Media and the Courts: Part I

Panelists included former White House Counsel David Kendall, past and present NBC News Justice Correspondents Carl Stern and Pete Williams, Jan Greenburg of the Chicago Tribune (now ABC News), WTTG-TV Investigative Reporter Paul Wagner and former federal prosecutor Victoria Toensing.

PART I: LAWYERS & REPORTERS SQUARE OFF ON COURT COVERAGE

Washington, D.C. (April 7, 2005) - Long before charges are brought in a court of law, those who have been named as "persons of interest" to government investigators must often defend themselves in the court of public opinion. As rumors escalate, the public's "right to know" may destroy the reputations of those who exercise their "right to remain silent."

In a live C-SPAN broadcast co-sponsored by alumni of Columbia University's Law School and Graduate School of Journalism, Irwin Kramer debated this conflict with a panel of prominent reporters and lawyers, including NBC News Justice Correspondent Pete Williams, former NBC News Justice Correspondent and journalism professor Carl Stern, former federal prosecutor and national security expert Victoria Toensing, Jan Greenburg of the Chicago Tribune and Paul Wagner of WTTG Fox 5 in Washington.

During this program, David Kendall, former White House Counsel to President Clinton, represented a hypothetical client who would have preferred a much lower profile. Named as a "person of interest" by federal investigators, microbiologist Kevin Capfield found himself at the center of a national scare over a new strain of anthrax that was been placed into envelopes and mailed throughout the country. Having been questioned for nearly ten hours without a lawyer present, Dr. Capfield claimed that his life was being ruined by the invasive tactics of the FBI and of the press. After hearing rumors of a possible Justice Department press conference, Dr. Capfield retained Mr. Kendall to help him fight back.

Reported by Tamara Jaffe of L.A.D. Court Reporting, the following is a transcript of the evening's debate:

MS. QUARTERMAN: Hello everyone. I'm Cynthia Quarterman, President of the Columbia Law School Alumni Association of Washington, D.C.

MS. HARDIN: And I'm Frances Hardin. I'm the coordinator of alumni of the Graduate School of Journalism here in the Washington area.

MS. QUARTERMAN: It isn't often that you see a lawyer and a journalist standing side by side working in unison when it comes to court coverage. Quite often, lawyers and media folk are shielding one another from the public eye. We're trying to keep our clients away from the cameras, and the cameramen are trying to get between us and our clients.

We play very different roles, and often clash inside and outside the courtroom, but tonight, we sit together to examine court coverage from both perspectives, and to see how we may serve both the interests of the public, and our clients' interests.

MS. HARDIN: Our moderator tonight has looked at the legal system from several sides. As a reporter, Irwin Kramer has covered high profile cases for radio and television, and regularly provides insight for Fox and W.B. Network affiliates in his popular Kramer Versus segments.

As a lawyer, Irwin has faced, and sometimes dodged the media scrutiny when trying high stakes and high profile cases.

At Baltimore's Kramer and Connolly, he has served as lead trial counsel on behalf of Fortune 500 companies, insurance carriers, and businesses throughout the world. A former Professor of Evidence and Trial Procedure, Irwin has taught at some of the most prestigious law schools in the nation, including the University of Chicago Law School, where he taught one of tonight's panelists, Jan Greenburg of the Chicago Tribune.

Irwin earned his Juris Doctor with high honors from the University of Maryland Law School, and received his Master of Laws degree from Columbia.  Irwin?

MR. KRAMER: Thank you very much, Cynthia, and thank you.

Jan, I couldn't resist boasting that I once taught you. Um, I'm not going to say what I taught Jan.

This might be not only the first time that lawyers and journalists have banded together in a spirit of unity, but it is, I'm sure, the very first time that lawyers have been outnumbered two to one at a conference at Arnold and Porter.  And I think that might be a bit unfair. But remember, I'm the moderator tonight. I'm going to make sure that even though the practicing lawyers are outnumbered two to one, that in this debate, the lawyers will win.

I am very delighted, very honored to be speaking with such a distinguished group of panelists. We have individuals who have truly done a very commendable job, and arguably maybe not such a commendable job, but then again, journalists are controversial people, of covering the courts. And this is a controversial topic. But we have individuals here who have been on the front lines of controversy, who have really dug deep to bring us news and information, and a couple of people who perhaps want to shield their clients from the scrutiny of the press.

So we're going to debate this, and even though we start in the spirit of unity, I'm not sure how long that is really going to last tonight. But certainly, we're honored to have Paul Wagner with us. Paul is the criminal justice and investigative reporter for WTTG Fox 5 here in Washington, and Paul has broken some of the most significant stories in this area, including some very significant details regarding the death of Chandra Levy.

Paul, thank you so much for coming.

Victoria Toensing.  Victoria is here with her husband, Joe diGenova, who is in our audience this evening, but now has to listen instead of talk. Victoria has formed a partnership with Joe in the firm of diGenova and Toensing.  She was a former Deputy Assistant Attorney General, who, before terrorism was a very significant topic, established a terrorism unit for the United States Department of Justice.  She's been special counsel to the United States House of Representatives, probing the International Brotherhood of Teamsters, and she has successfully sued the CIA. So, Paul, you might not want to sit too close to Victoria tonight.

Carl is going to brave it on the other side.  And Carl has certainly braved a lot when it comes to government service and network news service.  Carl is a Professor of Media and Public Affairs at George Washington University, former NBC News Justice and Supreme Court correspondent, former Public Affairs Director for the U.S. Department of Justice, and we're certainly going to take you to task on some things that may be going on, although it has been many years since you have been with the Justice Department.

Carl also happens to hold a law degree.  We won't hold that against you, from Cleveland State, and is a proud alumnus of Columbia University, holding a Bachelor of Arts and Master of Arts degrees, including an M.A. in Journalism from the Columbia Graduate School of Journalism.

Pete Williams is holding the job that Carl used to hold.  He is the Justice and Supreme Court correspondent for NBC News, an individual who has also served in government, initially as press secretary to a congressman by the name of -- a Wyoming Congressman, Dick Cheney?

MR. WILLIAMS: Close enough.

MR. KRAMER: As Dick Cheney got his promotion, so too did Pete, promoted to the position of Assistant Secretary of Defense for Public Affairs.

Now you are looking at government, and at the courts, and asking serious questions, so we'll be pleased to ask you some serious questions tonight.

And Jan Greenburg.  Fortunately, I wasn't the only professor you had at the University of Chicago Law School. Jan is the National Legal Affairs Correspondent for the Chicago Tribune and Supreme Court analyst for the NewsHour with Jim Lehrer on PBS. You did graduate from the University of Chicago Law School, and with flying colors, I might add. And, Jan, it is a pleasure to have you with us.

David Kendall is our second practicing lawyer on this panel, and practice you have. David is the former White House counsel, clerked for Justice Byron White on the Supreme Court of the United States, and among other things, has a couple of famous clients by the name of Bill and Hillary Clinton, handling such things as the Whitewater Investigation, and a story that certainly ranks very high as far as high profile cases are concerned, the impeachment proceedings involving the President of the United States.

How about a hand for this panel?  [applause]

Now in appreciation for your coming, David, I'm going to give you a new client. Not as high profile as the Clintons, though. This person, actually, isn't as charismatic as Bill, certainly doesn't feel your pain, or bite his lower lip the same way.  Actually, this client is a fellow by the name of Kevin Capfield.  Kevin is a microbiologist, and quite different in character from Bill Clinton. In fact, you probably will look at him, pocket protector and all, and say that this client is a nerd. But some people find him interesting. In fact, some people would call him a "person of interest." Those people work for the FBI. And in fact, they are interested in some activities surrounding an anthrax scare, apparently someone putting anthrax in envelopes and sending them to not so close friends across the United States.

Well, those individuals who find Kevin Capfield very interesting have been so interested, that they've questioned Dr. Capfield for about ten hours without giving him access to any attorney. A couple times he mentioned that he wanted to see a lawyer, but it seemed to fall on deaf ears.

After awhile, he got a little testy with them, particularly when they were asking about a lie detector test that they would like to take. And finally, having had enough, it had been a very long day. He thought he'd clear the air, he finally said to them, "I did it, okay? That's what you want to hear. Can I go now?" Very interesting situation.

He's been followed everywhere by the FBI and by some of these individuals, members of the Fourth Estate.  But now he's finally had enough, so he needs the best, David Kendall, Williams and Connolly. He comes to you, he's had enough, he wants to fight back.  Tell me something, David, when is the press conference?

MR. KENDALL: He's not been charged. He's been held 10 hours. He's been followed around. Um, I think you would have to know more about his situation, but I think, um, probably the press conference would not be for awhile.

MR. KRAMER: Well, why not? I mean he is absolutely livid. He is an innocent man, remember? Innocent. And he is being raked over the coals by individuals like Paul Wagner, and Pete Williams and Jan Greenburg.

MR. KENDALL: I think there can be a press conference, but I'm not sure that Kevin Capfield, is that right, is that the client, I like to know the name.

MR. KRAMER: You don't know your own client's name?  Dr. Kevin Capfield.

MR. KENDALL: Dr. Kevin Capfield. I think Dr. Kevin Capfield might have a support committee who could hold a press conference, lobby for him, try and generate the support. I don't know that he himself would be well-served by holding a press conference.

MR. KRAMER: Well, there is some other entity that wants to hold a press conference somewhere lurking within the United States Department of Justice, and I wonder if we might turn to the former Public Affairs Director for the U.S. Department of Justice, and ask him about the idea of holding a press conference to discuss this "person of interest."  Carl?

PROFESSOR STERN: Well, it might have some value for the investigators to those who know of him, know of his activities, and might induce them to come forward, but I think it is still a little early under the guidelines in which the Department operates, and I do have to make it clear right off the bat that I am not speaking for the Department of Justice. I haven't been there in awhile, but the guidelines under which the Department operates, the Code of Federal Regulations. Once an investigation has begun, there are restraints upon the Department as to what it can say about its activities, particularly what it could say that characterizes what is his name, Dr. Capfield, and the nature of the investigation. So I'm not sure we would jump into it that fast. What we might do is sit back, and wait to get some phone calls from the media.

MR. KRAMER: Well, you mentioned that you'd been out for awhile, but more recently, has policy changed at the U.S. Department of Justice, because I kind of recall a guy named Richard Jewell and another scientist, um, whose name is somewhat similar perhaps to David's client, who is objecting to press conferences, not even named as suspects, but they're "persons of interest."

PROFESSOR STERN: Well, Department policy would -- or should require the Department to respond to inquiries of the press.

And if those inquiries reach a point that warrant holding a news conference, that could occur. But again, what is said at that news conference would be under the guidelines of 28 CFR 50.2, which limit what the Department can say about an investigation, and those who might be subject to the investigation.

MR. KRAMER: Doesn't it seem like they work around those guidelines by creating a new term, "person of interest," Pete Williams?

MR. WILLIAMS: I have to say I never heard the term "person of interest" until it was used -- by the way, I would make a minor quibble with what you said. I don't know of the Department of Justice calling a press conference to talk about either of the two folks you talked about. There were times when the Attorney General was asked about these cases. Um, I don't think he was ever asked about the Richard Jewell case, or she, but John Ashcroft was asked about Steven Hatfield, and that is when this term "person of interest" came around, and now I hear it all the time. I heard some police description of some case, and they said -- "Well, we've got -- " I heard Chief Ramsey this morning on WTOP radio saying about a murder case, there were a couple of "persons of interest."  I don't know what that means anymore. I guess it is a huge thing from, on the other hand, from the great understatement of the British, where if they've got someone in leg irons, they say they were eager to have him aid in their inquiries.  [laughter]

But what I gather is the background of this, from your -- the facts of your hypothetical, is that the country is up in arms about these anthrax attacks, and that there has been a lot of investigative activity focused on Dr. Capfield, if just the hypothetical, if they had searched his house three times, if they had called out the bloodhounds to go to a fast food restaurant where he ate, if the government urged the university where he worked not to hire him, and to fire him as a consultant on the government payroll, using the federal funds, those things would attract our attention.

MR. KRAMER: What about the right of privacy? Victoria Toensing, you handled both sides of a criminal case, and high profile cases at that, as a federal prosecutor and now defending. Whatever happened with privacy in the case of a Dr. Capfield?  Is it that public hysteria overrides?

MS. TOENSING: Well, privacy, I mean the lawyers aren't screwing up the privacy, it's the press who is doing that.

MR. KRAMER: How are they doing that?

MS. TOENSING: The press hears about the searches going on, and the press starts invading the territory. It is not the -- any of it. David doesn't want anybody to be knocking at his door to be asking questions. It is the press that is generating this. I'm not criticizing, I'm just saying that is a fact.  So the right of privacy is a government promise, not a press promise.

MR. KRAMER: Well, how do they really learn? How do you guys learn?

Paul, you're digging up stories every day. Are you telling me there aren't some convenient, oh, "leaks" from those in the Department of Justice, or other government agencies?

MR. WAGNER: Yes, there are leaks, particularly if you are thinking about a search. Think of it this way, if there is a search, and there is FBI agents crawling over an apartment building, and they are wearing their FBI jackets where they are obviously looking very official, somebody in that apartment is probably going to call the media, because they are curious. They want to know what the media can dig up. So they call us, we say, "Get the helicopter up, let's get pictures, quick." So you get the pictures, and they want more answers, the bosses are coming to you saying, "What's going on? Find out what's going on."

MR. KRAMER: Victoria, can you fault Paul for wanting to find out what's going on and save his own job?

MS. TOENSING: No, I don't fault him. That is what the media's job is. That is what they're supposed to do, and I dare say that is what happened when old Kevin here had his apartment searched. David, I hate to break it to you, but that is what happened. There were helicopters above, and --

MR. KRAMER: No, I heard Paul's exclusive report on Fox 5. That is exactly what happened.

MS. TOENSING: Right, because somebody in the apartment saw all these FBI agents coming in, and calls them up, and says, "Hey, did you know this is going on?" And the press converges on it.

MR. KRAMER: Somebody from the apartments. It is a neighbor, but it is never anyone from the prosecution side?

MR. WAGNER: It could be, and sometimes what I find is that rarely does someone in law enforcement pick up the phone and call you, and say, "Hey, you need to be here." Okay? It is typically you are picking up the phone and calling them, and asking them for information. And they say, "How are we talking?" And I say, "Well, on background." Or they might say, "I don't know much about it, but you might want to call so-and-so."

I have found it is very rare that they pick up the phone and call me to say: Let me tell you about what is going on up there.

MR. KRAMER: At an early stage, we've all talked -- David Kendall and Carl Stern seem to agree that it might be too early for press conferences. But is it too early to report these various facts when an individual hasn't been charged, hasn't even been named as a target in an investigation?

Jan Greenburg, what do you think about that?

MS. GREENBURG: Well, it doesn't -- That is a difficult call. I mean obviously we like to have some kind of legal action that has been taken, whether it is an arrest, um, I think you did say he confessed, so ?

MR. KRAMER: Well, is that a confession?

MR. KENDALL: It was a joke.

MS. GREENBURG: This is something that we confront a lot. When -- When is the story, when does information that you have become a story? Ah, if I could go back to a case I covered in the mid-1990s in Chicago. Is it a story when a young man accuses a cardinal in Chicago of sexual abuse? It becomes a story when that is a lawsuit. Um, we would never run that as a story if you just called the paper and reported those allegations. But once it has the imprint of a lawsuit, or the stamp of a charge or an arrest, then that becomes a story.

MR. KRAMER: Would you have run, as did the Atlanta Journal Constitution, the story of Richard Jewell, only named as a "person of interest," never charged, and in fact, apparently, innocent?

MS. GREENBURG: You know, I probably would have in that case, because of the, you know, you had law enforcement sources talking to you at that point. You know, hindsight is 20/20 on some of these things, of course, but that was a huge story in Atlanta, and obviously became a national and international story, you know. The -- I probably would have at that point, but --

MR. KRAMER: Why?  Was it "big" enough?

MS. GREENBURG: No, I think when you've got law enforcement sources telling you -- telling you that they have identified, or, you know, I guess arrested -- Was he ever arrested? I don't remember. You are switching your hypothetical on me here.

MR. KRAMER: That one is not a hypothetical.

MR. WILLIAMS: The other thing to remember is that there are two factors that weigh into the Capfield case. One is the government is somewhat likely, when I call the Carl Sterns of today, to talk about this, because of the concern of the neighbors about when there is a potential bioterrorism or chemical weapons thing, they -- they now try to say: "You know, don't worry. The public should not be concerned. There is no need for alarm."  And they are doing this a lot more now, because obviously once the investigation reaches the point where they are actually serving search warrants, multiple search warrants on the same place, or multiple search warrants on different places involving the same person, people start to say: "Hey, you know, my kids go to school three blocks from there, should I be worried?"  So the government is a little more conversant about these things.

But the other thing is we don't just say: "You are searching Dr. Capfield's house? Thanks, have a nice day."  We say: "Why? What is it about Dr. Capfield that has attracted your attention?"  And sometimes they will give us additional details about that interest them. And we have to evaluate those about whether we think those have credibility.

PROFESSOR STERN: In the Jewell case, the press interest didn't start from a leak from law enforcement, it started because Mr. Jewell appeared on a number of TV shows billing himself as sort of an expert on security.

MR. WILLIAMS: As a hero.

PROFESSOR STERN: He was the hero security officer who found this knapsack, and so on, and a reporter from the Atlanta Journal Constitution was sent out to his apartment to get further information about this character. Gets out there, and the place is crawling with FBI, and ATF, and other federal agents. You don't think that would spark the reporter's interest and lead to the doing of a story. The story just has to explain what is going on out there, what the reporter can see.

MS. GREENBURG: Let me follow through on what Victoria said earlier. This picks up on Pete's point as well. The press, to say that we are invading people's privacy, the press can play an important role, as you all know, in checking government abuses of power, and if someone is, you know, being unfairly prosecuted, or singled out, there is a role for the press to be suggested in finding out in your own independent investigation digging up things, checking on the credibility of sources, and that kind of thing.

You know, in the case that I just mentioned from Chicago, it was a huge case in the mid-90's in Chicago involving Cardinal Bernadin, the press played a critical role in looking at the lawsuit in that case, the accuser, questioning the tactics, that he recalled these allegations of abuse under hypnosis. So to suggest that sometimes just the mere reporting of a lawsuit might invade someone's privacy, no, I think there are many more times when the reporting can actually illuminate, perhaps, holes in the government's case, or holes in the lawsuit.

MS. TOENSING: I want to talk about the government's responsibility here, because I have always been of the doctrine that the government has a responsibility not to comment. The government should not go out there and hold a press conference, or if it is necessary, it's only the term, the four corners of the indictment, and I have always kept this until really our recent age of terrorism, where the public safety is at issue, and so then now there is a different factor in the equation, because it isn't just crime, it isn't just who did the bank robbery, who murdered the person down the hall. There could be a public health interest, as in the anthrax investigation.

I think that Carl's old office is going to have to make some new rules and re-think some of the old rules that the Justice Department has had about speaking about cases.

PROFESSOR STERN: It is a question of vocabulary. I don't know that it really requires a change in the rules. The problem is that the Press Office of the Justice Department, or any law enforcement agency, when they get Paul's phone call, or Jan's phone call, it is very hard to say absolutely nothing, to say we won't discuss it. You are trying to reassure the public that the matter is proceeding appropriately, and that you are doing your work, um, and how do you describe that? The press is aware at this point, if you question somebody for 10 hours, if you searched his apartment quite vigorously, right, as you described it, Paul? The press wants to know what is going on here. What is it with Dr. Capfield, um, and your searching for a way to describe this that won't move him into the category of a suspect, as such, in a way that won't condemn him in some fashion in a way that might influence a trial in the future. You've got to figure out some way to describe who this guy is, and why you are devoting so much attention to him. So if, I don't know who it was, if they came up with this artful term, "a person of interest," so be it, that doesn't frankly drive me over the brink.