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May 16, 2017

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Steve Lubet

Great post, Bernie. You have really clarified the considerations.

But let me add one more, which was mostly the subject of my earlier posts. No matter what former judges may (or choose to) call themselves, how should the media refer to them?

In Napolitano's case, for example, there is no rule or restriction that prevents him from calling himself "Judge" on Fox News, but that does not require other platforms to use the honorific, and I think they should not. That is the policy of the New York Times, the Associate Press, and other media, and I think it is a good one. Louis Freeh's press release called him "Judge Freeh," but he was Mr. Freeh in the New York Times.

(Aside: Bernie writes: "[W]asn't Judge Freeh non-partisan in conducting his independent investigation of the Penn State administration's handling of Jerry Sandusky?" Well, the Sandusky family, Graham Spanier, Eric Barron, and other officials did not think he was non-partisan, although calling him "Judge" certainly created that appearance, which is precisely why I think it was wrong.)

Bernie Burk

Steve, Thanks for the kind words and characteristically insightful observations. You're absolutely right that I focused entirely on what legal institutions could or should do about the issue, when you were very appropriately concerned in your posts about nonlegal institutions as well. And I agree that, in addressing this kind of issue, nonlegal institutions that help frame public discourse, specifically the press, are terrifically important. It's a good reminder to avoid the tunnel vision on the law that lawyers and law professors can be prone to.

On your aside, however, I'm not sure I agree. Let's assume for sake of argument that Penn State genuinely wanted an objective investigation into how things went so terribly wrong with Jerry Sandusky, that that's what they hired Louis Freeh to do, and that that's what he actually did. In this particular instance, those are at least plausible propositions. In any independent investigation worth undertaking, some people are going to end up being considered more responsible than others for whatever bad event or outcome occasioned the investigation in the first place. That doesn't mean that the investigation wasn't objective or that the report apportioning responsibility is "partisan." Our system favors factfinding by adversary presentation with a neutral in the middle, but that's not the only way civilized societies investigate and determine wrongs. (See, e.g., most of Europe.) And the folks that end up getting blamed often claim the investigation was unfair to them or driven by a hidden agenda. Sometimes it was, and sometimes it wasn't.

I'm a little unsure about the context of the press release from Freeh that you criticized, so it may not fit the above model. If it was Freeh the investigator saying "I told you so" after Sandusky's and Spanier's criminal convictions, it strikes me as bad form and rather petty. Under those circumstances, it perhaps makes Freeh LOOK partisan after the fact. But at bottom, one way of looking at the statement (if I've correctly described its context) is as the independent investigator noting that another independent
inquiry reached the same conclusion. Freeh's investigation remained as objective and neutral as it ever was.

--Bernie

Steve Lubet

The Freeh press release was issued following Spanier's conviction, and long after the conclusion of the investigation. Spanier had criticized Freeh, so there was definitely an "I told you so" cast to it. Freeh also called for the firing of Pres. Barron (Spanier's successor), which was a straightforward instance of advocacy.

The main question regarding Freeh, I think, is whether the investigation constituted the practice of law. I think it did, in the same way that law firms often conduct internal investigations for corporations and other institutions. In any case, an investigator can be "objective" in the sense that he or she has not preferred outcome, but still be operating on behalf of an institutional client as opposed to the individuals under investigation, and thus not objective when it comes to the interests being served.

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