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When Will Journalism Grapple With the Ethics of Interviewing Mentally Ill Arrestees?

When, in a December 2016 column for The Hill, I accused the New York Times, the venerable “Gray Lady” of American journalism, of violating basic journalistic ethics in its reporting on the arrest of a patently mentally ill man in D.C. — and then, the Washington Post’s media critic Eric Wemple wrote his own column a week later piggybacking on my complaints (“NYT, D.C. corrections department brawl over logistics of Pizzagate”) — I was sure something more would come of it.

But, because the press, even blue-ribbon progressive newspapers like the Times and the Post, are ultimately more concerned with printing the news — and scooping the competition — than the ethics of how their information is obtained, even when fundamental constitutional rights of the accused are at stake, prospects for reform do not appear promising.

At a minimum, I thought Wemple would follow up on his story, to get to the bottom of my allegations. Or, when Wemple wimped out on providing the Post’s readers with closure, that other news outlets and purported media “watchdogs,” concerned about journalistic ethics, would step in and provide a resolution to the story. Naively, as a former public defender, I dreamed that as a result of the minor brouhaha my oped had generated, the Times would delineate clearer, more cautionary guidelines for its journalists, guidelines that would provide guidance and ultimately govern the interviewing of recent arrestees where there exists reason to believe, based on the objective facts of an individual case, that the accused is laboring under a mental illness, or, is otherwise not of sound mind, and, therefore, is perhaps, unable to competently waive critical constitutional rights — like the right to remain silent, without counsel — in the face of dogged questioning from a persistent reporter. I had also hoped that perhaps jails and prisons, which are legally obligated to protect their populations, would take notice and ensure that appropriate special procedures are in place in their institutions, including approval by, or at the bare minimum prior notification to, defense lawyers, for media contacts, and that these procedures are followed with care in every case.

Now like most criminal defense attorneys, I was drilled to explain the attorney-client privilege and the right to remain silent at the very first meeting with a new client, crucial advice to later be repeated and stressed, often, in a variety of different ways and settings. Especially in high profile “media” cases, my fellow public defenders and I were even taught that it was particularly important to warn new clients that eager, ambitious members of the press could try and visit them at the jail to try and get them to talk about the allegations — and how, by doing so, they could gravely imperil their chances of later beating their criminal case.

But I never understood, and I still don’t understand, why or how the press, and here I especially mean the progressive liberal news media, but also, the conservative, libertarian, and other “types” of traditional and modern age journalists and news organizations, who frequently espouse a stake in the protection of core constitutional values, can get off so easy.

While the First Amendment right of the press to gather information about criminal cases is essential in a free republic, journalists that care about the Constitution should care about all parts of it, including being cognizant and respectful of the Fifth and Sixth Amendment rights of the accused. This is especially true in cases where mental illness is at play and the power dynamics between reporter and defendant are grossly disproportionate.

Before a journalist shows up at a jail to try and interview a new arrestee, particularly one who, from all outward appearances, is suffering from the debilitating effects of a mental health problem, why don’t they have any ethical duty to even inform the attorney of record that they are planning to try and do so? At a minimum, why aren’t there well-defined policies at the New York Times, the Washington Post, and in newsrooms all across the country providing a protocol for reporters conducting interviews in penal settings to follow — one that adequately balances the free flow of information with respect for the fundamental rights of the accused — particularly in situations where objective facts indicate the accused is suffering from some form of mental impairment?

Ethical Journalism: A Handbook of Values and Practices for the News and Editorial Departments” circa 2004 states that “[t]he goal of The New York Times is to cover the news as impartially as possible . . . and to treat readers, news sources, advertisers and others fairly and openly, and to be seen to be doing so. The reputation of The Times rests upon such perceptions[.]” This is a noble aspiration for a news organization to have. I’m only suggesting that the handbook — and comparable ones in media outlets across the country — could benefit from some soul-searching, and ultimately, some updating, specifically with a section addressing the commonly reoccurring situation of reporters interviewing vulnerable, mental health-impaired, recent arrestees.