Media and the Courts: Part II
MR. KRAMER: Well, if it's too early to hold a press conference, Carl, how would it help national security, as Victoria suggests, to answer questions about the details, or even to report the details of what we currently know about Dr. Capfield?
PROFESSOR STERN: You say how would it help?
MR. KRAMER: How does it help?
PROFESSOR STERN: It helps, because you hope to attract the attention of the public to assist you in the investigation. You'd be surprised how much information they can produce. Vickie can describe it a lot better than I can, how much information comes to the attention of law enforcement officials once the public knows that an individual, or a group, or whatnot, is being investigated in connection with a matter.
MR. WILLIAMS: I think Carl was probably involved in the decision. He's never told me this, I just assumed he was, in the decision to publish the writings of Theodore -- the Unabomber, which led to a phone call from one of his relatives, who said: "Boy, that sure seems familiar to me," and that led to the arrest, I think, on this date, um, of Theodore Kaczynski as the Unabomber was a tip. But the other thing is that the problem is now, if you are investigating someone who was involved potentially, or you are investigating an act of terrorism, people will wonder, "well, if they are searching in the neighborhood, does that mean that whoever they are searching has barrels of this stuff in the basement? Is it safe to be in that neighborhood?" That is why I think the government can't just clam up. And in fact, they have said that, there was a recent case where they got onto somebody who was a doctor in Long Island, I think, and they were searching his beach house, and someplace else, and said quite openly they were fully prepared for the calls. They did not initiate them, but as soon as we called, they said, "You know, we are checking some things out, but we can tell you we're quite confident there is no danger to the public." That seems responsible to me.
PROFESSOR STERN: And the government doesn't want to appear to be arbitrary in just picking up some person, and questioning them and grilling them for 10 hours, or whatnot. Reporters are going to expect an answer to a reasonable question, which is why did you single this person out?
MR. KRAMER: So the government's image is more important than Dr. Capfield's?
PROFESSOR STERN: I don't think you have to make that judgment. I don't think it is an either/or question, and I frankly -- I'm not offended by, at least in your scenario, what happened to Dr. Capfield, if your questions are only about the government identifying him as a person of investigative interest.
MR. WILLIAMS: Let's be honest with one other thing, we don't just talk to the Carl Sterns of the world, Paul, Jan and I. Let me say from experience, Carl will tell you a lot less than if you talk to the line investigators. Some of them can be -- Some of them are quite conversant. You may well say in a perfect world, they would never talk to us, but they do. And you'll find investigators who think Dr. Capfield is a total dead end, and they shouldn't be going after him at all, and this is stupid and silly, and you will find others will go to their graves thinking, "I just know in my gut he's the one."
PROFESSOR STERN: You haven't told us what is wrong with calling him a "person of interest."
MS. TOENSING: But he hasn't told us what evidence led to his even being questioned.
MR. KRAMER: Is it wrong that you don't each know what the definition is of a "person of interest"? We know what "suspect" means. We know what "target" means. The U.S. Department of Justice has internal guidelines, I think you cited some of them tonight, about why you shouldn't quickly name people who are merely suspects, but haven't been charged. Apparently, the government isn't supposed to do that because there are privacy and reputational interests at stake. So they work around these guidelines, and develop a whole new term, "person of interest." Is that right?
MS. TOENSING: Do you really think that defense lawyers know what "subject" or "target" means? ... Today's "subject" is tomorrow's "target." It takes one second.
MR. KRAMER: Well, today's "person of interest" may be tomorrow's defendant, and unfortunately, David, I got bad news.
PROFESSOR STERN: What does the term mean to you? You've thrown it out here.
MR. KRAMER: It's not my term. I didn't create it.
PROFESSOR STERN: I asked what does it mean to you.
MR. KRAMER: It means to me, "suspect." Doesn't it mean that to you?
PROFESSOR STERN: Not to me.
MR. KRAMER: What does it mean to you? You don't know?
PROFESSOR STERN: It is a person who is subject to an inquiry.
MR. KRAMER: An interesting person. Oh, they're just talking for 10 hours for kicks. He's a suspect, isn't he? Isn't that just a synonym, a euphemism to work around guidelines.
MR. WAGNER: If I can jump in here. What I found over the last few years, especially in the local level, when you talk to police officers, they want to steer clear of that word totally, "suspect." They just hate it, and it's just been a gradual changing of vocabulary.
MR. KRAMER: Why is that? Why don't they like the term?
MR. WAGNER: Perhaps it just points the finger, you know, more stiffly at somebody than a "person of interest." Maybe a "person of interest" is a little gentler.
PROFESSOR STERN: It could be someone who just has some information that might lead you to the suspect. Why do you jump to the conclusion that such a person is regarded as the individual who committed the crime?
MS. TOENSING: Why do you want law enforcement to taint these people?
MR. KRAMER: What do you think the public does with that kind of information? Don't they jump to conclusions? Isn't that the problem? Do you have a problem with that, David?
MR. KENDALL: What I want to say is where the press comes in, and I want to add something to what Jan said, I think the press has an important role in scrutinizing government conduct, and I think if the press is fair, F-A-I-R, then in their reporting, they will report that nothing was taken from the apartment, that no charges have been filed, that no formal proceedings have been brought. Ah, the fact is that in investigating crime, the police need to do certain things. I think they can talk about that in a neutral way that doesn't focus on tarnishing a particular person.
MR. KRAMER: Well, your client now has been indicted. Congratulations, you haven't been able to keep away the feds for long. Has the situation changed? Is it now time for a press conference? Is it now time to go to the court of public opinion and argue your client's case?
MR. KENDALL: I think it depends. It depends a lot on the government's conduct. There may be times, and here is where the role of the lawyer is important, there are times when I think you have to defend your client in the court of public opinion. The Supreme Court told us 14 years ago in the Gentile case that sometimes that was appropriate. However, I think that depends on government conduct or misconduct. I think you -- you may need to put something out to counter things that are going to damage your client to the extent that even if he or she secures a not guilty verdict, they're still going to be tarnished. So I think you've got to weigh those considerations.
MR. KRAMER: Is there a broader license now for reporting the details of the Capfield case that maybe did not exist when he was simply "interesting"?
MR. WAGNER: What I want to know, is there an affidavit out? There typically in indictments, you don't get much information. You are going to get more information in an affidavit, if you have a search warrant, or if he goes before a judge, they'll release a Gerstein [affidavit with facts showing probable cause for the search], and you can get the -- that is where you are going to get the evidence.
PROFESSOR STERN: This -- Has he been arrested now?
MR. KRAMER: David, has he been arrested?
MR. KENDALL: He is released on his own recognizance. [laughter]
MS. TOENSING: After a lengthy bail argument, right, David?
MR. WILLIAMS: This is clearly another country if he is released on bail in a terrorism case, but -- Well, we -- First of all, the government has now had its news conference. I guarantee you if a "person of interest" is indicted and arrested in the anthrax case, we will see a government press conference.
PROFESSOR STERN: From Moscow.
MR. WILLIAMS: So that has already happened. We now have the documents, all those things Paul was talking about, we have the grand jury indictment, we may or may not, in a federal case, have our mitts on the search warrant, affidavits for the search warrant. We would go back to try to get the returns on the search warrants to see precisely what they took out, I mean, you know, this is precisely what we did in the case of -- which we can clearly talk about now, because the case is exhausted, is the Timothy McVeigh case. Very early on, we were -- we got a transcript of every single court hearing he was at. We, you know, got the returns on the search warrants, and so we're off to the races. We got addresses and phone numbers, and all sorts of things to follow.
PROFESSOR STERN: Once he's been arrested, the Justice Department can release information such as what was obtained in the search of his apartment, what evidence was found at the time of his arrest. They can describe it. They can even show it. So now you got a different story, once he's arrested.
MR. KRAMER: Whether it is admissible or not. There are no rules of evidence in the court of public opinion, are there?
MR. WILLIAMS: We probably won't see -- My experience in the federal system, is we will not see a lot of that on television. Maybe even after the trial we won't. We never saw, for example, the picture of the axle that the federal agent found on the ground that had the VIN number on it that led to the -- to the truck rental agency that led to the form that had Tim McVeigh's name on it, we never actually saw that photograph until, I think, after he -- well after he was convicted, until all the chances of appeal were exhausted, then and only then did the Justice Department release that sort of documentary evidence.
PROFESSOR STERN: You do see that sort of stuff early on in drug cases. They pile that stuff high.
MR. KRAMER: So what you are left to do is speculate, right?
MS. GREENBURG: But you know, let me get back to the indictment. That is obviously a sore. Can you imagine a newspaper saying: "Well, you know, it's just an indictment. We are not going to write about this major terrorism suspect." I think the more troubling question comes up in a civil context, as I'd mentioned earlier, of a lawsuit triggering a major front page news story, so that in a civil case, I know this is not on point to your hypo, but in a civil case, you can actually have a page one story, a one-source page one story that causes tremendous damage to someone's reputation, and is a story because it has been filed in court. It wouldn't have been a story the day before. And we do that all the time. I mean that is what triggers the story. And the thinking is, you know, there is -- you can't underestimate or understate the significance of a lawsuit, you know, you had to convince a lawyer to take the case, sanctions are potentially out there if it is meritless. A person could go down to the courthouse and look at the lawsuit. But I think those are -- the indictment and the arrest, that is an easy call to me, but the civil -- the civil cases are the tougher.
MR. KRAMER: You are troubled by the civil case, because anybody can file a lawsuit. At least with the government, are you suggesting there may be some greater reliability because of the procedural safeguards?
MS. GREENBURG: Yes.
MR. KRAMER: But anyone can run into a court, file a pleading, and there is this privilege. You can't be sued for defamation, can you?
MS. GREENBURG: Yes, and I'm going to back to one of the most stark examples of how this can be so troubling. And I think it shows how the press can perform very well at the end of the day was in the mid-1990's when this man filed a lawsuit against the beloved cardinal in Chicago, Joseph Bernadin for sexual abuse when he was a minor, and he had undergone hypnosis, and allegedly, you know, had these repressed memories recovered. Four months later, of course, the lawsuit was dropped. He had -- He recanted all of -- all of the testimony of these memories, but that was an enormous national story. That was a one -- I mean can you imagine if someone just called the Chicago Tribune or NBC News, and said, "You know, I have these memories. I underwent hypnosis, and I think I've got some memories, can you write a story about it?" Absolutely no way. But it's in a lawsuit, it is page one news.
MR. KRAMER: The fact is that you have -- essentially unlimited ability to file a suit, and make allegations, and then the question comes before your desk, Pete's got to look at it, Paul's got to look at it and say: "Do I want to run with this right now?" How much restraint do reporters have?
MR. WILLIAMS: I'll give you an example. Just -- Our news organization, to the best of my knowledge, although since Carl left, it has developed more heads, not necessarily -- certainly not better, but NBC News has lots of different outlets nowadays. But as far as I know, we did not touch the recent allegations involving Bill Cosby until after he himself had commented on them. There was -- There was some woman who was a student who made allegations against him. We were well aware of those. Other news organizations were reporting them, and we did not. So yes, we are capable of restraint.
PROFESSOR STERN: One of the unrealistic ways in which we are proceeding here is you are thinking the press is just sitting out there willing to put on the air whatever the investigators and the Justice Department has to say. And the plain fact is there is a sort of built-in institutional, shall we call it tension between the press and the law enforcement agencies. Um, there is considerable skepticism about many of the assertions that Justice Department and other agencies make. And we are tested, and pushed, and prodded at every step of the way. The paper is not just automatically dumping on Dr. Capfield everything that the Justice Department puts into the mill.
MR. KRAMER: Now that Capfield faces a potential trial, and certainly a preliminary hearing in which the government is going to put on a case, and show probable cause against him, something that I imagine you might like to cover if you are working at a network, or a broadcast news organization. The question becomes this: We have some additional facts about Dr. Capfield that would never come in as evidence in court. We know that he refused a lie detector test. We also know that this confession might not make it into the land of admissibility either. Will all of that get reported?
PROFESSOR STERN: How do you know he flunked his lie detector test?
MR. KRAMER: No, he refused it.
PROFESSOR STERN: Oh, he refused it.
MR. KRAMER: He didn't even want one. He was fed up.
PROFESSOR STERN: How do you know that?
MR. KRAMER: I'm God in this scenario. [laughter]
PROFESSOR STERN: Then you ought to be able to answer the question! [laughter]
MR. KRAMER: I have reliable sources. [laughter] And my reliable source comes from an NBC News exclusive. That's right. Pete Williams, NBC News legal correspondent, quoting a reliable source who understands that Dr. Capfield did, in fact, refuse to take a lie detector test during interrogation.
MR. WILLIAMS: If I was told that, I might -- I might report that, but I would also say that he was under no obligation to take the test and that, in any event, the results of a lie detector test would not be admitted at trial.
MR. KRAMER: Okay.
MR. WILLIAMS: And I have done many stories on the unreliability of lie detectors.
PROFESSOR STERN: On that one, any federal law enforcement officer would be constrained by the Justice Department rules from commenting on that issue either way.
MR. WILLIAMS: Wouldn't make any difference, somebody would comment probably, but Carl Stern wouldn't.
MR. KRAMER: That's fine. It is a fair and balanced report. You are saying it probably wouldn't be admissible in evidence. That is what you are saying. But what are the viewers and potential jurors hearing?
MR. WILLIAMS: They are not maybe as dumb as you may be giving them credit for right now, because I would probably go find a Vicki Toensing, or Carl Stern, not David, because it's his client. But I would find someone, I would say Professor Guest [phonetic] of the Brandeis University, I'd say: "What does it mean if someone declines to take a lie detector test?" And I would have a sound bite in my story saying, "if he were my client, I'd tell him not to." And I would have that in the story.
PROFESSOR STERN: Meanwhile, Mr. Kendall, as a shrewd defense attorney, might, I don't know, you can ask him, might be contacting the press sort of on the deep background, suggesting that you go and interview some people who really know Dr. Capfield, and know he is incapable of this kind of act, and know he was sitting up with his sick grandmother that night, and so on and so forth. And I think Mr. Kendall may inform the press where they could go to find some things that would, shall we say, clarify the situation?
MR. KENDALL: That wouldn't be surprising.
MR. KRAMER: This is obviously a hot story, and it is all over the news. It is all over the networks. You can't pick up a paper without seeing Dr. Capfield's name. We all know this. The fact is, and one person is not talking tonight, you notice, is David Kendall. He is the lawyer. Doesn't want to comment too much about this. But it is big news. It is saturating the media. Can this guy get a fair trial with all that is going on, knowing about a so-called confession, and I use the term very loosely, because it seems like he was fed up, but who knows how it is taken. Potential jurors out there are watching NBC, Fox 5, and other stations for their news, they are reading it on the Internet. How do you get a fair trial in this case?
MR. KENDALL: Well, Carl is right. I mean I think it doesn't have to be a defendant, or the defense lawyer commenting. There are certainly ways to put the defense story before the press accurately, but indirectly. And I think defense counsel do talk to the press. Hopefully they talk to them as a matter of background, but off the record, because it is important to monitor what the press is doing about your client. That is often a useful way to head off stories, because I think often if the press is barking up the wrong tree, you can demonstrate that, and get them to go away and look at another tree. So I think there are ways to influence it without being directly in the story.
MR. WILLIAMS: Also, I think that if he just said, as you suggested: "I did it, okay, can I go now," which is the way I quoted you in my notes, um, I -- if -- If he really did fess up, then that is probably in the indictment, or in the arrest warrant. I mean my experience is that that is often in the court documents that I see, if the government really, honestly deep down inside thinks it strengthens the case, it makes it, you know, hey, look, he fessed up to it.
But if he just said, "I did it, okay, can I go now?" And they -- and they didn't ask: Well, all right, well, how did you do it? And how did you pick your targets? Then I think that we probably know that we could be pretty leery of this so-called confession.
MR. KRAMER: Victoria, reflecting back when you were a federal prosecutor, is that a quote you would put in the federal indictment, is it necessary?
MS. TOENSING: You are reading my mind. You are reading my mind. I'm thinking, woops, I would be a little nervous about that, okay, unless I knew it was absolutely admissible, and wouldn't prejudice my case.
MR. KRAMER: Isn't that something some prosecutors, not you, but some prosecutors out there, aren't they filing certain motions to admit evidence that maybe they really know are not admissible? But what they do know is that gets in the hands of Pete Williams, Paul Wagner, Jan Greenburg, it is getting on the news.
MS. TOENSING: You know, maybe --
MR. KRAMER: Kobe Bryant might have something to say about that.
MS. TOENSING: We're talking about state prosecutors, right, not the "higher-class" federal? [laughter]
MR. KRAMER: Right. State prosecutors.
MS. TOENSING: The Michael Jackson case, and all that stuff. Correct? I mean that is a clever way to get it in there, but, um, those things usually happen pretrial, so the admission of evidence is pretrial. It can come up during trial, but that is rare. It is usually settled before you go to trial. So all that is sort of put beside when you the jury -- when you really want to influence a jury pool. I don't know how David feels about it, but I think there isn't that much influencing of a jury pool prior to the trial, after the jury gets put in there.