Pocket Pool And The Fourth Estate
New Haven Public Defender Thomas Ullman has never been one to pull a punch, but he did last week. He wants an investigation of who was leaking material about the murder of Annie Le to the press. But he’s asking that the investigation stop at the door of the local police station. Ullman doesn’t want reporters questioned.
Here is how the game of media pocket pool gets played and why the journalistic privilege is a bad idea.
Let’s say the media gets all hot and bothered about a topic. Reporters start calling around looking for information. (Our office just received a dozen or so calls from news organizations around the country. Were we representing the man accused of killing Ms. Le? Even The New York Times called saying they heard I had the case.)
Suppose you have an agenda during one of these frenzies. You can give the press information but do so on the condition that the material you provide is not for attribution. In other words, you can spin whatever you are selling to a reporter ready, willing and able to report it without anyone ever knowing you did it. It’s magic.
Nothing prevents a liar from making something up. Nothing prevents the portrayal of a half truth. There are no checks and balances to account for the spin given a set of facts. Indeed, there is nothing to assure that the anonymous person coughing up some juicy morsel is reliable at all.
Journalists will chime in at this point that professional ethics govern. Why, a reporter wouldn’t reprint just anything.
Perhaps that is true. But if you are a reliable source, a person known to the reporter, you can often get something into a newspaper without your fingerprints appearing on the story at all. I call this game Hide and Go Seek.
Press advocates say that the Fourth Estate is entitled to the use of a journalistic privilege because protecting the identity of sources yields broader and better debate about a wider scope of issues. That may be true. We have Deep Throat to thank for Watergate, and there are whistleblowers who speak in fear for life and limb.
But let’s not conflate metaphors. The Fourth Estate is not a fourth branch of government. Making the press unaccountable but shrouding it with impenetrable privileges does not fit within a system of checks and balances. Rather, it makes the press immune from the very sort of countervailing pressures at work in our constitutional system.
The relationship between lawyer and client is cloaked in a privilege. But even this privilege is not sacrosanct. The crime-fraud exception to the privilege permits discovery of communication when the lawyer becomes a participant in unlawful activity. Why shouldn’t a similar provision require the press to cough up a source? What justification permits a source to perpetrate a fraud or half-truth, peddle it to the press, and then permit the misinformation to be printed as gospel
The Le case shows just how badly reporters can be used. Four law enforcement agencies were called in to investigate in the early stages: The FBI, the New Haven Police Department, the Yale Police Department and the Connecticut State Police. Reporters have sources in all of these agencies, and press reports about the investigation were flooded not just with confidential information undisclosable to the defendant, but also with information that wasn’t even true. I have spoken to reporters who were so bewildered by all this, they did not know what to print.
Ullman wants to know who leaked all this swill. Who had an interest in making sure the press got fed? Who undermined the defendant’s right to a fair trial by polluting the media with material still under seal at the time of this writing?
Who has a motive? Members of the New Haven Police Department and the Yale Police Department. Both still have trousers around their ankles as they stumble away from the still unsolved Jovin case, now more than ten years old. Both want this time to get their man regardless of the consequences.
Does Ullman really expect the police to tell the truth? I say go the people who printed their words. Get the names from reporters, and stop letting cops play pocket pool with reporters desperate for a story. Don’t pull a punch. And don’t give a privilege to those willing to print the lies of folks who won’t give their name.
Reprinted courtesy of the Connecticut Law Tribune.