Two well-known Connecticut lawyers are spearheading a class action lawsuit against the dominate news publisher in Fairfield County in a move to get Hearst newspapers to take down online news reports of people who have been arrested but then have the charges waved or dropped. Bill Keller, New York Times columnist and the paper’s former Editor in Chief, wrote on the case yesterday arguing the lawyers, Mark Sherman and Stephan Seeger, are trying to erase history with their novel lawsuit. Keller’s column drove a boat load of comments on the issue from around the country encouraging an interesting debate on how news organization follow and report criminal arrest stories. Publicly, Hearst is fighting the case but I’ve learned the their Connecticut publications are also making private side deals now with people who contact the paper and ask to have their arrest story reflect the final outcome of the case—or the ‘new truth’. That is if they agree to opt-out of Sherman’s class action suit against Hearst.
Hearst hired a top media law lawyer, Cameron Stracher, to defend the suit because Sherman is trying to get a costly libel claim through. The idea is to hold Hearst newspapers accountable for continuing to publish an arrest story online after the person has had the charges dropped through one of the State’s accelerated rehabilitation programs because Connecticut has an ‘erasure law’ that says a person can legally testify they have never been arrested if they complete the AR program. The state believes they are expunging the record so Sherman argues the media should have to also.
“The truth changes in a day. One day my client would have to say she’s been arrested, the day the charges are waived or dropped she can legally state she’s never been arrested. So if a paper keeps an arrest published online and people read the story after the record is expunged are they reading the truth? Is the publisher continuing to print an untruth? New readers see the story, new ads are published next to it, the publisher is still profiting from what isn’t a legal fact anymore,” attorney Mark Sherman told me in an interview this week.
The problem most journalist and editor’s see is the fact that a person WAS arrested and went through some legal proceedings in a court house, which is all a true historical event that is documented and was available to the public. Sherman argues by keeping the story up, Hearst is still making money on a prior news event that is now false. Police blotters typically draw high ad rates because they are often the most read stories for local news publications. The Norwalk Hour rotates out their online arrest stories every 60 days but publications like Hearst (Greenwich Time, Stamford Advocate, CT Post) or AOL/Patch leave them up for a long time and use background key word coding to draw your attention to similar arrest stories.
Sherman’s suit, which is scheduled to be heard this month in Hartford Federal Court, started with a Greenwich mom that works as a nurse who was arrested after the local keystone cops tried to bust her adult sons for dealing pot. It was small amount of pot they found at her house, which with new Marijuana laws in the state would likely only equal an infraction. The State made a deal to waive the charges if she went to a drug class. The problem for the Greenwich mom/nurse is when she looks for jobs employers first see her pot arrest when they Google her name and there are no reports the charges are gone now. Sherman told me he took the case pro-bono because he thinks this is an important issue. He’s also got a local reputation as the go-to lawyer when your teen gets busted for DUI’s, drugs or other misconduct because, if you can afford him, he’s good at making deals to get people into AR programs and thus legally he gets their arrest erased.
Most of my peers in the media I spoke with think Sherman is just being a bully and trying to make court reporter jobs extremely difficult while trying to get some dough from Hearst big pockets. There is also the idea that this suit is trying to ‘control history’ not just erase it. I don’t think an arrest report should be taken down as a news story. But Sherman and Seeger are onto an important issue. Cops and Court reporters need to finish the story–even if that means a lot more work. It’s not a sexy headline to say the Greenwich mom who was busted with her sons for pot actually had the charges dropped but it’s the truth and reporting it is equally as newsworthy as the arrest.
There is another issue here. Arrest reports are often a one side re-write of what the local cops choose to put in a request for warrant report or dole out at their weekly news briefings with reporters. A lot of what you see in a warrant report doesn’t reflect what actually happen– I’ve seen first hand how some Cops lie and make stuff up to get a judge to think their is probable cause. And in the Norwalk, CT court there are judges like Judge Huddock who was known to sign any warrant report put in front of him. Then there is the fact if the arrested person speaks it could be held against them in court so until you get to trial. or see defense motions filed to challenge the arrest, a reporter often only has a story from the view of the cops to print. Unfortunately I have witnessed, while working for Greenwich Time, how editors at Hearst don’t encourage their court reporters to always follow up on the case and report out the ending. And that, I think, is a serious error in journalistic behavior. In France they won’t print the person’s name until they are convicted. In the U.S. military they won’t do perp walks because they actually assume the person is innocent until a trial proves otherwise.
But printing a person’s name who is arrested in this country is perfectly legal and also seen as somewhat of a watchdog deterrent. I think it’s OK to print the accused name and everything you can find out about them as long as the reporter does what they can to follow the story through court motions and update original arrest stories with dropped charges. What is ironic with the Hearst case is they are spending big dollars to defend Sherman’s suit but I’ve learned they are also making side deals with people who contact them and complain about their arrest stories not being updated. Since Sherman filed his lawsuit I have seen copies of releases from Hearst that say the paper will add code to the online story to take the person’s name out of a Google search and update the arrest story with details of how the charges were dropped but the story stays online. Now to make this deal Hearst also makes the complaining person sign a release that they will have no claims in Sherman’s class action suit against them.
When I asked Hearst outside counsel Cameron Stracher about this secret release deal he claimed he didn’t know what was going on. The releases I saw were drawn up by some of Hearst in-house lawyers like Ravi Sitwala. The official quote I was given was, “Cameron Stracher, an attorney for Hearst, says he has no knowledge of whether or not Hearst has entered into or drafted such releases.” Which in my view is basically spin for ‘oh shoot how did she find that out’.
Sherman’s chances are slim of getting his case past Hearst motion to dismiss in Federal court and if he does I’d expect even more media organizations to join in the fight. But what Sherman has accomplished is some accountability at Hearst –considering we now know they are making these private update-the-story deals. Unfortunately I don’t think it’s the right change. Our Fairfield County courts are filled with people being overcharged or wrongly charged. And the Stamford/Norwalk judges easily allow these AR programs to go through which a lot people, even if innocent, take because they can’t afford to fight to charges.
On the flip side, the AR programs are also easily given out to young adults (or 16+ minors) where there is solid evidence of hosting say underage drinking parties or driving while intoxicated which feels like the state isn’t really interested in delivering a punishment for these crimes. Take the case of New Canaan 19-year-old Avery Underwood who was charged with a felony forgery because they cops found a fake CT ID on her when they busted an underage drinking party she hosted where her mom Lori Anderson was found hiding in the closet when the cops came. Sherman, her attorney, got Avery into an AR program and her record was erased after a probation period. But it doesn’t mean the crime didn’t happen and I think it serves a public interest for Avery’s name and address to be reported so other parents in the community can know where underage drinking parties were happening. As a journalist covering this story I would never agree to take it down. I’d been updating the case during the legal proceedings and finished the story by reporting her AR plan but her case remains published online.
What we really need is dominate market publications like Hearst to investigate the cops and the courts instead having their beat reporters build up a favor bank with local cops to get news before another hyper-local news sites like the AOL Patch print it. I’d love to see a Hearst reporter track all the arrest turned into AR programs and print the number of trials the Norwalk or Stamford court actual win v. lose each quarter. Or how about a data analysis story of all the charges that get plead down while people are forced to pay burdensome bonds. Besides me, I’ve seen about one Darien reporter, at a non-Hearst publication, take on his local cops this past year and follow a case where there was serious miss-information in a warrant report resulting in the charges being nullified right before trial. But a few reporters working diligently to report a person’s ‘whole history’ doesn’t make up for Hearst ‘incomplete histories’.