Angry DAs Battle Critics on the Web
By Pamela A. MacLean
The National Law Journal
11-16-2006
A few California district attorneys are mad as hell at the press and they're not going to take it anymore.
Critical media coverage has prompted local district attorneys in San Jose, Bakersfield and Orange County, as well as a city attorney in San Diego, to take on local newspaper criticism by posting responses on the Internet through county Web pages and, in the case of San Diego, regular blog postings.
It signals new media savvy among the prosecutors, but it also raises the potential risk of tainting the process by crossing ethical lines that might prejudice an active case, waive work-product privileges or lock prosecutors into a strategy before the case fully develops, warned Laurie Levenson, a former prosecutor and now a professor at Loyola Law School, Los Angeles.
"They are just raising the stakes by taking on the paper through a Web page. Mark Twain was right -- 'Don't fight people who buy ink by the barrel,'" Levenson said. "I love the fact the public remains more informed about what is going on in a prosecutor's office, but the question remains: How carefully monitored is it, and does it impact the right to a fair trial?"
BATTLE IN BAKERSFIELD
Those worries don't deter the most aggressive of the media critics, Kern County District Attorney Edward Jagels from the conservative Central Valley region around Bakersfield.
He launched what he promised to be a weekly column on the county government's Web page called "Every Lie They Print," taking on the Bakersfield Californian's crime reporting.
Jagels was particularly upset by reporting of the appellate reversal of a murder conviction based on a prosecutor withholding from the defense negative details about an informant in the case.
Jagels said that if the honesty and integrity of police and the district attorney's office is "maligned through innuendo and scandal mongering, it is essential that I comment."
The paper has written about Jagels' Web site and pointed readers to it from the Californian's Web site. There are mixed feelings about it in the newsroom, according to Assistant Managing Editor Lois Henry.
"There are people here who feel this is a breathless abuse of power by a very, very powerful man ... . Others in the newsroom think it is an interesting exchange that we would not be able to do without the technology," Henry said.
In Santa Clara County, retiring District Attorney George Kennedy posted statements in August and October on the county Web page accusing the San Jose Mercury News of distorting the record in an investigative series that alleged "questionable conduct" in criminal prosecutions it reviewed.
"I thought there should be some place in the public record a refutation of things that are really false," Kennedy said. "I'm hoping when people do Web research years off in the future and they find this [series], they will find my page also. It goes to making a more complete record," he said.
Bert Robinson, Mercury News assistant managing editor, said that Kennedy had space to respond in an opinion page to readers of the series.
"I don't have a problem with him doing something in addition to that," Robinson said. "We think it's wonderful people can get their point of view out."
But Robinson added, "I hope public officials don't get to the point they substitute the Web page for interacting with the press."
That may be what is evolving in San Diego, where City Attorney Michael Aguirre maintains a blog on the city's Web page to expound on the city's financial problems from underfunding of city pensions to bond debt spent for upgrading the football stadium.
Aguirre critiques the San Diego Union-Tribune's coverage as well, and in an Oct. 13 posting responded to political criticism from the last election.
In Orange County, the media affairs officer for District Attorney Tony Rackauckas took on a Los Angeles Times reporter who covers the county.
Susan Kang Schroeder criticized the reporter's ethics and warned others in an agency-wide e-mail to use "extreme caution" in dealing with her.
The e-mails surfaced in a competing local paper. Internet criticism in 2003 and 2004 by Rackauckas' office and temporarily refusing to return calls to Times reporters didn't improve matters.
Times Orange County editor Steve Marble called the September e-mail a "shocking personal attack" on a reporter and full of misstatements in one media account.

I am not surprised by responses ranging from "breathless" abuse of a public position to the slightly more conciliatory "there's always a place for a response on the opinion page." What seems to be missing, however, is any discussion of how an op-ed piece might be seen as inadequate to correct for the loss of balance when it responds to a viewpoint contained in a "news" story. It used to be preached that one of the cardinal rules in journalism was to get attributed material from both sides of a dispute if a news story was to be the ultimate product. Heck, even opinion pieces were supposed to contain statements from the "bad guys," if for no other reason than to show that the other side had been considered and to lay the foundation for why that perspective was rejected. As I have learned the hard way, though, even distilling a prosecution argument down to sound bites will sometimes be brushed aside in the interest of pursuing an agenda. So the real argument of why it may be necessary to fight fire with fire remains largely unaddressed.

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Times Orange County editor Steve Marble called the September e-mail a "shocking personal attack" on a reporter and full of misstatements in one media account.

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Hurts when the shoe is on the other foot, doesn't it?

How about the "breathless" arrogance of the press in its indignation that prosecutors might actually respond to their frequent attacks on our credibility and integrity?

seconded, Shane and Gretch.

I feel so sorry for that reporter.