Cluj Habitat for Humanity

  Jack Doppelt

July 2007

In Song and Story 

July 2007

#####

Supreme Court confirmation hearings have perfected the art of the dodge

Jack Doppelt 

 July 20, 2005

[A version of this article was published as Say It Loud in The American Prospect]

For a process that has been with us for more than 120 nominees and that predated the rejection of George Washington's appointee John Rutledge in 1795, the Senate confirmation hearings of Supreme Court justice candidates are surprisingly open to interpretation and spin. 

Even before President George W. Bush announces a nominee to succeed retiring Justice Sandra Day O'Connor, the Bush administration and right-wing activists are priming the pump to co-opt public opinion so that the Senate's 45 non-Republicans either acquiesce to consenting to whomever Bush nominates or appear reckless and partisan as they shoot blanks at the candidate. The Senate is not without recourse; moreover, the public is entitled to better than a rubber advice-and-consent stamp. 

Bush has signaled in general terms the type of nominee he's likely to pick. As he said in an October 2000 debate with former Vice President Al Gore, he disfavors liberal, activist judges, and he "believes in strict constructionists." Since then, he hasn't deviated from that line -- but also hasn't said much more, except to indicate how much he admires Justices Antonin Scalia and Clarence Thomas. 

Interestingly, Scalia has had something to say about the usefulness of packed, under-explored phrases like "strict construction". In 2002's Republican Party of Minnesota v. White, the Court addressed the constitutionality of a provision in the Minnesota Code of Judicial Conduct that prohibited candidates for elective judicial office from announcing their views on disputed legal or political issues. The Court divided along ideological lines with Scalia writing the majority opinion that struck down the provision as both unconstitutionally limiting on speech and foolhardy in its attempt to ensure an open-minded judiciary. 

In his opinion, Scalia recalled an exchange during oral argument in which Minnesota's attorney tried to defend the provision by saying that a candidate is free to assert that he's a "strict constructionist," which, he wrote, "has little meaningful content" unless it is applied to a particular issue of construction likely to come before a court. That, however, is something a candidate is not supposed to address because he or she might appear to prejudge cases. Yet, Scalia mused, "without such application to real-life issues, all candidates can claim to be 'strict constructionists' with equal (and unhelpful) plausibility." 

Was Scalia arguing for more robust exchanges in which judicial candidates lay out their ideological beliefs more fully? Another part of the opinion leaves little doubt that that's exactly what he was advocating. He gave a more concrete example: the issue of same-sex marriages. He noted that, according to Minnesota's provision, a judicial candidate could not say, "I think it is constitutional for the legislature to prohibit same-sex marriage." He found that preposterous because he could say the very same thing in writings, classes, or opinions up until the very day he's a candidate -- and say it repeatedly after he becomes a judge -- yet somehow it was considered to be a mark of open-mindedness to say it's off limits during the very part of the process when the public can judge what is on his mind. 

Of course, it wasn't just Scalia who felt this way. He was writing for the majority -- for Anthony Kennedy, O'Connor, William Rehnquist, and Thomas. 

The less conservative wing of the Court took him on -- and on that very point. Justice Ruth Bader Ginsburg argued that there is no difference between a judicial candidate saying he thinks it's constitutional for the legislature to prohibit same-sex marriages and saying, "If elected, I will vote to uphold the legislature's power to prohibit same-sex marriages." Both statements, she wrote, "contemplate a quid pro quo between candidate and voter." 

Not surprising, perhaps, that Ginsburg would have such an opinion. She was confirmed 97-3 by the Senate in 1993 after hearings in which she avoided answering pointed questions on capital punishment and discrimination against gays. The Bush administration will try to get mileage out of the precedent that President Bill Clinton's appointees -- Ginsburg and Stephen Breyer -- were both confirmed overwhelmingly despite declining to discuss ideologically divisive legal issues. The administration won't say that they were confirmed in large part because Clinton vetted them first with Senator Orrin Hatch (then the ranking Republican on the Senate Judiciary Committee), who advised Clinton before the nominations to forego bringing forward Bruce Babbitt, who was perceived to be less mainstream. That is not a courtesy we are likely to see given by Bush to ranking Democrat Patrick Leahy, who has already gone on record as vowing to press nominees to explain their views on ideological issues and, if he's not satisfied with the answers, to vote against confirmation. 

The powerful lessons for Democrats and for the public going into the hearings are those from 1987, when Robert Bork's nomination by President Ronald Reagan was soundly rejected by a vote of 58-42 and followed by Kennedy's unanimous confirmation. Six Republicans voted against Bork (including Arlen Specter, who is now chair of the Senate Judiciary Committee). 

Specter said at the time that Bork was rejected because his views were "perhaps the most extreme of any nominee who had ever been considered by the Senate," and the hearings established the important precedent of the Senate's right to reject where there is substantial doubt that the nominee's philosophy comes within the broad continuum of U.S. constitutional jurisprudence." 

Right-wing advocates recall the Bork hearings as a lynching. Bork said then that his rejection was "part of a larger war for control of our national culture." Now he's saying that Kennedy typifies a Court that is "enacting a political agenda" as he warns Bush against picking a candidate like Kennedy, and unlike him, who would "tend to drift to the left in response to elite opinion." 

It is apparent that Bush does not want to end up with another Justice Kennedy. It is not clear whether he wants a justice whose views are aligned with Scalia and Thomas or with Robert Bork. That is what the hearings need to tease out. When Bork faced questions during his hearing that led him to declare with smug defiance that he could not divine a right to privacy in the Constitution, the public sensed both the extremism and the lack of judicial temperament. The Senate became emboldened. 

Justice William Brennan is often quoted for his invocation in New York Times v. Sullivan that "debate on public issues should be uninhibited, robust, and wide-open." Seldom quoted is the tail end of the quote that warns that it "may well include vehement, caustic, and sometimes unpleasantly sharp attacks."

That's what lies ahead for Bush's nominee -- and a good but messy thing, too. 

#####

How the other half lives without voting

                                                                                                                Jack Doppelt and Ellen Shearer

                                                                                                                                                Nov. 25, 1997

[A version of this commentary was published as How the other half lives without voting in the Chicago Tribune on Nov. 25, 1997]

When Henry Montoya walked into his neighborhood polling place in west Denver earlier this month, as he has for the past 10 years, he signed in to record that he was voting, went behind the curtain and pushed the exit button at the bottom, having deliberately voted for no one. 

Montoya is unusual, but in him lie two distinct political species: Americans who vote and those who don't. Those who don't outnumber those who do. In presidential elections, it's a close call, with 51% of the voting-age population - about 100 million people - not voting in Nov. 1996. In off-year elections, such as the Nov. 11 election, it's not even close. 

Only 13.5%of registered voters turned out for the school and municipal elections in the six counties in and around Chicago. 

In New York City, where Rudy Giuliani won re-election for mayor, The New York Times reported that turnout was "among the lowest for any mayoral election in recent decades, with 38 percent of the registered voters casting ballots." That's registered voters. If the newspaper had used voting-age population to reflect not only those who didn't vote but those who weren't even registered, the figure would have been well under 30%. 

In New Jersey, where Christine Todd Whitman was narrowly re-elected governor in one of the nation's most hotly contested races, The Record in Bergen County reported that 54% of registered voters cast ballots, far lower than the 65% who turned out in 1993. 

In Maine, the Portland Press Herald reported the highest turnout in a "post­ presidential year in Maine in at least a quarter of a century." Yet, it was only 37% of the state's voting-age population. 

In Colorado, where Montoya cast his symbolic ballot, The Denver Post reported that turnout in the city was 20% among registered voters. 

The message is the same state by state and election by election. Non-voting is a chronic phenomenon in the United States. The hardened core of non-voters are not turned off by a particular candidate or a certain election. They opted out long ago and generally are beyond the reach of conventional measures to bring them back. 

They may tell pollsters they don't vote because they don't like the choice of candidates. What they mean, we have found, is they don't connect and aren 't likely to connect enough with any political candidate or party or with the electoral process to be involved. 

When Northwestern University's Medill School of Journalism surveyed 1,000 likely non-voters before the 1996 presidential election, we found that they are more likely than voters to call themselves independent. What they mean is they've become independent of the body politic. The disconnect was enormous; the conviction to snub the polling place ingrained. 

Non-voters tended to be younger, less educated, poorer and less likely than voters to discuss politics or public affairs with either family or friends. Beyond that, non-voters presented much like voters and spanned the spectrum of American society. 

We identified five types of non-voters: Doers, Unpluggeds, Irritables, Don't Knows and Alienateds. To go beneath the survev data. we interviewed 30 in depth. Doers tend to be educated, financially secure, active and selectively involved news consumers. On person, who has voted twice in his life, is offended by people who blithely vote for the lesser of two evils. A woman, who 's in the thick of Savannah's thriving tourism and convention industry, feels she doesn't know enough about candidates. A third is content to let those interested in politics carry the load while he exercises his right to pursue ordinary happiness.

Unpluggeds tend not to have much formal education and don't interact much with the politcal process. To the extent they have an interest in politics, it has has been the heightened dramas of President Kennedy's assassination and Watergate. On woman tends bar and ignores discussions of politics, another tends to her nephew, her job, bowling and movies, and a third tends to leave her mobile home mostly to sit at the pub across the road. Politics never enters the picture. They feel politicians don't tend to them and they return the sentiment in kind. 

Irritables are inclined to believe their vote doesn't matter no matter who' running. On woman we got to know sees them all as hollow faces on parade, and wishes she could be a fly on the government wall to see what they really do with their days. 

Don 't Knows know they don't know. One man watches television news every night and realizes he doesn't know a Democrat from a Republican, a liberal from a conservative, or what Congress or his local government officials do. One woman didn't know until the last minute that Hillary Clinton was coming to her son's school, and when she saw it with her own eyes, she just got mad. 

Alienateds are possibly the hardest core of non-voters. They've lost faith in the system, and no quick fixes are likely to move them. Though her father voted and was a lifelong Democrat, one woman has never voted, never registered to vote, and "never will be." 

The mistake we've made every election, as we did again in the aftermath of last Tuesday's off-year election, is to treat voter turnout as part of the political campaign awaiting the evening's returns. 

Let 's face it, the results are in, and for at least a generation to come. a vast core of America shows no signs of opting in. Worse yet is that the political process - its candidates, parties and pollsters - and the media are unlikely to do anything about it. Their investment is tied more to the stuff of elections than to the disaffection beyond the vote. 

Which brings us back to Henry Montoya. One Election Day years ago, he walked into the booth, closed the curtain and looked at the list of candidates. "None of this is of value to me or anyone else," he recalls thinking. He pulled the lever on a blank ballot and walked out. 

#####

The Trial of the Century That Wasn't

Jack Doppelt 

 Jan. 15, 1993

[A version of this article was published as The Trial of the Century That Wasn't in the ABA Journal, Jan. 1993]

The parents of Army Private James W. Markwell stood first in a long line of people waiting to fill the ornate central courtroom on Friday afternoon, last July 10, for the sentencing of former Panamanian dictator Manuel Noriega. 

Their son was one of the 23 American soldiers to die when the United States in­vaded Panama in Dec. 1989 to capture Noriega and bring him back to stand trial for drug trafficking. They had come at their own expense from Cincinnati to the Southern District of Florida in Miami because they had been unable to find much news coverage of the seven-month-long trial on "radio, TV, or in any of the papers or magazines we read." 

The sentencing made the front pages and the evening news, as did Noriega's conviction three months earlier and the start of trial in Sept.1991, But in between, the testimony of 78 witnesses, the 1,300 filed documents, the more than 100 days of pro­ceedings, got lost in the shuffle of other news. Earth-shattering news such as the disinte­gration of the Soviet Union, as well as titillating news such as the William Kennedy Smith and Mike Tyson celebrity sex trials. 

On the eve of Noriega's trial, the front page of the Washington Post described preparations for "what is believed to be the most sensitive and complex drug trial in U.S. history." ABC's ''World News Tonight" aired a segment in which Noriega's lead defense attorney, Frank Rubino, told correspondent Mark Potter that juror questionnaires revealed such height­ened sentiments against Noriega as "they ought to send him back to Panama and hang him." 

"The pre-trial coverage, particularly the prejudicial pre-trial publicity, was as bad as I' ve ever seen," recalled Neal Sonnett, a Miami defense attorney who withdrew as one of Noriega' s lawyers prior to the trial. 

Prosecutors were playing the case close to the vest, abiding by the strict office policy to not comment on the impending trial. "I was too busy even to notice the attention the trial was getting," said Assistant U.S. Attornev Patrick Sullivan. who led the prosecution team of Myles Malman and Guy Lewis. 

From- the perspective of the 39 news organizations that obtained press credentials from the U.S. Marshal's office in Miami and the dozens of others that sent reporters to cover the trial's opening, the trial held forth the promise of a guided tour through the back rooms of U.S. foreign policy and into the file drawers of international corruption. 

Even more notable than the unprecedented trial of the leader of a sovereign nation, the New York Times reported on the eve of trial, "is the promise that it will shed light on some of the most controversial and embarrassing episodes of American foreign policy over the last decade, ranging from the arming of the Nicaraguan Contras to the conduct of the war on drugs." 

But by the time Noriega was sentenced to 40 years in prison, media critics were accusing the American news establishment of everything from breaking "new ground in dishonesty'' by keeping the trial low-profile to having a "childlike attention span" born of the TV age. At the least , the public and the news media that serve it apparently had turned down an open invitation to delve into the recesses of international corruption at the highest levels. 

Coverage of the trial fell off so dramati­cally that news organizations had their offi­cial press credentials revoked. Only the wire services, Panamanian news organizations, the New York Times, Miami Herald, Fort Lauderdale Sun-Sentinel and National Pub­lic Radio kept reporters there gavel to gavel. 

The networks, the national news maga­zines and the non-Spanish international press corps paid only fleeting attention to the case. The Wall Street Journal coverage was virtu­ally nonexistent after the first month of trial. Even CNN, which had followed American troops into Panama in Dec. 1989 and aired unauthorized tapes of Noriega's pri son conversations a year later, withdrew its reporter and camera crew after a few weeks and let a field producer monitor the case. 

Most tellingly, local newspapers and broadcast outlets, like the ones the parents of Private Markwell were checking, took a pass on the dailv stories the wire services carried. "Except for the Miami Herald,  I don't think there was a page-one story even in the south Florida papers until the verdict came in," said Jane Sutton, who covered the trial for United Press International. 

How could a news event go from being billed as the "Drug Trial of the Cen­tury" to being a journalistic af­terthought? What went wrong? The answer, quite simply, is everything. 

Tightened news media budgets. Na­tional security. The ban on cameras in the federal courts. The need to have the testi­mony, much of it in Spanish, translated. The unfulfilled teases that the likes of Oliver North, Fidel Castro and Noriega himself would testify. Medical  delays, including six weeks after the judge's emergency heart surgery. The sheer length of the trial. The painstaking tedium of it all. 

"It\'s Court TV's luck that cameras are barred from the trial of Manuel Noriega," wrote Cathy Booth in The New Republic. "[T]he trial of America's only prisoner of war has been, alas, a ratings bore. The judge , jury, and press have all been spied snooz­ing." As Time's Miami bureau chief, she covered the trial regularly, but her own magazine carried her byline only once over the course of the trial. 

"We didn't know it then. but by the time the trial opened, many of the fascinations of the case were already history," said Associ­ated Press reporter Richard Cole, who cov­ered the trial religiously for the wire service. 

In 20 months of pre-trial motions. U.S. District Judge William Hoeveler had dis­posed of most of the knottier legal questions, confronted issues of international law, and effectively sapped the trial of much of its promised political intrigue. 

When the trial began, it had already been resolved that Noriega was not Pan­ama's head of state for the purposes of invoking sovereign immunity; that his pris­oner of war claim wouldn't keep the trial from going forward; that his assets could be frozen, revealed for the world to see and then partially released to pay defense costs; that neither the unceremonious seizure of Nori­ega from Panama nor the unauthorized taping of his attorney-client conversations while in jail was sufficient to dismiss the case against him; and that Hoeveler was not going to allow a case "fraught with political overtones" to be tried as a political sideshow. 

"It became clear in pre-trial decisions that certain areas would be off-limits." said John Dinges of National Public Radio, the author of a book on Noriega and the U.S. invasion of Panama. "I got the nagging feeling I wasn't going to find out much new." 

The Classified Information Procedures Act saw to that. CIPA was enacted in 1980 to keep a lid on classified information relating to a trial. Classified information under CIPA means anything the Justice Department and intelligence agencies decide is better left undisclosed for reasons of national security or foreign relations. 

"We always have the option to decide not to disclose something," noted Noriega prosecutor Sullivan, "if we're prepared to suffer the consequences." The consequences can be as dramatic as having the charges dismissed. 

In the Noriega case, it meant that unless Hoeveler decided that information was directly relevant to Noriega's defense against drug-trafficking charges, embarrassing information about U.S. foreign policy would not get out. It also meant that information the de­fense picked up from Noriega , even if not contained in U.S. documents turned over to the defense, would not get out during trial, on the court house steps or in any other way. The defense undenwent security clear­ance and was bound by a protective order issued by Hoeveler in March 1990 - 18 months before trial. 

"It never happened in this case that the judge ordered classi fied information to be admitted and the government refused for security rea­sons," defense attorney Rubino said. Rubino, Sullivan and Hoeveler all estimate that six or eight times the government chose to submit "substitutions" or cleansed versions of clas­sified documents, as evidence at trial. The case docket reveals that another 25 classified documents were re­dacted and included in the public case file. 

What came out even in sani­tized form was only the tip of an iceberg of what did not. The case docket logs another 98 instances in which documents were sealed and kept in a vault instaled in Hoev­eler's chambers specifically to accom­modate the Noriega papers. 

"The tip of an iceberg depends, of course, on the size of the iceberg itself," said lead prosecutor Sullivan, "and the defense was asking for a huge iceberg." 

Though Hoeveler estimated that the media "got 97 percent of the information," reporters complained regularly to one an other about the CIPA censorship that left them with­out on-the-record sources, kept them out of in-camera hearings, and meant weeks of waiting to receive sidebar transcripts that were first cleared in Washington, D.C. 

Reading between the classified lines, only reporters who stuck with the trial were able to make educated guesses of what they were not get­ting. But even going into the trial, reporters and their news organiza­ tions were already getting a sense of the diminished opportunity to use the Noriega trial as a looking glass into issues larger than the drug­ dealing guilt or innocence of a dicta­tor whom Los Angeles Times reporter Robert Jackson had called "yester­day's villain."

If the news media were pre­pared to treat Noriega as a has-been, the prosecution did little to dissuade them. In opening statements, Assis­tant U.S. Attorney Sullivan referred to Noriega as "just another crooked cop." As luck would have it, even that day's coverage was buried. The same day, Oliver North's conviction was overturned. 

The news coverage picked up on what appeared to be a prosecution strategy to play down the trial. The full context for "just another crooked cop," which was a borrowed quote from drug kingpin Carlos Lehder, who would later testify for the prose­cution, was to mark Noriega as just one of hundreds of crooked cops bought off by the drug cartel. 

The Chicago Tribune, which would soon pull its reporter from the trial, pointed to the prosecution's methodical and dispassionate style and concluded, "[f]or those who ex­pected a dramatic debut to a trial that has been advertised as a real­ life spy thriller, Monday's show was a disappointment." 

The news media 's disappoint­ment would only intensify in the second week of trial. Hints were dropped with reporters of American complicity in guns-for-drugs flights as a means of aiding the Nicaraguan Contras. The bombshell would come out during defense cross-examina­tion of Noriega 's former personal pilot Floyd Carlton, they were told. But it never did. 

When defense attomey Frank Rubino asked Carlton if he ever flew weapons at Noriega's instruction for Oliver North, the prosecution ob­ject ed and Hoeveler ordered Carlton not to respond. Some of the media quoted Hoeveler cautioning Rubino to "just stay away from it," though none bothered to explain the judge's ruling. Others, particularly the broad­cast media, ignored the exchange. 

That ruling, and others Hoev­eler made throughout the litigation, on the relevance of politically sensi­ tive information to the specific drug charges against Noriega effectively turned the news media into "Peeping Toms." 

"From that point on," recalled the AP's Richard Cole, "those of us who stuck with the trial were finding out things by accident or through peepholes in the evidence." 

Peter Eisner of Newsday be­lieves the prosecution intended all along to keep the trial focus narrowly on drugs and off the larger context of official U.S. embarrassments.

They wanted to limit the media circus to one ring from three rings," said Eisner, who later in the trial would break a story on Operation Negocios, an undercover cooperative arrangement between Noriega and the Drug Enforcement Administra­tion that prosecutors knew nothing about until they rested their case in Dec.1991. 

"I think the prosecutors played down the high levels of government involvement purposely, both as trial strategy and as a way to manage media coverage," Noriega's ex-coun­sel Sonnett said. "And they were successful at it." 

"Certainly it was the prosecu­tion 's intention to not turn this into an Iran-Contragate sideshow," lead prosecutor Sullivan conceded. "But we had no media strategy during the course of the case, I can assure you of that," he added. 

Looking back over the trial, Hoev­eler would say with some pride that "the trial was devoid of politics." He attributes that not only to the prosecution and the narrow focus of the criminal case, but to the defense, which apparently abandoned its theory early in the trial that Noriega in fact permitted drug traf­ficking but did so at the behest of U.S. officials. 

That theory, known as the "pub­lic authority" defense, would have given the defense more latitude in exploring the supposed guns-for­ drugs operations. Instead, the de­fense chose to deny drug involve­ment, hoping to convince the jury that Noriega was a loyal ally ulti­mately set up by U.S. authorities after overextending his usefulness. 

Rubino declined to sav why he chose not to pursue the "public au­thority" defense, but prosecutors offer two possibilities. "They dropped it probably because of the infamy that would attach to Noriega for him to admit he smuggled drugs," Sullivan suggested. His co-prosecutor Myles Malman, who left the U.S. Attorney's office after the trial for private prac­tice in Philadelphia, was more blunt. "They dropped it because there was nothing." 

The news media did not know of the altered defense strategy until the defense put on its case in Feb. 1992, five months after the trial began. 

By then, the Noriega trial had long since slipped off the media agenda. When the William Kennedy Smith trial drew some of the report­ers to Palm Beach in December, those who were required to do double ­duty had an easy call. "The Noriega trial had already died for them," said Warren Richey, whose daily cover ­age for the Fort Lauderdale Sun­ Sentinel was periodically picked up by budget-conscious newspapers. 

"The Wall Street Journal over­ estimated its own appetite for cover­age of the trial," said reporter Christi Harlan, whom the Journal pulled from the trial after only three weeks and three stories. 

David Lyons of the Miami Her­ald said his newspaper intended to be the paper of record for the trial, but cut back his coverage to once or twice a week as early as mid­-October. 

"I still feel it was one of the most important cases to come into the federal courts this century," he said. 

Even the appearance of drug kingpin Lehder in late November sparked coverage only for the dura­tion of his testimony, which spanned three days. ABC's "Nightline'' and the international press corps revis­ ited the case to report that the drug cartel had decided to have Noriega killed but changed its mind in favor of paying him off. Instead, they would pay Noriega for protection, drug-laundering connections, and the use of an airport and other landing strips. 

Lender testified that the gov­ernments of Cuba, Nicaragua and Colombia, as well as Panama, had all been involved in shipping cocaine to the United States during the 1980s. In fact, so would have the American government if Lehder had agreed to allow his island in the Bahamas to be used as a base to ship weapons to the Contras. Instead, Lehder testified, the cartel backed the Contras themselves with $10 million. 

The Los Angeles Times noted that Lehder's cooperation with Amer­ican officials proves that "yesterday's villain can become today's hero in the criminal justice system," and com­pared Lehder's spellbinding testi­mony to Joseph Valachi's 1963 reve­lations of Mafia secrets during tele­vised Senate hearings. 

The New York Times reported that Lehder's testimony made it seem "as if the Medellin cartel had at one time or another worked hand-in­ glove with every government in the Western Hemisphere during the 1980s." Time, in its only trial cover­age during the prosecution's case, wrote that Lehder's bizarre testi­ monv was a serious setback for the prosecutors because it made Ameri­can officials appear as culpable for drug trafficking as Noriega. 

The news media perked up long enough to seize on one of the few themes to emerge from the Noriega trial - prosecutorial deal­ making. In exchange for Lehder's testimony, American officials agreed to relocate eight members of his family to the United States, recom­mend an accommodation on his life sentence without parole, and trans­fer him to a less harsh prison setting . The Washington Post quoted a Sen­ate investigator as being astonished at the deals given to Lehder. "Clearly, Noriega was below him. Why are we giving him anything? Is this a propa­ganda trial?" 

Warren Richey's story in the Fort Lauderdale Sun-Sentinel expanded on the theme and was picked up by dozens of papers. It docu­mented that 17 of the prosecution witnesses to that point "got deals." By the end, news accounts would put the number at 29. The Noriega deal­ making would loom as large as the verdict its elf in the trial post­ mortems, as Newsweek and others would ask "how far is too far" for federal authorities to go to get their man? Th e prosecution's answer was steadfast. "We didn't do anything out of the ordinary,'' said lead prosecutor Sullivan. "Though I can't think of another case that had more cooperat­ing witnesses who got deals, it's not such a shockingly large number, especially considering that we were trying to prove conspiratorial activ­ity over a long period of time ." 

When Noriega addressed the packed courtroom at his sentencing 10 months after the trial began, he dropped crumbs for the media to follow. The two-hour statement men­tioned U.S. involvement in a 1979 attempt to murder the Shah of Iran and t he 1981 air explosion that killed his predecessor  Gen. Omar Torrijos. He accused a former head of the DEA of perjury and George Bush of instigating phony terrorist disturbances in the Panama Canal Zone when he was CIA director in the mid-'70s. 

But the reporters who had re­-convened for the grand finale left mumbling that Noriega still wasn't telling all they had come to the trial to hear. Some reported what he had said; the word that went out was it was "rambling." Prosecutors called it a "farce" and a "figment of his imagi­nation." Defense attorneys mused that Noriega might have more to say in a forthcoming book. 

"In some ways," said a frus­trated Richard Cole of the AP, "I think we got more from Noriega at the end than we got throughout the whole trial." 

#####

Fair reporting often eludes criminal defendants and victims

 

                                     Jack Doppelt

Nov. 10, 1991

[A version of this article was published as "Fair reporting eludes many defendants" in the Chicago Headline Club's Chicago Journalist  in Oct. 1991]

The news angle was evident when the information crossed the police scanner: a man had been abducted and taken to a motel near the airport, where he was beaten and robbed. The incident was believed to be mob-related. 

Some more information was forthcom­ing at the crime scene, but by deadline for the local media (television, radio and the morn­ing papers), the story still had holes. Report­ers ran details provided by law enforcement officials that the man was a restaurant owner, that two or three suspects were implicated, that the FBI was called in, that $1,000 and a watch were taken from the victim, and that the victim was not being very cooperative. Law enforcement officials were declining to identify the victim. 

The next day reporters followed up the story. One television station and its sister radio station updated the story with the victim's name. The TV reporter got the name from the FBl's press person. The radio station got it from TV. Pretty straightforward. 

The trouble was: they got the victim's name wrong. They ran the name of one restaurateur when, in fact, a different local restaurant owner had been the victim in the mob-related incident. The FBI press person denied giving the reporter the wrong name. Both stations carried retractions a few hours later, but damage had been done. 

They had run the stories connecting some­one to organized crime without contacting, trying to contact, leaving a message or even thinking about contacting that person. It was the last thing from their minds, and it is the last thing from the minds of most reporters who cover breaking crime stories. 

This time the stations got caught where it hurts. The person sued for libel and at the trial, a jury in Niagara Falls, N.Y., awarded the man $15.5 million in damages. The verdict was ultimately reversed by the the New York Court of Appeals and a new trial was ordered. On re-trial, it didn't get much better for the journalists. The verdict was tamped down to $11.5 million.

[Credit: Mike Cramer, 1991]

I know the scenario intimately because I was called as an expert witness by the media defendants. It was my role to explain to the jury that, among other things, it is appropri­ate in news reporting not to attempt to get comments from a victim or defendant before running a breaking crime story. A friend of mine said, I was there "to explain that grossly reckless conduct is the norm of the news business," a notion that he and the average juror believe anyway. 

I believed then and I believe now (as Oliver North once said) that my testimony made the best case that can be made for the common journalists' practice of publishing breaking crime stories on the word solely of law enforcement officials and without even an attempt to get the defendant's (or victim's) side of the story. 

I also believe it's incumbent on us us to rethink whether we can really justify the practice. 

For reporters, the reasons for not contact­ing a crime victim may be different from the reasons for not contacting a criminal defen­dant. But from the perspective of either a crime victim or defendant, one common proposition stands out: each deserves an opportunity to be heard before being singled out by name in the news media. As little deference as crime victims get from journal­ists, defendants get even less. 

Despite the obvious fact that criminal defendants have been charged with a crime, reporters do not treat them as they would other people who are accused of wrongdo­ing. If a political candidate verbally attacks an opponent, if an official criticizes another official's performance, or if a group accuses a company of ripping off consumers, it's the accepted convention for reporters to try to get a comment from the "other side." Not so when a person is arrested, charged or in­dicted. 

Almost any example drives home the point. Take the coverage of the arrests of three suspects in the Aug. 15 killing of CHA Police Officer Jimmie Haynes. When two of the three suspects were charged with mur­der, the Chicago Tribune's front-page story identified two of the suspects (the identity of the third was not released because he was a juvenile) and quoted Cook County State's Attorney Jack O'Malley and two police of­ficials. 

Despite noting twice that law enforce­ment officials were reluctant to elaborate on the case, the Tribune attributed the follow­ing incriminating information to one law enforcement official or another: one of the identified youths was "believed" to be the triggerman, he was being sought on a sepa­rate murder warrant, the shooting was an attempt to intimidate the police and was connected to the drug wars. No other side was presented, nor was there a stated attempt to reach the defendants, their families or attorneys. 

The next day, when the Tribune reported that the third suspect was arrested, the story was enhanced by information from "a source close to the investigation." The source said one of the two adult suspects was "on his own mission: he had vowed to kill a CHA police officer." Sources said all three sus­pects belonged to the same gang. O'Malley was now saying that the suspect who was being sought on a separate murder warrant had been released on bond the day before the killing despite an outstanding warrant for attempted murder and aggravated battery. O'Malley said the suspect had used an alias to evade detection. Still no other side and no apparent attempt to get one. 

--------------------------------------------------------

Though most reporters will tell you that they don't necessarily trust what police and prosecutors tell them, they are willing to attribute almost any uncorroborated information to them. 

--------------------------------------------------------

Clearly, as in the Niagara Falls case, if the Tribune had misidentified one of the youths, the paper would be hard-pressed to justify the common practice of failing to seek out the defendant's side. But it should not take the ultimate horribles of misidentification and a libel verdict to question the practice. What about basic fairness and getting the story right? 

Criminal defendants have the odds stacked overwhelmingly against them. Though they are presumed innocent in a court of law, they are presumed probably guilty by society. And for good reason. When someone has been charged with a crime, government pros­ecutors are saying they have probable cause to believe the individuals committed the crime. 

Reporters are on the spot to report the charge with unchallenged statements attrib­uted to law enforcement. Most defendants are jailed when arrested and charged with a serious crime. They are available to report­ers only if law enforcement chooses to make them available and only if reporters even bother to ask. They seldom do. 

Most defendants do not have a lawyer when they are arrested and charged, so no ready spokesman for the defendant exists even if reporters were to seek one out. They seldom do. 

 

Reporters have stock excuses for not get­ting the defendant's side of the story. They are usually in jail. They're just going to "no comment" anyway. Most of them are guilty; what are they going to say? If they have defense attorneys, most of them won't talk either.

These points aren't wrong. They are, however, unacceptable reasons for failing to at least seek out the defendant's side, espe­cially when at the same time they are report­ing literally anything law enforcement tells them. Though most reporters will tell you that they don't necessarily trust what police and prosecutors tell them, they are willing to attribute almost any uncorroborated infor­mation to them. Study after study shows that reporters rely far more on prosecutors and police than they do on the defense, if for no other reason than they are more accessible. 

Law enforcement officials have agendas other than the pure dissemination of infor­mation the public has a right to know. They may be allaying community crime fears­ but they may also be puffing up their police work, covering up a botched investigation or smoking out confessions through media­-transmitted disinformation. In the process, information about criminal defendants can be distorted, inflated or downright wrong. 

Knowing that, as reporters do, it is par­ticularly inexcusable to continue the jour­nalistic convention of writing off criminal defendants as generically unavailable sources. You know newsrooms have be­come complacent when they no longer even include the boilerplate phrase, "unavailable for comment" or "declined to comment." That means not only that reporters have stopped trying to get the defendant's side. It also means police and prosecutors go largely unchecked. 

#####

Supreme Court confirmation hearings shouldn't be a pass for Judge David Souter or anyone else

 Jack C. Doppelt

Sept. 20, 1990

[A version of this op-ed was published as "Probing Judge Souter"in the Chicago Tribune on Aug. 30,  1990]

What should we expect to find out about Judge David Souter before the Senate votes on whether he should be confirmed as the next U.S. Supreme Court justice? Not much, if we are to listen to the many commentators who suggest that we be satisfied with a limited inquiry into Judge Souter's intellectual qualifications and whether he intends to interpret the Constitution strictly or act as a judicial activist, legislating from the bench. 

One commentator after another has bemoaned the politicization of the Senate confirmation process that raked Judge Robert Bork over the coals, as if the lesson to be learned from the Bork hearings is that we should accept a President's nominee blindly. To demand more, the argument goes, would be to expose a nominee to the single-minded agendas of the far right or left at the expense of judicial integrity and impartiality toward the cases and issues the Court is likely to be faced with in the future. 

That need not be the case and the public should demand to know more about Judge Souter's ideological leanings and judicial philosophy. 

When William Brennan appeared before the Senate Judiciary Committee as President Eisenhower's nominee in February of 1957, there were political agendas as there are today. Senator Joseph McCarthy, who was not even a member of the committee, was granted the floor to ask Brennan a series of questions relating to Brennan's views on communism. Brennan had made a speech a few years earlier that characterized the nation as becoming "ashamed of our toleration of the barbarism" which marked the congressional hearings into communist activities. In his waning days in the Senate, McCarthy hoped to depict Brennan as soft on communism. 

Brennan ducked a number of McCarthy's questions, such as whether he believed communism was merely a political party or a conspiracy to overthrow the government. Brennan reminded the committee, as nominees have done before and since, that it would be inappropriate for a nominee to answer questions about cases or issues pending before the Court. The Court had on its docket cases in which the definition of communism was integral to the issue of membership in the Communist Party. 

Before he was done, Brennan had conveyed enough that McCarthy had a statement read into the record that Brennan "harbors an underlying hostility to congressional attempts to investigate and expose the Communist conspiracy." Brennan would be confirmed without a roll call vote. 

Fourteen years later when William Rehnquist was before the Judiciary Committee as President Nixon's nominee, the cat and mouse game between probing committee and savvy nominee had merely shifted ideological focus. Liberal Senators Edward Kennedy, Birch Bayh and Philip Hart inquired into Rehnquist's positions on domestic surveillance, segregation and limitations on the President's war powers. They formulated questions to prod the nominee into answering without having to address cases or fact situations that might be before the Court. 

They quoted from prior cases, including the Pentagon Papers case decided earlier that year, and got Rehnquist to answer whether he agreed or disagreed with the Court's language. Rehnquist went so far as to say he had a constitutional problem with some of the anti-war amendments pending before Congress the year before. He stopped short of answering how he felt about particular constitutional amendments. 

Rehnquist discussed his personal views on segregation. He defended views he had expressed four years earlier that in the context of busing to achieve integration, we should be "no more dedicated to an integrated society than we are to a segregated society," but should be dedicated to a society that accords freedom of choice in such matters. While declining to comment on specific cases of de jure segregation pending before the Court, his answers would prove to be quite telling about the inclinations he would take into the Court's future cases and issues. 

As we approach Judge Souter's confirmation hearing, we as a nation know less about him than we did about either Brennan or Rehnquist. We are not likely to learn more through news conferences or briefings so we are dependent on the Senate's judiciary members to elicit information from a nominee whose views need to be articulated before they come to rest as the law of the land. 

The Senators and their staffs ought to approach their task with a reinforced commitment to get Judge Souter's views on the record. Whether the issues are abortion, affirmative action, separation of church and state, or the exclusionary rule, we should not accept a pat response that any answer would be inappropriate because the question touches on issues that might be before the Court. 

If Judge Souter is not forthcoming in his answers, we should not assume ethics and judicial propriety dictate such forbearance. Earlier this month, Justice John Paul Stevens spoke out on the flag burning case, saying the Court should not have heard the case, and on death penalty cases, saying that states should provide funding for both the prosecution and the defense. If ethics and judicial propriety do not prohibit a sitting justice from commenting on issues that the Court may have to address again in the future, then there is no reason we should not seek such candor from a nominee. 

Many nominees, before their confirmations, have taken positions in writing and speeches on cases and issues that have been decided by the Court. Questions that ask Judge Souter for his opinions on recent Court decisions should be fair game. Those opinions may not accurately predict how Judge Souter will decide cases once on the Court. 

That is as it should be. We should not know how he will rule on future cases. We should know, through the "penumbras and emanations" of his answers, what views, attitudes and judicial philosophy he will take into those cases. 

 #####

A Chicago political scene is set for a libel drama of Shakespearean intrigue

 

Jack Doppelt

Nov./Dec. 1989

[A version of this piece was published in Chicago Times Magazine as "Anatomy of a Rumor" in 

Nov./Dec. 1989]

It was a battle of media titans, the Chicago Sun-Times taking on Ed Vrdolyak. The paper said Vrdolyak had met with a mobster. He said he hadn't, and sued. Documents in the case tell a story worthy of Shakespeare for the drama, intrigue and colorful cast of characters.

They also tell the story of a venomous rumor that somehow found its way into a daily paper.

On March 23, 1987, the Chicago Sun-Times ran a story that would transform the final two weeks of the campaign for mayor for the city of Chicago: Political editor Steve Neil linked mayoral candidate Edward Vrdolyak to mob kingpin Joseph Ferriola. 

The story was outrageous, brash, bear in detail - yet it struck many people is true. Was it?

In a series of emotional pre-election denials, Vrdolyak called the story a lie and sued the Sun-Times. He told everyone, including his lawyers, that he meant to go through with a suit despite the odds favoring the press in such actions.

Two years later, on July 20, 1989, Vrdolyak voluntarily drop the libel suit, clinging to the Pyrrhic vindication that he had satisfied himself the story was based on "secondhand rumors" emanating from his political opponents. The landmark story of the '87 mayoral campaign was briefly in the news and then was gone.

But there is much more to the story than has met the public eye. The two years of litigation produced sworn statements from most of those involved and forced Neil to turn over his notes. 

Examined here for the first time, the documents leave behind a trail that baits, then switches. Behind the brazen certainty of the front page is a convoluted web of rumors that somehow escaped into print. It is a story of how rumors work; how politicians, reporters and the public can be led to judgment by little more than their own preconceptions. 

It is also a story of how Edward Vrdolyak, legendary bad boy of Chicago politics, loser by forfeit in his legal effort to clear his reputation, may have been wronged.

The scene sets itself

For years there were rumors about Vrdolyak in the mob: He knows this mobster; he has golfed with that mobster; he is politically allied with mob-influenced committeemen; he has the support of mob-dominated labor unions -- a rumor-supported house of cards awaiting a gust that could do him in. In the fall of 1986. as candidates were jockeying for a position in preparation for the April 1987 mayoral election, there were rumors that Vrdolyak was somehow using his mob connections to siphon support from Jane Byrne's mayoral campaign. Reporters chase the rumors, came up empty, and moved on. 

After Byrne lost the February 24 Democratic primary to Harold Washington, Steve Neal picked up the rumors, first from Byrne herself. Neal talked to a who's who of sources: Illinois Attorney General Neil Hartigan, Cook County Sheriff James O'Grady, U.S. Representative William Lipinski, then-State Senator Timothy Degnan,  47th Ward committeman Edmond Kelly, sources from the Chicago Crime Commission, mayoral candidate Thomas Hynes and Hynes's campaign manager, Jeremiah Joyce.

Joyce was a special case. One of Neal's extensive network of sources during a hotly contested political campaign, he was meeting with Neal "several times a week" by Neal's own count. What's more, Joyce had heard of a meeting between Vrdolyak and mob boss Joseph Ferriola. Joyce coaxed Neal to follow up on the story.

Neal and Vrdolyak had some history between them.  Vrdolyak had been a source for Neal on countless stories and yet Neal had stung Vrdolyak with one of the most bitter embarrassment of his political career. Back in November 1983, when Vrdolyak was chairman of the Cook County Democratic Party and Neal was political writer for the Chicago Tribune, Neal had revealed a meeting between Vrdolyak and senior advisers to President Reagan in a Washington DC hotel, after which Vrdolyak engineered an early Democratic Party endorsement of former vice president Walter Mondale. (At that point in the 1984 presidential campaign, Republican strategists preferred facing Mondale to Senator John Glenn, thinking Mondale would be easier to beat.) Vrdolyak denied the meeting took place. He was caught in the lie when Whitehouse sources confirmed that the meeting had occurred.

Vrdolyak explained his actions by saying he was protecting the confidences of people with whom he met in private. "I do not preach private conversations with anyone. I will continue to do so in the future," Vrdolyak pledged. 

Three years later, when Vrdolyak heard that Neal was pursuing rumors connecting him with the mob, he met with Neal in the backseat of his limousine. Vrdolyak told Neal to ask him directly if he had ever met with Ferriola. Neal did and Vrdolyak said no. But Neil also recalled that Vrdolyak had denied meeting with the Republicans back in 1983, and his pledge to keep private conversations private. When Neal got out of the limousine, he turned to Robert McSweeney, a member of Vrdolyak's police bodyguard detail and said, "This guy is unflappable."

The expose'

The March 23 story's 5-inch headline, which covers almost as much news hole as the rest of the story, tells most of it: "Hynes charges Vrdolyak met with my boss: Opponent a 'liar,' alderman fumes." The story, under Neal's byline, does not say directly that Vrdolyak met with Ferriola, who is called "the No.  2 man in the Chicago organized crime syndicate." Neal gets Hynes to say it, though not directly either. Hynes has heard that the meeting took place, believes what he has heard and further believes that Vrdolyak's candidacy was encouraged by the meeting.

Byrne is cited as saying that she had been told of a late 1986 meeting between Vrdolyak and Ferriola that discouraged politicians and potential contributors from supporting her campaign – which,, if it were true, would mean that Vrdolyak's association with Ferriola pre-dated the meeting to which Hynes referred. And two prominent Democrats, "who asked not to be identified," were also told about a meeting between Vrdolyak and Ferriola. The story says their information came from Joseph Novak, Vrdolyak's adviser, who is quoted in the story as denying that he said it. The story suggests; although it does not state, that Hynes and the two confidential sources are referring to the same meeting - one that occurred at a "near Northside hotel soon after the Feb. 24 primary."

             -------------------------------------------------------------

How could Neil have cited a "source" who is presented as though he or she saw Vrdolyak leave the Ambassador West if Neal did not talk to anyone who was there?

           --------------------------------------------------------------

Clearly, as channel 5 reporter Paul Hogan recalls, "it was a fabulous story – if it was true – but there were too many holes in the story to know." Some holes got filled a few hours later when Neal came out with a follow-up. Others it would take the lawsuit to fill. Some of the holes just got deeper.

The week the mob hit the campaign trail

At a news conference the Monday morning the new story came out, Vrdolyak pledged he would file suit to clear his name. He did so the next day, implying that Neal's story was part of a Sunt-Times campaign to get him to withdraw from the mayoral race.

If anything, the story ended up hurting Hynes. At the time it was published, a Chicago Tribune poll showed Vrdolyak gaming on Hynes (although although both were far behind Washington). Two days before the April 7 election, Hynes would withdraw from the race.

Politicians and reporters like reacted to the story as a desperation move by Hynes, just as Vrdolyak was spinning it in his emotional denials. Tribune columnist Mike Royko ridiculed Hynes for believing, as if he had had "some kind of mystical vision" that Vrdolyak would show up at a hotel in the midst of a mayoral campaign, thinking he would not be noticed. Reporters covering the campaign aired the view on television and radio talk shows that the story did not add up and that Hynes was unwilling to provide any substantiation for his charge.

Neal's follow up on Thurs., March 26, raised more questions than it answered. This time the banner headline read: "Vrdolyak placed at two meetings with mob chief." The follow-up shifted the focus off of Hynes and onto the meetings themselves, reporting that the meetings took place at the Ambassador West on Sat. Feb. 28 and on Mon., March 2. Unnamed sources said the Saturday meeting lasted about a half hour and ended in a "difference of opinion," after which Vrdolyak left the hotel's front entrance with a companion and drove off to a near Westside restaurant. A source quotes Vrdolyak's companion as saying, "We're running late. But I've got the Mercedes."

In mobilizing to get to the bottom of the story, the Tribune deployed two reporters - R. Bruce Dold, who was covering the Vrdolyak campaign and Mark Eissman, an investigative reporter and friend of Neal who is now the Sun-Times associate editor. They filled some of Neal's holes and they buried him where they could. "There's a journalistic tradition to go for a knock out when you get beat on a story," Dold says now. "This time there was legitimate reason for the knockout."

"Federal and local law-enforcement officers said they had heard rumors of a Vrdolyak-Ferriola meeting but placed no credence in them," one Tribune story noted. Another story sought out bellmen and front desk personnel that the Ambassador West, who said "they could not remember seeing either Vrdolyak or Ferriola on the dates in question." In one new story, the Tribune mentioned 11 times that Neal's stories had relied on unidentified sources.

Intense speculation focused on who had given the story to Neal, with Vrdolyak charging that it had originated in the Hynes camp. Hynes vehemently denied to the Tribune that he was the source, insisting that he had merely responded to a Sun-Times inquiry - but the Tribune seemed to suggest that there might've been some collusion between Neal and the Hynes camp, quoting a source inside the Hynes organization who said the story appeared only after Neal had told a Hynes aide he wouldn't run it without a quote from Hynes.

In one story, Tribune reporters summed up what they had found, saying that the Sun-Times had blasted into print a long-simmering rumor." 

On the Thursday when Neal's second story appeared, Vrdolyak met with reporters twice. The second time, he came prepared with an event-by-event account of the two days in question and signed statements from his police bodyguards, attesting that he had not been to the Ambassador West on either day. 

The account placed Vrdolyak at home and in his far Southside law office early Saturday morning, at his son's basketball game in the late morning, at Democratic headquarters at 12:30 PM, inspecting real estate property in the South Loop with his friend and fundraiser Irwin Jann in the early afternoon, and at campaign office rallies the rest of the day

The account for Monday included time again at his far Southside law office in the early morning, a speech to senior citizens at the Golden Flame restaurant and the far Northwest side at 11:20 AM, an interview with Polish newspaper reporters on Milwaukee Avenue at 12:20 PM, and a Casimir Pulaski Day celebration also on Milwaukee Avenue at 1:30 PM. Reporters tracked down the leads and all checked out.

Now as if in a Shakespearean drama, the bodyguards were drawn into the action. In a front-page story headlined "2 police bodyguards back Vrdolyak," Dold and Eissman quote John Davis and Robert McSweeney as saying that Vrdolyak did not go to the hotel. "I don't specifically recall either day, [b]ut I can tell you that no such meeting took place. I was never at the Ambassador West Hotel with Vrdolyak," McSweeney is quoted as saying. The Tribune story goes on to say that "speculation [had] circled around McSweeney as a possible source for the mob allegations" because his wife worked in Hynes's 19th Ward Democratic organization.

The affidavits

It is not uncommon for people, particularly politicians, to feel vindicated by the mere filing of a libel suit and to drop the suit at some obscure point down the road. As Vrdolyak ran for clerk of the circuit court in 1988 and mayor again in 1989, his lawyers let the suit simmer. In a hearing the week after Vrdolyak lost the clerk of the circuit court election, William Harte one of Vrdolyak's attorneys, said in open court that he would advise his client "to dismiss the case voluntarily." Although Vrdolyak nixed that idea, the only deposition his lawyers would take was of Neal and that not until June 1989, the month before they dropped the suit. 

[This page is from Steve Neal's notes of his conversations with 
Robert McSweeney, Vrdolyak's bodyguard. The word "Jann" at the top of
the page refers to Irwin Jann, Vrdolyak's friend and fundraiser.
According to the deposition taken of Neal, the words beneath Jann's name, are,
"We are late for the Como Inn. We are running late for the Como Inn
but I have got the Mercedes." In the center bottom of the page, the words are, "
Joe came to me saying, 'Have you ever heard of Joe Ferriola?'"
Below that, the words are," He is the guy."]

In contrast Sun-Times attorneys obtained sworn affidavits from three politicians and three Sun-Times reporters and deposed Novak, Jann, six bodyguards and and an Ambassador West employee. They were pressing to take Vrdolyak's deposition when the suit was dropped.

Vrdolyak was called upon to provide limited sworn statements during the course of litigation. Among them was the statement under oath that he never "met or otherwise communicated with Joseph Ferriola."

Ferriola was not sought out. He died March 11, 1989, four months before Vrdolyak dropped the case.

In August 1988, Sun-Times attorneys obtained affidavit from Jane Byrne, Congressman Lipinski and then Senator Degnan. Lipinski and Degnan, it turned out were the two unidentified Democrats who were quoted in Neal's story as saying that Novak 'told them about a meeting between Vrdolyak and Ferriola."Both Lapinski and Degnan are close friends of Novak, who now works in Lipinski's district office, and ther agreement to come forward could be instrumental to the Sun-Times' case. It would pit their word against Novak's and mean that Neal relied on reliable sources to substantiate the fact that the meeting took place

Except that Lipinski and Deignan did not say that Novak told them Vrdolyak met with Ferriola in February 1987. Each of their terse affidavit says that Novak told him in late 1986 - at least three months before the meetings allegedly took place - that Vrdolyak was going "out west" to help his campaign. They interpreted "out west" to refer to organize crime - that is, to mobsters who now live in the western suburbs and once lived on the city's Westside.  Lapinski says now that Novak never told him Vrdolyak met with Ferriola. He knew nothing about the Ambassador West meetings until he read about them in the paper.

Byrne says in her affidavit that she was told of a 1986 meeting between Vrdolyak and Ferriola by an associate of Vrdolyak.  Neal later revealed in his deposition that the associate was former alderman Frank's Stemberk.  Neal put credence in Stemberk's remark as passed along by Byrne but Byrne now says she did not. She says Stemberk told her that he wasn't there. He'd just heard of the meeting. Byrne claims she took that to mean the allegation was just being bandied about, like other loose talk she'd heard to the effect that Vrdolyak "has the mob." 

'I must've told that to Neal 50 times," Byrne says,

The players go on the record

As they prepared to depose witnesses, the Sun-Times was holding a trump card that Vrdolyak knew nothing about. They knew something about his bodyguard, McSweeney, that they did not want to expose until absolutely necessary. To preserve the element of surprise, they served subpoenas and all six bodyguards as if they were all shots in the dark.

Meanwhile, the other depositions also went forward.

Novak stated under oath that no one ever told him and that he never told anyone that Vrdolyak met with Ferriola or was planning to meet with Ferriola. Novak now says "it is possible" he told Lipinski and Degnan precisely what their affidavits say he told them – that Vrdolyak went "out west" in the fall of 1986 to pull support from Byrnes' campaign. He says that by "out west," he meant the Westside bloc of aldermen and committeemen, not organized crime.

Jann's deposition is consistent with Vrdolyak's version of the events. Two new wrinkles, however, did come out. Jann said he knew Ferriola because his former law firm had once represented him. He also said that he was with Vrdolyak on both the dates in question and that when they were touring real estate properties in the South Loop in his Mercedese, they were not accompanied by bodyguards.

For those who like to play detective these wrinkles suggest a scenario in which it is possible that Vrdolyak could have met with Ferriola on at least one of the days in question without the bodyguards having been present and yet at the same time have adhered to the itinerary Vrdolyak used to substantiate that no such meeting took place. Neal had reported that the Saturday meeting took place in the morning. However if Neal's sources were mistaken about the time of the meeting - if it did happen but in the early afternoon rather than the mid-morning - Vrdolyak could've been driven to the Ambassador West by Jann during the time they said they were touring real estate properties. Careful readers will note that the car Jann said he was driving was the same make -a Mercedes - as the one mentioned in Neal's story.

For that scenario to be anything more than an amusing fantasy, however, Jann would almost certainly have had to have lied under oath. Asked directly if Vrdolyak ever asked him to assist in arranging a meeting with  Ferriola or if, to his knowledge, Vrdolyak ever met Ferriola, he answered both questions no.

On May 15, 1989, Sun-Times attorneys played their trump. A few minutes into McSweeney's deposition, the bodyguard was asked, "Have you ever heard Mr. Vrdolyak's name mentioned in connection with Joe Ferriola's name?" He answered yes and said the first time was on Sat., March 28, "when Joe Novak came out of [Vrdolyak's] office after a meeting and asked me if I knew who Joe Ferriolo was, if I had ever heard of Joe Ferriola."

McSweeney's recollection of his exchange with Novak at Democratic headquarters was vivid. Under oath, he recounted that when he said, "sure," Novak flattened his nose with his finger to indicate "mobster" and asked if Ferriola was one McSweeney told Novak, "the top guy maybe." Novak then told the bodyguard that Vrdolyak was heading for a meeting with Ferriola at the Ambassador West. As McSweeney recalled, it was morning. The bodyguard detail was left behind and was supposed to hook up with Vrdolyak later at the Como Inn. But Vrdolyak called later on the car phone and canceled the restaurant stop.

McSweeney also recounted that two days later Novak told him that everything went well between Ferriola and Vrdolyak. (One of the more obscure points in the controversy is how Neal came to believe that there had been a second meeting on Monday. The documents suggest that this information came to him from McSweeney, but the point is never addressed directly.)  Over the next two weeks, McSweeney said, he told this story in confidence, first to Hynes and then to Neal.

The emergence of McSweeney as an anonymous source - as the anonymous source - in Neal's story was a shock to Vrdolyak 's lawyers and to Vrdolyak. McSweeney was admitting under oath that he had misled the Tribune and lied in the statement produced for reporters two years earlier, His deposition also directly conflicted with that of Novak who had denied ever telling anyone that Vrdolyak had a meeting with Ferriola.

But McSweeney's account of that Saturday coincides almost exactly with the Sun-Times story - down to the detail that Vrdolyak and his companion were on their way to a restaurant when they left the mbassador West - except Neal added that the Saturday meeting ended in a "difference of opinion" and included what seemed to be an eyewitness account of Vrdolyak leaving the hotel with a companion who said, "we're running late. But I've got the Mercedes."

The Ambassador West puzzle piece

The final brainteaser in this whole affair is how Neal could have cited a "source" who is presented as though he or she saw Vrdolyak leave the Ambassador West if Neil did not talk to anyone who was there. In his deposition, Neal conceded that the only sources he had for his expose' we'e Hynes, Byrne, Lipinski, Degnan and McSweeney. He also said that McSweeney was the source of his information relating to the Ambassador West, and the notes he was required to turn over to Vrdolyak's lawyers confirm that.

Although McSweeney did not recall it in his deposition two years after the fact, Neal's notes and his deposition indicate that McSweeney fed Neal the information that formed the basis of the quote. McSweeney told Neal that, on that Saturday, he and the other bodyguards were supposed to meet Vrdolyak at the Como Inn, but either Vrdolyak or his companion called on the car phone to report that they were running late.  In Neal's notes, the quote is next to Jann's name, indicating that he knew Vrdolyak was with Jann, who was driving a Mercedes.

That explains how Neal might've known that Vrdolyak and Jann were running late that day that they were in a Mercedes and even that they had planned to go to a restaurant. But it does not explain how the quote came to be placed at the Ambassador West or how Neal could describe Vrdolyak hurriedly leaving through the hotel's front entrance. Is it possible that Neal contacted the hotel scene, then placed the quote there because that's where he believed Vrdolyak had been just before the call was made to McSweeney?

When all is said and done, what is left of the allegation that Vrdolyak met with Ferriola on those specific dates? To the Sun-Times's credit, the newspaper has not tried to hide behind a claim that the story reported only with Hynes charged. From the beginning, the paper has stood by the story in its entirety. But did the paper have the story to report? Only, it seems if journalistic standards condone the publication of uncorroborated information from a single anonymous source who is two steps removed from the fact.

Neil said under oath that McSweeney was the sole basis for reporting that Vrdolyak met with a mobster when and where the expose' said he did. And the surface, McSweeney - Vrdolyak's own bodyguard - appears to be a reliable source, yet he was not present, as a bodyguard might be, at the meetings that supposedly took place. McSweeney was passing on information he said he received only from Novak. His reliability depends not only on his truthfulness but on whether he understood Novak correctly and whether Novak's information was correct. Neal couldn't vouch for that because McSweeney couldn't vouch for it. Neal did not seek out potential eyewitnesses at the hotel, but he did seek out Hynes, who provided a device that allowed Neal to go with the story.

Strip away Thomas Hynes, who knew only what he heard from McSweeney. 

Strip away Jane Byrne and the "two prominent Democrats," who appear to have known nothing but gossip - and not even gossip about these specific meetings. 

Strip away Neal's inexplicable embellishments and sleights of print. 

What remains is the credibility of Robert McSweeney and Steve Neal pitted against the credibility of Edward Vrdolyak, Irwin Jann and Joseph Novak, each swearing under oath to be telling the truth.

What also remains are the same rumors that were around before the story ran. Nothing more.

---------

A postscript on the persistence of rumors: During his deposition, Neal dropped a hint that there might be hard evidence of a meeting between Vrdolyak and Ferriola. Neal said that, after the story was published, Sheriff O'Grady told him, "he agreed he [O'Grady] knew the article was true." After that deposition, O'Grady was asked about that remark. He said he had no special knowledge that the story was true. He had meant only that he had "heard on the street" that it was. But he went on to say that he believes the story is true. Why? "Word kept coming back from a lot of different people" O'Grady said. "It's apparently been corroborated since."

Additional postscript added in 2012:

Steve Neal died in 2004. The following year, the Lincoln Presidential Library in Springfield named its reading room the Steve Neal Reading Room. 

More than 20 years after this article first ran, Ed Vrdolyak was sentenced in 2010 to ten months in federal prison for his role in a real estate kickback scheme. Ten years after that, in Dec. 2020, Vrdolyak was sentenced to a year-and-a-half in federal prison for skirting a tax levy relating to the state's tobacco company settlement.

#####