Say anything
The knee-jerk reaction to the 60 Minutes Woodward report reflects public
cynicism over scientists-for-hire. Plus, the difference between Larry Flynt and
Len Downie. (Hint: not much.)
Don't Quote Me by Dan Kennedy
If you live in one of the 453,000 Greater Boston households that were actually
tuned in to the 60 Minutes report on Louise Woodward last Sunday, then
you're probably having trouble making sense of the post-broadcast war of the
sound bites.
The 60 Minutes segment, though hardly perfect, was serious and
troubling. The spin offered by prosecutors and pundits has been neither.
Dr. Floyd Gilles, chief of neuropathology at Children's Hospital in Los
Angeles, told 60 Minutes reporter Mike Wallace that Matthew Eappen --
the baby under then-au pair Woodward's care -- had died of strangulation. He
presented evidence that the effects of strangulation on a baby that young may
not show up for 48 hours. And he said that, based on his review of Matthew's
medical records, there was reason to believe he had been repeatedly abused.
The defense lawyers (including my Phoenix colleague Harvey
Silverglate), not surprisingly, embraced the report as bolstering their
contention that their client is innocent. Nevertheless, even if Gilles is
correct, Woodward would remain a prime suspect.
More telling, though, have been the denunciations offered up by prosecutors,
who, rather than respond to the specifics of Gilles's study, have chosen to
attack 60 Minutes without a whit of reflection. Middlesex district
attorney Martha Coakley, who prosecuted the case, sneeringly likened Gilles's
theory to a claim that Nicole Brown Simpson had really died of a heart attack.
Attorney General Tom Reilly, who was Middlesex DA at the time of the trial,
went so far as to assert that 60 Minutes should have refrained from
broadcasting the report because of the psychological effect it would have on
Matthew's parents, Deborah and Sunil Eappen.
The most egregious example of this line of thinking was offered on Sunday by
Boston Globe columnist Eileen McNamara, who -- without even
having seen the program -- trashed CBS for 700 words beneath the headline 60
MINUTES OF SHAME. (In McNamara's case, seeing was definitely not believing. "It
offended me even more," she told the Phoenix after watching it. "Anybody
can have a theory. The jury thought she [Woodward] was lying, and that's why
she was convicted.")
But though Coakley, Reilly, and McNamara should have offered analysis rather
than anger, there's really no surprise that they all reached so easily for the
cheap putdown. The fact is, Gilles's theory illustrates a rarely talked-about
problem in the judicial system: the role of hired experts in the courtroom.
From the murder trials of Louise Woodward and O.J. Simpson to the complex
litigation over the Woburn toxic-waste case, the public has become cynically
accustomed to scientists-for-hire who seemingly will say anything to advance
their clients' agenda. Gilles's theory was novel only in the sense that he
wasn't getting paid by anyone to offer it. (Thus it's not surprising that the
Boston Herald on Tuesday attempted to knock down Gilles's theory by
revealing that Woodward's lawyers had paid his colleague Dr. Marvin
Nelson, who was also interviewed by 60 Minutes, before deciding not to
use him. Unfortunately for the Herald, it also erred when it claimed
that 60 Minutes made "no mention" of Nelson's brief relationship with
the defense.) All too often, lawyers -- even in the face of overwhelming
evidence against their client -- will offer an absurd but impressive-sounding
scientific theory and hope it confuses the jury enough to create reasonable
doubt.
Michael Keating, a trial lawyer with the Boston firm of Foley, Hoag &
Eliot, was an observer and a participant in such a trial-by-expert charade in
the Woburn case immortalized by the book and movie A Civil Action: he
was the lead counsel for W.R. Grace, one of the two defendants. Keating
believes that judges should be given increased authority to appoint their own,
unbiased experts to investigate complicated scientific and medical cases, and
that they should be allowed to take special steps to help the jury deal with
such complex testimony. "The problem," Keating says, "is when the scientist
gets into the courtroom and says something that's totally off the wall in front
of the jury."
To be sure, there were some problems with the 60 Minutes piece.
Nelson's explanation of why Matthew's skull fracture didn't matter was
unconvincing. And Mike Wallace never should have let Woodward claim,
unchallenged, that she's not big and strong enough to have killed a small baby.
McNamara blasted that tasteless lapse in an interview with the Phoenix,
and the Boston Herald's Margery Eagan rightly called it "ridiculous" in
her Tuesday column.
Still, the report made it clear that the Woodward case remains more complex
and difficult to understand than the prosecutors and their supporters would
have us believe. It's too bad that, when faced with a credible challenge to
their theory of what happened in February 1997, their first impulse was to blow
smoke rather than deal with the issues that had been raised.
It's not anything Alicia Shepard says that undermines her new American
Journalism Review cover story on "journalism in the era of Drudge and
Flynt." It's what she doesn't say.
Shepard takes the utterly conventional point of view that editors and
reporters need to be careful lest the likes of Larry Flynt and Matt Drudge set
the agenda for mainstream news organizations. She agonizes over the damage done
when the media report on the personal foibles of such sterling public servants
as Henry Hyde, Helen Chenoweth, Bob Livingston, Bob Barr, and Dan Burton.
What Shepard misses entirely is that what we're really dealing with is
"journalism in the era of Starr." It was the independent counsel and
his $40 million investigation of Bill Clinton's tawdry sex life that set
the agenda for the media. And it was the eager participation of Hyde,
Chenoweth, Livingston, Barr, and Burton in Ken Starr's crusade that led to
their entirely warranted exposure as sexual hypocrites.
Although it took place too late for Shepard's deadline, the NBC
Dateline interview with Juanita Broaddrick is a far better illustration
of the dangers Shepard warns about.
Broaddrick's claim that Clinton violently raped her in 1978 is believable and
credible, and parts of her story check out. But, ultimately, it can't be
proven. Would Dateline have gone with the story if Drudge hadn't
inflamed protest among those who believed NBC had quashed it? Or if the rabidly
anti-Clinton editorial page of the Wall Street Journal hadn't attacked
the network for not running it?
Indeed, the Broaddrick story is far more precedent-setting than anything
surrounding the year-long Lewinsky drama. Drudge's and Flynt's peripheral roles
aside, the Lewinsky affair was driven by an actual government investigation
followed by impeachment and trial. By contrast, in the Broaddrick case, the
media were off entirely on their own.
Worse, it is hypocrisy worthy of home-wrecker Henry Hyde for Washington
Post executive editor Leonard Downie to boast piously to Shepard about the
Post's refusal to run a story during the 1996 campaign concerning an old
affair of Bob Dole's. Other than NBC, the Post was the only legitimate
news organization to report extensively on Broaddrick's charges.
With an editor such as Len Downie in charge, it seems redundant to worry about
Larry Flynt.
Articles from July 24, 1997 & before can be accessed here