Last Sunday and Monday, The Post published fascinating stories on the front page reporting, exclusively, that John Lee Malvo, the teenager accused of participating in the sniper attacks that terrorized the Washington region last month, had told investigators he pulled the trigger in several of the shootings.
These revelations were attributed to unnamed law enforcement sources who spoke to Post reporters on the condition of anonymity. No defense lawyer was present during this police interrogation of Malvo.
In the aftermath, both the defendant's attorney and Fairfax County prosecutor Robert F. Horan Jr. were sharply critical of the unnamed officials who leaked these details. "I've heard that the defendant's attorney is outraged, and he can't be more outraged than I am," Horan said. "The right of the American people to know is not the right of the American people to know right now," he said. By that, he presumably meant that the details and evidence in this case would eventually be made public during hearings and trials. Both the 17-year-old Malvo, who is a juvenile, and 41-year-old John Allen Muhammad are incarcerated and are no longer a threat to the public, and so justice should be allowed to take its course without potentially poisoning jury selection or causing statements to be made inadmissible.
The government has the obligation to protect information that legitimately should not be made public prematurely. But what about The Post? Should it not have printed what its reporters were told? No readers complained to me about this. The sniper attacks were the biggest stories of the year, and there is enormous public interest in them. Reporters from many news organizations are digging for every scrap, as they should be. It would be hard to argue that this was a case where The Post should have engaged in self-censorship.
Executive Editor Leonard Downie Jr. says "the fact of Malvo's being a juvenile and the presence or absence of an attorney are not issues in decisions to publish or not; they are legal issues concerning the admissibility of his statements in court and will be adjudicated there. Our responsibility is to report fully and fairly on that legal process and debate. As to reporting statements made by Malvo or any other accused person to police, it does not matter whether such statements are revealed formally and publicly by authorities or by unnamed sources, so long as we believe those sources to be credible and to be accurately characterizing the statements. We clearly believe that to be so in this case. We have reported suspects' statements under those circumstances routinely in the past" and, he says, "especially in this case, our responsibility is to report as much as we reliably know about these crimes and their commission as soon as we can. The understandable clash between this constitutional responsibility of the media and the constitutional requirement for a fair trial is the subject of the long-running 'free press-fair trial' debate between the media and lawyers that we see being revisited. I believe we have served our community well in this case."
Since the community is interested and not complaining, that's probably right. But it still seems to me to be an issue that fits into the very broad question of what is happening to judicial procedures and defendants' rights in the more tense and toxic environment of the past year or so.
Set aside, for the moment, the obviously strong case against Malvo and Muhammad. Should the press be comfortable with letting anonymous police officers say that people have confessed to a major crime like the sniper killings? What is the motivation of those who provided this information? The stories didn't explore that. Should The Post try to explain something about this for a case of this magnitude? Are the police taking advantage of The Post's competitive situation to saturate the public consciousness with the defendant's guilt? No quotations from Malvo were made available, so should the press be confident of the context in which these alleged confessions were made? Was the interrogation videotaped? Does Malvo's age figure into this? Was he carefully isolated by police in terms of jurisdiction, charges and legal advice specifically so he could be more easily worked on than Muhammad? Could there have been a deal between the two that Malvo, the juvenile, would say he did the shooting?
Stayed tuned. All of this will come out either in The Post or in court.