Friday, January 20, 2017

How To Read News Like A Search Warrant Application | Popehat

How To Read News Like A Search Warrant Application | Popehat

Recently it hit me: what if I reviewed news stories with the skeptical eye I turn towards search warrant applications?

If you're not familiar with them, search warrant applications include a declaration under penalty of perjury from the investigating officer or agent. The declaration and supporting paperwork are supposed to identify the location to be searched, the items to be seized, and the specific facts providing probable cause that those items are evidence of a crime. Federal courts scrutinize search warrants more closely than state courts. That's not the law; that's just reality.

When I was a prosecutor, my job was to review proposed warrant applications from federal agents and make sure that they complied with legal requirements before submitting them for approval to federal magistrate judges. As a criminal defense attorney, my job is to analyze warrant applications that have yielded searches of my clients and scrutinize them for flaws and constitutional failures that I can present carefully and forthrightly to a judge so that the judge can then ignore or rationalize them. The critical eye that prosecutors and judges are supposed to use when reviewing a warrant application — and that defense lawyers use in evaluating whether they can be challenged — comes in handy in assessing the trustworthiness of news. Three doctrines in particular come to mind.

Attribution: Around the time I became a federal prosecutor, thanks to a series of unfavorable Ninth Circuit decisions (which, naturally, I resented at the time as unfairly anti-government), the U.S. Attorney's Office began emphasizing attribution in reviewing search warrant applications and prosecutor training. Put simply, attribution means this: for each fact asserted in the warrant application, how does the affiant know it? if the affiant learned the fact from someone else, how did that person know it?

A good search warrant establishes clean attribution for each fact, even if that attribution involves second, third, or fourth-hand knowledge. For example, a good search warrant would say something like this: "I spoke with Officer Jones of my department on January 15th, 2017. Officer Jones told me the following: she interviewed Mary Smith earlier that day. Smith stated that she was present at the corner of Elm and Oak and saw the car accident. Smith told Officer Jones that she was walking north on Oak when she saw a red SUV travelling at a high rate of speed run a stop sign and crash into the side of a green sedan." A well-drafted affidavit also identifies its factual inferences and its basis for them. "I obtained electricity usage records with an administrative subpoena to Southern California Edison for the subject address. I noted that, starting the month that suspect ROBERTS occupied the residence, energy usage spiked 350%, to a level that was consistently more than three times what the energy usage had been for the same time of year over the last five years at the residence. In my training and experience, I know that indoor marijuana grows often result in substantial spikes in energy usage because of the lights and other equipment used"

Thanks to thorough attribution, the reader knows the ultimate source of the fact and the ultimate source's basis for asserting the fact. A bad search warrant application, by contrast, makes assertions about what happened without any indication of how the affiant knows those facts.

A well-attributed news story might be less stilted. But it would still make clear the basis for the facts asserted in the story. Partial or unclear attribution obscures this. Take yesterday's extremely popular New York Times story about Rick Perry's gig as Energy Secretary. I certainly wanted to believe it. I deplore Donald Trump and, to a lesser extent (mostly thanks to his criminal justice stance) Rick Perry. The slams on Perry were artful and viscerally satisfying. The picture it painted confirmed what I wanted to believe about the administration. But notice how the story's main assertion — that Perry thought he was signing up to lead energy industry policy, when in reality his job would be primarily about nuclear security — comes in the first three paragraphs without any attribution. The fourth paragraph has a quote from a (former) insider, but the paragraphs are structured so it's impossible to determine if that source told the Times what's in the previous three paragraphs, or if he endorses that content (he says he doesn't), or whether he's simply provided a pull quote that the Times can present as consistent with their theme. Is the point of the story the Times' characterization or interpretation of facts, or is it based on something that a source specifically told the Times? If it came from the source, was it all based on direct knowledge or based on the source's own gloss? (Notice how the source switches from "I asked him" to describe one sentiment and the vague and unattributed "now he would say" for the second). We're left to guess.

Particularity: My debut as a prosecutor also coincided with a Ninth Circuit push for more particularity in warrants. That is, the Court pushed back against the habit of general warrants that sought permission to seize whatever the investigating agents felt like seizing.1 Instead, the Court demanded that warrant affidavits not only specify with reasonable particularity what is to be seized, but support the proposition that each thing to be seized is somehow evidence of a crime. "There are things that are evidence of a crime, some of those things are in this house, therefore all things in this house should be seized" doesn't cut it.

Particularly is useful in evaluating news stories too. If a story attributes a stance, or a goal, or a motive to a public figure, does it give specific examples of conduct consistent with stance? If the story offers examples of conduct — specific facts — does it connect them to the thesis of the article? Does it show how those specific examples actually support its thesis, or does it simply regurgitate them and rely on proximity to persuade the reader to assume they are connected? So, for instance, the New York Times' Rick Perry story has a number of paragraphs questioning Perry's qualifications, comparing the better qualifications of a prior Energy Secretary, and discussing Trump's likely energy policy. Are those paragraphs proof of the article's thesis? Does Perry's lack of qualification — if that's what it is — support the thesis that he thought he was going to be controlling energy use policy instead of nuclear security?

Corroboration: Anonymous or obscure sources are not inherently impermissible in search warrants or in journalism. A search warrant may rely in part on an anonymous source if the affiant corroborates that source — that is, offers other facts supporting what the source says. In theory a warrant application should corroborate facts only an insider could know. "My source told me that methamphetamine is being cooked at a green house at 123 Elm. I traveled to 123 Elm and observed that the house is, in fact, green" is not meaningful corroboration. "My source told me that suspect ROBERT is cooking methamphetamine at 123 Elm, that he began cooking in March 2016, and that he had precursor chemicals delivered there beginning in April. Based on my review of the Southern California Edison records described above, I noted that there was a 300% spike in energy usage at 123 Elm beginning in March 2016. My review of the UPS records described in paragraph 17 above showed a series of deliveries from an online chemical supply company beginning in April of 2016" is good corroboration.

I can't critique the New York Times Perry story on source corroboration because it's not clear what parts of it come from sources, anonymous or otherwise. But it's now routine for the media to offer sources — anonymous and named — with no corroboration and very little indication of the source's basis for knowledge (which is also an attribution problem). I recognize that journalists have an interest in protecting their sources, but that protection has a cost, and that cost ought to include a higher level of skepticism with readers. A reliable story based on an anonymous source would corroborate elements of the source's story in a meaningful way for the reader. Otherwise it's just the reporter's appeal to his or her own authority — I trust this person so you should as well — and that's no different than an agent's "trust my skeevy anonymous informer because I'm a cop so you can trust me."

If you're reading this to suggest that I think one "team" or another is more guilty of this or more or less credible, you're reading it wrong. Skepticism and critical reading are good. The fact that we'll certainly fall short is not a reason not to try. And gosh, what if a habit of critical reading of the news could even translate to critical evaluation of law enforcement claims? Nah. One improbable goal at a time.

1 comment:

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