The Old Balls Game

Headline over an editorial in the October 23 Wall Street Journal: “The Cut and Run Crowd.”

Headline over an editorial in the October 29 Tribune: “Don’t cut and run in Iraq.”

Headline over a Mark Brown column in the October 30 Sun-Times: “Stay the course in Iraq? We have no choice now.”

Pull quote to a Thomas Friedman column in the October 30 New York Times: “Can Bush stay the course in Iraq?”

The essays themselves were thoughtful enough. But the big print reminded me what a slog through cliche it always is to get to a serious national conversation. Now that the “cowards” and “criminals” we went into Iraq to rescue it from are fighting back, the argument for staying in the fight is being packaged as a test of the national gonads. It deserves better.

“Even the International Red Cross and the United Nations have cut and run now that they are coming under attack from vicious barbarians,” Dennis Byrne wrote November 3 in the Tribune. The headline to his column said, “There’s honor to carrying the burden of Iraq.”

Legend has it that in 1897 William Randolph Hearst sent his man in Cuba a telegram instructing, “You supply the pictures, and I’ll supply the war.” The evidence tells us nothing of the sort happened, but journalists like the story because they’re as comfortable as anyone else with the idea of descending from rogues who were movers and shakers. But it’s presidents who supply the war; at most the press supplies the brass band.

“Cut and run” and “stay the course” are the language of trumpets. The country’s at one of those agonizing junctions when it’s damned if it does and damned if it doesn’t, when empty rhetoric might have to do until our thinkers come up with new ideas. Journalists are thinking hard too, but we sometimes have to clear away a lot of dead old language to catch them at it.

Witness for the Prosecution

The prosecutors of America have despised the Tribune since they read the first sentence of the first installment of “Trial & Error,” a five-part series on prosecutorial misconduct subtitled “How Prosecutors Sacrifice Justice to Win.” The opening salvo appeared on January 10, 1999, and the Tribune called it “The verdict: Dishonor.” It began, “With impunity, prosecutors across the country have violated their oaths and the law, committing the worst kinds of deception in the most serious of cases.”

The Tribune nominated “Trial & Error,” bundled with a subsequent series on the death penalty, for a 2000 Pulitzer Prize. The entry reached the finals but lost, and the National District Attorneys Association was merely the largest of three groups of prosecutors who wrote the Pulitzer board denouncing it. The president of the NDAA told the board that there was much less to “Trial & Error” than met the eye. The Tribune had reviewed 381 homicide convictions that were overturned. The NDAA said it went back over 221 of these cases and discovered that many were reversed on technicalities. In over half the cases the defendant eventually was retried and convicted of the same or a lesser offense.

“Why does the Tribune use words like ‘innocent,’ ‘exonerated,’ and ‘free’?” Joshua Marquis, an NDAA board member from Clatsop County, Oregon, asked me at the time. “Because it wants to convey to its readers these were people who did nothing wrong who were snatched up by a corrupt system and thrown in prison.”

Marquis, a founder of the NDAA’s media committee, courts reporters, and he and I have communicated occasionally over the years. On Sunday, October 26, the Tribune launched a new series, “The Legacy of Wrongful Convictions,” and before that day was up Marquis had e-mailed me tearing into it.

“The Tribune is utterly predictable in their ‘news’ coverage of criminal justice issues,” he wrote, “the mantra that our prisons are full of innocents, prosecutors are scum, and only the Trib and criminal defense lawyers will protect innocent Americans.”

Marquis is good with invective, but he makes serious points. The most interesting thing about his latest batch is that they have a lot more to do with “Trial & Error” than with “The Legacy of Wrongful Convictions” and demonstrate how easily reporters and prosecutors can talk past each other.

“Crimes go unsolved as DNA tool ignored,” as the first installment of the new series was headlined, looked at convictions overturned by DNA testing. Sometimes prosecutors stubbornly insist they had the right guy and won’t reopen the cases, reported Maurice Possley and Steve Mills, and often “authorities have not followed up by submitting the genetic profile of the suspected perpetrator” to CODIS, the FBI’s national DNA database, where it might find a match. “The failure to seek a DNA match is all the more surprising,” Possley and Mills went on, “given that in the cases where DNA was submitted, genetic profiling identified the real criminal more than 40 percent of the time.”

To make matters worse, their story continued, CODIS (for Combined DNA Index System) won’t accept genetic profiles from Dr. Edward Blake, “one of the nation’s most sought-after DNA testing experts.” That’s because Blake’s lab isn’t accredited. Blake has no respect for the accreditation process, so he won’t jump through its hoops.

“In their front page story about how the Trib researched ‘every single DNA exoneration’ (which is possible to do because there are relatively speaking so few of them),” Marquis wrote me, “[they] wailed that the ‘premier’ DNA scientist, Dr. Edward Blake, was being denied access to DNA bases. Missing from their story was the fact that Blake is the close associate of Barry Scheck, and while [Blake’s] scientific credentials are unchallenged his objectivity went out the window years ago (see Peter Boyer’s article on ‘DNA on Trial’ in the New Yorker).”

I dug out that nearly four-year-old article. Boyer reported that Scheck was known nationally for his Innocence Project, a campaign to exonerate the wrongly convicted through DNA testing, and that he was also the defense-team lawyer who figured out how to neutralize overwhelming DNA evidence against O.J. Simpson by attacking the way it was collected and stored. Blake was involved in that trial as a consultant. Boyer described him as “a coveted asset in a legal fight, on either side of the aisle,” but also as someone whose tendency to get emotionally caught up in legal cases “some find discordant with the scientist’s mandate for dispassionate inquiry.”

Marquis held it against the Tribune that Possley and Mills didn’t go into this backstory. That wasn’t the only tangent he found missing. “Even more prominently absent,” his e-mail went on, “was the fact Scheck has violently opposed allowing his clients’ DNA profiles from being entered into the CODIS database, clearly fearing they’ll be identified as having committed some other rape or murder.”

If that’s true about Scheck, Mills tells me, “it’s because he’s representing his clients.” After all, lawyers don’t advise their clients to do things that could incriminate them. But the pretentiousness of the Innocence Project sticks in Marquis’s craw. “I think, but cannot swear, that I was actually in some hearing or debate with Barry when this issue came up and remember his objecting to ‘exoneration’ samples being used for any other purpose than seeking to exclude his client from that particular offense,” Marquis wrote in a later e-mail. “It struck all of us on the prosecution side as an extraordinarily intellectually dishonest approach, unless he conceded that his goal was simply to get his client off the hook, not seek the truth.

“That is my biggest gripe. I have nothing against tough defense attorneys who put the state to the test, but that is a very different matter than painting oneself as the ‘truth seeker.'”

Finally Marquis brought up the case of Sonia Jacobs. “There are really innocent people who have been on death row,” he wrote, “but to be as facile as Possley is with cases like Jacobs is not good journalism.”

Whatever you think about capital punishment, you find what you’re looking for in the case of Sonia Jacobs. She and her boyfriend, their infant daughter, her six-year-old son, and a buddy the boyfriend had met in prison were sleeping in a car parked at a rest stop in Broward County, Florida, in 1976 when a state trooper and the trooper’s friend, a Canadian constable on vacation, approached to check them out. Gunfire erupted, the two police officers were killed, and Jacobs and the others fled in the trooper’s car. They were soon captured. Jacobs and her boyfriend maintained that they were victims of circumstance who’d had nothing to do with the shooting, and neither eyewitnesses nor physical evidence contradicted their stories. But the buddy from prison testified against them, and both were sentenced to death. The buddy got life in prison.

Over time a jailhouse snitch changed her story, the state was accused of concealing exculpatory evidence, and Jacobs’s death sentence was commuted to life in prison. But her boyfriend was executed in 1990, dying in a defective electric chair as smoke and flames poured from his head. A filmmaker persuaded of Jacobs’s innocence helped her carry her legal fight to the federal court of appeals, and in 1992 the Broward County prosecutor gave her a choice. She could be retried–and possibly wind up back on death row. Or she could take what’s called an “Alford plea.” She pleaded guilty to second-degree murder without admitting guilt but conceding there was enough evidence to convict her. Jacobs was sentenced to time served and released. In 1996 a documentary on her case was aired on ABC.

This year Jacobs was the central character in an award-winning play about innocent people on death row, The Exonerated.

“While it is true an Alford plea allows a defendant to continue to deny guilt,” Marquis wrote me, “the legal effect is exactly the same as a guilt plea. Jacobs’s case is in some ways typical of many of the ‘poster child’ cases involving people released (as opposed to exonerated) from death row. In many cases not one but two juries found them guilty beyond a reasonable doubt [but] the courts overturned the conviction, frequently not for actual innocence but because evidence was withheld from the defense–certainly bad behavior, perhaps even properly sanctioned with a reversal, but not an affirmation of actual innocence.”

Not to quarrel with a word Marquis said, but Sonia Jacobs didn’t even show up in the new Tribune series “The Legacy of Wrongful Convictions.” Marquis is still honked by “Trial & Error.” And what did Possley and Ken Armstrong, who wrote that series, have to say about her then? Only this: “Of the 381 defendants, 67 had been sentenced to death. They include Verneal Jimerson of Illinois and Kirk Bloodsworth of Maryland, both later exonerated by DNA tests; Randall Dale Adams of Texas, whose wrongful conviction was revealed by the documentary ‘The Thin Blue Line;’ and Sonia Jacobs of Florida, who was eventually freed but whose boyfriend, convicted on virtually identical evidence, had already been executed by the time her appeal prevailed.”

The Exonerated said Jacobs was innocent. Thanks to context, the Tribune suggested it. But it very carefully didn’t say so. “The bottom line on Sonia Jacobs,” says Mills, “is that there are people who say she’s innocent and people who say she’s guilty.”

I don’t think the Tribune abused the facts about Sonia Jacobs. I don’t think the recent DNA series suffered because the Tribune failed to tease out the ironies of the Simpson trial. I do think the Tribune deserved a Pulitzer three years ago. But I enjoy the way Marquis watches it like a hawk.

He even noticed that “The Verdict: Dishonor,” the first installment of “Trial & Error,” had mysteriously been renamed online and was now called something much more innocuous, “Tipping the Scales.” He didn’t know what to make of that. Mark Hinojosa, associate managing editor for electronic news, says it was an honest mistake that apparently happened when the series was being shifted from one Web platform to another and someone confused two headlines on the original front page. He immediately restored the original headline.

Nothing that the Tribune says or doesn’t say gets by Marquis. “I monitor the Trib as a personal project,” he told me.

The Reds Menace

One cheer to the Tribune for not mincing words about its RedEye edition. The Tribune was open, it was frank, and it came clean on page six of the Business section, where not one reader in a hundred would look.

Buried deep, deep in this October 22 story about the “edgy tabloids” that major newspapers are publishing in Chicago, New York, and Washington to attract young readers, the Tribune made this admission: “Only the Chicago Tribune’s RedEye has tried to sell its youth-oriented edition. Even so, RedEye continues to distribute about 80 percent of its copies free in the face of competition from the free Red Streak.”

The facts aren’t exactly so. The Sun-Times’s Red Streak nominally costs a quarter, just like RedEye. And if the pile of unsold RedEyes that until recently showed up each afternoon on the sidewalk near my home is any indication, it hasn’t been distributed free so much as dumped at the end of the day where the curious can find it.

What’s more, the unvarnished truth was even worse than the Tribune had admitted. On October 27 Jeremy Mullman reported in Crain’s Chicago Business that Tribune Company exec Donald Grenesko had told analysts just 15 percent of RedEye’s 80,000 circulation was paid. This Tuesday the Tribune for the first time published a RedEye figure supplied to the Audit Bureau of Circulations–9,000 paid copies, about 11 percent of total circulation.

The October 22 Tribune story was written by Leon Lazaroff in New York with input from Jim Kirk in Chicago. I promptly received an angry note from a Sun-Times editor who complained that, among other things, Red Streak isn’t a free paper and anyone at the Tribune who thinks it is should try opening the Red Streak box in front of Tribune Tower without putting money in.

Chances are that box hasn’t been opened in so long it’s rusted shut. Anyone who pays a quarter for either Red is a sap. Even Red Streak’s owners call it a free paper. In a recent filing with the Securities and Exchange Commission, Hollinger International described both Reds as freebies. Reporting a dip in circulation revenues, Hollinger explained, “The decline in circulation revenue continues to be attributable to price discounting, particularly in the home delivery market. Although home delivery circulation has increased, single copy sales have declined from the prior year in large part as a consequence of free circulation papers offered by the Chicago Group and its primary competitor.”

Kirk calls this admission a milestone. “Hollinger’s disclosure,” he tells me, “was the first public disclosure that the Reds are eating into circulation in Chicago.” That’s why he inserted a mention of it high in Lazaroff’s story. But then he added a more extraneous fact from the SEC filing: “Overall, circulation revenue for Hollinger’s Chicago group of newspapers declined 4.8 percent in the second quarter.” Because he didn’t explain that Hollinger blamed discounted home-subscription prices, readers could easily assume the Reds caused this decline too.

And what about the Tribune? Was only the Sun-Times suffering? “To not include their own numbers in a story that ‘reports’ on the newspaper war that they are waging is lazy and incomplete,” protested the Sun-Times editor.

Kirk says he didn’t have anything equivalent to an SEC filing from the Tribune, where his sources all claimed their paper wasn’t being hurt by the Reds. Circulation figures reported by the two papers to the ABC hint that it might have been. For the six months that ended March 31, 2002, the Tribune reported Wednesday-Friday single-copy sales of 111,914 a day. (Monday-Tuesday sales, calculated separately, were slightly different.) For the next six months, ending September 29, 2002, single-copy sales for the same days of the week were 108,094. In October the Reds were launched. For the six months that ended March 30, 2003, Tribune single-copy sales were down to 97,585.

The Sun-Times prefers to calculate its ABC numbers on a Monday-Friday basis. For the same three reporting periods, single-copy sales figures were 320,328; 319,062; and 318,471. As Kirk says, these numbers don’t tell us much, because so many factors influence the impulse buying of daily newspapers. Street sales of broadsheet papers like the Tribune have been sinking for years anyway, regardless of new competition like the Reds. Tabloids like the Sun-Times have had some success keeping their numbers up, thanks to their handier size and a willingness to spice up the front page, but the Sun-Times may also have fought the Reds by discounting its 35-cent cover price more than it’s wanted to.

Whatever the effect of the Reds on single-copy sales, those have been dropping faster at the Tribune than at the Sun-Times.

Art accompanying story in printed newspaper (not available in this archive): illustration/William L. Brown.