Insight

Today former Alabama Governor Don Siegelman is interned at the Oakdale Federal Correctional Institution in Louisiana, where it is said he is being given routine chores including cleaning floors. He was dragged away from his sentencing hearing bound in handcuffs and manacles on orders of federal judge Mark Fuller, who was appointed by the current President Bush and is a former member of the Executive Committee of the Alabama Republican Party.

The scene was sufficiently shocking that even staunchly conservative Republican Rep. Spencer Bachus of Birmingham questioned the treatment given the former governor. Forty-four former attorneys general from around the country, a good many of them Republicans, taking note of the often-crude irregularities in the prosecution, trial and sentencing proceedings, petitioned Congress for a special probe of the case. Congress, in the form of the House Judiciary Committee, decided to act, issuing as a first step a demand that the Justice Department supply documents relating to its prosecution of Siegelman.

Nothing quite like this has ever happened before, and it reflects a very high level of skepticism on the national stage about the quality of justice meted out by the Bush Justice Department generally, and particularly in federal courts in Alabama.

Two Fridays ago, the Department of Justice missed a deadline for compliance with Congress’ demand that it turn over documents related to its case on Siegelman. So far, the Justice Department appears to have directed its efforts not to compliance with the congressional mandate but to the issuance of crude and ethically dubious propaganda volleys in the media. This only reinforces the public’s growing impression that the entire process has been politicized.

Instead of investigating her claims, the prosecutors have attacked a Republican attorney who decided to blow the whistle on the political conspiracy that underlies this prosecution. They have also leveled harsh attacks against major media, such as the New York Times, the Los Angeles Times and Time Magazine. But curiously, they then turn and single out for praise two major Alabama newspapers, The Birmingham News and The Mobile Press-Register. The prosecutors have made many statements that do not withstand scrutiny, including suggestions that the career prosecutors handling the courtroom case in Montgomery have complete control and discretion. In fact, the cases have been guided by senior political appointees in Washington from the beginning.

I have been studying this case for more than two months now. After spending many hours discussing it with former Justice Department attorneys, I believe I know what happened: Siegelman was railroaded in a political vendetta that was orchestrated by politicos in Washington in concert with Alabama Republican leaders. The prosecution was politically directed and was conducted in breach of a series of ethical requirements and potentially also criminal statutes.

I do not believe that a responsible federal judge, exercising proper control over his courtroom, would have allowed the Siegelman case to go to trial. I fully expect, if there is any justice remaining in the appellate court system, that the case will be overturned. In the end, however, that will be a test of the quality of justice still dispensed in our courts. From the beginning of our Republic, our courts have dispensed injustices, some of them egregious and many of them politically motivated. Both political parties have been engaged in this gamesmanship. Our system is not perfect, though I used to think it was exceptionally good.

If a miscarriage of justice occurred, then the press in Alabama bears a large part of the blame. By “press,” I mean one media company, Newhouse Newspapers, which owns and operates three of the state’s major newspapers, in Birmingham, Huntsville and Mobile, including the two which played a prominent role in this case. These papers form a chorus and report the same sometimes extremely curious notion of the news. As we have seen particularly over the last two months, their editorial pages have perfectly matched the angle and attitude found in their news reporting of the Siegelman case. Objectivity is lacking, and a sense of defensiveness is manifest.

As the story of Alberto Gonzales and his politicization of the Justice Department sits front and center as the biggest story in the country, and the Siegelman case is picked by the Judiciary Committee as one of the most suspiciously political prosecutions, you would think that the Alabama corporate mainstream press would relish its hour in the national limelight. Instead, the reaction has been one of horror. Article after article and editorial after editorial appear wishing this entire matter into oblivion. Siegelman has been convicted, let’s be done with it, they argue. And more recently they emit a loud plea to leave poor Karl Rove alone. What’s the matter with this picture?

A review of the key articles published in the Birmingham and Mobile newspapers from the beginning of the case reflects a consistent pattern. They know all the details of the prosecution’s case before any indictment is issued and any evidence is presented. They know who came before the grand jury, and when, and what the essence of their testimony was.

There are two possible explanations for this. One is that these are some of the most talented and most capable reporters in the history of the profession, with an eagle’s eye, a bloodhound’s scent and Sherlock Holmes’ facility for inductive reasoning. The other is that they were being spoon-fed the prosecution’s case from the outset.

Mind you, there’s nothing the matter with a reporter getting the essence of a prosecutor’s case. Indeed, a good reporter would get kudos for it. The wrongdoing is on the side of the prosecutor, who has a duty to keep this information confidential. Basic canons of prosecutorial ethics bar a prosecutor from attempting to make his case in the media. Because of the enormous disparity of resources and influence, a prosecutor is required to keep silent in this process, and he is specifically required to maintain the confidentiality of what passes before the grand jury.

In this case, the prosecutor’s case was fully vented to the public well in advance of the trial, a practice known as “poisoning the well” because it will make it very difficult for the accused to get a fair trial. And the prosecutor went out of his way repeatedly to deliver a bouquet to the reporters involved for this invaluable service — he did it in his statements in the courtroom and in a series of public statements he later made. These statements suggest a highly irregular relationship between the prosecutor and the reporters in question.

But this raises another question: how could reporters get the situation so totally wrong? There are many possible explanations. But it’s important to note that we’ve seen a number of cases in the past in which excellent reporters have just gotten things spectacularly wrong.

A good example involves my friend, Pulitzer Prize winner Jeff Gerth, whose reporting about the leaking of nuclear secrets from a New Mexico research laboratory set off a national furor. Gerth came very quickly to point the finger at professor Wen Ho Lee, who was vilified in the media, with much of this being done by Gerth. In the end the charges were proven false, though the great prosecutorial freight train thrown at Lee could just as easily have produced his unjust conviction. A federal judge wound up offering a formal apology to Lee, and the vaunted New York Times had to eat crow over its rush to judgment and subsequent horribly skewered reporting.

I don’t believe Gerth was on a vendetta; he had never even heard of Lee before he started the series. But he was guilty of a rush to judgment. He formed the conclusion very early that Lee was a bad man, and as things proceeded he consistently picked over the facts to take only those things that cast Lee in a bad light. He ignored the balance and ultimately completely exculpating information.

Gerth was driven by what psychologists now call “Tolstoy’s syndrome,” after an essay by the great Russian novelist in which he warns about the human tendency to quickly settle judgments and then ignore facts which are inconsistent with what the observer “already knows.”

What we see in the reporting that fueled the Siegelman case is a failure of skepticism. Any good fact investigator knows that he must consider the potential prejudices and “slant” of a source. This type of critical thinking was extremely important for any reporter chasing the Siegelman story.

The Siegelman case let us focus on another acute problem: what happens when one corporate giant comes completely to dominate the print media market of a state? It acquires the power to shape the public’s perception of reality. It determines what is and what is not “news.” It shapes public perceptions of the issues, of the state’s political discourse and of its political figures. And its coloration can easily get an innocent man convicted. Indeed that just happened. Don Siegelman had his political career and his reputation destroyed. This occurred in a way that will stand as evidence of the damage that can be done when the power of the federal prosecutor’s office is wielded with political malice, and the press not only fails to spotlight the injustice but actually backs it up.

There are some antidotes to this problem, and I can think of two. One is to make way for more voices and greater diversity of viewpoints in reporting. And the other is for all of us to be skeptical — especially when prosecutors start handing out bouquets to their favorite reporters.

Harper’s magazine writer Scott Horton, who is one of the Lawrence County, Alabama, Hortons, is a New York attorney who blogs at harpers.org/subjects/NoComment.