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15 Jan 2003

Source: Washington Post, August 18, 2002.

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You May or May Not Be a Suspect, But You Will Be All Over the News

By Ted Gup

You knew the moment the FBI labeled Steven Hatfill a "person of interest" in their investigation of last fall's anthrax letters that the 48-year-old bioweapons expert was in real trouble. It made no difference that this "unauthorized" disclosure was followed by the FBI's official disclaimer, dutifully parroted by the media, that Hatfill was not a suspect, much less under arrest. Savvy readers could read between the lines of an all too familiar script: It was only a matter of time. After all, why else would investigators so coyly release his name and why else would the media train their attention on that one citizen, forever linking him to such a heinous and high-profile crime?

But as we have learned from other recent cases, where there is smoke there is not always fire.

Sometimes when the smoke clears, cases remain unsolved, reputations lie in ruins and institutions that cloak themselves in the high rhetoric of justice or "the public's right to know" are left red-faced with shame. Think Wen Ho Lee, accused of spying and held in solitary confinement for months, all the while being basted by the New York Times and others without any hard evidence of espionage. Think Richard Jewell, the security guard whose name and face became "linked" to the 1996 Olympic bombing in Atlanta, only to be told a few months later "Oops, sorry."

There is nearly always something malodorous about a case that is deemed ripe enough for leaking but too green for prosecution. And when law-enforcement officials put a face on their suspicions but hide their own, look out. It is not just Hatfill who is entitled to a higher standard of prosecutorial or journalistic conduct than we have seen in the past few weeks. We all are. Each slipshod case whittles away our collective liberties, our self-respect, our confidence in the legal system. The press, too, is at risk -- its credibility in jeopardy, its independence on trial, its privileged position under the First Amendment left exposed. At this particular moment -- when the government is engaged in compromising civil liberties in name of security -- it's essential for the press to expose such prosecutorial shortcuts, not to benefit from them.

For the publicly accused, no acquittal will return them to the life they knew. What is it that such accounts have in common? If we recognize the patterns, can we then ward off the next Richard Jewell or Wen Ho Lee fiasco, or are we journalists condemned by our own competitive excesses to commit the same mistake over and over? (Jewell and Lee undoubtedly think they know the answer to that question.) Must we again hear the same spurious argument about whether or not to publish the name -- "if we don't do it, someone else will" -- as if that makes the matter moot. (I imagine a similar moral debate goes on among looters on the night of a power outage.)

As someone who has done investigative reporting for two powerful publications, I champion the public's right to know. But that right must be predicated upon information, not idle speculation or vague suspicions or the lead du jour, especially when irreparable harm to individuals is sure to follow.

Reporters understand that they are not indiscriminate purveyors of data. Part of being a journalist, we all know, is the exercise of restraint, a restraint that must be practiced even when investigators abandon theirs. And the people's right to know does not trump their right to be secure from unwarranted government intrusion or journalistic excesses.

Ordinarily, reporters and prosecutors show a healthy distrust of each other, but that distance often closes under the pressures of super-high-visibility cases, like that of the Olympic bombing, espionage or the anthrax attacks. Wittingly or unwittingly, reporters and government investigators may collude, creating the appearance of a posse mentality that discredits them both. Alarms should go off whenever prosecution and press perform such a pas de deux.

Sensational cases unleash whirlwinds of attention that create enormous pressures, political and personal, on both those charged with solving the crime and those who cover it. Sometimes, reporters appear too willing to delegate to others the hard decisions of whether or not to publish, or they await some concrete event -- a search, a polygraph test, a document -- to authenticate and legitimize what they would not otherwise touch.

You know investigators have a weak hand or no hand at all when they turn to reporters before they make their case. The cycle is all too familiar: There's the initial leak of a name, followed by narrative-driven profiles filled with what might be called the suspect's "forensic eccentricities," behavioral deviations that bolster otherwise anemic cases. There's the nasty, decades-old divorce, or the shelf of X-rated videos, even the midnight walk observed. Any of these can enhance the narrative, while providing ersatz evidence of a sociopath on the loose. We journalists all know how it's done, indeed are inadvertently trained to use the alchemy of reporting to turn irrelevance into insight, coincidence into culpability. Hadn't Richard Jewell a spotty employment record? Wasn't Wen Ho Lee something of a loner -- and foreign-born to boot?

Hatfill's resume became its own bill of particulars, including as it did shadowy work in Rhodesia under a racist regime and his (suspiciously brief?) stint at the nation's primary biodefense lab at Fort Detrick in Frederick, Md. The American Prospect magazine, in an online report, hinted at something amiss by resorting to the seemingly neutral tactic of posing a question: "Why did he leave his dream job so quickly?" Reuters distributed a photo that made Hatfill appear grotesque and Quasimodo-like. The caption noted that Hatfill "wipes his face while listening to his lawyer." And then there was the always damning fact that Hatfill had not come to the door when reporters knocked.

When all else fails, let the dogs loose. Newsweek reported in a breathless lead that bloodhounds given a whiff of the anthrax letters had picked up the scent at Hatfill's apartment and even at a Denny's restaurant where he had dined. I was reminded of a 1999 case when police in a Boston suburb faced a high-profile murder of a woman stabbed 29 times. Within hours, they arrested Eddie Burke, a 48-year-old handyman. News accounts, doubtless sculpted by prosecutors, noted that Burke was an adult male who lived with his mother (always a bad sign), had 32 cats (one pet is exculpatory as evidence of compassion, but 10 or more is a smoking gun) and, as if to erase all doubt, that a bloodhound named Shane had led authorities to his bungalow. Small wonder, with 32 cats.

After six weeks behind bars, Burke was cleared as a result of DNA evidence and allowed to return to his mother and his home. By then his precious cats were gone and he was a pariah.

Let's be clear about one thing. I am not saying Hatfill is innocent -- who could really know from the welter of disparate details to emerge so far? -- only that his treatment and our collaboration as journalists in that process are unworthy of us all. The inquiry itself is not the problem. The fact is, the FBI would have been derelict not to investigate him, something that even Hatfill acknowledged in defending himself at a tension-filled news conference last Sunday. He had access to a number of lethal concoctions, had studied the implications of using the mails as a delivery vehicle for anthrax and had expressed concern about the country's vulnerability. In casting its net, the FBI did nothing wrong by including him on an internal list of scientists who might have the means and the opportunity to carry out such an attack.

But there is a difference between pursuing a lead and advertising it. By all means conduct searches and background interviews, but do so with stealth and discretion, not only because it is just plain good investigative technique but because the pool of suspects is so large (dozens at last count), the leads so tenuous and the stakes for each suspect so unfathomable should such investigations go public. Whether the subject is "a target," "a suspect" or "a person of interest," such fine boundary markers are swept away in the first torrent of media attention. Law enforcement cannot morally immunize itself with such distinctions.

And we journalists, too, delude ourselves if we think that we are somehow less culpable when we serve up such individuals to public enmity in a gravy rich in caveats and sprinkled with pinches of "alleged" and "reportedly" throughout.

A couple of years ago, the Cleveland Plain Dealer got a leak from investigators that a retired local television personality named Joel Rose was under investigation in the anonymous mailing of lingerie and sexually suggestive materials to area women over a period of several years. No charges had been brought and the case had long appeared stagnant. The tip was an exclusive (the police also searched Rose's house) and the Plain Dealer ran the story on its front page. The next morning there was a second front-page story: This one reported that Rose had committed suicide. Several months later, the authorities -- who maintain to this day that Rose is their primary suspect in the case -- said that the DNA in the saliva on the packages did not match Rose's.

The Hatfill case, on its surface, raises questions of prosecutorial bad faith. Remember, this is the Justice Department that fanned out and rounded up hundreds of young men after the Sept. 11 attacks, holding them incommunicado for months, some on immigration infractions. Are we now to believe that this same Justice Dept. would allow a scientist suspected of having had access to deadly anthrax and believed to have already attacked the Congress and media, leaving five dead, to walk about the streets, a free man? Is it too cynical to see the public pursuit of Hatfill as evidence of an administration bent on demonstrating progress in the case? (Not even the hermetically sealed Justice Dept. can explain how reporters showed up at both searches of Hatfill's apartment if, as it claims, no one there leaked his name.) Is the government merely using the media to shake the trees in the hope that real evidence will fall into its lap?

Such questions have doubtless occurred to the reporters covering the Hatfill story. None is eager to be duped or used, but neither do they or their editors wish to be marginalized on a hot story. In the hyper-competitive atmosphere of 24-hour news cycles, judgment can become blurry.

The public, too, is complicit.

Short on patience, people have become accustomed to having their information demands met with the speed of an ATM. They hunger for fast solutions to complex crimes. Their appetites create pressures that can reduce criminal investigations to street theater. The government and the media alike must resist such pressures and educate the public -- not pander to its impatience.

Our better selves know that publication of leads too flimsy to produce indictments promotes neither public understanding nor public safety. Indeed it may merely subvert the investigative process, draining resources away from other promising leads that, should they pan out, will be clouded by earlier and contradictory declarations of progress in the case.

Hatfill, whether exonerated or convicted, is condemned to the life sentence of those accused of sensational crimes. At the moment, however, it is not only Hatfill who must bear the burden of suspicion, but all of us who now point a finger at him.

Ted Gup, a former reporter for The Washington Post and Time magazine, is the Shirley Wormser Professor of Journalism at Case Western Reserve University in Ohio.