Dilemma of Interest
Many law enforcement officials now use the vague term person of interest to describe people caught up in their investigations. That poses a challenge for journalists, who must try to convey a situation accurately without unfairly tarring someones reputation.
By Donna Shaw
When Robert Lutner saw on the news that two close friends, Brenda Groene and her boyfriend, Mark McKenzie, had been bound and bludgeoned to death along with Groene's 13-year-old son, Slade, he broke down and wept. Frantic, he began calling other friends, trying to get more information. What had happened? Who could have done such a thing? And where were two other Groene children Shasta, 8, and Dylan, 9 both reported missing?
Donna Shaw (firstname.lastname@example.org) is an AJR contributing writer.
Lutner, who had been at Groene's Coeur d'Alene, Idaho, home on May 15, 2005, the day before the bodies were found, called the hotline set up by the local sheriff to offer any information he could. He says no one called him back. So he and some friends drove around the area, searching for the children. They found nothing.
Shocked and emotionally drained Brenda Groene and McKenzie "were like family," Lutner says he went home and did something he knew he shouldn't: He got drunk. Lutner, 33, is on probation for unemployment fraud and is forbidden to drink. So when his probation officer called that evening and said he needed to see him immediately, Lutner ignored him and turned off his phone.
"The next thing I know, I turn on the TV and see that I'm a 'person of interest,'" says Lutner, a concrete worker and father of two. "It was like I was in a dream world."
Like a growing number of people caught up in such investigations, Lutner wasn't being called a suspect or even a target, witness or subject, terms often used by prosecutors. And since he wasn't charged with a crime, he certainly wasn't a defendant. But police were handing out his mug shot and descriptions of his vehicles, telling reporters that Lutner might know the whereabouts of the two missing children.
Once heard primarily in connection with federal cases involving terrorism and national security, many local police departments now use "person of interest" routinely in investigations ranging from murders to brush fires.
Journalists confronted with high-profile cases and competitors hot on their heels must decide how to handle the vague term to describe what could be the central figure in their stories. A "person of interest" hasn't been charged, much less convicted, of a crime. But the term clearly casts suspicion, even when police insist they "just want to talk" to the person in question.
Last year, news reporters used the term to describe dozens of people in more than 40 cases in 19 states, according to news database searches. The media referred by name to the vast majority of these people, even though at AJR's deadline at least half had not been charged with any crimes. In most instances, reporters appeared to use the term without pressing police to define it, leaving the interpretation up to the audience.
From that list, Lutner was one of at least seven who were exonerated, including three in a single case. One "person of interest" killed himself. Like Lutner, many "persons of interest" have previous criminal records raising the additional question of whether they ever can escape their pasts.
Officially, "person of interest" means..well, nothing. No one has ever formally defined it not police, not prosecutors, not journalists. The terms "accused," "allege," "arrest" and "indict" all are dealt with in the Associated Press Stylebook, but there is no listing for "person of interest." Similarly, the U.S. Attorneys' Manual the official guide to federal criminal prosecution uses the terms "suspect," "subject," "target" and "material witness," but "person of interest" gets no mention. So what are reporters to do?
"The reporter should be on notice that it is a vague term that has no real understandable definition," says Gerald B. Lefcourt, a New York defense attorney and past president of the National Association of Criminal Defense Lawyers. His advice to journalists: "You have to ask the police what they mean."
Kristin Gazlay, the AP's deputy managing editor for national news, says that before naming anyone, "we need to look at why this person is a 'person of interest'..also we have to recognize that police sometimes use this as a technique to pressure people to talk." She says that "in cases high profile and low profile," AP editors routinely discuss whether to use the names.
"Obviously, 'person of interest' is a number of steps from someone who has been charged," Gazlay says.
Jim Kouri, a spokesman for the National Association of Chiefs of Police, says "person of interest" often is a euphemism for "suspect."
"If it's a suspect and you say 'person of interest,' you're using the euphemism to avoid problems down the line," says Kouri, a former New York housing police officer. What problems? Police sometimes "try to maintain that the person really isn't a suspect" in order to get him to agree to questioning without Miranda warnings, Kouri says. "You don't want the guy to lawyer up."
Kouri says across the country, "it's the legal counsel telling police chiefs that they should instruct their officers and train them to use that term."
Although the Justice Department has said it does not know who coined the phrase, it came into prominent use after the July 1996 Olympics bombing in Atlanta. The FBI leaked the name of security guard Richard A. Jewell, who for nearly three months was the unofficial but primary suspect in the case (see "Going to Extremes," October 1996).
During that period, Jewell was the subject of numerous news stories that strongly suggested he was the bomber. Eventually the real culprit was apprehended, tried and convicted. Jewell sued several news organizations, most of which reached out-of-court settlements with him, and eventually got an apology from then-Attorney General Janet Reno.
But judging by the increasing numbers of people identified as "persons of interest" since then, neither the authorities nor the media have resolved how or whether to use the term.
In September 2002, U.S. Sen. Chuck Grassley (R-Iowa) wrote to then-Attorney General John Ashcroft, asking him to produce any policies or other written materials that defined "person of interest" as used by the FBI to describe scientist Steven J. Hatfill in connection with the anthrax mailings that killed five people in late 2001. (See "Into the Spotlight," November 2002.) The Justice Department responded three months later, prompting a press release from Grassley.
"There is no formal policy, level of evidentiary standard, procedure, or formal definition for the term 'person of interest,'" the release stated. "Government agencies need to be mindful of the power they wield over individual citizens, and should exercise caution and good judgment when they use that power."
Whether calling someone a "person of interest" is illegal remains to be seen; Hatfill has sued the Justice Department, Ashcroft and the FBI, alleging they violated his constitutional rights by publicly implicating him "without formally naming him as a suspect or charging him with any wrongdoing." Hatfill says the government unconstitutionally deprived him of earning a living by leaking false information to divert media attention from the fact that the government has failed to solve the case.
In October 2005, a federal appeals court declined to reconsider a ruling that allowed Hatfill to proceed with a defamation lawsuit against the New York Times Co. The suit involves Times columnist Nicholas Kristof, who identified Hatfill only as "Mr. Z" until an FBI search of Hatfill's apartment was broadcast on TV, prompting the scientist to hold a news conference and proclaim his innocence.
Kristof had criticized the FBI for what he saw as its slow pace in investigating the researcher's background and activities. Although he didn't name Hatfill, the details he served up in his columns could only have described one man.
Kate Nelson, managing editor of the Albuquerque Tribune, says it's important for reporters to remember that they are constitutionally empowered watchdogs whose job is to hold government officials to task and not to be seduced by their power or position.
The Tribune wrestled with that issue in January 2005, when Albuquerque police labeled local resident Hubert Hauser a "person of interest" in the beating death of his estranged wife, Kathryn. Working from divorce records involving Hauser's earlier marriage, the Tribune wrote of his alleged "significant violent behavior" and use of illegal drugs. Hauser, an employee of a Christian radio station, disconnected his phone and left town; later, DNA tests linked the killing to a homeless man, who was arrested and charged with the crime.
"What interim damage have we done to the notion of innocent until proven guilty?" Nelson wrote in a February 2005 column. "What other constitutional safeguards governing crime and justice might we have frayed? What have we done to a suspect who's not really a suspect but is still..suspect?"
Hauser, she wrote, "became a sudden 'person of interest,' so declared by the public safety officials we rely on to deliver us from evil. At The Tribune, we did what good journalists do: dug into Hauser's background, where we found messy details of a previous divorce, wrote them up and published them."
Nelson told me that after the Hauser case, "definitely our awareness was heightened on this issue..and how easily we are used" by police. When police call someone a "person of interest," you should ask yourself, "Why are the cops telling us this?" Nelson says. "If you aren't satisfied with the answer, you may have to put the brakes on the great headline."
A month after the arrest in the Hauser case, Darren White sheriff of Bernalillo County, where Albuquerque is located issued a memo directing his staff to avoid using "person of interest" in any investigation. "While I believe it was with good intentions that the law enforcement community coined this phrase, the effect has been confusion as to the actual status of a person relating to an investigation," wrote White, a former television reporter. "While seeking to locate individuals whom we believe are suspects, we should call them suspects," the memo states. And people who "may have information relating to a crime should be referred to as people with whom we would like to speak or question."
In a telephone interview, sheriff's spokeswoman Erin Kinnard said the memo wasn't a direct result of the Hauser case but that the sheriff had grown uncomfortable with the terminology. Hauser was one of several people named as "persons of interest" in cases investigated by the Albuquerque Police Department between December 2004 and May 2005, a database search found.
"Generally speaking, that term is used so as not to implicate somebody," Kinnard says. Noting that it gained broader use after Jewell was wrongly accused, she adds: "Now we call everybody a 'person of interest' because we don't want to be sued. But in reality, they are our suspects."
In Coeur d'Alene, the Groene-McKenzie slayings and kidnappings immediately drew coverage from across the country. The drama continued for the next six weeks, until July 2, when employees at a local Denny's restaurant spotted Shasta with her alleged kidnapper, and she was rescued.
The suspect, convicted sex offender Joseph Edward Duncan III, faces multiple charges in the abduction of Shasta and Dylan, who was found dead at a Montana campsite. Duncan also is charged with first-degree murder in the three killings at the Groene home.
Police say Duncan acted alone. They cleared Lutner within days of the initial crimes.
In the coverage of the Groene-McKenzie murders and kidnappings, Lutner was named in every news story before he was cleared by authorities. Some reports attempted to explain that "person of interest" did not necessarily mean "suspect." Others weren't as circumspect: Morsels of information were divulged, analyzed and sometimes given undue significance.
In a report from the AP before Lutner went to see his probation officer, a spokesman for the Kootenai County Sheriff's Office was quoted as saying that he "seems to have just disappeared," even though, at 6-feet-2 and 240 pounds, he was "a big guy to hide."
CNN Radio drew an admission from Lutner's stepmother that she hadn't heard from him in several days, which was unusual.
On May 18 two days after the bodies were found and the day that Lutner came forward CNN legal analyst Nancy Grace and her guests speculated about what information he might have. While agreeing that Lutner probably wasn't a suspect, like others in the media they still hypothesized that the murders probably were drug related and that "this guy has a drug issue." (Lutner adamantly denies that he, Brenda Groene or McKenzie had drug problems.)
On the same day, MSNBC anchor Dan Abrams introduced a segment on the case by announcing that authorities had "track[ed] down" Lutner when in fact it was Lutner who had contacted them.
Reporters who covered the story say using Lutner's name involved a difficult balancing act. Shasta Groene was recognized by Denny's employees because police provided information that was widely publicized on a daily and on cable news, hourly basis. That information included an "Amber Alert" bulletin featuring the missing children's photos, accompanied by a photo and description of Lutner and his vehicles. But it turned out that Lutner had no involvement in her abduction, and Denny's employees recognized the little girl without any photos of her real captor.
Dave Turner, a veteran police reporter with the Coeur d'Alene Press, notes that Shasta and her brother were missing from a home in which, according to police, a triple murder had occurred and that Lutner was one of the last people to see them at the home. But Turner says that, given the way in which police used the term, he hadn't seen Lutner as a suspect.
"They called him a 'person of interest' because they wanted the public's help in trying to locate him," Turner says. "The thought was, if you find Lutner you might find the kids not that he had them but he might know where they were."
Susan Drumheller, who covered the Groene story for the Spokesman-Review in Spokane, Washington, says the horrific nature of the crime meant that reporters were frantically striving "to get every bit of information we could."
"I think we were anxious to follow any kind of leads," says Drumheller, who left the paper in December. "I'm not sure we were overly concerned with his privacy rights, frankly. We weren't getting a lot of information out of the [authorities], so any little crumb we just ran with."
Drumheller says she was uncomfortable adopting the "person of interest" language to describe Lutner, but the crime was too horrible to ignore such a potentially important lead.
"We tried to play it as straight as we could," she says. "We tried not to make any assumptions while telling people everything we could."
Drumheller's struggle to balance her reporting was perhaps most evident in a May 19 story, after Lutner turned himself in but before the missing children were located. Drumheller wrote that 18-year-old Jesse Groene had speculated that his mother, Brenda Groene, may have been pressuring Lutner to repay money he had borrowed from her. But Jesse Groene also was quoted as saying, "I never saw him hostile toward my family at all."
Drumheller's story continued: "Even though authorities have not accused Lutner of murder, Groene can't help wondering. 'I can see him being that ruthless, but at the same time I'm not putting that on anyone,' Groene said."
The story then offered details of Lutner's "lengthy criminal record."
Kelly McBride, ethics group leader at the Poynter Institute and a former Spokesman-Review staffer, says that given the grisly facts of the Groene crimes, this "might be one of the cases that passes the extenuating-circumstances test." With three people dead and two children missing, it made sense for reporters to use the information on Lutner, says McBride, who used to live in Coeur D'Alene.
At the same time, she says, reporters need to make sure they are using "person of interest" with some context, keeping in mind that police and journalists "have a different mission and purpose and set of obligations."
When police call someone a "person of interest," they often "are trying to scare the person into confessing, drum up more information about the person and kind of otherwise smooth over cracks in their case," McBride says. "As journalists, we have to treat that term with increased skepticism."
She adds that journalists need to guard two very important principles. "The first is the principle of watchdog journalism we should be pressing authorities to say why this is a 'person of interest,' why hasn't he been charged, what is the evidence, and what are their motives in having us publish this."
"Number two, we have an obligation to fairness, so in a newsroom, when someone is labeled a 'person of interest,' there has to be an additional threshold..including, if possible, independent reporting that somehow verifies what the police are telling us."
Bob Giles, curator of the Nieman Foundation for Journalism at Harvard University, says the news media shouldn't feel obligated to use the language of law enforcement.
"You could say that somebody is under investigation, that they are a suspect, that they've been brought in for questioning," he says. "You're trying to give accurate information about a crime..that conveys information the public ought to have and 'person of interest' doesn't do that."
"You start to ask the officer questions is he being held, is he being questioned, does he have a lawyer the normal questions you would ask in any case. You can ask, do you suspect him of the crime?"
Lutner, for his part, felt very much like a suspect. On May 18, he woke up sober, showered and shaved, and went to see his probation officer. "I figured I was going to jail" for violating probation, he says. By this time, his name and photo had been all over the national news for two days. "My PO treated me like I had something to do with it," he says. "He said I could be a hero if I helped find the kids."
The FBI arrived and took Lutner to the Kootenai County Sheriff's Office, where he agreed to take a polygraph test. Then, for the next 17 days, he sat in jail on the probation violation.
By then, Lutner says, the coverage was overwhelming. "Every time I saw my name flashed on TV, I was frightened."
There were photos of his parents' home. His stepmother fielded repeated interview requests from reporters. The mother of Lutner's two children got calls from "America's Most Wanted," which aired a story on the case. His children were afraid to leave their house. In Placerville, California, where his aunt had died just before the Groene-McKenzie killings, Lutner says he saw this headline: "Murder comes to Placerville." Reporters went to his high school and interviewed his former teachers, even though they hadn't seen him in 15 years. And then there was the hate mail, which he says he didn't read. "It was just a melee," Lutner says. "People were pointing fingers at me."
Although cleared by police, Lutner's notoriety lives on, thanks in large part to the Internet. Long after Shasta was rescued, one Web site continued to exhort people to pray for the abducted Groene children while still referring to Lutner as being sought by police.
He wasn't the only one implicated. A blog called The Dark Side noted that the sheriff had discounted Steven Groene the children's father and Brenda's ex-husband as a suspect, yet went on to say: "At this point, speculations could run rampant; lack of police suspicion notwithstanding, maybe Steve Groene was nowhere near the home but had cronies do the deed, and his youngest are in safe hiding."
Similarly, the Jewish Defense Organization a self-described militant group that trains Jews to defend themselves against "Nazi scum," according to its Web site refers to Hatfill on its site as "Dr. Steven 'Mengele' Hatfill" and dares him to sue the group.
One could argue that journalists aren't to blame for these postings. But do they bear some responsibility? The AP's Gazlay thinks they might. The advent of the Internet, she says, means "you can't just scrub the world of these references."
"They're using media reports to fuel what they're writing," she says. "It magnifies any decision to use a name to the point that it just has to be factored into your discussion."
Gazlay notes that before Dennis Rader was charged as the "BTK killer" in Kansas, police brought in several people for questioning and "we did not use any of those names." (She says at least one of those people is suing another news organization that did name him.)
But in the Hatfill case, "How do you not use his name?" Gazlay asks. "His lawyer went public to denounce the government, and he held press conferences."
"It really is a slippery slope."
What if the worst happens and, like Lutner, the "person of interest" turns out to be completely innocent after you've written extensively about him?
"You do a really big front-page story afterward to explain what happened," says the Poynter Institute's McBride, including "bigger headlines and more prominent play."
And to Lutner, "you say to him that I have done everything I can to make this right, including a very big front-page story that says you are not the guy, and it was a horrible mistake. And hopefully you say, 'Is there anything else we can do to make this right?' But I'm sure it's incredibly inadequate to him."
The follow-up coverage received prominent, front-page play and made it clear that Lutner had been exonerated. But to him, the damage had been done. Now out of jail and back at work, Lutner says he's trying to put the incident behind him. But it isn't easy. For one thing, there are bills to pay. And his ex is suing for full custody of their children, saying he endangered them by taking them to the Groene house to play. She came to that conclusion, he says, from watching the news.
What would he like to say to all the reporters who did stories about him? Lutner thinks for a minute. "I just don't think that journalists realize they were putting my family in danger over this," he says. "If people really thought I did it, what if somebody kidnapped my kids or hurt my parents? What if someone decided to take revenge?
"What if something like this happened to them? What if the shoe was on the other foot?"
Donna Shaw (email@example.com), a former Philadelphia Inquirer reporter, teaches journalism at the College of New Jersey outside Trenton. ###