As told to Patricia Calhoun, by Patricia Calhoun
If you think it's embarrassing to be caught in a checkout line with nothing but a lime and four supermarket tabloids -- and indeed it is, even if the tabs are all for work! Really! -- imagine being caught testifying on behalf of one of those publications in open court.
Which, according to reliable sources, I did last Thursday before Jefferson County Chief District Judge Henry Nieto.
I'd been called as an expert witness by lawyers representing the Globe and editor Craig Lewis to discuss journalism in general -- not the Globe's particular brand of journalism. Thanks to my recent reading of the tab (for work! Really!), however, I now am also an expert on such topics as Prince William's new fox-hunting hobby and Katie Couric's secret romance and Clint Eastwood's disappearing varicose veins and Oprah's suicide note. And, of course, on recent developments in the JonBenét Ramsey case, a case that the tabs have kept alive for the past 34 months but which is relegated to a modest spot on page 45 of the Globe's current issue. (It still rates the cover of the National Enquirer.) Under the headline "JonBenet: Governor's Secret Plan to Nail Ramseys" and beside a picture of an eyes-closed Bill Owens (perhaps preparing to channel Jesse Ventura in advance of his "no-Ramsey-special-prosecutor" press conference on October 27) is this Globe scoop:
"The Governor of Colorado had a secret reason for blasting John and Patsy Ramsey and accusing them of blocking the investigation into the death of JonBenet, say insiders. Gov. Bill Owens became certain cops were right to concentrate on the Ramseys as main suspects, a source says, and hatched a plan to put the couple under so much pressure that they'll tell all!
"'He's convinced they've been using their wealth to dodge an indictment,' says a source. 'But from now on, he's going to put the squeeze on them so tight that they'll crack like eggshells!'"
There wasn't much cracking -- of eggshells, heads or cases -- in Nieto's courtroom on November 4. While dozens of reporters gathered outside the courthouse in preparation for that afternoon's action concerning eleven-year-old Raoul, the Swiss outdoor-urination expert, the audience for the Globe arguments consisted of a few interested journalists (not Lewis, however), several very interested lawyers and a Red Rocks Community College class getting a lesson in justice, Jeffco style. And the topic being considered was a far cry from the more sensational, tabloid-worthy sexual-assault discussions that would emerge in Raoul's case. The discussion before Judge Nieto focused on the First Amendment -- and as insiders and outsiders alike can tell you, that stuff doesn't sell newspapers.
It just makes newspapers possible.
The Globe's motion had interrupted the work of the Jefferson County grand jury, which has been exploring "information-brokering." So far, the grand jury's work has resulted in indictments of James and Regana Rapp, two private investigators charged with using illicit means to gather information on celebrities, as well as Thomas Miller. He's the former lawyer accused of introducing Lewis to the handwriting expert the Ramseys hired to study the ransom note found at their home the morning JonBenét was reported missing. And why did the expert even have a copy of that note? Because the Ramseys had been given one by Boulder County District Attorney Alex Hunter.
The Ramseys are still suspects in the murder of their daughter, according to Boulder authorities (not to mention tough-talking Bill Owens). Craig Lewis is not a suspect in that murder -- but he's still the focus of a Jeffco grand jury that could indict him under the state's criminal bribery statute for reportedly attempting to buy a copy of the ransom note from the handwriting expert for $30,000. In the process of allegedly doing so, Jeffco argues, Lewis was inducing an employee to break confidentiality with an employer and so is guilty of criminal bribery.
But the Globe's lawyers claim that the state statute is unconstitutional when applied to working journalists -- which the court has stipulated that both the Globe and Lewis are, whether or not more staid media outlets agree. If the statute can be used against a supermarket tabloid that may or may not have offered up $30,000 for a note that Hunter was giving away for free, they point out, what's to stop another DA from using it against a local TV reporter who may have bought a source a beer? Or a print reporter who may have promised confidentiality in exchange for information? The criminal bribery statute prohibits offering "any benefit," not just big cash incentives.
The Globe's attorneys first made their arguments in U.S. District Court last month, putting any potential Lewis indictments on hold; in late October, Judge Walker Miller kicked the constitutionality issue back to state court. In the meantime, Owens's own pronouncements on the Ramseys made the tabloids seem tame -- and the Globe itself had become somewhat more respectable, having been purchased by the same New York investment group that bought the National Enquirer last spring but also consults with CBS and Dow Jones. Defendants in First Amendment cases rarely are Wall Street types, however, and you can't pick your fights based on the press's pedigree.You simply have to fight them all.
And so there I was on the witness stand, following on the well-polished heels of Jane Kirtley, the Silha Professor of Media Ethics and Law at the University of Minnesota who knows every nuance of First Amendment legalese, ready to testify as an "expert" regarding routine practices of journalists in Colorado. (Denver Post columnist Chuck Green had served as the local expert in the hearing in front of Miller -- but that was before his own paper criticized the Globe in an editorial, before editorial-page editor Sue O'Brien slagged the case on Sunday.)
Yes, I said, reporters both in Colorado and outside the state offer assorted benefits to their sources, some of whom may very well be breaking confidential agreements with their employers -- although it is not a reporter's job to ask that. The reporters may offer their sources copies of documents, or beers, or dinner, or, in the case of national TV networks, travel and hotel costs (or even "consultant's" fees, as CBS did for Jeffrey Wigand, the tobacco-company whistleblower who provided the inspiration for The Insider). And some may even offer cold, hard cash.
If reporters offer such "benefits" to sources, asked Dennis Hall, Jeffco deputy DA, does that mean journalists should also routinely break the law by using wiretaps or committing burglaries? Of course not. I'm no legal expert, but common sense alone shows the clear difference between a source choosing to give a reporter documents -- for whatever reason, and no matter how the source got them -- and a reporter going out and stealing the documents for himself. That distinction, however, did not come up.
Hypothetically speaking, Hall said, what if a reporter contacted a member of the Boulder County grand jury -- you know, the group that last month did not issue any indictments in connection with JonBenét's murder, the crime that set all of these sideshows spinning -- and asked what had happened during the jurors' deliberations? Would that be right? Given the public's right to know -- and ignoring, as Hall did, Hunter's unusual discharge order, which prohibits anyone from contacting a grand juror, under threat of "prosecution for criminal contempt" -- it wouldn't be wrong.
What if a reporter offered a grand juror money to break his oath of confidentiality? Say, $30,000?
Although it makes for a more dramatic courtroom confrontation, there's not much difference between information obtained for a fee and information obtained for free. When the grand jurors charged with investigating alleged environmental crimes at Rocky Flats talked with Westword regarding what had happened during their deliberations -- setting themselves up for possible contempt charges in the process -- they did so without remuneration. The only benefit they were offered? Getting the truth to the public.
That was enough for them.
Judge Nieto's decision on the criminal bribery statute's applicability to a reporter is due by November 18, the day the Jeffco grand jury is scheduled to take up the Lewis case again. If Hall gets his way, Jeffco could indict a working journalist for attempting to secure a copy of the Ramsey ransom note. Meanwhile, Boulder County remains incapable of indicting anyone for the murder itself.
If you read the Globe, though, you know that the Ramseys are about to crack like eggshells. When they aren't busy planning libel suits against the Star, the tab's sibling, that is.
Space Aliens Invade Museum!
If Judge Henry Nieto deems it a crime for a reporter to offer an incentive -- confidentiality, a cup of coffee -- to an employee ratting off an employer, what will it mean if the employee provides the information all on his own?
Not all breaches of confidentiality involve cases as dramatic as that of the Rocky Flats grand jurors, as sensational as the Ramsey ransom note.
For example, what happens if an employee of, oh, say, the Denver Museum of Natural History becomes so concerned about the changing corporate focus of the museum -- not to mention the very real possibility of switching its name to the Denver Museum of Nature and Science -- that he/she decides to leak a confidential memo to Westword and he/she does so not for money, not for fame, but because, as he/she points out: "The museum is the people's, it has been here for one hundred years as the Denver Museum of Natural History, it has a worldwide reputation as the Denver Museum of Natural History. Why are a bunch of elitists changing that? Without the people's say?"
Good questions. Just the sort of questions, in fact, that people were asking eighteen months ago, when the same museum decided to dispense with the laser-light shows that had been a huge draw for twenty years. After making that decision, the museum outlined a number of talking points that employees were to follow when discussing the situation with disgruntled patrons. But those were Deadhead-type patrons, of course, the sort of people the soon-to-be Denver Museum of the Science of Shaking Down High-Tech Corporations could afford to alienate.
If the museum is going to change its name -- and by all indications, it certainly plans to -- the patrons who will be disgruntled this time are likely to be more polite, but also more politically powerful. And so the museum has created a document, dated October 28, 1999, and named "Museum Identity Q & A," that outlines possible questions and recommended answers -- which the concerned employee thoughtfully provided to Westword, complete with a "not for public consumption at this time" note scrawled on top. So now, at no charge, we can provide the public with these excerpts (the entire document is on line at www.westword.com):
"Q: Did the Board vote to change the Museum's name?
"A: The Museum has been discussing a potential name and graphics change for the past 10 years. Market research has been and is currently being conducted. As we move toward our Centennial, the Board is reviewing the Museum's identity and how it relates to where the institution is going over the next 100 years. A decision has not been made on the total identity package, which includes names, colors, logo and slogan. Next year, we'll be celebrating our Centennial, so it's appropriate that we are looking at these issues at this time.We've also recently added space science as a new focus for the Museum, so the Board wants to make sure that the name continues to communicate all that the institution is today and will be in the future.
"Q: I heard the Board voted to change the name to the Denver Museum of Nature and Science. Is that true?
"A: At the October 27 board meeting, the Board reviewed the research and voted to continue on with this process of evaluating the Museum's identity. They approved a modification of the Museum's name to the Denver Museum of Nature and Science, but this is contingent upon decisions made regarding a potential new logo, colors and slogan for the Museum at an upcoming Board meeting, which could be as soon as January. Once they have decided on each of these four elements, then they will vote on the entire brand identity package. So, yes, they're recommending a modified name, but no, a final decision has not yet been made.
"Q: Is this public knowledge now?
"A: It's important to keep this information confidential as a decision has not been made on the total identity package. To ensure the story is told in context of our potential name modification, logo, colors and slogan -- and our strategic plan -- it is important that it not be discussed publicly prior to a final decision. Also, once the Board approves a new identity for the Museum, we want to make a big announcement in order to create excitement in the community.
"Q: What happens if it 'gets out' anyway?
"A: There is a plan in place in case the media or general public learn of this before the announcement. Senior staff will receive a copy of this plan by November 5. Please see your senior staff member if you have questions or concerns about this particular issue. Please direct all calls from the media to ..."
I called the spokeswoman listed on the sheet. After initially saying she hadn't heard of a proposed name change, she called back and recited the answer to Question #2 -- almost verbatim, complete with double emphasis on that but.
Talking Can Be Hazardous to Your Health!
Yes, talk is cheap. In fact, outraged public employees often exercise true free speech -- a real democratic bargain. Here's another example, this one a memo volunteered by a peeved Colorado Department of Public Health and Environment employee. The subject was "press contacts," and it was sent to staffers on October 14 by Doug Benevento, the department's new director of environmental programs:
"There has been another instance of a Division communicating with the press without prior consultation with Cindy Parmenter, myself, or Pat Teegarden. As a result the Executive Director and senior staff found out about a departmental action on television... Because this appears to be a reoccurring problem, it's my feeling that we need to have a zero tolerance policy with respect to non-authorized dealings with the press."
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That's a public official talking. About talking with the public.
And in doing so, he inadvertently provided the answer to DA Hall's final question. Since journalists can't agree on a single code of ethics, the prosecutor asked, shouldn't the state do it for them?