reason need be given--it's akin to a preemtory challenge of a juror. I thought the press did a good job, writing quickly, in SPECULATING why the judge was removed, and thus providing context. But it's subjective and open to question. The San Francisco Chronicle reported: Although prosecutors weren't required to say specifically why they didn't want [Richard] Arnason, legal experts said Thursday that the judge's handling of the Angela Davis murder and conspiracy trial three decades ago -- in which he released the black militant on bail and granted her co-counsel status -- may have been a factor in removing him from the Peterson case. Arnason has also come under fire from prosecutors in a handful of cases when he declined to count prior convictions under the state's "three strikes" law. The law requires a prison term of 25 years to life for felons convicted of a third felony after two serious or violent felony convictions. There's more here. The defense side gets a voice in the Kansas City Star: Danville defense attorney Bill Gagen pointed out that cases before Arnason are rarely overturned on appeal - a fact that almost always benefits the prosecution because most trials end with some type of conviction. Local defense attorneys were startled to hear that prosecutors would disqualify Arnason and scoffed at the notion that the judge is pro-defense. Deputy public defender Paul Mariano called him "pro- fairness." Kochly declined to say exactly what issues the Stanislaus prosecutors raised. He said an answer from one of his deputies could have unknowingly triggered their concern about Arnason. Several attorneys hypothesized the cause could be Arnason's practice of letting in much of the evidence both sides want to show a jury. That could help the prosecution build a circumstantial case against Scott Peterson, but it also could mean that his defense attorneys would be allowed to present more of the theories they have previously floated, like the one where Laci was kidnapped and killed by a cult. The full article is here. On the topic of fairness and bias, I can't resist pointing you to a juicy article in the New York Observer about managerial problems in the NY Times' Baghdad Bureau. When asked to remain on-topic by our vigilant blogmeister, Bernard Hibbitts, I say in my defense that the lousy conditions in the NY Times bureau may affect their reporting: if you read in the Times that conditions in Iraq are miserable, perhaps it's because the Times reporters are sharing a dump with one bathroom and no lock. (Their Moscow bureau had cold comforts even by Russian standards). By contrast, if you read in the Wash. Post that things are looking up in Baghdad, it could be because the Post's reporters are writing from a lovely house with a swimming pool. Objectivity and bias are many-faceted things, in Supreme Court justices and in journalists. 2:19 PM | | link to this post | what's new in Law Reporting | go to JURIST "Appearance of impropriety" Garrett Epps From the standpoint of a former judicial clerk, I think I must offer some defense of the "appearance of impropriety" standard. I believe there are two parts to the judicial standard, one directed to the objective nature of a judge's conduct and one directed to the judge's own sense of propriety and integrity. "Reasonably be questioned" is the objective prong. "Appearance of impropriety" is designed to get the judge to ask him/herself whether he or she believes the action will create the wrong impression. It's not intended to be legally enforceable--though I must add that it doesn't seem tragic to me that it should give rise to questions in the media. Such coverage is the only real public accountability a life-tenured judge must ordinarily face. If it is ill-informed, the answer is for the judiciary to inform the press about what life is really like for a judge. That said, I can say that from my time working with judges on the bench there are plenty of judges of both parties who would ask themselves whether, with a case involving a high official pending before their court, going hunting with the official is really the thing to be doing. I certainly wouldn't do it if I were a judge--there will be other years and probably other ducks. Steve, the last thing in the world I want to suggest is that you have lost your newsman's instincts. (We ex-POSTies are always sincerely in awe of former JOURNAL folk.) But what I am saying is that the big-picture feature and the daily report aren't mutually exclusive or even really in tension with each other. One builds toward the other (if there is enough there to support the larger piece, of course--and sometimes the smaller daily story is a way of finding that out). I also want to draw the group's attention to an attempt by Democrats Joe Lieberman and Patrick Leahy to make an issue of Scalia's hunting jaunt, reported by the AP today at http://www.salon.com/news/wire/2004/01/23/Scalia/index.html. Their letter to Rehnquist says, in part, "When a sitting judge, poised to hear a case involving a particular litigant, goes on a vacation with that litigant, reasonable people will question whether that judge can be a fair and impartial adjudicated of that man's case." Is this a fair question? How should the press report it and how should it be put into context? One thing I would like to see the press do more of is consider whether the current political climate--involving both parties--poses a threat to judicial independence. Consider the formation of a "Judicial Accountability Working Group" among the House Republicans to monitor judges' use of the sentencing guidelines, the rather heavy-handed attempt to investigate former Chief Judge Boyce Martin of the Sixth Circuit for his handling of the en banc review of the University of Michigan affirmative-action cases, and the Feeney Amendment. Is Congress overstepping its bounds in a novel and threatening way? Has anyone seen any good coverage on this issue? BTW, an excellent example of the kind of feature story Steve is talking about what reported by the estimable Nina Totenberg of NPR in the mid-1990s reporting on Scalia's failure to achieve the influence with his colleagues that conservatives hoped for when he was appointed. I don't have the text right now but will try to find a link. 12:11 PM | | link to this post | what's new in Law Reporting | go to JURIST
Coarse and Vulgar Jack Ayer Wendy is certainly right about the monastic tendencies of the bench (although I wonder what she thinks of Justice Souter?). But the point is pregnant with any number of other issues. Since this is a law-and-journalism blog, let me see if I can frame one in a law-and-journalism style. That would be: is there anything the press can do to help break the game of "gotcha" that has so coarsened and vulgarized the judicial confirmation process? I know next to nothing about my co-bloggists, but I suspect we would agree on the qualities of a good judge. And they would be, at least for starters, the qualities of a fully formed human being: someone with experiences, aspirations and, dare I say it, opinions. There may be some qualities we want in extraordinary measure: patience, balance, sympathy, critical detachment (is intelligence on the list? Maybe, but not at the top). One reason I speculate on this prospect is that I see a fair number of lower court judges -- in my own experience, mostly down at the bankruptcy court, but I suspect the same would apply to any court where the judges' appointment is more or less anonymous, out of the spotlight. Some of these guys are bozos and a few are mediocre, but most are, as the saying goes, well above average: they make you proud to be in their company, and glad that they are around. The operative point is may be "anonymity." Being a judge is, after all, in many ways a job: you've got to get the cattle to Abilene. The system needs good judges: if it pays a decent salary and offers passable security, it tends to get them. These guys are lifers, and I say lifers in the nicest possible way: there is no shame in it. Contrast this to the three-ring dog-and-pony gladiatorial dingdong that we regale ourselves with in a difficult or sensitive confirmation fight. The mud flies (at least I hope it is just mud) and the next thing you know, we find ourselves tearing apart old footnotes and long-established reputations. In an earlier time, of course, we got our judges by a kind of buddy system that sidestepped most of this cacophony. And I don't mean to was nostalgic here: Wendy, I saw Washington back when it was just a sleepy southern town, and believe me, it was in many ways not a pretty sight (surely it was racist and sexist beyond anything you would want to accept). But the recent extravaganzas at least make you wonder how much we have paid for our escape. The easy press response here is: hey, don't shoot the messenger. We only tell you what they say. I think this goes only so far. The press, after all, profits from a good mudfight. And insofar as it is part of the entertainment industry (not to say the seed, feed and drygoods business), it surely knows something about how to foment one. A really superior press would find some way to make itself less of an enabler in this dysfunctional menage, and more of a critical observer. Anyone, anyone? 6:11 PM | | link to this post | what's new in Law Reporting | go to JURIST Freedom to associate, and freedom of speech, apply to judges, too Wendy Leibowitz I've never thought judges were monks -- they have the right to associate or duck-hunt with whomever they choose. Especially in small towns, (and DC until recently felt and acted like a small Southern town), the justices and politicians had regular poker games with their friends. Perhaps journalists are just jealous that we are not invited. No, socializing isn't the key to the appearance of impropriety, and it's a distraction (manufactured in part by journalists) to think that it is. Judges must appear to be impartial, and should not speak out on pending cases in a way that will prejudice the verdict. Legal Affairs magazine ran an article last year entitled, "Judges should have the right not to remain silent," by Elizabeth Bazelon: It's an interesting article. Two money quotes: As Justice Antonin Scalia wrote in an opinion last summer, "A judge's lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and for good reason." "Judges should be discouraged from speaking only when what they say gives them a personal stake in the outcome of a case before them or on its way to their courtroom. " I think this is a narrowly-tailored test. Perhaps it is too narrow,but the journalists' interpretation of "appearance of impropriety" is too broad. 12:26 PM | | link to this post | what's new in Law Reporting | go to JURIST
Appearance of What? Jack Ayer I shouldn't beat a dead horse to death, but in an idle moment, I went to CNN.COM and searched "appearance of impropriety." I came up with 69 hits. The first, a January 19 story on Cheney and ducks, used the phrase on both sides of the case. That is, David Bookbinder, Washington legal director for the Sierra Club, said (tut tut) "It certainly raises questions about the appearance of impropriety." Meanwhile James Moliterno, a College of William and Mary law professor, said (pooh pooh) "There may be a political appearance of impropriety, but it ought to take a lot for a Supreme Court justice to remove himself from a case ... ." No hint that the reporter noted the inconsistency, or at least no hint that he cared. 10:09 PM | | link to this post | what's new in Law Reporting | go to JURIST Scalia and the Ducks Stephen Wermiel Welcome to Jack, nice to have you on board. First to Garrett, contrary to rumor I have not forgotten the difference between a news story and a feature story; wrote quite a substantial number of both for 20 years. But my gripe is that we will only see the disconnected and lacking-in-context-or-depth episodic news stories on this issue and not the feature story that gives the episodes some depth or perspective. I hardly think on this blog we have to accept as a given the way legal reporting is and can't suggest that it might be different. And to Jack, my problem with the Code of Judicial Conduct and "appearance" standard is that I don't know where the standard ends. If Scalia and Cheney are friends, they aren't any less so simply because they did not go duck hunting together. So is the real news story not about duck hunting as a manifestation of possible conflict of interest, but rather to ask whether Scalia can't satisfy the "appearance" standard with or without duck-hunting because he and Cheney are friends. 8:26 PM | | link to this post | what's new in Law Reporting | go to JURIST Stocking Feet, Little League Baseball, Duck Blinds Jack Ayer I'm the new kid on the block -- I'll introduce myself later, but right now, I want to weigh in on Scalia and duck-hunting. The reason is that I see an important conflict here: that would be the conflict in my own mind between (a) Scalia's impropriety; and (b) the rule-maker's overreaching. Let's take them in reverse order (there's a journalism angle here, honest -- bear with me): (b) Overreaching--I took a look at the Code of Judicial Conduct and the rap seems to me to be Canon 2B: "A judge should not allow family, social, or other relationships to influence judicial conduct or judgment." ("You think it is I who hit that last one? My, I do admire your discernment. I wonder how I can make it up to you ... ") Or I guess you could go with Canon 3C (1): "A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances in which: (a) the judge has a personal bias or prejudice concerning a party ..." I suppose the point would be that Scalia has a "prejudice concerning" Cheney, i.e., a prejudice in favor because of time spent huddled together cold and wet before daylight ("you never really get to know a man until," etc.). But the trouble is--the canon I think you hear of more often is Canon 2A, which provides, "A judge must avoid all impropriety and appearance of impropriety." (Tech question: how do I bold face "appearance"?) Think about it. "Appearance"? Sometimes I walk to the coffee room in my stocking feet. I am sure I have students and colleagues who think that this is at least the appearance of tacky (or the epitome?), but do I want to have to worry about its being used as a grounds for discipline? You can see where this is going: this kind of open ended language gives an out of control prosecutor a chance to blah blah. I mention it in particular because this is language reporters love. How many times over the last 10 years have we heard (NPR? Fox?) say that someone is guilty of an "appearance of impropriety" nudge nudge, which usually means that the reporter thought the guy had done something wrong, but didn't know how to nail him for it. So part (b) of my case is that this phrase out to be burned to the ground and the ashes covered with salt. But (a) Scalia's impropriety. Geez Louise Mr. Justice--would you show up for court in your Little League umpire's uniform? You tell me a thousand times that you and Cheney only talked about ducks, but how can I ever believe that? Don't you have some kind of public responsibility to avoid, well, to avoid, you know what? Anecdote: I was a judge for a short time many years ago. One day on my 11:30 calendar I gave judgment in favor of Dave, a lawyer whom I knew slightly and in his professional capacity only. After court recessed, Dave reminded me that we were on a Bar Committee together and could we discuss it over lunch. I said sure and so we waltzed down the courthouse steps side by side--and right past the losing litigant. Boy, I never did that again. Makes me squirm to think about it. Footnote: as I read it, the Code of Judicial Conduct applies to all Federal judges *except* the Supremes. Anybody know why? If no rules apply, does this imply that Scalia and Cheney can go slow-dancing at the 2005 Inaugural without inviting reportorial scrutiny? 4:21 PM | | link to this post | what's new in Law Reporting | go to JURIST
Coverage Garrett Epps Steve, much as I hate to say it, it seems to me you're thinking like a magazine reporter (or maybe I should say an A-hed writer) there. In other words, one of the things I used to envy daily writers was the opportunity to troll for a bigger story by beginning to write it in bits and pieces. If you think there may be a story about the Supreme Court justices in general and Justice Scalia in particular, one way to jump-start the reporting is to do a small part of it when you have a peg like this. Then you see what people say to you about it. Sometimes people you don't know come forward with interesting things. If you wait until you have a full think piece about an issue, sometimes it doesn't materialize. You know this better than I do, of course. Something else that has changed is that the Supreme Court is quite significantly responsible for the result of the election that put Cheney where he is--which might also put contacts between the Justices and the Administration on the skyline in a way they weren't before. That doesn't fully explain why this story is news and other links to the Administration aren't--but it does change the context even from the Ken Starr story I mentioned in my last post. Of course, I have been on news desks enough to know that all this theoretical chat doesn't go through editors' and reporters' minds as such. Instead, they hear about something and they say, "Hey, that sounds like a good story"--or they hear about something and say (in journalistic acronym-speak) "MEGO" ("My eyes glaze over"). Scalia has thrown a lot of red meat to the press in the last few years, and so he's getting less MEGO and more coverage, I think. 11:29 AM | | link to this post | what's new in Law Reporting | go to JURIST
Scalia and the Ducks, continued... Stephen Wermiel I agree with much of what Garrett says. But perhaps the point here, then, is that it is time for some feature stories about whether, and if so why, Scalia is pushing the envelope. Not just episodic analytical pieces each time he does it, but something more thou |
