Misconduct Is Only News When Journalists Say It Is

Effluvia

Here's a story I've told before: many years ago, a friend's client was being arrested in a case that had made local newspapers. The DA investigators showed up early one morning at the client's house to arrest him, cuffed him, and put him in their car. Then a reporter and photographer — tipped by someone on the prosecution side — showed up, late. They complained to the DA investigators that they had missed the perp walk — the iconic shot of the defendant being led away in handcuffs. The DA investigators obligingly got the client out of the car, walked him back into his house, and then turned around and walked him back to the car so that the photographer could get his perp-walk shot. The paper in question ran the perp-walk shot, but didn't mention that the cops had staged it. To the journalists involved, a picture of a suspect in handcuffs is news; the willingness of law enforcement to stage that picture is not news.

That too-cozy relationship between the press and law enforcement drives coverage of criminal justice in this country, which contributes to bad things — uncritical support for the "law and order" mindset, exaggeration of the risks of crime, insufficient coverage of misconduct and abuse, and journalism by spectacle. The relationship also encourages law enforcement to view journalists in an autocratic and entitled manner.

This phenomenon explains why I have mixed feelings about Fox News reporter Jana Winter's decision to risk jail to protect the source of a leak about the James Holmes prosecution in Colorado. You can read more about that story at Patterico or A Public Defender.

Jana Winter reported on a leak from someone she called a "law enforcement source," reporting that James Holmes, the apparent perpetrator of the Aurora theater massacre, had mailed a notebook filled with murder plans to a University of Colorado psychiatrist. Holmes' attorneys want to discover the source of the leak, arguing that the government violated a gag order issued by the court. Winter has been facing the stark choice between revealing a confidential source and going to jail for contempt.

It's imperative that we protect press rights vigorously under the First Amendment. Confidential sources are crucial tools in reporting important stories, informing the public, and uncovering misconduct. Many jurisdictions have laws protecting reporters who want to keep their sources confidential. That's a good thing.

But those are not the only values in play.

When journalists accept inside information from the government — from whatever source — they are making value judgments about what is news and what is not. When the journalists in my story ran a perp-walk picture, they made the judgment that a picture of someone in handcuffs is newsworthy and cops staging pictures is not. When Winter ran this story, she made the judgment that a scoop of Holmes' pre-massacre threats was newsworthy, and the willingness of law enforcement to violate a gag order was not. In making that choice, Winter and journalists like her necessarily abandon certain lines of inquiry. What's the purpose of this leak? Is it truly a leak from a rogue insider, or is it orchestrated by the prosecution? How does it help the prosecution's case or hurt the defense? Is it part of a pattern of leaks by this agency in certain types of cases? What laws did it violate? Has anyone with this agency ever been held accountable for leaks? Should they be? Was every part of the leak accurate, and how was that accuracy investigated?

When journalists make that value judgment, their choice is informed by their relationship with law enforcement — a relationship characterized by too much deference, uncritical acceptance, and interdependence. The choice is also informed by the modern media sensibility that favors sensationalism, the fast news cycle, and if-it-bleeds-it-leads thinking. Splashy stories about horrors are favored; complex stories about structural and cultural problems with criminal justice are disfavored.

Journalists will have you believe that when they print leaks from law enforcement they are keeping the public informed and promoting the free flow of information. Perhaps they are. But they are also acting as the tools of the government — whether willingly, indifferently, or ignorantly. The government leaks information — often in violation of law, often in violation of the defendant's constitutional and statutory rights — to control the narrative about the case, and to inflict unofficial punishment on suspects and defendants. This is an abuse of state power. The profession of journalism seems to have decided, collectively, that this abuse of power is not the story, or that it is, that it is outweighed by the benefits the public reaps from the abuse of power. Even though journalists claim that this decision is in service of the search for truth, sometimes it leads to participation in lies. Consider, for example, the scandal that surrounded the BALCO grand jury investigation, in which a defense attorney leaked grand jury transcripts to the media and then accused the government of doing it, seeking to have his client's case dismissed on that basis. In that case the defense, not the government, was the wrongdoer, but the media was an instrument of untruth and obstruction of justice. The journalists in that story valued protecting their sources of leaks above telling the public the truth about grave accusations of misconduct.

I'm not saying that laws shielding journalists are wrong. I'm not saying Jana Winter should go to jail. I'm saying this: maybe we should start asking journalists why they don't investigate leaks rather than accepting them. Maybe we should question the media's value judgments when it decides what misconduct is news, and what misconduct isn't. Maybe we should respond to leaks not with glee at getting inside dirt, but with demands that the government be held accountable for its conduct.

Last 5 posts by Ken White

28 Comments

26 Comments

  1. Stephen  •  Apr 9, 2013 @10:32 am

    Good article. But it could use more squirrels.

    -a devoted Twit

  2. adam  •  Apr 9, 2013 @10:36 am

    i agree wholeheartedly. that said, if the prosecution was indeed behind the leak and had Winter rebuffed their efforts, they would almost certainly have found another reporter with less scrupulous morals to whom leak said information.

    additionally, if the prosecution is behind the leak, who's to say that Winter was the first person that they approached? maybe the other reporters they approached first said "no."

    i live in the Denver metro area and there is an obscene push for blood. that the guy is guilty does not really seem to be the issue, rather, the people's insatiable need for "justice," by any means necessary.

  3. Lynn Grant  •  Apr 9, 2013 @10:41 am

    When I was in Journalism school, they had us watch "Absence of Malice", where accidental-on-purpose leaks are used by the prosecution, and not only cause an innocent death, but also come back to bite the prosecutors and the journalist involved. I hope they are still showing it in J-school these days.

  4. Dan Weber  •  Apr 9, 2013 @11:23 am

    I share your feelings about leaks.

    They are necessary, yet.

    Journalists feel their field is the most important in the world: if the government leaks, journalists are free to use it, and it's someone else's problem to figure out how to deal with the leaks.

    Of course, every profession feels like this. Lawyers think the law is most important. Businesspeople think business is most important. Biologists think biology is most important. Poets think poetry is most important. Computer scientists think their ideas are the most important. Economists think the economy is the most important.

    Just like war is too important to leave to generals, I sometimes worry that journalist is too important to leave to journalists.

  5. jon  •  Apr 9, 2013 @11:53 am

    The short media cycle and consolidation of the "old media" has made the "old media" extremely dependent on relationships with sources and recycling their press releases. I think most real "investigative journalism" these days can be found in the new media and in blogs. Unfortunately, so is most of the worst crap. Whats really needed is a great crap filter.

  6. Mister D  •  Apr 9, 2013 @12:22 pm

    The issue which I believe the article talks about, and reporters should follow up – is this a "leak" or a whistle-blowing action? A person passing material to make a point despite the threat to their job and freedom (or even their life) is vastly different than a propaganda piece orchestrated by agents of the government, acting in their official capacity and in furtherance of the government's agenda.

    The law should spport whistleblowers, not civil servants pretending to be whistleblowers.

  7. Tom Z.  •  Apr 9, 2013 @12:36 pm

    "Good article. But it could use more squirrels."

    All local squirrels are undergoing therapy sessions from their recent encounters with Ken and are unavailable for guest appearances.

  8. George William Herbert  •  Apr 9, 2013 @12:42 pm

    It does not usually rise to the level of "orchestrated by agents of the prosecution" per se; police and crime reporters often have an incestuous relationship. The prosecution will often have a cleaner case if there are no leaks, even if it starts to turn the public against the defendant. If there are shaky witness IDs then leaks can be used to further discredit them, etc.

    Not to say that prosecutors never would, but it often is well underway before a prosecutor arrives.

  9. Tom Z.  •  Apr 9, 2013 @12:47 pm

    Ken, my main problem with the analysis above is that you do not question the reporter's claim that the materials came 'from a law enforcement source'.

    Your own example of the perp walk makes it clear that reporters will routinely engage in less-than-truthfulness if it will make their jobs easier or improve ratings/circulation.

    So the story many not be that the reporter didn't investigate the motivation of the law-enforcement leak. Rather it could be the story of how the reporter took active actions, despite their claim of confidentiality, to misdirect the court on the identity of the leaker.

  10. the other alan  •  Apr 9, 2013 @1:11 pm

    there was a case a while back where a suspect was walked in and out of a police station for the sole purpose of walking him before a group of reporters. A subsequent hearing found the suspects rights were violated, though I don't recall what, if any, penalty was given.
    The most egregious leak case I recall was anthrax investigation of Steven Hatfill. It was discovered the lead FBI investigator in the case was regularly leaking information to the press. To Ken's point, while the Justice Department settled with Hatfill for almost $6 million, and the agent was suspended, little discussion occurred regarding the press's role in using illegal leaks to harass – nearly to the point of suicide – someone who turned out to be completely innocent.

  11. ShelbyC  •  Apr 9, 2013 @1:34 pm

    The fox news article seems a little biased in favor of shield laws. Go figure. Another strike against special rights for journalists.

  12. Billy V  •  Apr 9, 2013 @1:39 pm

    Why doesn't the judge throw the journal out unless the govt comes forward with the person who leaked the evidence? You can believe that all of a sudden an internal investigation will start and she may even be persuaded by the govt to reveal the source so that they can handle it.

    I mean she said it was the govt that leaked the docs.

  13. Tom Z.  •  Apr 9, 2013 @1:42 pm

    "Why doesn't the judge throw the journal out unless the govt comes forward with the person who leaked the evidence?"

    Because misconduct by an unnamed party who may or may not be a member of the prosecution has nothing to do with the guilt or innocence of the defendant.

    Violation of the gag order is a reason for the leaker to be punished, not a reason for the murderer to go free.

  14. htom  •  Apr 9, 2013 @1:52 pm

    Oh, I think it can have a great deal to do with a conviction — which is (sadly) very different than having done the deed or not.

  15. xbradtc  •  Apr 9, 2013 @2:13 pm

    At least a reporter was doing more than journalism-by-press-release, where they simply parrot whatever the DA/LEO folks say.

  16. ShelbyC  •  Apr 9, 2013 @2:29 pm

    @xbradtc, how so?

  17. Billy V  •  Apr 9, 2013 @2:45 pm

    @Tom see I disagree this came from a "law enforcement source" and the LEO's have a great deal to do with this case, as with any criminal case. To argue that they are an unnamed party is incorrect, she identified that it was a LEO already. If it was not she needs to come out and say who it was.

    While I do not want to see him go free, I at the same time do not think that we need to allow illegal activity committed by LEO's just go because of the crime the defendant committed.

  18. C. S. P. Schofield  •  Apr 9, 2013 @3:46 pm

    Some thoughts;

    1) If we could kill, dead, the idiotic idea that ANY journalism is in any way free of bias a lot of the edge of this situation would dissolve. Of course the reporter has an axe to grind. All reporters have an axe to grind, all the time. It may be a small axe, and it may not change how wee view the story, but all reporting is informed by the reporter's worldview.

    2) Yes, the leak should be investigated. If there is a law on the books shielding reporters who won't name their sources, then we can't lean on the reporter. Fine. Either accept that, or work to change the law. IF that is the legal situation, then those who are threatening the reporter should be punished. But investigate the leak as much as possible, and if it develops that a prosecutor arranged the leak to influence the case, then he should at a minimum be fired.

  19. JR  •  Apr 9, 2013 @3:54 pm

    Many journalists either don't bother making the effort. Many times the only reward for doing a good job is self-satisfaction, which takes a distant second to profit for the average worker of any profession.

    I'll stick to reading the blogs obsessive people in a position to know the inner workings of a subject and apply critical thinking to form my own position.

  20. Brad Hicks (@jbradhicks)  •  Apr 9, 2013 @4:52 pm

    I wish you all the luck in the world tilting at this particular windmill.

    I have a friend who's a reporter who, in the middle of a contentious local election cycle, got a convenient leak about possible misdemeanor criminal conduct by an anti-mafia political figure in their town. I asked the reporter, privately and off the record, who the leak came from – the source was, in fact, a prominent mafia lawyer. I asked my reporter friend if it EVER occurred to them that they were being used by the mafia to derail an anti-mafia investigation and — I swear before all holy gods — my reporter friend's answer was, "Why would they do that?" The reporter's mindset was that the allegation was apparently true, and therefore news, and where it came from and why it was leaked was immaterial.

  21. Dan Weber  •  Apr 9, 2013 @6:40 pm

    Violation of the gag order is a reason for the leaker to be punished, not a reason for the murderer to go free.

    We hold the cops liable for illegally gathering evidence. If they illegally find evidence that a guy is guilty, we don't say "well, let's punish the cop, and then use the evidence."

    I don't think this would work for leaking, because as suggested the defense could also leak. But there's something to be said for the fact that making cops misbehavior lead to suspect's release causes the cops to really really really care.

  22. George B  •  Apr 10, 2013 @12:26 am

    Wasn't there a case several years back where two NYPD detectives staged a perp-walk for the press, and went down for it?

    {Wish I could recall more details….}

  23. Michael  •  Apr 10, 2013 @5:41 am

    As a journalist I just want to say, this incident is a Very Bad Thing. I don't think any of our staff photographers would even consider doing this, and we work for a smaller paper with a daily circulation of 14,000. This is a violation of journalistic conduct.

  24. Steve Florman  •  Apr 10, 2013 @6:33 am

    I think you're saying something about Jana Winter's conduct, here, but I'm damned if I can figure out what. Should she have coughed up the source, to expose the leak, or not?

  25. Jim Kimmons  •  Apr 10, 2013 @7:00 am

    I think we need a new word for the vast majority of them. Instead of journalist, I think "opinionist." Whether it's theirs or their bosses, most of it now is more opinion than news.

  26. Ray  •  Apr 10, 2013 @1:49 pm

    Here in the UK broadcast news is still largely driven by press releases Perp walks and prosecution leaks are few and far between. Newspapers however have been found . Such a corrosive arrangement couldn't possibly exist in the US as it is obviously a result of poor oral hygiene and rampant pony worship in this sceptred isle.

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