The Dailies' Unmentionables/ Drug Wars Revisted/ Vistory Sweet if Small/ Father Knows Best | Media | Chicago Reader

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The Dailies' Unmentionables/ Drug Wars Revisted/ Vistory Sweet if Small/ Father Knows Best

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By Michael Miner

When snow slams into the city, the dailies spare no detail of civilization brought to its knees.

No, I take that back. They spare one. We read about the schools closed, the travelers marooned, the cars buried, the gritty firefighters leaning into the howling wind. But for some reason there's never any vivid writing about the communications breakdown--the newspapers that never arrive.

Neither the Tribune nor the New York Times (which the Tribune delivers in Chicago) showed up on my front porch Sunday. Did you get yours? My route man tells me he didn't deliver a single one of the 200 Tribunes he's responsible for, because the first Tribune truck bringing papers to the drop-off point got stuck in the snow and a second one wasn't sent out. He said some 50 routes are supplied by those two trucks.

Sheila Davidson, director of distribution services for the Tribune, says at least 40,000 papers weren't delivered when they should have been Sunday morning on the north side. "Drivers couldn't get to buildings. Drivers couldn't get out of their own houses. We had to practically plow the streets ourselves."

But despite blanket coverage of the storm in both Monday papers, the travails of their own doughty couriers were somehow overlooked. Perfunctory apologies for disrupted service showed up Tuesday. But where was the drama of a city deprived--the shattering emptiness of a Sunday passed without the Times crossword puzzle, without Arianna Huffington, without Marilyn vos Savant?

"There was a substantial number of papers, in the thousands, we did not get delivery for," says Mark Hornung, circulation boss of the Sun-Times. "What makes it very difficult and very painful is that if you're in the business of trying to please your customers, once you've missed deliveries to the extent we missed them, the phone room goes nuts. Then phone lines get jammed, and customers feel totally abandoned. You really have a very short window in which to placate them."

Hornung adds, "We've had tens of thousands of calls, and there aren't enough trunks to take all that volume"--which presumably means tens of thousands of subscribers who didn't get their Sun-Times.

"The unnerving thing is that many of our own employees didn't get the paper," Hornung says. "They feel cheated."

I buy the Sunday Sun-Times at the store in order to read the latest edition. The store I finally made it to in the early afternoon was out of every edition. "We cut our draws substantially," said Hornung, "and most of the time the stores are very happy not to take more papers. We got complaints Sunday from six stores that we'd cut their draws too much."

Both papers were trying to deliver the Sunday paper by Tuesday, and offering a credit to any subscriber who asked for it. Which is as it should be. It's not a crisis the papers draw our attention to, but a city denied its newspapers is in straits as desperate as a city denied its schools.

Drug Wars Revisited

Last month federal judge Charles Kocoras took the kind of decisive judicial action that makes journalists kneel with gratitude: he threw out a case too complex for journalism. As I wrote last month, some 40,000 retail pharmacies had sued drug manufacturers and wholesalers, charging them with conspiring to fix prices via an elaborate scheme in which wholesalers were reimbursed when they sold drugs to some outlets but not to others. Reports on a trial in progress are easy when it's a juicy murder, but this sort of socially significant but gargantuan litigation defies a snappy overview. Kokoras, thank God, cut to the verdict. What's more, he made it easy for the press by handing them a perfect foil: Nobel Prize-winning economist Robert Lucas of the University of Chicago.

"Sad to say, professor Lucas' testimony did not measure up to his unique qualifications," said Kocoras, dismissing the plaintiffs' $600-an-hour expert witness as "deeply ignorant...of the pharmaceutical industry."

Afterward, Tribune business columnist David Greising read through the transcript of Lucas's hundreds of pages of testimony and damned him as a "rent-an-expert" who came to court "ill-prepared" and "cut corners like a stock boy on the clock at the local grocery store." Then the Tribune editorial page quoted Kocoras condemning Lucas and applauding the judge's blow at "the 'rent-an-expert' phenomenon."

Where was the context for these spirited conclusions? Had the Tribune set the stage by reporting Lucas's testimony when he offered it? No. "The journalism was all commentary and no coverage," I wrote in December. Not that there's any way I know of for the press to have distilled Lucas's 694 pages of testimony into a few hundred words of comprehensive, dispassionate journalism. Sometimes the choice is between telling readers what to think and telling them nothing.

Lucas's conduct, at any rate, had almost nothing to do with the issues in the trial. And Kocoras's decision to end the trial didn't resolve them. The plaintiffs' appeal is next, which brings up another example of unreported context. The plaintiffs point out that Kocoras's rulings in this case have been appealed before and overturned before. His knack for framing issues quotably has not--in the eyes of the Seventh Circuit Court of Appeals--guaranteed that he's framed them properly.

In the summer of 1997 a three-judge Seventh Circuit panel overturned four separate rulings of the judge. The two most significant had summarily dropped one of the manufacturers, the DuPont Merck Pharmaceutical Company, and all the wholesalers from the suit. Appellate judge Richard Posner wrote: "Pretrial discovery included the taking of a thousand depositions and the production of fifty million [the italics are Posner's] pages of documents, and from this indigestible mass the plaintiffs have plucked a number of tasty morsels to garnish their briefs....The defendants argue that each of these 'smoking guns' is susceptible of an innocent interpretation....The defendants' interpretations may be correct; they are not inevitable."

DuPont Merck had argued that when it was formed in 1991 it ended the discounting policies of its manufacturing predecessors, DuPont Pharma and Merck. Posner wrote that "DuPont Merck's extraordinary but not improper argument that it thumbed its nose at the manufacturers' cartel because it had sufficient monopoly power on its own to obtain higher profits by a unilateral pricing policy, namely that of giving no discounts to anyone," was "not an absurd argument; it may for all we know be entirely sound; it is backed by evidence." But before 1991 "DuPont Pharma had a two-price policy...and it participated in the trade association meetings in which, if the plaintiffs' 'smoking gun' evidence is credited...the conspiracy was hatched or nurtured."

Well, the plaintiffs' "smoking gun" evidence hasn't been credited. Kocoras--preempting the jury--rejected it. Will Posner and the Seventh Circuit overrule him again? Stay tuned. A lot more is at stake in this case than Robert Lucas's lucrative sideline.

Victory Sweet if Small

"What do I expect to get out of this?" Dwight Biermann asked rhetorically 13 months ago. "Zip. Well, not zip. This is my 15 minutes of fame, isn't it?"

The results are in. Biermann's total haul comes to 15 minutes, a grand and a half, and a new wrinkle in labor law.

Biermann, 30, used to run computer operations at the Herald-Palladium in Saint Joseph, Michigan. The paper is owned by American Publishing Company, a division of Hollinger International, which controls the Sun-Times. In November 1997, after the Chicago Newspaper Guild unit at the Sun-Times authorized its negotiating team to call a strike, Biermann was ordered to Chicago to get training on that paper's computer system. "There is a feeling among those who have been through this process before that they will not walk out," said a memo from headquarters to APC publishers, "but we have to be prepared."

Biermann refused to go. "I believe it would be dishonest on my part," he wrote in a memo to his boss, "since I have no intention of crossing an active picket/strike line." He was fired. Though the Herald-Palladium was a nonunion paper, the Chicago Newspaper Guild filed an unfair-labor charge on his behalf with the National Labor Relations Board. No one disputed a nonunion employee's right to refuse to cross a picket line. But in Chicago there was no picket line: APC and Biermann both had done what they felt they had to do anticipating one.

In December an NLRB law judge ruled in Biermann's favor. Judge Robert Wallace observed that the sole reason for Biermann's Chicago assignment was to prepare him "to act as a replacement worker in the event a strike occurred." Therefore "his refusal, albeit anticipatory, was nevertheless protected [by labor law] since it was made in the context of a strike situation."

Wallace ordered APC to offer Biermann his job back and give him back pay and benefits. Since Biermann had quickly found a new job at Michigan State University and now has no intention of returning to the Herald-Palladium, he says he expects a mere $1,500. It's not a lot, but it's not zip either. "Hey, you know, that's rent for a couple of months," he says. "I'm pleased. Free money is always good."

To the surprise of Chicago guild attorney Ken Edwards, APC has decided not to appeal. "This gives us an extra line of defense when preparing for either a strike or negotiating a contract," he says. "We can now tell employees at other newspapers that they don't have to come to even train to be a scab."

Father Knows Best

"What's your New Year's resolution, daddy?"

"Resolution," said the president. "I have resolved to be resolute."

"What about telling the truth?"

"Goes without saying."

"And checking in for treatment?"

"Says without going," said the president's wife, breaking her latest silence, which had lasted since just before Christmas.

"Did I mention I'm writing a paper for extra credit in poli sci? It's on impeachment. I thought maybe I could interview you before I head back to school."

"No time like the present," said the president. "I was thinking of asking your mother to the movies, but I bet she'll take a rain check."

He thought he heard a low hissing from his wife's corner, but decided not to investigate.

"It looks to me as if a Senate trial is a lot different from a normal courtroom trial," said his daughter.

"For sure," said the president. "In a normal trial the accused is presumed innocent by the court and guilty by the public. In the matter at hand we find the opposite."

"The public doesn't presume you innocent, exactly. Not in my dorm."

"In the hale-fellow-well-met-good-natured-lug-who-can't-stay-out-of-mischief sense of the concept," said the president, "they presume me very innocent."

"But not in the didn't-do-it sense."

"I sort of admitted I did it," said the president.

"I thought you were insisting you didn't do it."

"When you're as old as your father you'll understand that perjury's only serious if you admit to it. As for what I did and didn't do in a physical sense, everybody knows that perfectly well. Whatever I might have said as a discreet and gallant gentleman protecting the good name of a wayward damsel, nobody believed me for a second. Except perhaps my cabinet."

"So now it's up to the Senate."

"Yes, under the U.S. Constitution the Senate acts as jury in an impeachment proceeding, hearing the evidence and deciding."

"But they've already heard the evidence!"

"And they've already decided. The only thing they haven't decided is whether to hold a big trial or a little trial, so they're going to vote on that. If two-thirds of the Senate doesn't vote for a big trial, where they'd hear a ton of evidence they already know, they'll hold a little trial and skip the evidence they already know."

"And what happens to you, daddy?"

"In either case, I walk," said the president.

"Since when does a jury get to decide how much evidence they're going to hear?"

"A good question. And since when do jurors who've already heard the evidence and made up their minds about the verdict get to be on a jury? You see, an impeachment trial is a travesty of the principles of traditional American justice. That's why the Founding Fathers reserved it for moments of grave national crisis."

"Is there any other important difference between a regular trial and a Senate trial, daddy?"

"Well, there's one. Jurors in a regular trial are told not to talk to anyone about it and not to read the newspapers."

"After this is over, will we be a family again?" his daughter wondered.

"What do you think, dear?" he inquired.

"As always," said his wife.

"Feel better now?" he asked his daughter.

Art accompanying story in printed newspaper (not available in this archive): illustration/Kevin Kurtz.

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