Weighing the Costs of a Scoop

How a Sniper Story Trapped the Press in an Ethical No-Man's Land

It's quiz time.

Question 1. Which of the following constitutes an ethical dilemma in journalism?

a. Reporter Bob fabricates a story about an eyewitness to one of October 2002's sniper attacks near Washington, D.C.
b. Competing reporter Carol plagiarizes Bob's fabrication.
c. Sniper beat reporter Ted sleeps with his intern, Alice, and sends her to accept his weekly payoff from the cops.
d. All of the above
e. None of the above

Some of my journalism ethics students would not readily grasp that the answer is e. An ethical dilemma is a conflict between two compelling principles, but some persist in thinking it's the absence of any principles whatsoever.

Question 2. Against the wishes of police brass, cops leak to a reporter a fascinating development: the sniper scrawled, "I am God" on a tarot card and left it at a shooting scene. Which of the following is the most promising path to resolving the ethical conflict faced by the reporter:

a. A news organization's duty is to provide the public with information, not to censor it. So print.
b. A news organization's duty is to minimize harm to the public. Police brass must think reporting the leak would impede the investigation and put more people at risk. Don't print.
c. A news organization should withhold information only for compelling reasons, like a clear risk to the investigation. But in a case like this one with lots of dead ends, the leak could help some citizen ID the killer. ("Check out the tarot card nut down the hall.") So print.

Of the three critiques, c. comes closest to resolving the ethical conflict between informing the public and minimizing harm.

But more than a few of my students would puzzle over this question, too. They forget that, when dealing with a conflict between two or more fundamental principles, a sound decision won't be reached by relying on just one of them.

What's surprising is that even seasoned journalists and press critics often make the same mistake and end up basing controversial news judgments on shallow "one principle" reasoning. For example, when Charles Moose, the police chief of Maryland's Montgomery County, began asking the press to convey information (toll-free tip-line numbers, messages to the sniper), some critics questioned whether journalists should comply. Independence from government influence, after all, is one of the key principles all journalists should follow.

Except when they shouldn't. Imagine the legitimate public outrage if TV crews turned off their cameras when Moose asked for help. Tempering one's independence to help stop a killing spree isn't exactly a tough call.

In the end, law enforcement news leaks unsanctioned by the brass led directly to capture of the sniper suspects. Fox News and rival CNN alerted the public to watch for a blue Chevy Caprice with New Jersey tags (NDA-21Z) and the pack followed their lead. A truck driver spotted the car at a rest stop and cops surrounded it as the suspects slept inside. Relief all around, to say nothing of glee among reporters, who now had a rejoinder to sniper coverage critics who had been calling them reckless opportunists: "The killers are behind bars because we put what we knew on the air. News competition serves the public."

Except when it doesn't. Suppose the sniper suspects had heard an urgent radio news bulletin identifying them. It is easy to imagine them rushing to ditch the Caprice, stealing a car and disappearing before the police closed in. Good fortune, not ethical deliberation, forestalls disaster during most media feeding frenzies.

Which brings us to our text for today: a Washington Post article, leaked by "law enforcement sources," reporting that suspect John Lee Malvo, seventeen, had confessed to being the trigger man in a number of the sniper killings and the shooting of a thirteen-year-old boy who survived.

The Post splashed its scoop across the front page on November 10 and 11, 2002. After chasing Fox, CNN, and local TV through much of the sniper spree, the paper was now squarely out front. Before this Malvo leak, legal experts had been raising doubts about a "murder one" conviction, arguing that it would be difficult to prove who pulled the trigger if both suspects denied doing so. A Malvo confession thus might have seemed like a big development — reassuring readers that justice would be done, as well as satisfying their interest in this gruesome case.

At the same time, however, the story raised more than a few eyebrows. The Post's ombudsman, Michael Getler, asked in his November 17 column: "Are the police taking advantage of the Post's competitive situation to saturate the public consciousness with the defendant's guilt?"

In defense of the article, which some critics claimed endangered Malvo's right to a fair trial, executive editor Leonard Downie Jr. made a statement that was quoted in the ombudsman's column. "We have reported suspects' statements under those circumstances routinely in the past," Downie said. ". . . Especially in this case, our responsibility is to report as much as we reliably know about these crimes and their commission as soon as we can."

In other words, because informing the public is a key principle of journalism, reporters should always disclose what the police tell them about a defendant's pretrial confessions.

Except when they shouldn't.

Again, merely citing a guiding principle of journalism — even one as basic as informing the public — is not sufficient to justify a news decision involving conflicting principles. The Post indeed had the duty to inform, but doing so risked harming news subjects, crime victims, public institutions, and its own credibility. (See below.)

To make its case for publication, The Washington Post would have had to demonstrate that the ethical imperative to inform readers trumped the potential damage of doing so. In that effort, the paper merits a grade of "Incomplete," at best, judging by the remainder of Downie's statement quoted by the ombudsman:

"The fact of Malvo's being a juvenile and the presence or absence of an attorney are not issues in decisions to publish or not," Downie said.

". . . They are legal issues concerning the admissibility of his statements in court and will be adjudicated there. Our responsibility is to report fully and fairly on that legal process and debate.

"As to reporting statements made by Malvo or any other accused person to police, it does not matter whether such statements are revealed formally and publicly by authorities or by unnamed sources, so long as we believe those sources to be credible and to be accurately characterizing the statements. We clearly believe that to be so in this case . . . .

"The understandable clash between the Post's constitutional responsibility [to report what it knows as soon as possible] and the constitutional requirement for a fair trial is the subject of the long-running ‘free press-fair trial' debate between the media and lawyers . . . . I believe we have served our community well in this case."

This statement is less than persuasive.

First, how do we know the leaks accurately reflected what Malvo told the police? "No quotations from Malvo were made available," ombudsman Getler noted in his column, "so should the press be confident of the context in which these alleged confessions were made?"

The Post's editorial board took the extraordinary step of casting doubt on the wisdom and accuracy of its own paper's scoop. "Sources told the Post that Mr. Malvo had confessed to being the triggerman in some of the killings. Fairfax County Commonwealth's attorney Robert F. Horan Jr. stated yesterday that some of the reports concerning Mr. Malvo's interrogation . . . ‘quite simply [weren't] true.' We do not purport to know what Mr. Malvo said . . . [but] it seems particularly important to proceed carefully and make sure the facts are fully understood." (Editorial, November 13, 2002.)

A Post columnist, Courtland Milloy, declared that publicizing the alleged confession and other pre-trial evidence replaced "blind justice with this thinly veiled eagerness to execute." Others noted that juveniles in particular are prone to make false confessions under high-pressure interrogation. The infamous 1989 Central Park jogger case once seemed airtight. But the confession of a convicted rapist more than a decade later and subsequent DNA tests proved the teenagers' confessions false (see page 38).

In fairness, the Post did note in its November 11 article that police were looking for possible discrepancies in Malvo's story and had found at least one. But the paper's focus was on the confession, not the discrepancy.

Second, Downie's statement equates the judiciary's constitutional obligation to ensure a fair trial with the press's constitutional duty to rush news into print. But no such duty exists. The press does have a First Amendment right to print, but that does not absolve it from making ethical judgments that might require withholding or delaying publication, as the Post has done at times.

Readers need some information quickly — dirt on candidates before Election Day, for instance. But because Post readers might want to know about Malvo's confession, it does not follow that the audience needs to know about it before trial. Quite the reverse.

The authorities often leak such stories as a form of insurance: if the judge refuses to admit the confession into evidence, there is still a chance that members of the jury will have been exposed to it through the back door.

"Unfortunately," writes the University of Texas criminologist William Black, "police and prosecutors now seem to commonly believe that executing a defendant is so important that it justifies acting unethically — e.g., by leaking information with the intention of prejudicing potential jurors.

". . . Even if the confession turns out to be inaccurate, jurors will ‘know' that Malvo confessed to murder . . . [but] the courts are reluctant to overturn a conviction. The result is that governmental ‘crime' pays. Leaks are common because they work." (The Washington Post, November 24, 2002.)

This essentially makes the Post and other news outlets that use such information accomplices in the "crime." Given that pre-trial disclosure of interrogation leaks under such circumstances can encourage future police misconduct, it's hard to buy Downie's contention that "it does not matter" whether such information is leaked or released officially.

Which brings us to point three. By printing its Malvo scoop, The Washington Post had thrust itself headfirst into a conflict-of-interest honey bucket. Consider the following developments, reported in the November 16 Post:

Citing the paper's Malvo confession article, a defense lawyer asked a Virginia Circuit Court judge to impose a gag order barring the police from talking to the press about evidence in the case.
A Fairfax County prosecutor retorted that a gag order would have a "chilling effect" on the police, who need to share evidence with other agencies in an investigation.
The judge, M. Langhorne Keith, said he was outraged by the leaks but could not impose a gag order. He had no evidence that leaks had come from county police, and no jurisdiction over federal authorities from whom the leaks might have come.

Talk about a newspaper becoming part of the story!

So did the Post's editors deal with the conflict by using only wire copy, much as Bloomberg News did for the New York mayoral campaign coverage after its owner became a candidate? Far from it. The paper assigned a reporter whose byline was on the original two confession stories to cover the gag-order controversy. Read the following excerpt closely:

"Fairfax County police internal affairs officers said yesterday that they are still investigating the leaks. Maj. Audrey M. Slyman, commander of the internal affairs bureau, and Lt. Mike Kline said after the hearing that investigators are considering interviewing more than 150 officers as part of the probe. They asked one Washington Post reporter to reveal information about sources yesterday; the reporter declined." (The Washington Post, November 16, 2002, page A10.)

It's unclear from the article whether the reporter the police grilled was this particular story's own author, Josh White, confession scoop co-authors, Sari Horwitz or Allan Lengel, or some other Post writer. What is clear is that the Post was interrogating police internal affairs officers on their leak investigation at the same time internal affairs officers were interrogating the Post as part of the very same leak investigation.

What's more, the Post's conflict of interest could easily continue as the sniper prosecutions unfold. Malvo's lawyers are likely to cite the Post scoop prominently in any request for a change of venue or appeal on grounds of pre-trial publicity. (leaks on statements may hurt sniper case, Associated Press article in the Bergen County, New Jersey, Record, November 12, 2002.)

Fourth, there is the problem of the distracted watchdog. The Post seemed to be an effective monitor of official conduct just one day before it broke the Malvo confession story. It reported on page A1 that detectives had "grilled" Malvo for more than seven hours without a lawyer, ejecting the defendant's court-appointed guardian when he showed up at police headquarters to demand that the questioning stop and that he be allowed to talk to Malvo. This was only the latest in a chain of dubious police moves exposed since the arrests.

Then came the Malvo confession leak, which immediately diverted the paper to the red meat of solving the case and advancing this riveting narrative. Investigating a source's alleged misconduct is the last thing on the mind of a reporter reaping the benefits of that very alleged misconduct.

To "serve the community well" when manipulative sources are serving up leaks to the press would require that journalists come clean about how news is plotted behind the scenes. It would require a candid assessment of the anonymous source's motivation for leaking, as ombudsman Getler suggested in his column. A Malvo truth-in-packaging box might go something like this:

"Since the arrests of the sniper suspects, the Post and other news organizations have been reporting how the police stumbled badly during the manhunt. Just yesterday, this paper exposed how officers had grilled the seventeen-year-old sniper suspect John Lee Malvo for seven hours with no lawyer present, which raised questions about whether the authorities had violated his constitutional rights.

So certain law enforcement sources have broken department rules to reveal how Malvo allegedly confessed during that interrogation. They hope the accompanying story you are about to read will predispose you to see Malvo as an evil predator, despite his tender years — especially if you are a potential juror, wavering on the issue of executing minors. At the same time, the police are hoping to divert your attention from their record of embarrassing sniper case miscues, to wit:

Cops had been on the lookout for a white man in a white van, getting the race of the perpetrator(s) and the color and type of the vehicle wrong.
They played down eyewitness reports of a blue Caprice speeding away from one crime, even though this turned out to be the car.
As a result, the suspects slipped through their fingers many times.
The roadblocks and dragnets that ate up resources and snarled traffic became a mammoth waste of effort. The special Pentagon surveillance plane lent with fanfare to the local police was just a useless gadget when looking for the wrong car.
Several clueless "tip line" operations hung up on the suspects, who evidently called hoping to negotiate a payoff for ending the killings.
The arrest seemed like a lucky accident, hardly a police tour de force. The suspects finally got a hot-line call through and, to prove their bona fides, bragged about an earlier killing, which turned out to be in Alabama. With prints from that crime scene, investigators were finally able to identify the suspects. But in effect the alleged killers trapped themselves through reckless stupidity.

The Malvo leak is thus aimed at convincing you, the responsible newspaper-reading public, that law enforcement has everything under control. You be the judge."

Of course, printing such a confession about a confession poses ethical conflicts, too. The need to be accountable butts against the need to inform the public. After all, how many potential law enforcement leakers would drop a dime if they knew their acts would require full disclosure?

Well, no one said this ethics thing was easy. Ombudsman Getler says, "It would be hard to argue that this was a case where the Post should have engaged in self-censorship." But it's even harder to argue convincingly that the newspaper should have printed what it did.

And so to a final quiz question, for extra credit:

Suppose The Washington Post had considered options other than running its Malvo exclusive in the form that appeared. Which of the following is the best alternative?
a. Use a sexier headline — malvo guilty — exclusive: inside the death car. Include news-you-can-use come-on: "Read now and avoid jury duty."
b. Recast the story as one on overzealous police jeopardizing a case using all juicy confession details without seeming to exploit them.
c. Print a story only if reporters get access to full interrogation transcripts for context or if reporters see corroborating evidence that convinces them Malvo did what he claimed.
d. Hold the story until the last jury in the last sniper trial has been sequestered.
e. Write in your own.

Explain your reasoning. There is no certain right answer, although there are a couple of wrong ones. But don't worry. If you avoid those dangerous one-principle arguments, you're already a step ahead of many old pros.

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