Can Richard Jewell Make His Case?Ex-suspect, burned by the media and government, is now given long odds for legal redress. But don't rule him out yet.
By Benjamin Wittes In the wake of the Justice Department's statement Oct. 26 clearing Richard Jewell of involvement in the Centennial Olympic Park bombing, conventional wisdom has given Jewell little hope of legal redress. But a close look both at the suits Jewell plans to file and at the conduct of the journalists and FBI agents he plans to sue suggests that his quest for justice may not be as far-fetched as many now believe. It is always extremely difficult to sue the press, and making a case against federal law enforcement officers is no easy task either. Indeed, established law seems to work against the former security guard. But Jewell-the hero turned suspect turned victim in the still unsolved bombing-is a particularly sympathetic plaintiff, one who just might be able to vault these high bars. In an interview with Legal Times last week, L. Lin Wood Jr., a lawyer for Jewell, spelled out in detail precisely how Jewell would make his claims. Wood fingered the specific sentences he considers libelous in articles that ran in the Atlanta Journal-Constitution, which broke the story that Jewell had become the prime suspect in the bombing investigation, and in reports on NBC television. Wood also identified the specific conduct that he hopes will expose agents of the Federal Bureau of Investigation to personal suits for alleged violations of Jewell's constitutional rights. At least some experts believe Jewell may have a pretty good case. "If this guy doesn't win a sum of money against somebody, then the law of libel ought to be dramatically and drastically changed," says Martin London, a partner at New York's Paul, Weiss, Rifkind, Wharton & Garrison who represents libel plaintiffs. "If this guy doesn't have a cause of action, then I don't know what libel is all about." Still, London's is the minority opinion. Most media lawyers -- particularly those who represent libel defendants -- wave off Jewell's chance of notching any victories against the press. "If the news media is guilty of anything in this case, they're guilty of sensationalizing a legitimate news story," says Henry Hoberman, a partner at the D.C. office of Cleveland's Baker & Hostetler. "But sensationalism and hurt feelings don't amount to enough to support a libel lawsuit." But as they prepare to file their suits in the next few weeks, Jewell's lawyers seem confident they can prove the naysayers wrong. "The First Amendment is broad, but there are limits. . . . I believe that the Atlanta Journal-Constitution went way over the line," says Wood, a partner at Atlanta's Wood & Grant, who is representing Jewell along with partner Wayne Grant and Atlanta solo practitioner G. Watson Bryant Jr. As for the FBI agents, Wood adds, they "were knowingly and intentionally deceiving [Jewell] with intent to get him to make an incriminating statement without the benefit of counsel." According to Wood, Jewell's suits against both the media organizations and the FBI agents will be filed soon-the libel suits within two or three weeks and the law enforcement cases within three months. Spokespersons for the Journal-Constitution and NBC decline comment for this article, beyond earlier statements standing by their coverage. Wood reserves particular ire for the Journal-Constitution, which he says broke the story in such a way as to poison the entire press against Jewell. Wood says three sentences in the paper's initial July 30 article were false and defamatory. These include the unattributed claim that Jewell "fits the profile of the lone bomber," a profile that "generally includes a frustrated white man who is a former police officer, member of the military or police 'wannabe' who seeks to become a hero." No such profile actually exists, Wood believes; it was a mere concoction of the paper. Wood also objects to the Journal-Constitution's claim that Jewell "approached newspapers, including the Atlanta Journal -Constitution, seeking publicity" for his heroic discovery of the bomb. Jewell actually sought no publicity, Wood says, and never approached the paper. Wood also cites a story that ran the following day and that appeared to speculate on Jewell's motives for the crime, albeit without initially naming him: "It may have been done in search of glory for saving lives. "It may have been the quest for power that comes from bringing the Olympic celebration to a halt. "Or it may have been revenge for being unable to retain an important job with a police department." Most clearly defamatory, according to Wood, was an Aug. 1 story that compared Jewell to convicted multiple-child-murderer Wayne Williams. "Once upon a terrible time," the paper reported, "federal agents came to this town to deal with another suspect who lived with his mother. Like this one, that suspect was drawn to the blue lights and sirens of police work. Like this one, he became famous in the aftermath of murder. "His name was Wayne Williams. "This one is Richard Jewell." Says Wood: "The totality of their reporting on the first three days went over the line. It contained false statements, false facts, half-truths, and it totally omitted a tremendous body of information that pointed away from Richard Jewell." The Journal-Constitution, in an Oct. 28 statement, called its reporting on the Jewell matter "accurate and appropriate." "When Richard Jewell became the focus of the FBI investigation, we accurately reported that. We also have said repeatedly that Richard Jewell has not been charged with any crime, and in an editorial we called for the FBI to disclose the information it used to justify its search warrants when it examined the Jewell apartment," the statement says. Wood says Jewell will also sue NBC and news anchor Tom Brokaw for a broadcast in which Brokaw reportedly said, "The FBI is close to making a case. . . . They probably have enough evidence to arrest [Jewell] right now." NBC, in a statement last week, said that "any suit brought by Mr. Jewell would be without merit." The network, however, refused to release a transcript of the broadcast in question to Legal Times, expressing concern that individual sentences would be taken out of context.
LEAP TO JUDGMENT But that doesn't mean the reporting is libelous, say a number of experts on media law. "Nobody has yet been able to point me to anything that sounds remotely false," says Baker & Hostetler's Hoberman. "It sounds like he does fit the profile. It also sounds like the information the paper got about the profile came from law enforcement sources. If that's the case, the statements about Jewell would be true and also protected." Whether the reports were in good taste or were fair, Hoberman adds, "are issues that should be debated in the court of public opinion, but certainly not in a court of law." Bruce Sanford, another Baker & Hostetler media law expert, says Jewell's case against NBC and Brokaw is so weak that Jewell's lawyers should be subjected to court sanctions if they file it. Sanford, who represents NBC on other matters (and has also represented Legal Times), says that even if Jewell didn't seek out media attention, he would be considered a "limited-purpose public figure" under libel law-meaning that like other public figures, Jewell would have to prove actual malice in any libel suit. And that, Sanford says, would be nearly impossible. "It seems to me that they're scapegoating the media for doing precisely what the media always has done and always will do when the FBI . . . leaks the names of suspects," Sanford says. But Jewell's lawyers do not accept the contention that their client is a public figure. And libel expert London backs them up. "Assuming he was a hero, why should that make him any less entitled to be free of false defamatory statement than anyone else in the world?" asks London, who obtained one of the largest libel verdicts in history in 1986 against CBS television on behalf of the Brown & Williamson Tobacco Corp. "He didn't knowingly put himself into the arena of being falsely accused of criminal conduct." Moreover, London says, even if Jewell is a public figure, a jury could easily conclude that the sentences cited by Jewell's lawyers are defamatory anyway. "I hope the editor who cleared [these] article[s] for publication and who basked in the glory of the enhanced readership in the ensuing days will bask in something else, because a different kind of light is about to shine on him," says London. The articles do "everything but show [Jewell] in a jail cell behind bars." Wood also believes he has a strong case against the FBI agents for constitutional violations under the Supreme Court's 1971 case Bivens v. Six Unknown Named Agents of the FBI. Bivens allows suits against federal officers for violations of constitutional rights committed under the color of law. And Wood says that, while he has not decided exactly which agents he will name as defendants, it is clear that his client's rights were violated. FBI agents, after all, lured Jewell into an interrogation by asking him to help them make a video about witness questioning -- not by telling him he was a suspect, according to a report in The New York Times. Then the agents told him that in order to make the tape realistic they would have him sign a waiver of his constitutional rights on camera, the Times reported. Jewell balked, and his lawyers now claim the agents were trying to get the waiver under false pretenses. Diader Rosario, one of the two special agents who allegedly subjected Jewell to this deceptive interrogation, also signed the affidavits that led to the search of Jewell's house. The basis for that warrant, Jewell's lawyers claim, was unconstitutionally thin. "The more information we gather about the contents of the search warrant affidavits, the stronger our feelings that we are going to file a Bivens action against the agent [Rosario] who subjected [Jewell] to an illegal search and seizure and illegal interrogation where he was not properly given his rights to remain silent and have counsel," Wood says. Rosario did not return two calls seeking comment. While this conduct may appear inappropriate, plaintiffs have a high bar to clear in Bivens cases. Jewell will have to show not only that he was maltreated but also that agents, acting in bad faith, went beyond normal investigative tactics and violated a clearly established constitutional principle. "To the extent that anybody misbehaved beyond zealous investigation-if they lied to him-then the shield is lifted, and the government may be responsible for their actions," says Abner Mikva, a former White House counsel and former chief judge of the U.S. Court of Appeals for the D.C. Circuit. "If they flat- out lied to him, that would be wrong, and to the extent that that caused him problems, that could be actionable." The trouble for Jewell is that it isn't at all clear that the FBI's alleged deceit caused him any problems. According to Arthur Spitzer, legal director of the American Civil Liberties Union's Washington, D.C., regional office, Jewell might not have a Bivens case, ironically enough, precisely because he didn't fall for the FBI's attempt to dupe him into waiving his Miranda rights. "If, indeed, the FBI was trying to Mirandize him without his knowing it, I would think the agents would be disciplined," Spitzer says. "But if he's seeking damages, he would have to show that he was damaged. And if he didn't fall for it, it's hard to imagine how he was damaged." Wood, Jewell's lawyer, responds that it doesn't matter whether the bureau's attempts at fooling Jewell succeeded or not. The violation, he says, occurred in any case. "The point is that the same agent who was willing to violate his rights . . . was the same agent who signed the affidavit and got a search warrant," Wood says. "And I don't believe that affidavit is worthy of belief, because of what is contained in it and not contained in it and because of the person who signed it." Even those who believe Jewell has no case against anyone seem to think justice demands something for him. And that does not have to be through litigation. The government could voluntarily make him whole; Congress could even enact legislation awarding him some compensation. The ACLU's Spitzer, meanwhile, points out that even if Jewell gets nothing more from the FBI, he's actually in a better position than the myriad of suspects who get cleared, but never receive the kind of public vindication that Jewell has already received. "Jewell is hardly alone in suffering harm at the hands of the criminal justice system and being uncompensated," Spitzer says. "Just think of someone who gets indicted and spends his life savings defending himself and gets acquitted with an ironclad alibi. The government owes them nothing and pays them nothing. At the end of the trial, the government says, 'Good luck.' ''
Legal Times is an affiliate of Court TV. |
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