Grace under fire

There’s something alarming about Nancy Grace, the preternaturally angry prosecutor turned television personality, who now fumes through a prime-time hour on CNN’s stolid but usually respectable Headline News channel.

It isn’t just the habitual snarl, the narrowed eyes or the improbably arched brows. It isn’t the name-calling; God knows, that’s become as ubiquitous a feature of cable news as that irritating crawl. It isn’t even the sneer, though that deserves special attention as the rhetorical equivalent of a black hole, an aberration in the fabric of normality, where the awful weight of absolute certainty seems to overpower mere gravity.

What’s alarming isn’t so much what happens on her nightly broadcast but what’s absent -- things like balance, sobriety, fairness and independent judgment, qualities that used to rate at least a passing nod from the employees of mainstream news organizations. Even Fox’s Bill O’Reilly has a mind flexible enough to turn in an unexpected direction now and then.

Not Grace, whose on-air persona suggests what might have eventuated if Scarlett O’Hara had enjoyed a fling with Tomas de Torquemada.

Apparently there’s a new media niche -- vicious blond --and somewhere near its apex, alongside the inexcusable Ann Coulter, sits Grace, one-time prosecutor in Atlanta’s Fulton County district attorney’s office and self-described victims’ advocate. Now, as is well known, the only unchallengeable moral authority in American society today is that of victims. And, as her official CNN biography points out, Grace herself is one of them.

Her 25-year-old fiance was shot to death during a robbery. Because of that tragedy, Grace has said, she abandoned plans to become a literature professor, enrolled in law school and became a prosecutor. Nine years later, she joined Court TV, and more recently has emerged as the top draw in Headline News’ new prime-time lineup.

CNN proudly describes Grace as “one of television’s most respected legal analysts” and is happy to provide interested parties with a detailed account of her legal education and career, right down to her stint as a business law instructor in Georgia State University’s school of business.

There is, however, one inconveniently disturbing detail on which CNN maintains a studied silence: On three occasions involving three separate cases, appellate courts have cited Grace for unethical behavior while she was a Fulton County prosecutor.

The most recent of those admonitions came last week, when a published opinion from the U.S. 11th Circuit Court of Appeals concurred with lower court findings that Grace had “played fast and loose” with her ethical duties as a prosecutor in a 1990 triple-murder case. The lower courts had admonished Grace for failing to disclose the existence of other suspects in the case and for knowingly allowing a police detective to testify falsely regarding the matter. The appeals court, however, also concurred that Grace’s misconduct did not affect the outcome of the case.

Writing for a unanimous three-judge panel, Justice William H. Pryor Jr. wrote that the lower courts were right to uphold the defendant’s conviction “despite the failure of the prosecutor to fulfill her responsibilities.” The 11th Circuit, by the way, is the nation’s most conservative, and Pryor, a former Alabama attorney general, is sitting as a recess appointment because his is one of President Bush’s nominations to the federal court that Senate Democrats are threatening to block. Hardly, in other words, a court likely to be “soft on crime.”

In 1997, the Georgia State Supreme Court overturned a conviction Grace had won in the case of a man accused of arson and murder. Although the reversal turned on other issues, the court found that she had withheld evidence to which the defense was entitled and had made improper opening and closing statements. Writing for the majority, Chief Justice Robert Benham noted that Grace’s conduct “in this case demonstrated her disregard of the notions of due process and fairness and was inexcusable.”

In 1994, a 6-1 majority of Georgia’s highest court also overturned the conviction of a heroin trafficker Grace had prosecuted, again citing her for making an improper final argument.

Is any of this relevant to Grace’s work as a CNN commentator?

“I think it is,” said Jane Kirtley, the Silha professor of law and journalism at the University of Minnesota, “partly because Nancy Grace holds herself out as a great champion of truth, justice and the American way.” Moreover, prosecutors have an ethical duty to seek justice and not simply to win cases. “CNN’s justification for putting her on the air as a commentator is her career as a prosecutor, and that makes her ethical conduct then highly relevant to the work she’s doing now,” Kirtley said. That’s particularly true, because Grace brings “more than an orientation to her show. She has a pro-prosecutorial agenda,” which she clearly hopes to persuade her viewers to support.

At the very least, one might assume that CNN has a duty to disclose Grace’s ethical problems to its viewers. Some probably would shrug them off; others might draw different conclusions. The network doesn’t see it that way.

In an interview with Cox News Service last month, Kenneth Jautz, the executive vice president who runs Headline News, said that Grace “is not pretending to be a traditional journalist.... She brings an ex-practitioner’s point of view. That, coupled with her passion and her interest in victims’ rights, makes her unique and compelling to watch.”

Now we’re getting a little closer to the heart of the matter.

Jautz declined to be interviewed for this column, but in a statement issued through a CNN spokeswoman said, “Nancy had a great deal of success as a prosecutor and has never once been disciplined or reprimanded by the state bar. She is very proud of her record, and it speaks for itself.”

No ethical agonizing or soul-searching there, and here’s why: According to Wednesday’s prime-time ratings, Grace’s 536,000 viewers puts her second in the crucial 8 p.m. hour, behind Fox’s O’Reilly, who had an audience of 2,540,000, but ahead of CNN’s own Paula Zahn, with 467,000 viewers, and MSNBC’s Keith Olbermann, who was watched by only 298,000 viewers. In fact, among CNN’s entries in the prime-time period, Grace trails only Larry King (804,000) and “NewsNight,” the latter by a scant 59,000 viewers.

After her most recent admonishment, Grace told a reporter for the Fulton County Daily Report that she had prosecuted more than 100 jury trials during her nine years in Atlanta. Some considerable number of those verdicts still must be under appeal.

How many citations of ethical misconduct will it take before CNN feels some obligation to at least inform its viewers of these facts concerning its star commentator’s credentials? We know it’s not three, but what about five? How about 10? Maybe 25? Does that number exist? As long as they remain silent on this question, it’s fair to assume that, like Nancy Grace the prosecutor, the executives at CNN Headline News play “fast and loose” with their ethical obligations.