An NPR listener could easily have been excused last month for wondering why Illinois Gov. Rod Blagojevich isn't already behind bars.
The Democratic governor was arrested Dec. 9 on federal corruption charges, including allegedly trying to profit from picking a replacement for President-elect Barack Obama's former Senate seat.
After the Chicago arrest, U.S. Attorney Patrick J. Fitzgerald held a press conference where he selectively released salacious tidbits of wiretapped conversations between Blagojevich and associates. Fitzgerald said the governor's conduct "can only be described as a political corruption crime spree."
Fitzgerald described Blagojevich using other inflammatory language that some defense lawyers say raises questions about whether Fitzgerald overstepped rules that say a prosecutor should not discuss the merits of pending cases or air personal opinions.
Blagojevich coverage by NPR and other news outlets is an example of how the media often fail to restrain themselves when a voluble law enforcement official chooses to talk. In this case, there was an easily perceptible tone portraying the prosecutor as the good guy and the defendant as the dark villain — while the journalists were astonished.
Granted, Blagojevich is not someone who engenders compassion. His foul language, crass approach and arrogance toward the media and political system make him an easy target. Add to that, sensational charges filed by a high-profile, popular prosecutor who convicted former vice presidential aide Scooter Libby of perjury and obstructing the FBI in the Valerie Plame case.
"Blagojevich is hardly a sympathetic character but that doesn't mean we should be intentionally unfair," said Bob Steele, journalism values scholar at the Poynter Institute. "But it is harder to be fair when you have somebody who has behaved as he has. I find it very challenging for journalists to be able to achieve that level of fairness where many cards are faced down and the person accused is taking a hell or high water approach."
Even so, in reporting sensational charges, journalists should try to avoid painting the defendant as obviously guilty. It's exactly in this kind of situation that the news media needs to examine its own assumptions about someone's guilt and ask critical questions: "Are we being fair? Are we asking tough enough questions? Are we doing everything possible to get the side of the person charged?"
I examined the first three days of NPR's coverage because it set the tone and established the story in the public's mind. Since then the coverage has shifted toward being fairer to both sides.
When NPR's David Schaper first described the charges on Dec. 9, Morning Edition host Renee Montagne's initial reaction was: "Well, isn't it sort of startling, especially from the outside, at sort of the boldness of it?" (One minute 20 seconds later she said, "Well, of course, it's just alleged."). However, throwing in the word alleged does not excuse the media from being fair, noted Steele.
Later that day, Talk of the Nation host Neal Conan said to his guest: "And that Rod Blagojevich ran on the promise that he would stop the play-for-pay corruption culture in Illinois and in Chicago, and you can look at these charges and then figure out what he did was double down on play for pay."
That night on All Things Considered, host Robert Siegel talked with a Chicago columnist. "First, I know that Chicago journalists are accustomed to corruption stories, but many of the remarks attributed to the governor and evidently recorded are just breathtaking in their cynicism and their corruption," Siegel said. "If I followed Chicago politics the way you do, would I be less astonished by all of these?"
There are other examples in tone and story choice. But my goal isn't to single out specific NPR journalists. It's to point out that journalists have a responsibility to be fair to Blagojevich, to be skeptical and to better explain how the criminal justice system works. A prosecutor usually has the advantage with resources in leveling charges. A criminal complaint is usually authored to make the defendant look guilty.
"The news media are extraordinarily unsophisticated in legal matters," said Harvey Silverglate, of Boston who has spent 40 years as a criminal defense attorney. That charge could include NPR, as four on-air journalists covering the first-day story incorrectly referred to Fitzgerald's 76-page complaint as an indictment.
(It should be noted that an all-staff memo to correct the mistake was sent shortly after the news conference.) An indictment comes after a grand jury investigation, which has yet to happen. Monday, Fitzgerald requested more time before asking for an indictment.
Questions should have been raised promptly after Fitzgerald's announcement about the nature of the evidence and the investigation. Since all the wiretap transcripts are not public, NPR listeners have no way of knowing exactly what Fitzgerald does — or doesn't — have on Blagojevich.
"The prosecutor released snippets of these conversations," said Silverglate, who has no role in this case. "If you look closely at the papers released, it actually looks like Blagojevich was looking to give the seat to somebody who would do him the most good. Had Fitzgerald let the scenario play on, it's quite likely no crime would have been committed. The governor would have selected the person who would have done his career the most good, and that's not a crime. If it's a crime, virtually every politician in the country is guilty of it."
After Fitzgerald's press conference, it was the media's job to shine a light on the prosecutor's actions as well as his target.
"Part of a story like this is holding the system accountable," said Steele, who also teaches journalism at DePauw University. "Fitzgerald said the charges would make Lincoln roll over in his grave. I'd use that quote [as a reporter] and get some independent experts. Is Fitzgerald operating properly with a case like this? The news media needs to be holding him accountable at the same time you are holding the governor accountable."
NPR's Ari Shapiro did a five-minute Fitzgerald profile on Dec. 10 on All Things Considered that quoted two people, both of whom praised Fitzgerald.
"The duty to fairness is among the most important responsibilities of good journalists, and NPR journalists honor it virtually every hour of every day on stories large and small," said Brian Duffy, NPR's managing editor. "That's the standard—no ifs, ands or buts. On a fast-breaking story like that involving the allegations against Governor Blagojevich—involving national politics, evidence of highly unseemly behavior, and some unusually strong accusatory language from a high-profile federal prosecutor—even the best journalists can, and sometimes do, resort to language that is not as carefully qualified as it could be."
There were 23 Blagojevich stories across NPR shows before Morning Edition on Dec. 11 asked key questions: Since Blagojevich never actually sold the Senate seat, is talking about a crime an actual crime? How strong a case does Fitzgerald have?
"You've got some ugly talk but where's the evidence of an actual solicitation of a bribe?" said William Jeffress, who represented Scooter Libby. "It's certainly not on the tapes. Obviously, what's on the tapes is ugly enough to ruin Blagojevich's reputation. But whether that's going to be enough to convict him of a crime remains to be seen."
Blagojevich was charged with conspiracy to commit mail and wire fraud and solicitation of bribery. For a conspiracy to be a prosecutable crime there has to be an overt act, according to former federal prosecutor Barry Coburn, who wrote about Fitzgerald in a New York Times op-ed.
It certainly is not unprecedented for the news media to convict someone before he or she has gone to trial. In one of the most famous cases, the Supreme Court in 1966 ruled that an Ohio doctor, Sam Shepard (no relation to me), had been convicted of murdering his wife because of the "carnival atmosphere" resulting from pretrial publicity.
More recently, such people as Richard Jewell, Wen Ho Lee, and Steven Hatfill were identified by law enforcement officials as likely suspects and then judged guilty in the court of public opinion. And in each case, law enforcement — and by default the media — were wrong.
Even if it turns out Blagojevich is guilty, that does not excuse NPR from reporting the story fairly and responsibly. And that means avoiding the temptation to convict him before he has had his day in court.