EDITOR'S NOTE: Michael I. Niman is a journalism professor at Buffalo State College who has written about the Heather Ellis case in Kennett for "The Progressive Populist," a twice-monthly half-tabloid out of Storm City, Iowa. The following is a news analysis.
By MICHAEL I. NIMAN
Special to the Courier News
On Tuesday, Dec. 15, you published a guest column by Cape Girardeau County Prosecuting Attorney Morley Swingle addressing the Heather Ellis case. I am a journalism professor who has been both studying this case and the media response to it, and has written about the case for the Progressive Populist. While I applaud your efforts to open up your publication to diverse points of view, I must remind you of your obligation to fact check what you publish, and to abide by ethical guidelines, even when publishing commentary.
Swingle's column, titled, "Falsely playing 'race card' hurt everyone," appears to rebut a Dec. 10 column written by Brenda Jones, the executive director of the ACLU of Eastern Missouri (which appeared in other newspapers, but not the Courier News). The problem is that while Ms. Jones based her column on her interpretation of factual information bore out in the Ellis trial, Swingle crafts his argument around allegations that were proven false in the Ellis trial. In his column, Swingle alleges that Ellis, when ordered to leave the Walmart prior to her arrest, responded, "I'm not leaving and you can't make me," and "If you try to arrest me I'll kick your [derriere]." These were indeed allegations Swingle also made in court, but as he certainly should be aware, his allegations weren't supported by witness testimony or any other evidence.
In his guest column, Swingle also writes that Ellis "kicked the arresting officer and smacked another in the mouth, drawing blood." These too were charges Swingle leveled in court but failed to prove. Again, this allegation was not supported by witness testimony or medical evidence. The Walmart video surveillance evidence of the alleged assault was apparently erased by Walmart. Swingle goes on to exaggerate Ellis's allegations regarding her own injuries, then, in an attempt to discredit Ellis, refutes the fabricated exaggeration by partially citing prosecution testimony by "an African-American doctor," that Ellis's only injury was "a slight one on her wrist." Swingle also uses this column to besmirch the reputation of Ellis's father, Pastor Nate Ellis, by reporting that Pastor Ellis threatened to physically assault an attorney previously hired by the family to defend Ellis. There is no record, however, of this threat, no evidence of any witness to this threat, nor any allegation from any supposed recipient of this threat or any charges filed against Pastor Ellis in connection of any such event. Apparently, this never happened, yet your readers now think it did.
Swingle's most serious professional and ethical transgression involves his disgraceful attempt to tar Heather Ellis through the unethical, if not illegal, reference to her confidential childhood elementary school records. These records should never have been released by her childhood school, despite a dubious subpoena from the prosecutor's office. Swingle's column references these confidential records, alleging that as a child, Ellis was a bad girl on 17 occasions during her school years. Such nonsense is inadmissible in court, not to mention irrelevant at the trial of an adult schoolteacher. Publishing this confidential information, despite its triviality, violates Ellis's privacy and amounts to a serious ethical, if not actionable, lapse on the part of the St. Louis Post Dispatch.
Please have your fact checking team examine the allegations made in this column. Compare them with the evidence presented when the author unsuccessfully levied them against Ellis in a court of law. And please contrast them with the final disposition of the Ellis trial, and issue a correction to what appears to be slander, printed in Swingle's column. Despite assertions of fact in Swingle's column, Ellis was never convicted of threatening or assaulting a police officer, nor was her father ever charged with threatening anyone. I won't entertain allegations made by Swingle about Ellis's misbehavior as a child.
Heather Ellis has long contended that she has been the victim of prosecutorial misconduct and has been targeted for special treatment. What we've seen is an extraordinary prosecution that attempted to convict Ellis on felony charges stemming from an alleged line-cutting incident at Walmart. We've seen all of the surveillance footage that would exonerate Ellis erased by Walmart before the trial. And we've seen evidence that the prosecutor in Swingle's neighboring county tampered with the prosecution witnesses by assembling them all in one room, showing them evidence, and presenting them with a uniform narrative -- one which many could not parrot under oath. Two prosecutors, desperate to besmirch Ellis's reputation, went as far as to subpoena childhood school records -- still finding nothing out of the ordinary. After all of this, we have a prosecutor continuing to argue in the media what he could not prove in a courtroom. As a journalist, I would think that these events would have piqued your editors' curiosity.