From the Fall 2000 issue of The News Media & The Law, page 21.
By Dan Bischof
Nancy Phillips had a secret.
Five years ago, the Philadelphia Inquirer reporter started covering the story of a New Jersey rabbi’s wife beaten to death in her home. When his sexual foibles later came to light, the rabbi, Fred Neulander, became the focus of the investigation.
During her reporting, Phillips met a private investigator, Leonard Jenoff, who claimed the rabbi hired him to find his wife’s killer. Phillips spent years chasing false leads and bogus theories at Jenoff’s behest. At the same time, Phillips gained Jenoff’s confidence. They spoke about their shared faith and he sent her postcards while on vacation and at Hanukkah. She sent him latke recipes.
“I believe Jenoff came to think of me as a friend. More than once, he told me I was like a sister to him,” she wrote in a column in May. But Phillips claimed she always maintained a professional distance from Jenoff, occasionally reminding him she was there as a reporter, not a friend.
Then in December 1999, Jenoff dropped a bomb; he told Phillips the rabbi did not hire him to find the killer, the rabbi hired him to be the killer. Earlier that year, a New Jersey grand jury handed up an indictment for murder naming Fred Neulander, the rabbi.
Phillips kept their conversations confidential, although she later told The Washington Post that “it was hard to know what to do. There were gut-wrenching moments along the way for all of us.”
In late April, Jenoff told Phillips the guilt was eating at him, and he planned to tell the authorities in the coming days. Phillips then did something that made her part of the story.
“I asked whether he wouldn’t rather go to the prosecutor’s office right then,” she wrote. Phillips called a Camden County prosecutor and accompanied Jenoff to a New Jersey diner where they met the prosecutor and a homicide investigator.
Jenoff confessed. Once the authorities took Jenoff seriously, the newspaper editors gave Phillips the green light to publish her story.
Whether Phillips crossed a line — legal or ethical — is being debated in courtrooms, newsrooms and on the Internet.
Neulander’s attorneys argue Phillips had such a close relationship with Jenoff that she had a “Svengali” presence and acted as an “agent provocateur” for the prosecutor’s office. In an argument before the trial court in October, defense attorneys went so far as to suggest Phillips and Jenoff had a personal, physical relationship. Both Phillips and her editor, Robert Rosenthal, denounced the allegation in a terse statement immediately afterward.
Many states have shield laws, which protect reporters from being forced to disclose unpublished information and the identities of confidential sources. Typically, a criminal defendant can overcome a shield law by showing the reporter waived the privilege or by meeting a multi-step test demonstrating the relevance and need of the otherwise unavailable information.
In the case of Nancy Phillips, the attorneys for the rabbi charged with murder claimed Phillips had waived the right to keep her source confidential because she had become so involved with Jenoff. A trial judge ruled Phillips did not waive confidentiality.
But a careless reporter can waive the privilege.
Charles Tobin, assistant general counsel for Gannett Newspapers, said he once, while in private practice, represented a journalist who waived the ability to protect a source by giving the opposing counsel the same information Tobin sought to keep private. The judge ruled the journalist waived the privilege.
“You can get into a difficulty as to whether you’ve truly given confidential privilege to a source or whether you’re simply protecting a friend,” said Malcolm Gross, a media attorney in Allentown, Pa. “At a minimum you’re going to be chopped up, and at a maximum you may have to disclose your source.”
The criminal defendant — and occasionally a prosecutor — can alternatively argue that the privilege has been defeated because the information obtained by the reporter is central to the case and because it is not available from another less intrusive source. A trial court must weigh the interests of the news media against the defendant’s right to a fair trial.
In Neulander’s case, he argued that probing Phillips’ relationship with Jenoff was necessary to his defense and that his request for Phillips’ notes was not overbroad. The court was not persuaded and specifically noted that Neulander could obtain the same information by asking Jenoff himself.
A reporter’s involvement in a story may also have consequences in a libel action. Tobin pointed out that in some libel cases plaintiffs try to pick apart articles and attribute weak spots to a reporter’s personal prejudice. Plaintiffs argue a lack of thoroughness by reporters is actually personal bias, an area libel plaintiffs seize on as evidence of malice. Some libel plaintiffs also accuse media defendants of being too cozy with a person or group that opposes the plaintiff.
In Pennsylvania, libel plaintiffs must show both actual and common law malice. Actual malice is knowledge that the information published is false or a reckless disregard for the truth. But common law malice requires a showing that the reporter acted with spite or ill will.
“In other words, that you were out to get them,” Gross said. “Where you have a negative relationship either because of your previous professional experience or personal experience, you can get in to some real difficulties.”
But even in cases where actual malice is at issue, courts will give deference to juries who consider ill will between parties. In a New York federal appeals case from earlier this year, a Filipino newspaper editor sued a rival Filipino radio commentator for libel after the commentator published newspaper articles about the editor’s daughter’s criminal conviction. (Celle v. Pelayo)
In upholding the jury’s finding that the editor published with actual malice, the court said, “A reasonable juror — considering the ill will, and the factual similarity between the basis for that ill will and the publication of the challenged statement here — could conclude that (the radio commentator) was imposing in-kind retribution on (the editor) by exaggerating the status of the legal proceedings against him.”
In addition to legal consequences, reporters may face ethical consequences to becoming involved with sources for a story.
“It’s natural that you form your own opinions as a human being, especially when the story is an issue of right and wrong,” Tobin said. “The challenge for journalists is to recognize when that happens and to redouble efforts (to remain objective).”
“There is a difference between (establishing rapport with a source) and getting into personal disclosures and the kind of personal intimacies that would not be present in other personal relationships,” Gross said.
“You can develop real trust and maintain professionalism at the same time. Part of that is to avoid getting your personal life into the life of the subject. That’s usually a dead give-away,” he said.
If there is a line for reporters’ involvement in stories and with sources, it is hazy at best.
“Good reporters develop a rapport with sources in a way in which sources open up to them,” the Poynter Institute’s ethics program director Bob Steele said. “We have to be careful we don’t inappropriately exploit people, that we don’t take advantage of the vulnerable, that we aren’t unfair, that we aren’t disingenuous, that we don’t lie.”
“But the reporter has an obligation in the pursuit of truth — a legitimate pursuit of truth on behalf of the public — to seek out information through a variety of professional and ethical means and that includes seeking knowledge from and getting information from sources,” he said.
“There is no hard and fast, clear cut line in the sand, so to speak,” Quill editor Jeff Mohl said. “It tends to be different for different people. Different organizations tend to see it differently.”
The Society of Professional Journalists authored a code of ethics for reporter involvement, directing, for example, that journalists “remain free of associations and activities that may compromise integrity or damage credibility.”
But whether that includes exchanging recipes or holiday greeting cards is unclear. Some attorneys can point to obvious journalistic no-nos, like dating a source. Other lines are less defined.
“It comes down to a question of credibility,” Mohl said. “If it appears to the people you are writing for, your community or audience, that you are sacrificing your integrity or that it affects the quality of your story, that in itself becomes a problem. ”
When journalists become over-involved in a story or with a source — not always an easy thing to detect — attorneys recommend that news organizations change the journalist covering the story.
After Phillips’ original article ran in May, her editor put a new reporter on the story. Inquirer Editor Robert Rosenthal told Brill’s Content that Phillips’ involvement in the case put her in an “awkward position.” Rosenthal said, “We think at this point it’s better to have her off of the story because it’s become a tug-of-war.”
When a reporter becomes over-involved, attorney Gross said, my “instinctive reaction is to get the reporter out of the situation. By that I mean put somebody else on it.”
The battle between the law and ethics of journalism can conflict when resolving cases of reporters becoming enmeshed with a story. Several journalists suggested being open about reporter involvement in stories, while attorneys seemed reluctant to “show the sausage machine,” as one journalist termed the reporting process.
Quill editor Mohl recommended the publication completely disclose the extent of the reporter’s involvement.
“I think honesty is the key thing, being honest with the people that read your paper or watch your broadcast,” he said.
“If you think through your decisions as to why you’re involved in something or why you’re not involved and you have good reasons for why you are or are not involved, and honestly tell the people you are writing for why you made those decisions, I think that’s the best way to go,” Mohl said.
Steele, the ethics program director from the Poynter Institute, agreed. “If we publicly explore and expose our modus operandi, it may leave us open to legal liability, [but] I think that’s a risk we have to be willing to run,” he said. “We daily hold public and powerful officials accountable for their actions. News organizations are among the most powerful communities in society, so we too should be accountable.”
In her account, Phillips described her involvement with the story and Jenoff in first person. In nearly every paragraph Phillips included the words, “I,” “me,” “we,” or “mine.”
Gross, pointed out that such a point of view had some advantages, but offered caution about writing such a piece.
“It’s a dead give-away that you’re in the story yourself, personally, and there well may be waivers of shield laws and so forth. Someone on the other side probably has a waiver argument once you’ve done something like that because you’ve now become the story.”