First Amendment

Why Was the Ukwuachu Indictment Sealed?

/ johncarvalho56 / 14 Comments

(UPDATED Feb. 11 to add Twitter conversation with Paula Lavigne, author of the OTL piece on Baylor)

Since the August conviction of Sam Ukwuachu for sexual assault, much has been written about Baylor and its response to investigating sexual assault, especially those involving athletes.

But a question has remained since August 2015, when Ukwuachu was convicted and then later sentenced: Why was crucial public information regarding Ukwuachu’s indictment withheld in June 2014? Who withheld it? Why?

More important, why is nobody asking why?

He was indicted for the crime, whose victim was an unidentified Baylor athlete, on June 25, 2014.  The list of indictments for that date does not include his name among the 100-plus released.

What happened was that Ukwuachu apparently was indicted first, then arrested and charged via a “direct indictment,” which shields the suspect and others from the open records of a pre-indictment arrest report.  The name was then redacted from the indictment list released to the public.

According to the attorneys that I talked to, a direct indictment, or any such situation where the case is sealed, is usually used when a juvenile or someone else involved in the case (usually the victim) needs shielding for their own protection.

Under what logic could that be applied to Ukwuachu’s case?  Concern for the victim?  The other sexual assault cases also involved victims, but the DA’s office did not seem to show the same reticence in publishing the names of those defendants.

And anyway, this is all speculation without a specific arrest report.  Remember that the information gap existed between the unreported indictment and the week before the trial began.  The arrest, never reported, falls into the same void.

UPDATE: After reading Paula Lavigne’s Outside the Lines report on Baylor’s response to sexual assault cases involving athletes, I linked her to this article and asked her if she had any idea why the Ukwuachu indictment had been sealed.  She replied via Twitter:

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I do appreciate Lavigne’s taking the time to reply, but I don’t see the connection between an unreported indictment/arrest and a gag order.  A gag order is a frequent ruling in a high-profile trial.  But it relates to behavior outside of the court, not to the release of arrest information.

If the judge did want to limit public comments on the case, why not release the indictment/arrest (as is typically done) and simultaneously issue a gag order to all participants, as the judge did when Ukwuachu’s trial actually began?  Wouldn’t that accomplish the same goal, while providing the Waco and Baylor communities with important information?

Still, with the indictment information not released, as she pointed out, the Waco Tribune-Herald would not be in a position to know about the indictment:

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(NOTE: The rest of these paragraphs were part of the original post.)

The on-campus student affairs office investigation had apparently been closed by the time of the indictment.  The various reports do not give specific dates on that investigation, but a university representative said they try to complete them within 60 days of reporting.

Were Baylor student affairs personnel aware of Ukuwachu’s indictment?  Would this provide the “new information” that allows a university to reopen a disciplinary case?

The broader issue here involves the openness of the legal system.  The Supreme Court has defended the open courts system — setting some sky-high hurdles for closing a trial.  That’s not a service to the media; it’s a right of the people.

Always, but especially these days, Americans need to know what is going on with their legal system.  When information is withheld, there needs to be an excellent reason for it.  Otherwise citizens might lose faith in the fairness of their legal system.

Now that they know, however, the media need to treat this more seriously.  It involves the withholding of sexual assault-related information to the Baylor and Waco community — to young women, to their parents.  It hindered the media from doing their job.

This editorial from the Waco Tribune-Herald asks some important, direct questions, but seems to breeze past the issue of the sealed indictment with little acknowledgement, as if it were a mundane legal procedure instead of an ethical decision that deserves scrutiny.

Perhaps there is a good reason for sealing the indictment and not disclosing the arrest, and if that reason is offered, I will share it.  (Update: Seven months later, a satisfactory reason still has not been shared.)  For now, it looks like the same cozy relationship between police and college football team that has been cited and criticized on other campuses — though for an issue like sexual assault, it is particularly unthinkable that any college or its surrounding community would tolerate the strategy used by the Waco police and DA.

Even more frustrating is when no one cares enough to ask DA Abel Reyna or Assistant DA LaBorde.

Baylor has faced and has tried to answer a lot of questions following the Ukwuachu and Tevin Elliott cases.

Let’s not ignore questions about another question: a published indictment list that omitted the name of an accused felon.

 

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Is Disclosing Medical Records an Unhealthy Reporting Method?

/ johncarvalho56 / Leave a comment

First published on al.com.  Click here.

Note: This column includes implied obscenity in a tweet presented later in the article.

To anyone who doesn’t know, ESPN NFL reporter Adam Schefter caused quite the ethical dust-up when he ran a tweet showing Jason Pierre-Paul’s medical records.

To quickly dismiss one objection: no, Schefter did not break the law.  He did not violate the Health Insurance Portability and Accountability Act (“HIPAA”) by showing it.  The medical professional who leaked the info to Schefter did.

Schefter is not in legal hot water for disclosing information, even if someone else obtained illegally.  The Supreme Court decided that in Bartnicki v. Vopper, where a radio station played illegally wiretapped conversation between teachers union officials during tense negotiations in Wilkes Barre, Pa.

The court found “a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”  Schefter operates under the same shield.

That might sound like the equivalent of accepting stolen property and getting away with it, but the Supreme Court treats news-related information differently.

But law does not equal ethics.  The question is, did Schefter violate journalistic ethics here?  As with many such questions, the answer is determined by where you stand on ethics.  There is, however, another issue here, a constant with ESPN: ethical transparency.

Many argue that Schefter should have declined to show Pierre-Paul’s medical records and merely reported the information, anonymously sourced.  Showing an individual’s private medical information crossed a line, to them.

What is troubling to me — and always has troubled me — is that ESPN ignored its commitment, as a news media organization, to be transparent about this ethical decision.  I watched Schefter’s live report on ESPN SportsCenter.  It was all news, zero reflection.

In its September 2014 revision to its code of ethics, less than a year ago, the Society of Professional Journalists added the words “and transparent” to its fourth major standard, “be accountable.”

The resulting exhortation, “Be Accountable and Transparent,” includes the following sentences of explanation and application: “Ethical journalism means taking responsibility for one’s work and explaining one’s decisions to the public. … Explain ethical choices and processes to audiences. Encourage a civil dialogue with the public about journalistic practices, coverage and news content.”

As I write this blog, ESPN has not done this and certainly did not choose to do this early in its reporting.  It could have been handled so simply — with two or three sentences of explanation by Schefter.  But for whatever reason, Schefter and his producers decided not to take the time, even with the existence of ethical disagreement within the profession and the audience.

I wrote about this in al.com a couple of years ago — regarding Joe Schad’s reporting of alleged autograph selling by Johnny Manziel.  It is sad to see that apparently nothing has changed.

Don’t expect to hear from ESPN on this through its ombudsman blog.  The network has not updated the blog since Dec. 3, 2014, when Robert Lipsyte ended an excellent stint.  It is a sad, and telling, omission.

So where does it go from here? Nowhere?  Maybe not.

I see another layer to this debate, and it relates to Schefter’s relationship with his anonymous sources within the league.  Note the following tweet by former Steeler James Harrison:

Apologies for Harrison’s language, but it does raise the question: How will Schefter’s sources within the league respond to this?  One reason a journalist never breaks a pledge to an anonymous source, even risking imprisonment, is because of the damage it would cause to other source relationships, and these are an investigative journalist’s lifeblood.

It will be interesting to see if Schefter gets any pushback from his sources — players, agents or team officials — because of this.  Players might punish him for damaging an unsigned colleague’s negotiating power.  Agents and team officials might be more likely to look the other way.

All of these considerations weigh in to a serious ethical discussion in a matter like this.  And as the SPJ code encourages, and ESPN once again ignored, it’s best to include your audience in that ethical discussion.

John Carvalho is an associate professor of journalism at Auburn University.  A former sports journalist himself, he discusses sports media issues at @John_P_Carvalho.

 

The Secret to Avoiding a Mess? No Secrets

/ johncarvalho56 / Leave a comment

The announcement of a new structure for Auburn’s student media has created an outcry, particularly among staff and readers, current and former, of The Auburn Plainsman student newspaper.

Rather than talk this through 140 characters at a time, I’ll address the situation through my blog.  It’s not sports, but as a former Plainsman editor (1977-78), it’s close to my heart.

Two broad points to make: 1) The new plan is not a disastrous structure for The Plainsman or any student medium. 2) The Division of Student Affairs should have been more open and inclusive in the process that arrived at this new structure.

First point.  Auburn student media should be merged under one umbrella.  It has been talked about for years, even before an external review recommended it in 2010.

Universities across the country organized student media this way.  It recognizes the media’s move toward multi-platform reporting, it unifies advertising sales strategies, it eliminates redundancy of role, and it has the potential to save equipment money and better utilize office space.

That all student media would be under Student Affairs authority is again, neither unique nor dangerous.  Student media operate under a variety of administrative situations: student affairs, journalism academic units and (probably the worst) a university’s public relations office.  Some are totally independent and operate off-campus.

My one strong recommendation for Auburn’s structure, however, is that the four advisers to be hired (editorial, broadcast, technical and sales) not all report to the Office of Communication and Marketing within the Division of Student Affairs.  That creates an inefficient horizontal organizational structure and concentrates authority in the wrong position.

I strongly recommend that one of the four advisers be designated the director of student media, with day-to-day authority over his/her specific area, and be placed directly under the vice president for student affairs, Dr. Bobby Woodard.

Nothing against anyone who works under Dr. Woodard, but Student Media needs its own strong voice and it needs to be someone who works on the Student Center first floor, with student media.  That would give all student media the leadership and protection it needs and deserves.

Now, on to point 2.  The way this restructure was devised and planned was as bad as everyone is saying it is.  That Student Affairs devised it with no input from the students involved created the majority of the problems you see here.

Woodard claimed that the students were excluded because it involved private personnel decisions.  But students have served on personnel search committees in the past, and have observed the confidentiality of the situation.  I believe that Student Affairs, ironically, sold students short in this process.

But why not take it further? Why not openly discuss and devise this new structure?  Why all the secrecy anyway?  It always mystifies me that universities, with all of their theories of academic freedom and open discussion, revert to secrecy in practice, whenever an important decision looms.

I realize that personnel changes would occur, and that individuals could face drastic job changes.  These people are my friends too, and I respect what they bring to their work.  But as we’ve seen, the pain created was only made worse by the process used.

I honestly feel that the Division of Student Affairs leadership, including Dr. Woodard, owes the students an apology because of the mess that their approach created.  They can pledge more openness in the future, but whether they follow through on that pledge remains to be seen.

If the Division of Student Affairs claims to have such faith in the quality of students at Auburn, and such a commitment to their growth, maybe they should demonstrate it by including them in such important decisions.  It is counter-intuitive that they chose not to, in this case.

In closing, I recognize that Auburn student media will survive this, and with wise personnel decisions for the four advisers (including student participation in the search process), I think that all of the projects — The Plainsman, the Glom, Eagle Eye, WEGL and the Circle — will turn out the better for it.  And some loyalty toward the people who have served these projects faithfully is definitely appropriate and honorable.

As a result, all of the students who participate, whether School of Communication and Journalism majors or not, will have an experience that will help them, whatever profession they enter.

Update, April 3, 6:20 p.m.: I have accepted an offer to serve on the search committee for the editorial student media adviser.  I have been assured that students will serve on all search committees.  I would not have accepted if that were not the case.

But for goodness sake, Student Affairs: If you’re going to continue to oversee any kind of media project, do it in a way that respects the openness that the First Amendment protects, and under which our students will learn and work best.