Monthly Archives: December 2013

Interrogation: Jack Bauer v. Frank Columbo

By Christopher B. Daly

Recently, my colleague Doug Starr has gotten a good deal of deserved attention for his work on the subject of interrogation, including a fact piece in the New Yorker and an interview on NPR’s Fresh Air.

Doug is an experienced science journalist who has written important books on the history of the global trade in blood (Blood)  as well as the birth of forensic science in late 19th C. France (The Killer of Little Shepherds). In turning his attention to the science of interrogation, Doug found that actually there is no science to support a widespread suite of interrogation techniques. The approach most commonly used by U.S. police departments is prone to producing false confessions.

Turns out, there is a better way:

What works best is to calmly ask a suspect some open-ended questions. That forces the suspect to generate a narrative. So far, so good. Then, you check the parts that you can against any external sources. Then, you have the suspect tell the “story” again, looking for discrepancies, even tiny ones. Repeat as needed.

No shouting, no threats. No good cop/bad cop routine. No torture.

What strikes me is that this interrogation technique corresponds to the approach used by another occupational group: journalists. This is essentially what reporters do: ask questions, listen to the answers, check the information against other sources, then go back over the same ground again — as many times as necessary.

 

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The model that I try to steer my students toward is not Jack Bauer on the TV series “24.”

 

 

 

Instead, I recommend Frank Columbo on the eponymous TV show from the 1970s and 80s. Never in a hurry, forever dressed in that rumpled trenchcoat, Frank Columbo was always willing to appear to be the dumbest guy in the room and never hesitated to admit

ColumboDVD3 that he just couldn’t understand a case and ask a suspect to run through a story just once more.

Here’s a glimpse from Wikipedia:

Columbo is polite. He has a keen intellect and good taste which he hides very well. Though a bit dated, his clothes are high quality. Columbo never divulges his first name. His absent-minded approach to cases, his distracted outbursts and constant pestering of suspects is his modus operandi. He is gifted at lulling anyone guilty into a false sense of security. Often he would pursue a line of question that brings about minimal information, not pressing enough to cause the suspect any alarm. Columbo would thank the suspect, and turn to leave – only to turn back at the last second, claiming to suddenly have remembered something (stating, “Oh, uh, one more thing…” or some variant thereof), and present the suspect with a far more serious and vital question, catching the suspect off guard. This is referred to as “the false exit”.

But I don’t think that quite captures Columbo’s genius. Like a good, veteran reporter, Columbo approaches each case serene in the knowledge that if he asks enough questions and listens carefully enough, the suspect will eventually tell him everything he needs to know.

That’s really all there is to it:

Ask.

Listen.

Ask again.

 

 

 

 

 

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The online life

Here is a new piece by MIT prof and internet theorist Sherry Turkle.

Here is a new piece by NYTimes tech columnist Nick Bilton.

Here is a new piece about the NSA.

All of which prompt this reflection, from Ben Franklin, writing under a pseudonym as Poor Richard:

Three can keep a secret — if two of them are dead.

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Hyper-local news: a $300 million bust?

By Christopher B. Daly

Now comes word that AOL’s CEO, Tim Armstrong, is putting the finishing touches on the finale of Patch.com, the online local news sites. In his column today, NYTimes‘ David Carr reports that Armstrong is throwing in the towel on what used to be his baby. Too bad it didn’t work out.

There was a time when Patch looked like it might be an important part of the journalistic future. It was based on a key insight: more people were getting their news and information online, so why not local news? (Plus, there are a lot of local pizza parlors and nail salons that might advertise in such a site but would not be bothered advertising on a bigger site, because they would be paying to reach a lot of people who would never wander into their shops.)

While it lasted, Patch was a source of entry-level jobs for our journalism students, and I am worried about what will replace it.

Here’s Carr’s take:

 

The theory was that Patch would use a single news person and a single advertising person, at least initially, to create a digital maypole in hundreds of communities at a cost of about $100,000 annually per site. Patch sites popped up across the country, like Calabasas, Calif., and Nashua, N.H., covering high school sports, city elections and other local fare.

The execution risk was large — Patch was all moving parts, many undermanaged. At its peak, some 900 sites employed 1,400 people. Much of the journalism was pedestrian, while some of it, especially during Hurricane Sandy, was deeply important, but the decision to start at such a large scale was crippling. And all local efforts, digital or not, confront the tyranny of small numbers. Both the journalism and the ad sales were hand-to-hand, a retail effort that required spending a lot of money to go after pretty small revenue.

In August, it was clear that the math would not work. More than 350 people at Patch were laid off and hundreds of sites were shuttered.

What strikes me is the amount of money Armstrong was able to shovel into it — $300 million. Even for corporate moguls, that’s not nothing. Maybe that’s what was wrong all along: if you want to live online, keep your costs down.

I look forward to the experiment in this space that gets it right.

 

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Bring cameras into court

By Christopher B. Daly

Hard to believe, but most federal courts and all military courts remain closed to cameras. That means that you and I — in other words, The People — cannot observe what’s going on in the judicial branch.

Here are some reflections on closing the Gitmo trials to cameras.

How can this possibly look to the rest of the world? Does it signal that the high-tech United States relies on pastels to communicate? Does it signal that the big, strong America is afraid of something?

The sketch artists do a great job under trying circumstances, and I would hope that they would always be welcome in courtrooms. But let’s get a video camera in there, too.

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Sheesh.

 

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Dasani’s story — a team effort

By Christopher B. Daly 

By now, most readers of the NYTimes have discovered Dasani, the remarkable girl whose story epitomizes the plight of the 22,000+ homeless in New York City. Kudos to investigative reporter Andrea Elliott and photographer Ruth Fremson.

BTW, the online version has extras. Although the series “Reasons to Dream” did not get the full TimesSnow Fall” treatment, it still looks better online. There are big, gorgeous, poignant, full-color pictures of

Dasani at play. NYT/Ruth Fremson

Dasani at play.
NYT/Ruth Fremson

Dasani and her world, and some videos too.

But not to be missed is this: The full credits at the bottom of the last installment indicate how much institutional heft counts in a series like this.

Here is a brief summary of how they went about it:

SUMMARY OF REPORTING

Andrea Elliott, an investigative reporter with The New York Times, began following Dasani and her family in September 2012. The series is written in the present tense, based on real-time reporting by Ms. Elliott and Ruth Fremson, a photographer with The Times, both of whom used audio and video tools.

Throughout the year, Dasani’s family also documented their lives in video dispatches from the Auburn Family Residence, which does not allow visitors beyond the lobby. Ms. Elliott and Ms. Fremson gained access to the shelter to record conditions there.

The reporting also drew from court documents, city and state inspection reports, police records, the family’s case files at city agencies and dozens of interviews with shelter residents. Most scenes were reported firsthand; others were reconstructed based on interviews and video and audio recordings.

The Times is withholding the last names of Dasani and her siblings to protect their identities. The nicknames of some of Dasani’s siblings are used in place of their birth names.

 

And here is a long list of people who pitched in:

CREDITS

By Andrea Elliott
Photographs by Ruth Fremson

Design, graphics and production by Troy Griggs, Jon Huang, Meghan Louttit, Jacky Myint, John Niedermeyer, David Nolen, Graham Roberts, Mark Suppes, Archie Tse, Tim Wallace and Josh Williams.

Reporting was contributed by Rebecca R. Ruiz, Joseph Goldstein and Ruth Fremson, and research by Ms. Ruiz, Joseph Burgess, Alain Delaquérière and Ramsey Merritt.

 

By my count, that’s 18 people — not to mention all the editors who had a hand (who should also be credited/held accountable). And, of course, Andrea Elliott has done basically nothing else for 15 months — so that in itself is a big commitment.

Plus, the Times is providing the “source notes” (like scholarly footnotes) so that others can confirm or pursue further info. This is a model practice for many other stories.

That’s how it’s done.

 

 

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NY court issues a major ruling for press freedom

By Christopher B. Daly 

Invoking journalism history, New York state’s highest court has ruled that under New York’s state constitution and the state’s version of a “shield law,” a journalist cannot be forced to divulge the identity of a confidential source — even if another U.S. state is trying to extract the information. The ruling, issued Tuesday, was a major victory for press freedom, and not just in New York. But it will have its greatest impact in New York, where so much of the news media operate, because now the highest court in that state has ruled that New York’s own laws grant complete immunity to journalists from any attempts to force them to reveal their sources. Since that court is the ultimate interpreter of the New York state constitution, it is a landmark.

It remains to be seen if a New York journalist can use this new ruling as a shield against federal prosecutors. Federal courts are not obligated to follow the New York state court ruling, of course, but any person who gains more rights under a state constitution or law does not forfeit those rights just because federal law has not caught up. The U.S. Constitution and federal laws establish legal minimums that must be afforded to all Americans, but they do not establish maximums. When it comes to our rights, federal law is a floor, not a ceiling.

Briefly, the case involves Jana Winter, a reporter for FoxNews.com. She went to Colorado in 2012 to report on the horrific mass shooting at a movie theater in Aurora. Expecting a media frenzy, the local Colorado court imposed a “gag order” — that is, a pre-trial order that tries to limit disclosures to the news media in advance of a trial. During the investigation into the crime, police got hold of a notebook that belonged to the suspect, James Holmes, which he had shared with his psychiatrist. Someone divulged the existence of the notebook to the reporter, along with a summary or description of its contents. Colorado authorities consider that a breach of the gag order, and they are stamping their feet to see who disobeyed. All the cops in Colorado say “it wasn’t me,” so the authorities are turning to the journalist and demanding that she rat out her source so they can punish that person. For that, they want to make her travel 2,000 miles to violate a promise she made to her source(s). If she stands firm and refuses to name names, she goes to jail. If she gives them up, she is ruined as a reporter, and the whole enterprise of news-gathering is undermined because all sources will doubt all reporters when they promise confidentiality. [Winter has absolutely no information that is exclusive to her and based on confidential sources that has any bearing on the commission of the crime itself. All she knows about is which Colorado cop (or cops) violated the gag order. Please.]

Many, many courts would rule against the journalist in these circumstances. Judges normally sympathize with their fellow judges and see things their way. Judges normally do not like to see anyone violate their rulings and get away with it. Judges like the idea that what they say, goes. All of which makes this ruling even more remarkable. It was a win-win: the court expanded legal protections for reporters, and it relied in part on a famous case involving an 18th-century partisan journalist to do so.

Here are versions by the New York Times (which should have put this on page 1, not inside the business section) The New Yorker, TVNewser, and Poynter. (Even Fox News had to come down on the side of press freedom in this case.)

Here is the text of the decision, written by Judge Victoria Graffeo. Among the stories I saw, only Poynter actually linked to the decision, which is disappointing — hey, people, there’s this thing called the Internet; let’s take advantage of it. Besides, the decision is well worth reading in full. It is a pro-freedom primer on the history of the freedom to gather news. Here are some key excerpts:

New York has a long tradition, with roots dating back to the colonial era, of providing the utmost protection of freedom of the press. Our recognition of the importance of safeguarding those who provide information as part of the newsgathering function can be traced to the case of “John Peter Zenger who . . . was prosecuted for publishing articles critical of the New York colonial Governor after he refused to disclose his source” (Matter of Beach v Shanley, 62 NY2d 241, 255 [1984] [Wachtler concurrence]). A jury comprised of colonial New Yorkers refused to convict Zenger — an action widely viewed as one of the first instances when the connection between the protection of anonymous sources and the maintenance of a free press was recognized in the new world. In acknowledging the critical role that the press would play in our democratic society, New York became a hospitable environment for journalists and other purveyors of the written word, leading the burgeoning publishing industry to establish a home in our state during the early years of our nation’s history.

That is an important point: New York did indeed become the nation’s media capital. I doubt that the New York State Constitution was much of a causal factor (compared to all the economic ones), but the fact that the industry is now centered in New York City means that many, many journalists enjoy the favored status granted by this new ruling. And the ruling holds that a New York-based journalist is protected by New York’s constitution even when he or she roams into another state or online to do reporting. What remains to be seen is what might happen when a New York-based journalist attempts to use the new ruling in the Winter case against a federal prosecutor who comes around with a subpoena seeking to force a journalist to name a confidential source in a federal investigation or trial.

Judge Graffeo wrote that the protections offered to journalists in New York are ancient, robust, and multiply determined.

To begin with, she wrote, there is the matter of common law. Before New York was even a state, the jury in the 1735 image-crown-zenger-tryal-pageseditious libel case against the printer John Peter Zenger  established through its not-guilty verdict that Zenger did not have to reveal the identity of the author of the offending article. The Zenger case is usually cited as a precedent for the idea that truth is a valid defense in libel cases, but if Judge Graffeo finds the germ of a “shield law” in there, so be it. (For more on Zenger, see “Covering America,” chap 1)

 

Later, New York citizens wrote and ratified a state constitution. It says, in part:

“Every citizen may freely speak, write and
publish his or her sentiments on all subjects
. . . and no law shall be passed to restrain
or abridge the liberty of speech or of the
press” (NY Const, art I, § 8).

In her reading, that language from 1831 constitutes a shield for journalists all by itself, saying it is more expansive than even the First Amendment to the U.S. Constitution and thus affords more protections to New Yorkers than other Americans enjoy under the First Amendment alone.

In addition, Graffeo cites New York state law. In 1970, the New York Legislature adopted a “shield law” that includes an absolute legal privilege for journalists who want to protect the identity of their confidential sources. She said that after considering the views of the likes of Walter Cronkite and Mike Wallace, the Legislature decided to throw its weight into the balance on the side of reporters. The relevant part of that law says:

no professional journalist or newscaster . . .
shall be adjudged in contempt by any court in
connection with any civil or criminal
proceeding . . . for refusing or failing to
disclose any news obtained or received in
confidence or the identity of the source of
any such news coming into such person’s
possession in the course of gathering or
obtaining news for publication

So, Judge Graffeo concludes, journalists in New York are protected by common law, constitutional law, and statutory law. Now, how hard was that? Why do so many judges fail to understand this reasoning? The ruling holds that all these sources of protection for journalists combine to provide evidence of a clear “public policy” in New York state to encourage the practice of journalism within its borders.

But Judge Graffeo was not finished. She noted that the testimony of the journalists that the New York legislators relied upon arose from another case — that of NYTimes reporter Earl Caldwell. In a footnote, she observed

The affidavits were prepared in connection with a motion
to quash a subpoena in a case that was pending when the Shield
Law was under consideration by the Legislature and which involved
an investigative reporter from the New York Times who was
subpoenaed by a Federal Grand Jury in California to testify
concerning knowledge he obtained about the Black Panther
organization. Two lower courts held that the First Amendment
protected the reporter from being compelled to reveal his sources
or disclose information provided to him in confidence, differing
only on whether the reporter could avoid appearing at the Grand
Jury altogether (Caldwell v United States, 434 F2d 1081 [9th Cir
1970] [reporter could not be compelled to appear at Grand Jury],
vacating 311 F Supp 358 [ND Cal 1970][although required to appear

Caldwell, left, with MLK in Memphis, 1968.

Caldwell, left, with MLK in Memphis, 1968.

at Grand Jury, reporter was entitled to protective order
precluding questioning concerning confidential sources or

information]). However, deciding the case with Branzburg v Hayes
(408 US 665 [1972]), the United States Supreme Court disagreed,
holding that the reporter could not rely on the First Amendment
to avoid appearing and giving evidence in response to a Grand
Jury subpoena.

That was a regrettable decision that journalists lost by an eyelash, only because five judges on the U.S. Supreme Court did not understand the U.S. Constitution as well as these New York judges understand the New York constitution. For more on Caldwell, see Covering America, chap 12. For more on the Supreme Court’s ruling, see earlier blog posts here and here.)

 

The new ruling also sends a message to prosecutors in all the other states: don’t bother going on fishing expeditions. If you send us requests to compel a New York journalist to appear in your state’s courts, those will be denied. The opinion says New York will not tolerate harassment of journalists by subpoenaing them to show up halfway across the country just to assert their immunity under the New York shield law. That would be terribly disruptive to their work. Just leave them alone, the court said. Quoting an earlier case, the ruling states:

“Journalists should be spending their time in newsrooms, not in courtrooms as participants in the litigation process”

It’s thrilling to read a judicial opinion written by a judge who actually understands the meaning of a free press and appreciates its value to society. It’s rare — and therefore, I suppose, all the more thrilling.

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Finally, a hat-tip to the judge, Victoria Graffeo, the former solicitor general for the state of New York who was appointed to the Court of Appeals by Republican Gov. George Pataki to a 14-year term in 2000. No liberal, Graffeo was expected to be a moderate conservative voice on that important bench. Labels aside, she gets credit for getting the point.

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Surveillance state: Private sector discovers privacy

By Christopher B. Daly 

Now comes a campaign from a coalition of high-tech companies who want the government to get out of the business of routinely spying on Americans in peacetime. They are organized under the banner of ReformGovernmentSurveillance.com (What’s the matter? Was the domain name EndGovernmentSurveillance taken?).

The founders include the biggest names in tech and social media in America: 

AOL (maybe I buried the lead: are they still in business?)

Apple

Facebook

Google

LinkedIn

Microsoft

Twitter

Yahoo.

According to a full-page ad in today’s NYTimes, the coalition members want the president and Congress to put an end to abuses carried out in the name of national security by the NSA and other government agencies. That’s great as far as it goes, and I welcome them to the movement to control the government.

While they are at it, though, those same companies would do well to honor their own customers‘ privacy and quit trying to pry more data and pics out of us to exploit for gain. Set a good example.

 

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