By Michael Miner
Keeping Emergencies Quiet
The late Supreme Court justice William O. Douglas declared in 1965 that a right to privacy could be found in the "penumbras" of the Constitution. This distressed legal scholars who weren't so sure the Constitution had penumbras, and reassured folk who didn't care where our right to privacy was found as long as we had one somewhere.
Douglas was defending the sanctity of the bedroom. More recently the city of Chicago has defended the sanctity of the telephone. The city is gallantly championing the proposition that a 911 call is strictly between you and the police department. The voice to the contrary belongs to the Medill journalism school at Northwestern, which maintains that a police force answerable to the public must account for its behavior from the first ring of every call for help.
Last May, Medill student Jason Meisner filed a Freedom of Information Act request for a copy of the 911 tape "recorded on March 21, 1997 in the area of Princeton Avenue and 31st Street, Chicago. The specific time frame I am seeking is from 8 p.m. to 10 p.m. on the above date, and the specific call originated from the Armour Square neighborhood."
Meisner wanted to track down the 911 call that alerted police to the notorious beating of 13-year-old Lenard Clark. Professor Jack Doppelt says his class had heard conflicting rumors about that tape: that it tended to exculpate one of the three De La Salle Institute youths charged in the beating, that it implicated someone whose name hadn't surfaced yet in the media, that it contained nothing of consequence. Before focusing on the Clark case, Doppelt's class had been researching public access to documents, and one student had come across a recent Ohio case that established a principle there of access to 911 tapes.
"That got us to thinking," says Doppelt. "Gosh, in Chicago the way it's always been is that we tended to get 911 tapes sporadically and erratically. The police would give them to you sometimes, when it was in their interest to give them to you." When it wasn't, they wouldn't. But that's when the tapes might be most informative--"as necessary information for doing stories on how the police go about their jobs."
The police turned down Medill's FOIA request. The police superintendent's office denied an appeal. So in December Doppelt and Meisner--represented by the Northwestern University Legal Clinic--went to court.
Their complaint quoted the Illinois Emergency Telephone System Act: "9-1-1 information consisting of names, addresses and telephone numbers of telephone customers whose listings are not published in directories or listed in Directory Assistance Offices is confidential." It followed, they reasoned, "that all other 911 call information--including the content of 911 calls--is freely discloseable.
...The CPD's argument that all 911 callers have an expectation of privacy is foreclosed by [the emergency telephone act], according to which only those callers who have taken the extra step of requesting that their telephone numbers be unlisted have an expectation of privacy when they make 911 calls."
The complaint then quoted from the 1996 Ohio decision: "There is no expectation of privacy when a person makes a 911 call. Instead, there is an expectation that the information provided will be recorded and disclosed to the public."
A lot of people probably won't buy this. They would protest that there's every expectation on the part of a 911 caller tipping off the police that the cops will keep the confidence. They'd think it's absurd to propose that someone who makes a 911 call should have planned for it ahead of time by switching to an unlisted phone number. And they'd sympathize with the supreme court judge in Ohio who reluctantly went along with the majority's reading of Ohio law but added, "I cannot agree with the law....Is it necessary for families to have their most tragic and personal moments broadcast for all to hear? Does a personal tragedy become a public spectacle simply because a person phones the police for aid?"
Doppelt knows what your answer is. It's his too. "No, it's not necessary, and it's not likely," he told me. "One of the problems with where we are, with both responsible journalism and the media as a whole, is that we keep having to fight the specter of a gonzo, irresponsible media at almost every juncture. Attempts to get this type of information, as with attempts years ago to get basic government documents by FOIA requests, are colored by the fear that this gonzo media ghost is going to be taking everything and running amok. But the reality is that historically we have had hundreds of advances in getting information on what government does, and they have proven to be far more beneficial to what people need to know about what's going on than they have been invasive of people's privacy."
In their complaint Doppelt and Meisner offered a compromise: "Even if there were some privacy interest in a 911 call that could conceivably be articulated by the CPD, such interest could be protected by deleting the identification of the caller from the tape." The crucial principle was this: "The CPD should not be permitted to have the discretion to disclose only those tapes that show their employees in a favorable light."
In response, the corporation counsel argued that the person who alerted the police to Lenard Clark's beating richly deserved protection. The informant "should not now be penalized for this civic-minded act by having his or her voice--and thereby identity--transmitted to the world, exposing this individual to the full force of the media and...to potential reprisals." The caller's "voice is distinct," said the city; furthermore, the tape indicates where the call was placed. The caller, the city reminded the court, was a "potential witness in a felony criminal prosecution." Release of the tape, especially if it were broadcast repeatedly, could compromise that prosecution.
Medill's interpretation of the emergency telephone act was "utterly inapposite," the city argued. And as for the Illinois Freedom of Information Act, its own language declares that it's not intended "to be used to violate individual privacy, nor for the purpose of furthering commercial enterprise, or to disrupt the duly-undertaken work of any public body." Turning over the 911 tape to Medill would do all three things, the city declared.
The courts have gone along with the city. Chancery judge Michael Getty, who was hearing the Medill complaint, sat down last month with criminal court judge Daniel Locallo and together they listened to the 911 tape. Then Locallo, who's presiding over the Clark case, listened to the tape with the case's prosecutors and defense attorneys. On January 26 Locallo ruled that releasing the tape "would interfere with this court's ability to give both sides a fair trial." He didn't say how. The trial's supposed to begin in mid-March.
That's not the end of it. Last week Doppelt filed a FOIA request for tapes of two 911 calls in Beverly--one reporting a fire, the other a heart attack. Doppelt says a community group has been trying to get the tapes "to document the slow response times of emergency vehicles because of the cul-de-sacs in their neighborhood." The primacy of journalism's need to establish who said what to alert police to a brutal beating might be hard to buy, but the public's right to establish that fire trucks aren't getting through is pretty undebatable.
"Probably the best analogue to the judge's question," said Doppelt, still thinking of the Ohio decision, "is cameras in the court and Court TV. Everyone thought with cameras in the courtroom all television news would give you is one crying person on the stand after another crying person. And though there are cameras in more than 40 states, generally that's not what's happened. Lazy television and gonzo television will periodically put that stuff on, but most television stations don't abuse it.
"The same thing will happen with 911. Periodically you'll hear a 911 tape that comes from some remote state that sounds sensationalized, but not much--and you'll have 911 tapes used for appropriate purposes. For policy decisions and exposure of something that went wrong that otherwise we wouldn't know about."
No News Like Old News
The Sun-Times missed a big one last Wednesday, the story of the 12-year-old Latin Saints wannabe charged with gunning down two Back of the Yards teenagers. The Tribune put its stories (three in all, plus seven photos and a chart) across the top of page one and all over page ten. The Sun-Times's police-blotter account occupied a corner of page 21.
Editor Nigel Wade, who, to his credit, is wary of crime stories, had misjudged. His lead story Wednesday, to his further credit, was the execution of Karla Faye Tucker. But he didn't see much significance in the tragedy of a white kid who wanted so badly to belong that he murdered two black kids on a street corner. The Sun-Times didn't bother covering the neighborhood vigil Tuesday night, and though it had sent a reporter into the area earlier on Tuesday to collect color, it didn't use what he filed.
By Wednesday morning Wade recognized his blunder and was storming. He decided to lead the Sun-Times into battle 24 hours late but with so many trumpets blaring and banners waving that Chicago wouldn't remember who got to the story first.
To the astonishment of his staff, Wade announced that he and the Sun-Times editorial board would descend en masse on Seward Academy, the public school the 12-year-old attended, to see what was what. The results of this expedition were displayed conspicuously in Thursday's paper: an editorial asserting that "there are no easy answers here," a color photo of the six-person Sun-Times delegation around the conference table with the principal and assistant principal of Seward Academy, and two deft columns by editorial board members Dennis Byrne and Mary Mitchell.
It was a spectacular recovery from the depths of humiliation. And, to flabbergasted reporters who watched the truth squad go storming out, something of a hoot.
Justice Makes a Killing
Bosnian Serbs overran Muslim villages, raping, torturing, and murdering. No one I recall praised the Serbs for refusing to coddle the womenfolk, or urged them to knock off the raping and kill everyone straightaway in the name of sexual equity. If raped Muslim women made us care about the distant Balkan war, hardened commentators didn't ridicule our chivalric sentimentality. (Though in light of the halfhearted Western response to the slaughter, those raped women made terribly ineffective poster art.)
Richard Roeper compared Karla Faye Tucker to a baby seal. A woman commentator on NPR advised her to "take it like a man." A woman columnist at the San Francisco Chronicle mocked the National Organization for Women for not telling Governor George W. Bush of Texas "that feminists resent the prospect of differential treatment because Tucker is female." A writer at the Los Angeles Times described Tucker as a "petite, photogenic, rosy-lipped woman of 38 with flowing brown curls" and said that if she'd been just another born-again mope on death row no one would have given a damn about her.
Everyone milked that irony. It was as hard to spot as a hearse in a driveway. The way Americans have been blinding themselves to capital punishment, Tucker's execution might have been our last chance to look at it with even one eye. Instead, we wondered if the proper thing to do was to shut it.
If you think, as I do, that Tucker's execution was a moral travesty that dwarfs a White House blow job, you might wish, as I do, that pundits had seized the opportunity to protest the outrage. The most newsworthy thing isn't that it took a dame to remind us of the death mill; it's the mill itself. Which isn't merely a clemency board that with the courts' endorsement never offers clemency, but the alienation of mercy from justice. Neither can exist in the other's absence--or so I was raised to believe--but they've somehow become not merely separated but antithetical.
Here is justice, in the words of a hard-boiled columnist with the Orlando Sentinel: "Liberal elitists should be careful. It is a dangerous thing to deny people justice....
Vigilantism is always a result of a failure of the state to perform one of its most basic functions--providing justice." Here is mercy, in the view of the head of Texas's clemency board: "Mercy was already considered by the jury when they sentenced her to die." That was in 1984. And here is Tucker's champion, Pat Robertson, asserting their natural antagonism: "There are times when mercy overwhelms justice."
The deference shown the 14-year-old sentence even by Tucker's partisans made their support for her surreal. "A jury made the decision that she should get the death penalty," the detective who arrested Tucker for her two pickax murders told the Los Angeles Times. "I agreed with it then and I agree with it now. I don't look forward to her being executed, but it was a just sentence for the crime that was committed." Rusty Hardin, who'd prosecuted Tucker's codefendant and wanted Tucker to live, told the Times, "But I refuse to recommend what I personally hope happens. I don't think it is my role as a former prosecutor to ask anybody to go back on a jury verdict." Governor Bush made it clear that there was no place for second thoughts--if the trial had been fair and guilt was not in dispute, he washed his hands.
Karla Faye Tucker's life ended on schedule because there was no way for anyone to save it. The machinery had no off switch. Few media commentators wanted to see her die--at least few said or wrote that they did--but they didn't risk two cents of moral capital pleading for her. The story journalism decided to tell was "Why this is the story we're telling," a stupid, easy story that did neither Tucker, mercy, nor justice an ounce of good.
Art accompanying story in printed newspaper (not available in this archive): Jack Doppelt photo by Nathan Mandell.