Why Didn't Syracuse Cops Get the Damning Bernie Fine Tape?

The Associated Press jumped in with the ethical critique of the Syracuse Post-Standard and of ESPN, both of which had the recording of Davis’ conversation with Laurie Fine, and neither of which apparently shared it with police. In one regard, this isn’t grossly surprising: As independent observers and investigators, journalists are obliged foremost to publish stories based on the evidence they gather. Neither the Post-Standard nor Outside the Lines felt the evidence was strong enough to run with a story, so it’s plausible that they also wouldn’t consider the evidence strong enough for police action.

In hindsight, after a second accuser came forward separately to accuse Bernie Fine of crimes similar to those of Davis, the tape and the decision not to share it both look more damning. But to once again give the reporters the benefit of the doubt, most of the really juicy takeaway lines from it are sufficiently vague enough to suggest something other than child abuse. Put it this way: It would be hard to get a jury to convict on the basis of the contents of that conversation.

Still there’s a strong what the hell? quality to the lack of communication between the people with the evidence (Davis, the media) and the people who say they would have done something with it (cops, prosecutors). The conclusions reached by a couple of cops-beat experts I contacted last week were along the same lines: The media didn’t obviously botch this, but the fact that the cops didn’t know of the tape is itself unusual and may point to a counterproductive jealousy in guarding their investigations.

“There may be times when it is appropriate for journalists to suggest to law enforcement that they investigate something that a journalist has turned up,” Ted Gest, the president of Criminal Justice Journalists, a professional association, told me by email. “This should be done not as a matter of course but in extreme or unusual cases where journalists have exhausted their resources.”

Preventing a certain homicide, for instance, would rise to the level of urgency Gest is suggesting. In the Fine case, the contents of the tape should figure into the calculus, Gest said. If it wasn’t clear enough that the conversation with Laurie Fine proved, rather than merely implied, a pattern or even an instance of sexual abuse, then it’s not the smoking gun that it now appears. The mud-slinging circus that is any typical 24-hour period of cable television might suggest otherwise, but most reporters really do take care around not publishing uncorroborated single sources who allege sexual misdeeds against influential people. He also raised the question, perhaps unanswerable, of whether Fine’s status in Syracuse raises the threshold of evidence in this story (I think it just might; considered cynically, his presumed wealth and connection to a deep-pockets institution make the incentive for lawsuits higher for someone claiming to be a victim).

Then there’s Eric Ferkenhoff, who covered cops and criminal justice for different outlets in Chicago, including the Tribune, for eight years; he now teaches courses on enterprise and projects and helps out with investigative classes at Medill, Northwestern’s j-school. Like Gest, he didn’t want to speculate too far on the Post-Standard and ESPN decisions — “it’s a case-by-case call,” he said — but said a typical journalistic investigation that overlaps with a police matter is more porous than most readers might expect. In vetting any charges against a subject (Davis’s against Fine, e.g.) Ferkenhoff’s practice was always to run his evidence past the officers and detectives who might know anything about the case. The most natural reason not to take this route, he said, would be a reporters’ impulse to safeguard his findings.

“It’s not a matter of seeing whether or not the cops can get them,” Ferkenhoff said in a phone interview. “It’s ‘Let’s see what the cops have on this.’ The cops’ information may well buttress our investigation. There’s still a jealousy and selfishness involved in doing journalism in that way, but it’s a more complete investigation. I may end up tipping off the cops, but that’s not my problem anymore. My job in calling the cops is to vet someone making very serious allegations against someone.”

One instance he recalled when a news outlet did fork over the tape: The Sun-Times forwarding a video that arrived in an envelope in 2002 that depicted R. Kelly having crazy sex with a minor. But then, the Sun-Times also had the scoop, and handing over the key piece of evidence only propelled the story. Self-interest and public interest dovetailed quite neatly there. Not so much in Syracuse.

“Vet your own information, and if the authorities then drop the ball, that’s not your fault,” Ferkenhoff said. “When you circle a story completely and you vet it completely, by nature or even by accident the right people end up finding out things.”

Erik Wemple over at the Washington Post also explored this line of journo-fuzz info-swapping as he lauded ESPN (it does happen!) for its handling of the Fine story. “I say it’s a reporting breakdown,” Wemple wrote. “One job of crime reporters is to ask the authorities about evidence — and that’s how the media ‘shares’ information with the police. Why didn’t ESPN say, ‘Hey cops, what do you think of that Bobby Davis tape?’ ESPN’s Vince Doria insists there was nothing to be gained in pursuing that angle.” (The rest of the Wemple piece is a pretty solid read. He also finds that Fitzpatrick’s messenger-bashing is “grandstanding and overreaching,” another compliment to ESPN and perhaps to Doria for taking Wemple’s call.)

Maybe it was the right call by Doria not to tip off the cops to the tape. And maybe the Post-Standard also safeguarded the tape’s existence such that no one in law enforcement knew of it. But there’s also an excellent possibility that some cop in Syracuse knew about it and really didn’t care much until it exploded into a national story. By the time it was made, after all, Davis had already been turned away by the Syracuse Police once. (Fitzpatrick, to be fair, also seemed to ream the cops for not doing more at the time.) The media’s taking the heat for this one, and perhaps rightfully. Say what you want about journalistic independence and its fragility, most of us would do more to stop a possible child molester.

Still there’s a possibility that the authorities in Syracuse were aware of the tape and didn’t move on it. The reporters may not have followed the investigation through to its hilt, but they also shouldn’t have to do the legwork for the law. There’s already a group of public servants designated for that job, and they had already looked at the case and passed.