Justin McLachlan

Sea World's twilight

2009-12-20T03:59:04Z

Justin McLachlan http://justinmclachlan.com

Getting to the bottom of the Watchdog's sex offender story

2009-12-18T19:26:16Z

Last night, while I was being terrifyingly jostled about on the worst plane ride I've ever had, a local and very smart Twitterer (with a very important boss) had an idea: let an independent panel examine the Watchdog's sex offender story and come to a conclusion on what it got right and what it got wrong. A journalistic audit, of sorts.

Citybeat said it's game. VoiceofSanDiego.org has agreed to coordinate. Now, will the Watchdog Institute cooperate?

First, I think it's sad that it's come to this. Citybeat already investigated the story's claims, and did it well. In fact, Kelly Davis got multiple authoritative sources to debunk the story's entire premise. And we know now, after waiting a week for a response, that the Watchdog had nothing to back up its astonishingly sensational lead other than it's own opinion. It's hard to argue with a we're right even though we couldn't find anyone else to agree with us mentality. They've demonstrated woeful ignorance of basic legal concepts like statutory construction, res judicata and stare decisis -- all things you need to really understand for an undertaking like that story.

Second, I don't think they really stand behind that story as much as they want everyone to believe, nor are they brave enough to allow outside reporters and lawyers to investigate its claims.

Third, the Union-Tribune, as the ones who published this story, have should've undertaken these steps as soon as they knew the central points had been challenged. That's the responsible and ethical thing to do, but who expects that? Not me.

All the being said, can I propose a few questions the panel should try to get to the bottom of?

Are 70 percent of San Diego county registered sex offenders violating the residency restrictions in prop. 83, and if so, according to whom?
Does a "literal" reading of a statute allow one to presume intent that's not explicit, that is, can a statute in California that makes no mention of retroactivity be presumed retroactive on its face?
Does the pending Supreme Court challenge over prop. 83 automatically suspend decisions already handed down by the federal court, that is, are state agencies currently bound to follow rulings issued by federal judges on prop. 83 until the state high court gives its decision?
Did Watchdog Institute reporters have any information or sources that would've led them to believe the unambiguous claim in the story's lead that 70 percent of registered sex offenders are violating the law might not be correct? That is, did anyone challenge the story before it was published?

The Watchdog Institute: judge, jury and...

2009-12-17T14:16:52Z

I really hope no one finishes that sentence, because I really, really don't like where it could go. You know the story, the maybe soon-to-be tax-exempt Watchdog Institute, which some believe is really just an arm of the Union Tribune, published a sensational and completely incorrect mess of a story about sex offenders in San Diego at the end of November.

The Watchdog claimed that 70 percent of registered sex offenders in the county are violating residency restrictions in a state law. That's a serious charge, and, as we've seen, is wrong. No sex offenders currently subject to the law are in violation, but the Watchdog didn't care. They've decided--an ostensible journalism organization--that they're free to be the judge and jury in regard to over 1,000 residents of San Diego. In a news story. Without a single source outside themselves to back up the claim.

In our story examining Jessica's Law, we took a literal interpretation of the law and stated that only the California Department of Corrections was enforcing it. We understand CityBeat writer Kelly Davis disagrees with that premise and we respect her right to voice that opinion. However, we will not be issuing a correction because we do not believe one is warranted.

They took a "literal interpretation" of the law. Maybe someday, I can sit down with Ms. Hearn -- the Watchdog's editor and the person who made this statement -- and tell her what's wrong with "literal interpretation" of that particular law and how their "interpretation" isn't actually "literal" but reading more into it than is actually there. But Citybeat's editor, Dave Rolland, really gets to the heart of the matter in his response.

More importantly, though, I think you still misunderstand what your story got wrong. You say you interpreted the law literally. I'm not sure what gives a journalism organization the right to interpret laws in such a way that is inconsistent with the California Penal Code.

Here's the bottom line. To date, we'e not seen one source to support the Watchdog's "literal interpretation" of the law, but on the contrary, we've seen source after source after source say they got it wrong. If such serious challenges can be raised about a story, then obviously, something didn't go right with it. And actually, no one is enforcing the law the way they claim -- again, in a news story, not an opinion piece. But, that doesn't seem bother them.

Why should it, when they've made themselves the sole arbiters of who's violating the law and who isn't? All hail the Watchdog, new overlords of San Diego county.

How, exactly, the Watchdog Institute got its sex offender story wrong

2009-12-12T08:06:43Z

Recently, the Watchdog Institute wrote a story published by the Union Tribune about sex offenders and a state law that restricts where some of them can live. The story's conclusions were bold and reporters at San Diego Citybeat immediately challenged them as inaccurate and misleading.

And despite citing top legal authorities, like the attorney general, the Watchdog Institute and the UT are seemingly standing by this bungled mess of a story. I've come out strongly against it, joining Citybeat in trying to hold the Watchdog accountable for the power it has.

The story has a multitude of problems, starting with its thesis: that 70 percent of sex offenders in San Diego county are violating the law. They aren't, and the Watchdog can't cite anything other than their own interpretation--flawed and in opposition to the only court to rule on the subject--to support their claim. That's bad, irresponsible and unethical journalism.

Here's the root issue: A lack of familiarity with California's laws and basic legal concepts.

For example, the law doesn't specify whether residence restrictions apply to all convicted sex offenders or only to those who were convicted or paroled after it passed.

The inference there is that because the law doesn't discuss retroactivity, that voters left that open to debate. In other words, that it could be retroactive. Well, first, California has statutory prohibitions against "presumptive retroactivity" in its laws. That is, California law says that if another law doesn't declare itself retroactive, it's not retroactive. That's a basic tenant of statutory construction: expressio unius est exclusio alterius, if something's omitted, it's excluded from the meaning and interpretation of a statute.

This is a time-honored, bedrock legal principle that even every law student would be aware of. And those aren't my words, they're Justice Rehnquist's in U.S. v Security Industries Bank.

Of course, nothing is ever quite that black and white. There was a federal court case addressing the retroactivity. Several anonymous sex offenders asked the court to prevent the state from enforcing the law's residency restrictions on them. The judge applied California's rules of statutory construction and found the law couldn't apply to sex offenders released before voters passed it in 2006. In fact, this case was actually held against those sex offenders because they'd asked for an injunction against the state. The court said the statute is so plainly not retroactive that they don't even need the injunction.

Here, reading the SPPCA retroactively would raise serious ex post facto concerns, and the court is obligated to avoid doing so if it can reasonably construe the statute prospectively...

(ex post facto means "after the fact" and the U.S. Constitution generally prohibits laws that criminalize behavior or increase punishment for a criminal offense after its committed)

Some, including Ms. Hearn, the Watchdog's editor, have argued that the federal court case isn't important because the State Supreme Court is free to ignore that decision in an upcoming case about the law differently if it so chooses. Hardly. While that the State Supreme Court is not bound by the federal court's decision, a federal court is generally obliged by various legal precedents and doctrines to not get involved in a dispute over state law if it can't easily predict how the state high court will rule. "Plainly, that is not the case here," the court wrote in its decision.

There are other problematic statements in the story.

Attorneys for the state Department of Corrections and Rehabilitation say voters intended to create "predator-free zones," so the law applies to all registered sex offenders.

Ms. Hearn and others have cited this as a defense of their piece, saying that it represents the state's current position on the law. Indeed, this argument was put before the federal court. The judge shot it down, noting the phrase "predator free zone" comes from the official ballot summary. The court called it "sloganeering" of the type expected in an argument in favor of the law and said it's "not to be taken literally" because the law doesn't prevent any sex offender from actually entering those zones, just from living there. So, in other words, how could it really be a "predator free zone"? It can't.

Astoundingly, the Watchdog Institute didn't even mention the federal case in its story. They did, however, write about a current challenge to the law pending before the State Supreme Court. But they got the issues in the case a bit wrong, or at least, incomplete.

The plaintiffs have asked the court to stop the state from enforcing the law as "a parole condition." Each is a registered sex offender who was released before the law was passed and each was jailed and subsequently paroled for non-sex offenses after the law was passed. California then said, because you're currently on parole, we're going to hold you to the residency restrictions in the law, too. The plaintiffs argue that making the law a parole condition for those paroled for non-sex offenses is the same as applying it retroactively.

Could the court deny the petition and rule the law applies retroactively to all sex offenders based on the facts of this particular case? Assuming California's laws allowed presumptive retroactivity (which they don't), that's possible, but it's a huge stretch. The court usually rules as narrowly as it can to effect the relief it deems necessary (or not necessary). The plaintiffs have only asked for injunctive relief and in the unlikely case that the court chooses to deny that, it'll probably do so without reaching any legal conclusions that it doesn't have to in order to support its ruling.

But, as I said, anything's possible. Still, the mere possibility of a court ruling in one particular way two months from now doesn't begin to justify the Watchdog's sensational claims. And the story doesn't even mention the unique facts of this case, or the potential for the court's ruling to only affect a narrow subset of sex offenders. Instead, they use it to imply that there's real uncertainty about if the law applies to those released before it took effect. It doesn't.

What's most troubling about this issue is the Watchdog's silence. Despite one half-hearted, almost incoherent response from the story's editor on Citybeat's blog, those responsible for this story haven't addressed what are valid concerns. That in and of itself is an ethical lapse. "Journalists should clarify and explain news coverage and invite dialogue with the public over journalistic conduct," according to the Society of Professional Journalists code of ethics. Instead, we've mostly received silence.

We have been accused of "picking just to pick" by the sole Union-Tribune employee bold enough to talk publicly about the story. It's not clear what his role is here or why he's inserted himself in the controversy because he insists he's not a spokesperson for the company, despite vigorously defending the story. I'm at least happy to know someone cares enough to do so, even if his role is so far undefined.

Still, he seems generally not happy with us over this issue, views our concerns as petty and seems to take them as a personal attacks. They're anything but. The same code that holds the Watchdog's reporters to a standard they're not currently meeting requires that we, as their colleagues, "expose" their "unethical practices."

I won't apologize for doing that.

Currently, the state's top prosecutor, the department of corrections, CDCR Adult Parole (the ones charged with enforcing the residency restrictions) and the senator who wrote the law have all said that the Watchdog simply got the story wrong.

But that's not been enough. The non-spokesman has repeatedly told me that the story addressed all of the questions surrounding it. We've been told "CityBeat's articles appear to highlight differences in interpretation of the law and how it is applied, but that does not mean the institute's article is wrong."

Actually, Citybeat highlights how the federal court--the only court to rule on the issue so far--has interpreted the law. The Watchdog Institute might disagree with that interpretation, but if so, they should air that in an opinion piece, not a news story.

We've heard "... it appears about 70 percent of San Diego County's registered sex offenders live in areas the law says they cannot live - based on a strict reading of what the plain language of the law appears to say."

If it appears that way to the Watchdog Institute (though the story doesn't use the word "appear"), then perhaps they can take over the responsibilities of presiding over the Eastern District of California, because that "appearance" is a direct contradiction of the district court's ruling. Calling it based on a "strict reading of the plain language" is disingenuous (and in legal speak, actually means something different than I think was the real intent), because as I've already said above, that reading presumes no mention of retroactivity means that one is free to presume retroactivity. That's simply not the case in California and anyone who believes that is only demonstrating their ignorance of basic legal concepts.

We've heard "In the story, the institute's reporters wrote the law is 'nearly impossible to enforce.' If courts have ruled this law cannot be applied retroactively, that would appear to be one major reason why it is "nearly impossible to enforce."

It is nearly impossible to enforce, but because it's hard to find reasonable places for sex offenders to live that don't violate the law. But that it's not retroactive wouldn't make enforcement harder, would it? It would make it easier. There are fewer sex offenders to track, and few to find places where they can live that don't violate the residency restrictions. This is also another disingenuous claim, as it tries to twist the story into saying something it didn't. The report never even addressed the federal court's ruling.

We've heard "CityBeat appears to take the position that convicted sex offenders cannot violate a law that it says doesn't apply to them."

Well, duh. How could someone violate a law that doesn't apply to them?

But, he goes on "But again, that doesn't mean the institute's story is wrong."

Actually, the story says in clear, plain and unambiguous terms, that those sex offenders are violating a law that they're not even subject to. In what reality can that be correct?

We've heard, "Which interpretation of the law and facts of this case are correct? I believe readers are smart and they can weigh all sides of this issue and then come to an informed decision."

They could come to an informed decision if the Watchdog provided them with correct information. What matters is not one's opinion about whether a person is violating a state law, but whether that person actually is. When the top legal authority in the state says they aren't, when a federal court says they aren't, and you write a story baldly declaring that they are, is that okay? No.

Watchdog story on sex offenders challenged

2009-12-10T22:02:29Z

From a story by the newly minted and (maybe someday, truly tax-exempt) Watchdog Institute that was recently published in the San Diego Union Tribune:

More than 70 percent of registered sex offenders in San Diego County are violating a state law by living too close to schools and parks.

Sensational claim, isn't it? Maybe a bit too sensational, especially since it's not correct. To support that bold assertion, they cite a state law which they then admit doesn't even say to whom it applies, exactly.

For example, the law doesn't specify whether residence restrictions apply to all convicted sex offenders or only to those who were convicted or paroled after it passed.

Nonetheless, they still included all convicted sex offenders in their alarming statistic.

How does any journalist do that? How do you base an entire story off one statistic that you simultaneously undercut by admitting there's actually a question as to whom the law--your sole basis for that statistic--applies? That's a feat I've never seen accomplished as well as the Watchdog did with this piece.

What resulted was a muddled and misleading piece that was unabashedly picked up by other outlets across the country without as much as a single question as to its veracity. Lorie Hearn, the Watchdog's editor, defends the piece by saying there's "confusion" about the law. There is, and a spokesman for the UT, which published the story, says the same thing. They point out that the story noted that confusion.

So, and this is where I'm really, really dumfounded -- with all that confusion, how do you ethically, morally, accurately, journalistically make a claim like this: "More than 70 percent of registered sex offenders in San Diego County are violating a state law by living too close to schools and parks."

You don't. You can't. And what's scary is that no one at the Watchdog or at the UT seems capable of saying, hey, wait, our story doesn't really make sense. On one hand, we're going to be real bold and grab headlines and say 70 percent of sex offenders are committing crimes just by virtue of where they live, but then on the other hand we're going to spend how many ever x column inches telling our readers that, well, actually, the law is too vague and no one really knows how it should currently be enforced or if that 70 percent statistic is really accurate.

Except, that's not true either. In a week, Citybeat associate editor Kelly Davis got this from the people actually charged with enforcing the residency law:

The exact number of county sex offenders subject to the law changes almost daily, but on Dec. 3--when CityBeat asked for a count--that number was 434 (1,297 fewer than the Watchdog Institute reported). Jerome Marsh, a spokesperson with adult parole operations, the arm of CDCR responsible for enforcing Jessica's Law, said that all 434 are monitored by GPS devices--another provision of Jessica's Law--and are in compliance with the law.

You don't see that in the Watchdog story. This is someone in authority challenging the story's thesis, its lead, ist main thrust yet, and this is flabbergasting, they stand by their conclusions. As one that UT spokesperson said on Twitter: "In my opinion, this is another example of picking just to pick. The story notes the issues @sdcitybeat raises" and later "the issue is closed."

Could this have been a good story? Yeah, if it were done properly. Could they salvage what little respect they had from area journalists (outside the UT, that is), by honestly examining the challenges made to their story? Yes. Will they? Well, "the issue is closed," according to the UT. We'll see what the Watchdog Institute does.

(FYI: I've written for San Diego Citybeat on more than one occasion, I've not written for the Union Tribune or the Watchdog Institute and its no secret that I've taken issues with things the UT's leadership has said about me)

The cost of the DNA backlog

2009-12-03T20:20:37Z

A year ago, the LA City Auditor reported that the backlog of DNA samples waiting to be tested by the Los Angeles Police Department had grown to nearly 7,000 with hundreds languishing beyond the legal deadlines.

This year, the LAPD says it reduced that backlog by nearly two-thirds, but they still have "a long way to go," according to the city controller. In the meantime, accused rapists have escaped prosecution. Victims have lost their chance for justice.

What's the real cost of this backlog?

You can help me find out. I'm raising money for this story through Spot.Us -- a community-funded news organization started with a grant from the Knight News Challenge. They've recently expanded from the Bay Area to down south in Los Angeles. Anything you can give, even if it's just a dollar or a link to the page on your blog or Facebook or Twitter asking your friend, will help.

Thanks!

Donate now

Grace

2009-12-03T19:49:40Z

In San Diego Citybeat:

Reached by phone, she was at Kinkos, Downtown, making copies for a federal lawsuit she was about to file, her 87th lawsuit in the last year.
"I first went into the small-claims court," she explained later. "The lawsuits I have are just to cover everything that I lost. They broke the window in my car and stole my suitcase when I was moving. I've not been able to get any money."
Who "they" are and what's really happened to Sandoval isn't fully known. Her complaints are long, usually 30 to 40 pages, and often rambling. Some are handwritten, others are typed in all capital letters. They reference everything from O.J. Simpson to Elvis Presley to the role she believes she played in The Wizard of Oz in 1979.

Read the rest of the story.

Ian

2009-11-11T17:37:39Z

Free, for a short time! (that's like, a whole dollar saved). Hint: hit fullscreen for a bigger, easier to read view; download your own copy, or get the Kindle version (it's still $.99).

I'm innocent, but I can't say the same for the Union Tribune

2009-11-04T17:52:18Z

Today, an editor at the Union Tribune accused me of a crime. He suggested that giving a donation to voiceofsandiego.org, a non-profit news organization that I've written for, amounted to a kickback.

That's moronic for a variety of reasons, least among them that what he's describing isn't a kickback under California or federal law or IRS regulations. But why bother with facts when you have a chance to attack a competitor that obviously makes you feel threatened?

The implication of what he has said is that the only reason I'd choose to donate anything to voiceofsandiego.org is so I can get contracts to write stories. That's insulting to me and to voiceofsandiego.org, being that I've garnered a number of assignments in my near 10-year career from a variety of news organizations, from little to very big. No one's ever accused me of paying to get those assignments before and I certainly wouldn't need to. If things worked the way he thinks they do, that means a freelancer who subscribes to a publication they've worked for is also giving that org a "kickback" or that all those NPR employees who are members of their stations are in big big trouble.

It's ridiculous. It's defamatory and he should issue an apology to both of us.
To be sure, I've not donated anything to voiceofsandiego.org. People very close to me have and I was curious about their rules on who they accept donations from (some organizations, as a matter of course, don't take money from board members, employees or contractors -- others, as a matter of course, expect it. Each is different.) if, somewhere down the road, I decide I have enough money in the bank to give to a very, very worth cause. I just wanted to be sure.

So all that turns into a "kickback" in this editor's mind. No matter that nonprofits take countless amounts of money from their employees, volunteers, contractors, board members and the like everyday. He decides that's worth posting on Twitter for everyone to see. But instead of putting @justinmclachlan in his tweet, he was all sneaky and just posted a link to my Web site. Guilty conscience much?

I'd never accuse another person the way he did, without facts to back them up. But then, I'm a journalist and maybe it was just stupid of me to assume the same from another journalist. Perhaps if the U-T's editors spent less time attacking their colleagues and competitors and being generally bitchy and passive aggressive anytime voiceofsandiego.org is mentioned in their earshot they'd have more time to devote to putting out a product that people actually want to read.

NaNoWriMo word count tracker

2009-11-03T20:15:58Z

Each year, I use someone else's spreadsheet to track how I'm doing throughout the month. They've never quite been up to par for my taste, so I made my own.

You can download your own copy, here.

Keep in mind, this relies heavily on conditional formatting to tell you how you're doing, so it only works in Microsoft Excel 2007. If there's interest, I can make a copy available that'll work on older versions, too.

This sheet keeps track of your daily word count, the percentage completed, your average words per day and will tell you, if you fall behind, or get ahead, how much you can adjust your daily word counts and still reach your goal. The colors and symbols on the sheet adjust depending on how well (or how not well) you're doing. I'm shooting for 60,000 instead of NaNoWriMo's 50,000 -- so the monthly goal is customizeable, too. Just pop in what ever word count you're aiming for. The second sheet is the same, I just loaded it with some sample data so you can get an idea of what things will look like as you go through the month.

Good luck!

The Last Lawyer

2009-11-02T17:45:00Z

I first met John Temple about four years ago, when his first book, Deadhouse: Life In a Coroner's Office, landed on my desk at the Times West Virginian. It chronicled the infamous Allegheny County Coroner's Office in Pittsburgh in a style of journalism that was new to me, called narrative journalism (or sometimes, immersion journalism).

It's nonfiction that reads -- if you do it right -- like a novel. I loved Deadhouse and a few days later, sat in his office (one that was just down the hall from where mine would be three years later) at WVU talking with him about it.

When I started grad school, John served on the committee that supervised my Where Doubt Remains project. He taught me the difference between reporting and advocacy, something I'm still getting better at.

All that to say, his second book, The Last Lawyer: The Fight to Save Death Row Inmates, is officially out today. Like Deadhouse, it's in a narrative form and it's about "how an idealistic legal genius and his diverse band of investigators and fellow attorneys fought to overturn a client's final sentence."

New stories, marijuana and dermatology

2009-10-12T19:27:44Z

Some new stories I didn't have time to mention previously.

In Citybeat, we have a possible solution to the state's budget problems: legalize marijuana. The attorney general says three voter initiatives pending could bring a untold amounts of tax money into the state. But will it ever happen?

"I think the long-term trend is that the states are beginning to drag the federal government kicking and screaming toward more rational policies," Mirken said. "Ultimately, I think these are the sorts of reforms that tend to bubble up from the state level."

Over at SDNN.com, a follow-up to my previous story on patients caught in the middle of a battle between some dermatology clinics and the insurance companies.

A number of patients are locked in the middle of a battle between California Dermatology and several major insurance companies, saddled with large bills for services they say they were assured would be covered by their insurance.

In the meantime, court documents filed by insurance companies have surfaced clearly outlining their claims that California Dermatology Center intentionally misled patients to obtain treatment that was not covered by their policies.

Remember this video?

2009-09-16T15:36:23Z

In 2007, Border Patrol Agent Arturo Lorenzo shot and killed Ramiro Gomez Acosta (read the story in this week's San Diego Citybeat), a man accused of illegally crossing the border and smuggling, after he apparently picked up a rock to throw. Then this video was leaked:

Now Lorenzo is suing, saying the leaked of the video invaded his privacy and violated the federal Privacy Act. From my story in this week's San Diego Citybeat:

In the months following the shooting, the video was leaked and posted online. It went viral, sparking worldwide news coverage that culminated in showings on national news programs. Today, though, the video's traces are hard to find. The YouTube page that once hosted it bears a "video no longer available" message, as do numerous other places it once existed online. A search for "Ramiro Gamez Acosta," the 20-year-old man shot and accused of illegally crossing the border, is more likely to turn up news accounts of the incident than Lorenzo's. But that hasn't stopped Lorenzo and his wife from suing the U.S. government. In court documents, they said that releasing the video of the shooting invaded Lorenzo's privacy and destroyed his reputation, exposing him and his family to death threats.

New podcast, "Porn Slappers"

2009-09-04T20:07:18Z

Those guys handing you all those naked-lady cards on the strip in Las Vegas? Ever think about them? Well this is a podcast about what happened when I did think about them, a little too much.

Sorry, you need a Flash player installed to listen to this audio

Audio player not working? Download the story here, get the podcast via iTunes or if you like, read the text version of this story here.

Treknology

2009-09-03T00:50:09Z

A look at Star Trek-inspired technology already in our lives 300 years ahead of the future.