By Joel Thurtell
What is it about the handling of Detroit Mayor Kwame Kilpatrick’s text messages that might induce a judge to discuss the subject in secret?
In a June 8 story, the Detroit Free Press seemed mystified — and miffed — that 36th District Judge Ronald Giles closed his court to the public, which meant the Free Press, too. While the Free Press editor and attorney were ranting about First Amendment rights, as if freedom of expression somehow grants free admission to a courtroom, it is just possible that the judge and some of the lawyers more centrally involved in the case than the Free Press had more serious things to discuss than whether reporters can take notes and publish stories about their deliberations.
If I’m not mistaken, there’s a criminal trial coming up, and the defendant has some rights. That is easy to downgrade or dismiss if you’re a newsie hot after a story. But defendants’ rights remain part of the Constitution, along with the First Amendment.
Just to show you how newspaper people can lose perspective, I recall a time when I listened to a prosecutor argue with a Free Press lawyer about whether I should be compelled to testify in a criminal trial. I’d written a story in which the defendant confessed to dealing drugs, and the prosecutor wanted to use that published confession at trial. He needed me to confirm under oath that it happened.
The prosecutor was quite full of himself as he harangued the Free Press lawyer, “My goal is justice!”
“I have a higher goal,” the paper’s attorney shouted from his own high horse. “It’s called the First Amendment.”
But is the First Amendment a loftier principle than guaranteeing that an accused man and woman get a fair trial?
I don’t think so.
Incidentally, despite the Free Press attorney’s arguments, the judge ordered me to testify in that trial, and I did.
But back to this closed hearing. The paper more or less guesses that the business going on outside its ken had to do with the handling of the text messages. That could mean lots of things, including how it happened that the Free Press got its hands on those messages to begin with. Could that have a bearing on the criminal proceedings?
If so, then there’s more at stake from the Free Press point of view than the public need to know. There’s the Free press need to know. As I noted in a previous post, the Free Press needs for those text messages to be open, partly because it smells more hot stories. More importantly, though, those messages need to be presented at trial to help ensure the conviction of Kwame.
Why’s that?
Without the text messages, Kwame stands a good chance of being acquitted. That would be disaster for the Free Press. If Kwame skates, the paper might not garner a Pulitzer Prize.
Why is that such a big deal? Status, bragging power and job opportunity. A Pulitzer would tell the world that despite all the downsizing and idiotizing, Gannett is doing right by the Free Press. For staffers who could claim some share of the big P, it would mean professional mobility – a wonderful chance to get away from Gannett.
So the Free Press needs Kwame behind bars.
But what if the text messages were illegally released? The Free Press story doesn’t mention any of this. But a clue to what may be going on lies near the end of that story mentioning that Judge Giles’ hearing “seemed to focus on the handling of the text messages rather than their exact contents.”
Another writer might have said “mishandling.”
And the Free Press would be right in the middle of that one, even though they’re not allowed to take part in the discussion.
It’s possible some federal court may eventually rule that the text messages were illegally released to whomever the city’s telecommunications company gave them to, contrary to city wishes. It was that person who, presumably, gave the records to the paper.
Illegally released? Possible. It’s because of something known in federal law as “confidentiality of carrier information.”
Title 47, Chapter 5, Section 222 of the U.S. Code provides for “privacy of customer information.”
The law states: “Every telecommunications carrier has a duty to protect the confidentiality of proprietary information of, and relating to, other telecommunications carriers, equipment manufacturers, and customers, including telecommunications carriers reselling telecommunications services provided by a telecommunications carrier.
Paragraph (c) speaks to “confidentiality of customer proprietary network information” and states: “Except as required by law or with the approval of the customer, a telecommunications carrier that receives or obtains customer proprietary network information by virtue of its provision of a telecommunications service shall only use, disclose, or permit access to individually identifiable customer proprietary network information in its provision of (A) the telecommunications service from which such information is derived, or (B) services necessary to, or used in, the provision of such telecommunications service, including the publishing of directories.”
Paragraph (2) states: “A telecommunications carrier shall disclose customer proprietary network information, upon affirmative written request by the customer, to any person designated by the customer.”
Who was the customer in the text message case?
It wasn’t the Free Press.
No, it was the city of Detroit. The carrier is SkyTel. The city of Detroit didn’t ask SkyTel to release those messages.
Is this what the court means by “handling”?
The horse may be loose, but the courts might still shut the barn door. I’m told that is very unlikely, since the telecom law requires that carriers disclose messages to law enforcement authorities like the Wayne County prosecutor. But Kwame has claimed his privacy rights were violated. For some reason, the district judge is fascinated with the “handling†of those messages. Are these issues connected?
We’ll just have to wait to find out. Newspapers hate that. It shows that somebody else is in control.
But consider: Sure, we all know the lurid details of the messages, but what if Worthy can’t get them admitted as evidence? Then the jury — in theory — wouldn’t know about them.
In fact, of course, a juror in metro Detroit would have to be comatose not to know about those messages.
But if Kwame’s lawyers somehow manage to pry the messages away from the jury, his trial would be far from open and shut.
Convicting Kwame without the text messages is about as likely as a Free Press Pulitzer if he skates.
But if he gets off, the city council — and the governor — will have a hard time justifying his removal.
Contact me at joelthurtell(at)gmail.com
