CNN reporters had a big scoop on their hands. Along with U.S. Fish & Wildlife officials, they were on the tail of a "rogue" Montana sheep rancher accused of poisoning eagles to protect his flocks. The footage of the raid promised to be great.
"As the sun breaks over the horizon," wrote CNN correspondent Jack Hamann a week before a scheduled federal raid on the ranch, "the agents, armed with federal search warrants, will swoop in looking for what is supposed to be a huge cache of illegal poisons. Agents will split into teams and look for carcasses left the night before. We'll try to follow the group that finds the dumping ground . . . the graveyard of eagles and coyotes and other dead animals."
But the raid didn't turn up a graveyard of eagles or of any other animals. And it didn't unearth a huge cache of illegal poisons. It found, instead, a bewildered 71-year-old man, suffering from emphysema and recovering from a bout of pneumonia, and his 81-year-old wife, who was herself ill. "I was very upset by the search and could not control my shaking," says the rancher, Paul Berger, in a prepared statement.
On March 24, the Bergers will have their day in the highest court of all, the U.S. Supreme Court. The couple is charging that federal agents and CNN violated their 4th Amendment rights against unreasonable search and seizure. They are also accusing CNN of trespassing and the infliction of emotional distress. CNN denies the accusations, and defends its part in the raid on, of all things, public oversight of potential police misconduct. But CNN oversight managed to miss any misconduct in this case, and court records suggest it wasn't looking for any regardless.
The case dates to January 1993, when former employees of the Bergers went to the Fish & Wildlife Service to report that, a few years earlier, they had seen Mr. Berger poison or shoot eagles. Hearing of the ensuing investigation, Mr. Hamann and employees of the Turner Broadcasting Network went to the agency to discuss their mutual interests: The networks wanted footage for their environmentalist programs, and Fish & Wildlife officials wanted to publicize their anti-environmental-crime efforts. In March 1993, two weeks prior to the raid, the parties signed a contract giving CNN the right to accompany the raiders in exchange for airing the program at a time largely determined by the local U.S. attorneys office.
With agent Joel Scrafford wired for sound and with cameras rolling, CNN reporters and armed government agents descended on the Bergers in a 10-truck convoy. When a worried Mr. Berger drove out to meet the convoy, Mr. Scrafford threatened to put him in jail if he didn't cooperate with the search. As the search commenced, Assistant U.S. Attorney Kris McLean told CNN cameras, "It's not right that a few select people, like this case, can deprive the rest of us from seeing a bald eagle swooping down and taking a salmon out of a stream."
Unfortunately for the agents and CNN, they didn't find any poisoned eagles or eagle graveyards. After a 10-hour ground and aerial search of the 75,000-acre ranch, they did find two sheep carcasses laced with poison and a dead skunk, hawk and gull that had fed off them. A month later they came back and did another search, finding nothing.
They nonetheless charged him with killing 17 eagles, later reducing the number to one. A jury acquitted him on all counts but a misdemeanor, using a pesticide in a manner inconsistent with its labeling. For that he was fined $1,000 and ordered to do 40 hours of community service.
The network, however, broadcast a segment entitled, "Ring of Death," that implied Mr. Berger had killed countless eagles. The reason he got off on more serious charges of actually killing threatened and endangered species, CNN reported, "was that no one actually saw Berger poison the carcasses found the day of the raid." Actually, the problem was that CNN and the feds couldn't find any poisoned eagles.
The eagle carcasses weren't the only thing missing from the story. CNN neglected to point out that it is a violation of Justice Department rules to allow the media to accompany law-enforcement officials in the execution of a warrant. The warrant itself didn't include the Bergers' house, which the agents entered repeatedly without permission. The warrant also made no mention of CNN's role in the raid, perhaps because the officials seeking the warrant never mentioned it. Nor did agents tell the Bergers that CNN was recording their every word and deed. When Mr. Berger noticed the camera and protested, say court papers, government agents diverted his attention by "bombarding him with leading questions."
The Bergers subsequently filed suit against government agents and CNN on Fourth Amendment grounds, but a federal district judge ruled against them in February 1996. They appealed the ruling to the Ninth U.S. Circuit Court of Appeals. There a three-judge panel overturned the district court, saying the agents and reporters did violate the Berger's rights.
"This was no ordinary search," the court said. It was "jointly planned" by law-enforcement officials and the media so the government agents could assist the media in obtaining material for commercial programming. The cameras invaded the Berger's property, and the microphone invaded their home. The "record in this case," said the court, "suggests that the government officers planned and executed the search in a manner designed to enhance its entertainment value, by engaging in, for example, conversations with Mr. Berger for the purpose of providing interesting soundbites, and to portray themselves as tough, yet caring investigators, rather than to further their investigation."
As for CNN, far from acting as a watchdog, the network was acting "under color of law." The government and CNN, said the court, "acted together."
Bad reporting is not itself a crime, but this incident is an unhappy reminder that readers and viewers can't necessarily count on journalists for objective journalism. CNN reporters lined up an elderly Montana couple in the cross hairs of their cameras and when the truth momentarily got in the way, they buried it with the nonexistent eagles. Then they pulled the trigger. This, as the network likes to say, is CNN. Kenneth Smith is deputy editor of The Washington Times editorial page.
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