What the Judge Said
A few weeks before she gave up her seat, retired Illinois Supreme Court justice Mary Ann McMorrow had a memory lapse. Or was it a moment of candor she later thought better of? McMorrow offered and then tried to withdraw a damaging statement in a bizarre court case--chief justice Robert Thomas's slander suit against a Kane County columnist. (I wrote about it here on February 10, April 7, and April 14.)
On May 22 McMorrow was deposed under stringent conditions--questions that had previously been submitted to her in writing by the attorneys for Bill Page of the Kane County Chronicle were read to her by a court reporter. No attorneys from either side were present. Question 20(d) was: "What level of discipline did Justice Thomas suggest he believed would be appropriate in the Gorecki matter?"
Thomas is suing Page and the Chronicle over three columns Page wrote in 2003 on the Gorecki matter. Three years earlier, when Meg Gorecki was running for state's attorney of Kane County, tapes surfaced of a series of messages she'd left on an acquaintance's voicemail in 1998 suggesting a quid pro quo--a county job in return for a contribution to the campaign fund of county board chairman Mike McCoy. Gorecki survived the embarrassment and was elected, defeating the incumbent in the Republican primary, but later was hauled before the Illinois Attorney Registration & Disciplinary Commission. The ARDC review board recommended a two-month suspension of her law license, the ARDC administrator a year. It was up to the supreme court to decide.
Page's columns painted Thomas as a vindictive "Republican party heavyweight" from a hostile political camp in the western suburbs. According to Page, when the supreme court met to choose Gorecki's punishment, the chief justice was "pushing hard for very severe sanctions--including disbarment." But in the end the court took away her law license for four months. "Ah, yes. Politics," Page wrote. "The four-month suspension is, in effect, the result of a little political shimmy-shammy. In return for some high profile Gorecki supporters endorsing Bob Spence, a judicial candidate favored by Thomas, he agreed to the four-month suspension."
If I'd traded my vote that way, Thomas protested, I'd have committed a felony. So he sued Page and the Chronicle.
Who knows better than the other six supreme court justices what sanctions Thomas pushed for? But a panel of appellate judges--who, of course, answer to the supreme court--ruled that the supreme court enjoys an absolute judicial deliberation privilege. This privilege had never before been asserted for any court in America. Thomas waived the privilege for himself, and trial judge Donald O'Brien allowed Page's lawyers to submit written questions narrowly focused on Thomas's behavior to the other justices.
Steven Baron, an attorney for Page, tells me McMorrow received question 20(d) on March 31. Here's how she answered it in May: "Well, the justices who were present at that conference were all over. Some recommended minimum amount of discipline, some recommending much more discipline. Justice Thomas and Justice [Rita] Garman were two justices who suggested more severe discipline. I believe that originally both of those judges thought that disbarment was appropriate. However, I also recall that they changed that--they changed from that position and agreed that six months to four months suspension would be appropriate."
Deposed witnesses get to go back over a transcript of their testimony and correct minor mistakes. But the "errata sheet" McMorrow submitted a few days later proposed a wholesale revision. She wanted to strike her entire answer to 20(d) and replace it with this: "Justice Thomas said he believed a suspension of four to six months would be appropriate."
McMorrow went on to explain that her original answer was "substantively inaccurate." She said she'd confused the Gorecki case with another the court was considering at the same time. "In Timpone, Justice Thomas and Justice Garman voted for disbarment, the sanction that the ARDC Administrator was urging, and filed a published dissent to that effect. Justice Thomas and Justice Garman did not urge disbarment in Gorecki."
When Judge O'Brien ruled that the original answer had to stand, it was up to Thomas's attorney, Joseph Power Jr., to try to undo the damage. Power asked O'Brien to admit excerpts from the justices' "red books"--diaries they keep of their deliberations. And he submitted his own written questions to McMorrow. A Page brief called these questions a "naked attempt [by Thomas] to re-write sworn testimony harmful to his case," and when the defense found out that McMorrow was scheduled to answer them on August 8, it filed an emergency motion arguing that the time limit for this kind of Q and A, known legally as a "210 deposition," had expired. Without disagreeing, O'Brien said in court that his "personal opinion" was that the statutory time limit was "ludicrous." He said he'd rule on the motion on Friday, August 11.
That'll be a big day in this case. O'Brien said he'd also rule on a couple of other defense motions. They argue that if the deliberation process is being dismantled piecemeal, O'Brien should rule that the justices have waived it and can now be subjected to the kind of deposition endured by normal witnesses--face-to-face with attorneys free to ask follow-up questions. Page would probably be best off if McMorrow's original 210 deposition hung out there by its lonesome. But if red book notations and further 210 recollections are allowed to undermine it, his lawyers want to open the floodgates.
Though Page's attorneys insist the facts are on their side, they've conducted a pretrial defense that consists of poking at the case until it collapses under its absurdities. Page previously asked the supreme court both to overrule the appellate court on the question of judicial privilege and to disqualify itself--because it can't possibly rule disinterestedly on its own privilege, least of all in a suit in which the chief justice is the plaintiff. Now McMorrow's bizarre errata sheet has come along. If she made an innocent mistake, can the justices be allowed to say so and then go back into hiding? "It's quite interesting," Baron tells me, "that when we were trying to get information from them they hid behind the judicial deliberation privilege. Now we'll see what happens when the brethren wants information."
Joseph Power isn't impressed by Page's tactics. "It's unfortunate these people act like nonlawyers," he tells me. "They don't understand that when the appellate court rules, that's the law of the case." He says he'd like to question the justices face-to-face but can't; he says he'd also like to confront Page's "alleged sources" face-to-face but can't do that either.
Page, by the way, resigned his column in the Chronicle as of August 4.
Disrespect Is a Small Price to Pay
Every day or two the Committee to Protect Journalists e-mails me a bulletin. The news is never good.
July 13: CPJ "deplores the two-year prison sentence handed today to Bijie Ribao newspaper reporter Li Yuanlong for articles he wrote for overseas Web sites. Li was convicted of 'inciting subversion of state authority.' . . . Li reported for the daily Bijie Ribao on rural poverty and unemployment in Guizhou Province."
July 27: "Pakistani officials have promised to review investigative records and reveal government information on the deaths of seven Pakistani journalists killed for their work since 2002, as well as official records in 20 other cases in which journalists have been assaulted or improperly detained."
July 31: "Three gunmen killed a photographer for the tabloid Tanod, outside his Manila home early this morning, according to local and international news reports. . . . The Philippines is one of the world's most dangerous places for journalists. In 2005, more journalists were murdered there than any other place outside of Iraq."
"Statistically," says CPJ's communications director, Abbi Wright, "if you look at the names and information of the [journalists killed around the world], the majority of them will have been murdered, and the majority of them will have been murdered in or around their hometowns."
August 2: CPJ "condemns the murders of two Iraqi journalists who were killed in separate weekend attacks by masked assailants. . . . Unidentified gunmen intercepted Adel Naji al-Mansouri, 34, a correspondent for the Iranian state-run Arabic language satellite channel Al-Alam, as he was driving in the al-Amariyeh neighborhood of western Baghdad on Saturday night. . . . CPJ is investigating the details surrounding the killing of Riyad Muhammad Ali, a reporter for the local weekly Talafar al-Yawm, who was shot by unidentified assailants in Mosul's Wadi Aqab area on Sunday."
CPJ reports that 75 journalists and 27 media support workers have been killed in Iraq since the war began in 2003, making the war there the deadliest in CPJ's 25-year history. Of those 75 journalists, 39 were murdered and the others died in combat; 54 of them were Iraqis.
On a related subject, the annual Harris poll of honored occupations in America was just released, and as usual journalists finished near the bottom. The question was lamely posed: "I am going to read off a number of different occupations. For each, would you tell me if you feel it is an occupation of very great prestige, considerable prestige, some prestige or hardly any prestige at all?"
This is a high school popularity-poll question--the 1,020 adults interviewed by telephone last month weren't asked whom they personally admired but whom they thought everybody else admired. At any rate, in the "very great prestige" category, firefighters led the way with a 63 percent response. Doctors, nurses, scientists, and teachers followed, and then military officers, at 51 percent.
Journalists got 16 percent. Of the 23 careers inquired about, journalists were ahead of only (in descending order) union leaders, actors, business executives, stockbrokers, and real estate agents (16 percent said journalists have hardly any prestige at all).
Don't blame Jayson Blair or TV news or contempt for the mainstream media. Harris began taking this poll in 1977, and the net loss for journalists since then is one percent. We've never been the public's darlings. In the same period teachers rose 23 percent and scientists dropped 12 percent. It's scientists who have something to worry about.
Unlike journalists in a lot of other countries who have only their own guts and moral support from groups like CPJ to sustain them, American journalists are protected by the First Amendment and in some cases their own celebrity. Americans aren't inclined to kill the messengers. They just disrespect them.
8 Last week I identified Pat Colander as founding editor of Lake magazine. Deborah Loeser Small of the family that owns the Small Newspaper Group created Lake in 2000 and brought in Colander four issues later.
Art accompanying story in printed newspaper (not available in this archive): photo/AP Photo/Randy Squires.