The [Wednesday] Papers
"Attorneys for former Mayor Richard M. Daley's nephew want a judge to force three reporters working for the Chicago Sun-Times to turn over their interview records, saying their investigation may have contaminated key eyewitnesses who will testify at the nephew's upcoming manslaughter trial," the Tribune reports.
The Sun-Times reporters did more than simply interview the witnesses; they acted as pseudo-law enforcement officers by conducting photographic lineups, playing on witnesses' emotions to get information, and feeding them information," said the filing signed by Marc Martin, who along with Thomas Breen and Terence Gillespie are representing Vanecko.
A few thoughts:
1. It's always noxious when someone - usually the government - attempts to subpoeana reporters' notes. We see it play out again and again and again. If the judge were to grant this motion, think about the precedent: in every case going forward in which reporters have questioned witnesses, their notebooks would almost automatically become part of the court record. Press freedoms have been eviscerated enough in this country; this is lunacy.
2. Because of that, reporters typically refuse to give up their notes, arguing that they are not arms of law enforcement and must be allowed to do their work independently in order to preserve the First Amendment. The twist in this case is that the request is coming from the defense - which accuses Sun-Times reporters of acting as arms of law enforcement (or acting as pseudo-law enforcers, which is an accusation you could lob at just about any investigative reporter and be pseudo-correct). This makes little sense given that the target of the Sun-Times' reporting is as much law enforcement as Vanecko.
3. Could a reporter influence a witness? Sure - just like their friends and family and TV shows and books and any communicant on Earth could influence someone's thinking. But journalism isn't a contaminant, it's a disinfectant. Recollections are cross-checked with other evidence, including documents and other witness statements. A molded memory doesn't stand on its own.
Does that mean I'm automatically giving the Sun-Times a free pass? No. I have no idea if any reporters there crossed ethical boundaries. But I can say their work seems to have stood up - besides having been validated by a judge, a power-friendly prosecutor and a grand jury. Besides that, those reporters have earned a benefit of the doubt that lawyers with clients don't get and Anita Alvarez (see below) lost a long time ago given her performance in office.
4. Witnesses can be placed on the stand under oath and say for themselves if they've been unduly influenced. That's the place to settle disputes about who said what. But one thing we know for sure is that witnesses did lie - to the police. (See the item Today's Worst People In Chicago - Again)
5. The accusation against Sun-Times reporters isn't new. To wit:
"[Cook County State's Attorney] Alvarez criticized the Sun-Times' reporting, saying that during interviews with Inspector General Ferguson's office, 'several of the witnesses have given sworn statements directly refuting information they purportedly gave to the Sun-Times. In fact, a series of witnesses have testified what they said to the reporters was false.'"
Not according to judge Michael Toomin, who made the decision to appoint a special prosecutor.
"Toomin - who choked up at one point - said police reports apparently were fabricated to portray Koschman as the aggressor in the drunken confrontation, contrary to sworn statements witnesses gave last year during a reinvestigation of the case by Chicago Inspector General Joseph Ferguson, prompted by a Chicago Sun-Times investigation."
Besides that, defense attorneys will likely be free to introduce those sworn statements at trial, though I'm not so sure they will be more important than what witnesses told prosecutor Dan Webb's grand jury - contributing to a report so explosive it has been sealed until after any trial occurs.
"Vanecko's attorneys this week filed motions seeking to have the involuntary manslaughter indictment thrown out, to bar eyewitnesses from identifying Vanecko in court because photographs of him have appeared in the media and to revoke the judge's appointment of a special prosecutor.
"The only candid answer to the question of why a Special Prosecutor was appointed in this case was the Sun-Times insistence on it," the defense lawyers wrote.
I'm sure the Sun-Times is flattered, but they aren't institutionally that powerful. It was the reporting that led to Toomin's own review that led to the appointment of a special prosecutor.
"Declaring 'the system has failed' David Koschman, a Cook County judge took the rare step Friday of appointing a special prosecutor to re-examine the 2004 case of the 21-year-old from Mount Prospect who died as the result of being punched in the face by Richard J. 'R.J.' Vanecko, a nephew of then-Mayor Richard M. Daley," the Sun-Times reported in April 2012.
Cook County Circuit Judge Michael P. Toomin said it would be an "injustice" not to bring in an outside prosecutor to review the politically charged case - including the way it was handled by the Chicago Police Department and the Cook County State's Attorney's office.
Perhaps defense lawyers would like to subpoeana Toomin's notes and put him on the stand.
Of course I understand that Vanecko's lawyers are "only doing their job," but that doesn't mean we have to gladly accept their maneuvers. I certainly didn't when Dan Webb was on the other side of aisle.
"I'd hate to be picked as a juror in the trial of Richard 'R.J.' Vanecko, accused of manslaughter in the 2004 death of David Koschman," Mark "Charlie" Brown writes for the Sun-Times.
"That's going to be a difficult decision."
Really? Toomin doesn't think so - and I'd be disappointed if any clear-thinking reader of the Sun-Times thought so either.
"I've just finished reading through a batch of motions filed Monday by Vanecko's defense lawyers in anticipation of the trial currently scheduled for February, and my head is swimming."
First time reading motions? Or still trying to sort out whether Rahm Emanuel ever promised us a Children's Fund?
A reporter whose head is swimming from reading motions is a reporter whose judgement I do not trust.
"I'm proud of what we've done, but I won't have trouble living with any verdict rendered by a jury of Vanecko's peers."
If you're proud of what your paper has done, how can you be okay with an acquittal? The reporting clearly shows that Vanecko dropped David Koschman with one sucker-punch and then ran away, never to cooperate with police while his friends lied to law enforcement about the whole affair. I'm sure Vanecko didn't intend to kill him, but that's why the charge is involuntary manslaughter. To me, the question rests with whether his actions were "likely to cause great bodily harm."
But Vanecko's lawyers have obviously chosen to try to fuzz up the entire incident in order to get the exact reaction from jurors that they've gotten from Brown. Juries have to be better than that, though they often aren't.
"Vanecko's lawyers want Sun-Times reporters Tim Novak, Chris Fusco and Carol Marin to be required to testify.
"There's not much sense in that. As hard as they've worked to reconstruct the events of April 25, 2004, the reporters weren't out on Division Street that night and didn't see what took place. "
Um, they wouldn't be asked about what they saw that night - or about that night at all. They'd be asked about their witness interviews.
"The defense is even arguing that the grand jury indictment of Vanecko is invalid because Webb conducted the grand jury sessions at the downtown law offices of Winston & Strawn instead of at the Cook County Criminal Courts building at 26th and California - and may have fed them lunch.
"That certainly was unusual, but I don't think the net effect was to make the grand jury any more captive of the prosecutor than is the norm."
But you considered the possibility enough to mention it with sincerity?
Mark Brown, you are Today's Most Naive Person In Chicago.
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Posted on November 27, 2013
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