The Washington PostDemocracy Dies in Darkness

Opinion I’m burning a source. Here’s why.

A Little Rock attorney lied to me during an off-the-record conversation, then mischaracterized that conversation in a sworn court document.

A saucer magnolia blooms outside the state Capitol in Little Rock, Ark., on March 5, 2018. (Kelly P. Kissel/AP) (Kelly Kissel/AP)

For the past several months, I’ve been working on a new series about policing in Little Rock. In 2018, I published an investigation into how the city had been conducting illegal no-knock drug raids, and then another into police misconduct disciplinary problems in the city’s police department.

Those articles became part of the discussion in the city’s 2018 mayor election. The winner, Frank Scott, ran in part on a platform of police reform. A few months after his inauguration, Scott appointed Keith Humphrey to be the city’s police chief. Humphrey and Scott, who are both Black, began implementing a series of reforms. But since his appointment, Humphrey has encountered some aggressive resistance. He has been attacked by the police union, sued by several of his subordinates and condemned by much of his own command staff. He has faced accusations of sexual harassment, retaliation and favoritism. He has had his finances and other personal information leaked to the press and local blogs.

The forthcoming series will look at the campaign to oust Humphrey and scrutinize the allegations against him. But this post is about Chris Burks, the Little Rock attorney who is representing all but one of the police officers now suing Humphrey. Burks has also been the driving force behind many of the out-of-court allegations against Humphrey disseminated through local media.

I would normally avoid writing about a source in this manner, even a hostile one. Unfortunately, Burks’s behavior has made this column necessary.

There are only two scenarios in which a journalist can ethically disregard an off-the-record agreement with a source. The first is if a journalist learns a source lied during the conversation in an attempt to deliberately mislead the journalist. It’s clear that Burks lied to me in our conversation not once but relentlessly. The second scenario is if the source himself discloses the contents of the off-the-record conversation to other parties. Burks not only discussed our off-the-record conversation with other parties, he lied about it and mischaracterized it in a sworn declaration to obtain leverage in one of his lawsuits.

Here’s what happened: On Nov. 24, I emailed Burks to request an interview; he called me back a short time later. We agreed to an off-the-record phone conversation to establish some background, after which I’d email him a list of questions that he could answer on the record.

Because the phone conversation was off the record, I did not record it. But I did take notes. Burks began with flattery. He told me over and over how much he admired my work, that he had read all of my Little Rock reporting and that he thought it was important. In a follow-up email, he wrote that I and my Post colleague David Weigel were his favorite journalists.

The more I asked him about some of his accusations against Humphrey, the more he seemed to pivot to his own personal good works. Over the course of our interview, I’d ask questions and he’d respond by telling me he had been an Obama delegate who supports police reform, letting me know about all the civil rights litigation he had filed, or informing me of his pro bono work on behalf of Black and poor people. This all set off some red flags.

To gauge Burks’s honesty, I asked some questions to which I already knew the answers. His answers were deceptive. That assessment governed how I conducted the rest of the interview. The entire interview felt like an exercise in trying to get straight responses from him as he tried to deceive me, throw me off the story and — as I’d learn later — bait me into revealing information about my sources.

I moved on to ask Burks about the various allegations he has made against Humphrey, both in court and in the local media. As we discussed those allegations, Burks made new allegations against Humphrey that I hadn’t heard before. I have since learned that those accusations were also false or misleading.

At the time, I was puzzled by these new claims. I hadn’t come across them in court records, I hadn’t heard about them from my sources, and I hadn’t seen them in any local reporting. So I asked Burks where these new accusations were coming from. He told me they had come out in depositions for one of the lawsuits, which had taken place just a few days before our conversation.

This was the first I’d heard of those depositions. It turns out that there was a good reason for that. Last month, the judge in the case issued a protective order barring the parties from discussing any contents or exhibits in them related to personnel files, performance reviews or other topics agreed to by the parties involved. Burks not only told me about the depositions, he also told me about the protective order. He also insisted that if I could read the transcripts from the depositions, it would substantially change the narrative of my reporting.

So Burks had just told me about depositions that I didn’t know had occurred. He told me these depositions revealed evidence that would dramatically change my story, and then relayed some of that (mischaracterized) evidence to me. He also told me about the city’s investigation into the sexual harassment claims against Humphrey, which would appear to be a clear violation of the protective order. (According to my sources, he also mischaracterized the results of that investigation.)

This normally wouldn’t be a problem. Journalists want sources to violate those sorts of orders if doing so is in the public interest. I, of course, want my series to be fully informed, so I obviously wanted to read the transcripts. I asked Burks if he would share them with me. He said he couldn’t, citing the protective order. Rather, he said he would ask the judge to lift the order the following day, at which point he’d send them to me.

But Burks didn’t do that. Instead, on Nov. 28, he sent an email to Humphrey’s attorneys in an attempt to leverage our off-the-record conversation during discovery negotiations for one of his lawsuits. In so doing, he also made false claims about our conversation.

In the email, Burks claimed I told him that Humphrey had shared portions of LRPD personnel files with me. This is not true. Burks also made other false claims about other documents and information I allegedly told him Humphrey had shared with me. The general implication of the email was that in our conversation, I told Burks that Humphrey shared documents, texts, emails and other information that violated the protective order. None of this is true.

According to Humphrey’s attorneys, in a subsequent phone conversation Burks told them that in a follow-up email, I revealed yet more information Humphrey had given that further violated the order. Again, this is not true. I have sent Burks just two emails. The first was my request for an interview. The second was a series of questions that, per our agreement, he was to answer on the record. (He has yet to answer them.)

It then got even stranger. On Nov. 28, the Arkansas Democrat-Gazette ran a story about some text messages between Humphrey and a member of his command staff. The texts were an exhibit from the depositions. For the purpose of this post, the content isn’t important, except that the texts were contextualized in a way to embarrass the police chief. Humphrey’s lawyers believe this was a clear violation of the protective order, so on Dec. 1, they asked a judge to find Burks in contempt. In his response, Burks claimed that he only violated the order because Humphrey violated it first. His evidence for this claim was, once again, our off-the-record conversation. He writes that in his conversation with the Democrat-Gazette, he was “only attempting to confirm the authenticity of text messages . . . that had already been released and given to The Washington Post by Humphrey.”

This is false. Humphrey never gave me the text messages that appeared in the Democrat-Gazette. The first time I saw them was when Burks himself sent them to me on Nov. 27.

The protective order was issued on Nov. 17. Before my conversation with Burks, my last conversation with Humphrey was on Oct. 25. Humphrey and I did have two email communications after Nov. 17, but neither had anything to do with the lawsuit now under a protective order. Since I first started reporting on this story in May, Humphrey has sent me text messages between him and other officers, as well as email exchanges between him and other parties. Even assuming those texts and emails are covered by the protective order (which isn’t necessarily true), he sent them to me over the summer, months before the order was issued.

When I asked Burks for comment about this post, he argued in a series of texts that revealing content from our off-the-record conversation in his sworn declaration and in his correspondences with Humphrey’s attorneys was merely his way of fulfilling his promise to me to unseal the transcripts.

This is dubious. While it’s true that if the court agrees with him about Humphrey violating the protective order the judge could respond by lifting it, it doesn’t change the fact that, in the process, Burks mischaracterized our conversation to both the court and to Humphrey’s attorneys.

Burks also argues in his texts that he didn’t violate our off-the-record agreement because he only revealed the contents of our conversation in court filings for a case under seal.

It’s true that his declaration was supposed to be under seal. But first, there is no “sealed court documents” exception to an off-the-record agreement. Second, again, he misled the court about the content of the conversation in those documents. And third, the day after he filed it, Burks’s sworn, sealed declaration was quoted at length in the Democrat-Gazette. Burks denied leaking his declaration. He suggested the paper may have obtained the document because of a filing error in the clerk’s office.

Burks also insisted that his texts in response to my request for comment for this post were also off the record. But “off the record” requires an agreement between the reporter and the source; neither can unilaterally invoke it. Furthermore, given that he has seemingly continued to mislead me in these texts, I don’t feel obligated to honor his request.

In sum, Burks repeatedly lied to me and tried to mislead me during our off-the-record conversation. He then violated our off-the-record agreement multiple times. He then both lied to other attorneys and misled a court about the contents of our conversation.

I write this not to aid Humphrey’s legal efforts, or to help him remain Little Rock’s police chief. My intent is to prevent an attorney from inaccurately characterizing his off-the-record conversation with me in a way that would mislead a court, and to ensure that the court’s decisions with respect to this lawsuit are based on accurate information.

Read more:

Radley Balko: Correcting the misinformation about Breonna Taylor

Radley Balko: Real police reform begins with Lafayette Square