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Gag Order 

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By Michael Miner

Gag Order

The Illinois Supreme Court infuriated a lot of important people last October by announcing new rules to govern how prosecutors and reporters deal with the police and each other. The court was fixing something none of these groups considered broken.

Prosecutors are so unhappy with revised rules 3.6 and 3.8 of the court's "Rules of Professional Conduct" that they sued to block them. The Illinois Press Association filed a brief on behalf of the prosecutors and, after the suit was lost and the rules took effect on March 16, issued a statement expressing "outrage" over news "blackouts" that executive director Dave Bennett called "unprecedented and very dangerous." Now the IPA intends to try to overturn the rules in federal court.

If you read last week's Hot Type and marveled at the blistering hostility to the Chicago Tribune expressed by groups of prosecutors, you might have supposed that the press and the forces of law and order are natural enemies. They aren't. They share an old, familiar, workaday relationship that cops, prosecutors, and reporters all have an interest in preserving. Cops and prosecutors routinely know things the public finds out. Reporters are the ones who do the telling.

Having failed to block the new rules, the state's attorneys of Illinois went about the mournful task of explaining them to local sheriffs and police chiefs. The letter from William Haine, state's attorney of Madison County, which lies across the river from Saint Louis, began like this:

"Despite objections from the Illinois Attorney General, U.S. Attorneys, and the Illinois State's Attorneys Association, the Illinois Supreme Court implemented new Rules concerning trial publicity....Prosecutors believe these new Rules severely restrict what can be disclosed to the press and, thereby, to the citizens."

This preamble as much as announced that Haine was holding his nose as he typed. He told me this week, "I've discharged the obligation placed upon me by the supreme court rule. Now it's up to the fourth estate to look for ways to get around the rule. Which they'll do."

Are you rooting for them? I asked.

"These are friends of mine. I'm a frustrated journalist myself," he replied. "As far as I'm concerned, more power to them....Newspaper reporters are like water. They seek their own level. They'll find a way to get around this. Police officials talk. Judges talk. Lawyers talk. They'll just have to work a bit harder."

The rewritten rules are a little broader and more detailed than their predecessors, and at one or two points could strike a layman as ludicrous. Litigators are warned against expressing "any opinion as to the guilt or innocence of a defendant or suspect in a criminal case," and even against stating "the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent unless proven guilty." This seems to say that when police nab a suspect at gunpoint and toss him in jail without bond, no one should conclude that the police think he's done anything wrong. Even the DA trying him for murder will be expected to assert his innocence.

New rules, like new shoes, chafe. Their first effect--for better and worse--is to remind everyone that there are rules. Haine told me cops and prosecutors are now walking on eggs because by telling officers what they can and can't do, the supreme court has also told defense attorneys where to look for error that supports an appeal. One new rule that prosecutors say is preposterous requires them to "exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an [inappropriate] extrajudicial statement." Or as a member of Cook County state's attorney Richard Devine's staff puts it, "We must try to persuade cops to button up."

Prosecutors and cops certainly talk to each other, with each group influencing how the other does its job. But prosecutors don't see monitoring cops' conversations with reporters as one of their formal duties, and they have no idea what "reasonable care" is supposed to mean. "This may have dire ramifications for our cases," said Haine. "Defense attorneys may file motions based on us not advising the cops. Or cops not following our orders."

Heather Ratcliffe covers the Illinois side of the river for the Saint Louis Post-Dispatch. She says "hysteria broke out" at meetings where state's attorneys explained the new rules to local cops: "The police assumed 'We can't give out any information,' and they basically shut down all of the flow of information. For a couple of days there were notices in the local papers saying, 'Normally we publish a crime roundup, but we can't anymore because of the cops.'"

Ratcliffe reacted, as Haine said reporters must, by working harder. She started filing Freedom of Information requests for the sort of data that used to be hers for the asking. Before long, cops started giving her information again--"though now generally only the chief will do it."

To judge from anecdotal evidence, Cook County has been much less affected by the new rules than downstate. This could be because police here are more sophisticated, have always known how to manipulate the flow of information to the press, and don't intend to stop. Even so, Dale Cohen, senior counsel for the Tribune, doesn't like the rules and supports whatever the IPA will do to repeal them. "These rules are going to create self-censorship among prosecutors and police departments," he told me, "and the result will be less information about both high-profile and routine criminal matters."

Who wanted these new rules anyway? They were written by the Supreme Court Committee on Professional Responsibility, whose chairman, Chicago attorney William Quinlan, says Illinois and other states are simply bringing their rules of professional conduct into alignment with standards set by the U.S. Supreme Court in 1991. He thinks state's attorneys have reacted badly because they already felt under siege when the new rules came along--recall those two infuriating Tribune series, "Trial & Error, How Prosecutors Sacrifice Justice to Win" and "The Failure of the Death Penalty in Illinois." To prosecutors the new rules of conduct are the supreme court's attempt to make them clean up their act, adding insult to injury.

"I don't see where state's attorneys have been abusing the rules," said William Haine. "There hasn't been a case in Illinois reversed for pretrial statements since World War II, I've been told. In my view, this uses the disciplinary rules as an indirect way for the judiciary to regulate the executive branch of government, which is a separate branch. I find that troubling. State's attorneys are caught in the middle between reporters, who legitimately want to know the background of a case, and the police. This is a Serbonian bog we're in, as Cardozo once said. But we're soldiers, we salute, and we're doing the best we can with it."

He wasn't done. "We as state's attorneys are accountable to the people. We should be given wide discretion to explain the details of a charge--what we're doing, what the police are doing. If we exceed that, sanctions have been in place for decades. One law professor said we overreacted. Yeah, he doesn't practice law in the real world, where lawyers dream up motions to attack judgments and verdicts. This is part of a trend that seems to imply or even state that prosecutors are overzealous, they're not careful, they're uncaring. We have the death penalty moratorium. His excellency, the governor, said, 'It's shameful. Our system is shameful.' He used the word shameful. I mean, it may be--it certainly is--in need of improvement. But I wouldn't call the administration of justice in Illinois shameful. We're not Haiti or Russia or communist China. It's not shameful. This rule here assumes state's attorneys are talking too much to the press, prejudicing the rights of defendants.

"I got into a discussion with reporters last night. I said, 'Don't blame the messenger. We're carrying the spear for the emperor.' We're not doing this because we like to. We're looking over our shoulder at what may happen if we don't take reasonable care. What may happen to our verdicts. What may happen to us as licensed attorneys. It's like someone writing an article on Normandy Beach, on how many innocent Frenchmen were killed by the D-day bombing, and forgetting the fact they're defeating the Nazi army. We can all talk about mistakes of a human system, but what is the general pattern of the judicial system in Illinois? There are thousands of decisions in Illinois every year that are fairly rendered.

"The fact that there are 13 people on death row who have been released means somebody is willing to say, 'We made a mistake.' And that is 13, by the way, matched with 186 fairly rendered death penalty cases, I think it is. The governor referred to 13 people released from death row and 12 executed, like 'Gee! That's a bad percentage!' But that's not the correct percentage. The correct percentage is 13 versus 186, and no one can cite a case where someone was wrongfully executed. [Anthony] Porter came pretty close, but he's a rare exception. Again, human perfection doesn't exist in this world, but the administration of justice in Illinois is certainly not shameful.

"I'm not saying some of us aren't overzealous sometimes, but that's why we have an independent judiciary, and it's why we run for office. We're not ministerial officers. We're discretionary officers of the highest order. I just won the Democratic primary for a fourth term, but most state's attorneys don't survive. We had 21 defeated this past March in the primaries, and another 18 or so have opponents in the fall. It's not a real good time for state's attorneys."

News Bites

A lively story on Bobby Knight led the Sun-Times sports section last Friday. The byline told us it had been written by Tom Maloney of the National Post, and a note at the end of the story explained that "the National Post is Canada's national newspaper and, like the Chicago Sun-Times, is owned by Hollinger International." This isn't exactly true. The National Post is a national newspaper all right, but not the one and only. It isn't as large, old, or prestigious as Canada's Globe and Mail.

That said, it's nice having it available to the Sun-Times, along with London's Daily Telegraph and the Jerusalem Post, a couple of other Hollinger papers whose stories the Sun-Times often reprints. The benefits of Hollinger ownership don't end there. The same edition of the Sun-Times also carried a northwest Indiana story borrowed from the Post-Tribune in Gary.

The Post-Tribune is a recent acquisition that's been added to the Chicago Sun-Times Newspaper Network--papers in this region that share a Web site and some editorial assets and allow Hollinger to offer package deals to advertisers. If you read the Sun-Times or Post-Tribune or Daily Southtown or a Star newspaper or any title from Pioneer Press, you're reading Hollinger. And the other day the company added the 14 north-side and north-suburban weeklies of Lerner Communications.

The Lerner papers have seen better days, but they do enjoy a venerable and honorable history. Their own coverage of their purchase by Hollinger was oddly diffident--there was a column-wide item in the upper left corner of page one of my local Booster--while the Sun-Times itself ran only a business brief. It appears a new level of self-awareness has taken hold at Hollinger--the chain now controls more local newspapers than it wants to brag about. As Hollinger surely knows, people are fonder of their favorite home-style ice cream, or microbrew, or faithful clarion when they can pretend they don't know it's a wholly owned subsidiary of a global behmoth.

Richard Roeper wrote a strange column last week on the sexual prejudices of contemporary American society. His approach was to imagine our descendants looking back from a "more sophisticated future" in astonishment at these "medieval times," when priests couldn't marry, women couldn't become priests, and men holding hands in public could be beaten to a pulp.

What made Roeper's piece so odd was its optimism. He expects life to go from pretty good now to a lot better. See, he's young. By the time most pundits get around to excoriating the times they live in, they have one foot on a pedestal and the other in the grave. Imagining tomorrow as a dystopian nightmare is their way of dealing with a future all too happy to get along without them.

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