Why Police and the FBI Should Be Wary to Use the "Person of Interest" Designation:
The Label Destroys Lives, Yet Provides Little Benefit

By EDWARD LAZARUS

Thursday, May. 26, 2005

On May 18, police officials in Idaho designated Robert Roy Lutner a "person of interest" in connection with the bloody murder of three people found at a rural home, and the apparent abduction of two children from the murder site.

Lutner reportedly had an extensive criminal record, was on probation, and was the last known person to visit the house where the killings occurred. Numerous news stories publicized these facts to all and sundry after he was designated a "person of interest."

Yet twenty-four hours later, the police captain in charge of the investigation declared that Lutner had absolutely nothing to do with the murders or the abduction. Lutner, it turns out, voluntarily came in for an interview, convinced the cops he was innocent, and backed it up by taking a polygraph test.

This was a happy ending for Lutner. But the incident still underscores the dangers inherent in the increasing fondness of police officials, federal and state, for publicly identifying "persons of interest" in high profile criminal investigations. History has shown that this designation has no discernable legal meaning or significance, but for obvious reasons carries the power to destroy people's lives.

Publicly Identifying "Persons of Interest" Is As Destructive as Publicly Identifying "Suspects"

The Department of Justice has long maintained strong policies against identifying suspects in pending investigations. One major reason for this policy is lots of "suspects" turn out, as Mr. Lutner did, to be perfectly innocent - yet the stigma of the "suspect" label may linger after they are publicly exonerated. Or, worse, these "suspects" may never be publicly exonerated, even though internally, the investigators have come to believe they are innocent.

There's no DOJ policy, to my knowledge, against identifying a "person of interest." Yet the public is well-aware that "person of interest" is just a euphemism for "suspect." As a result, the use of this term, especially in high-profile cases, has already caused serious harm and is sure to do so again in the future. DOJ should expand its policy to encompass "person of interest" - not just "suspect" - designations - and state, city and local police should follow suit.

Failing that, the Attorney General and his state counterparts should exercise their discretion to either stop or, at a minimum, severely limit the "person of interest" designation to those cases where public dissemination of a name serves an extremely compelling investigative function.

When the "Suspect" Designation Wreaks Injustice: The Richard Jewell Case

No one seems to know who coined the term "person of interest." But it is not hard to trace the root cause of the designation's relatively recent popularization. It started with a lawsuit, specifically the lawsuit of Richard Jewell, the security guard whom the FBI outed as a suspect in the Atlanta Olympic Park bombing investigation.

After the government dropped Jewell's name to the press, Jewell became the immediate target of fevered speculation. Hordes of journalists subjected his life to the unrelenting proctological examination that has become commonplace with the advent of cable news and its insatiable appetite for sensational stories.

As it turned out, the FBI eventually figured out that Jewell had done nothing wrong. But in the meantime, its act of naming him as a suspect in this notorious crime left his life and reputation in tatters.

Once exonerated, Jewell sued a bunch of his accusers and achieved some substantial settlements. NBC paid him more than $500,000 to settle a suit stemming from comments by news anchor Tom Brokaw that suggested that the FBI must have had significant evidence against Jewell, given that it had named him.

The lesson the police and press gleaned from the Jewell debacle, however, was not the right one. They should have learned that prematurely naming suspects is a really bad idea - as is suggesting that suspects must have been named because there's strong evidence against them.

But what the police and press learned, instead, was simply that using the loaded term "suspect" opens the door to potential legal liability.

Thus, a euphemism was born. After all, calling someone a "person of interest" doesn't suggest official suspicion or evidence of guilt. Wink; wink.

The "Person of Interest" Designation Proves Destructive, Too: The Case of Dr. Hatfill

Experience tells us, not surprisingly, that the difference between calling someone a suspect and declaring them a "person of interest" is non-existent as a practical matter. Just ask Dr. Steven Hatfill.

Hatfill is a former U.S. Army bioweapons scientist. Four years ago, the FBI named him as a "person of interest" in the investigation of the nationwide anthrax attacks.

Hatfill had his life turned upside down because the government hung him out to dry in the media with its non-accusation accusation. Hatfill lost his job (and, big surprise, he's had a hard time finding a new one). And he has spent years being followed around by the press, as well as by government investigators.

Yet Hatfill still has never been charged with any anthrax-related crime. And it seems increasingly unlikely that he ever will be. The whole anthrax investigation has dropped from sight, suggesting that the government is stymied and also now accords other terrorism investigations higher priority.

Hatfill sued the government for ruining his reputation. Yet - in a particularly strange twist -- the feds claimed that they were actually "downplaying" his status within the investigation by only calling him a "person of interest," not a "suspect." In other words, the government claimed it had done Hatfill a favor!

Another "Person of Interest" Label That Destroyed a Life: The Case of Hubert Hauser

Importantly, the "person of interest" phenomenon is not limited to big-time national cases like Hatfill's. It can also wreak havoc on the state, city, or local level.

For example, in Albuquerque recently, the police named Hubert Hauser a "person of interest" in the rape and murder of his estranged wife. As a result, the local newspaper published the sordid details of divorce.

The ugly publicity and media hounding ultimately drove Hauser to leave town. Yet, it turns out that Hauser was completely innocent. DNA evidence showed that the crime was committed by Phillip Busey, a local homeless person.

It's a Very Rare Case In Which a "Person of Interest" Label Is Justified

So why do the police and other government officials persist in naming "persons of interest?"

One can imagine at least one benign explanation: There may be some instances -- a child abduction, for example - in which police need to locate a "person of interest" as quickly as possible because delay poses an imminent danger to the victim. The "Amber Alert" system recognizes that the best approach to child abductions may be to employ massive resources - and the help of ordinary citizens - to find the perpetrator and victim as soon as possible. The same logic might justify the "person of interest" designation in such cases.

I am not sufficiently versed in police investigative techniques to know what alternatives are available, short of this kind of public naming, to track someone down as quickly as possible. But it does not strike me as implausible that, in some unusual circumstances, the downside of naming a "person of interest" may be substantially outweighed by the exigencies of a particular investigation.

But even in these exigent circumstances, police should be exceedingly hesitant. The facial neutrality of the phrase "person of interest" doesn't change the fact that singling someone out as important to the investigation of an odious crime will have the inevitable effect of making that person a suspect and pariah in his or her community.

And real-life cases in which the "person of interest" label has been used, have rarely involved imminent harm to a living victim that might be averted by resorting to the label. To the contrary, often it seems that the government is just using the label as a public relations tool - to create the appearance that progress is being made in a closely scrutinized investigation.

It's possible the "person of interest" designation may have a "flushing out" effect - prompting those with knowledge about the named person to come out of the woodwork. But the government ought to be able to find and interview knowledgeable persons without resorting to this tactic.

Public naming can also be bait for false accusations and evidence - flushing out not useful witnesses, but rather everyone with a grudge against the person named. Why not pile on when the police have already named your enemy a "person of interest"?

Conversely, witnesses may be less inclined to stick up for someone they know to be a "person of interest" - for fear of seeming a fool in case the person for whom they vouched is indicted. There's nothing like the taint of possible guilt to drive away friends, and bring enemies in for the kill. Might some who could have helped exonerate Richard Jewell - through character testimony, if nothing else - decided not to further associate with him instead, once he was named a "suspect"?

A Major Reason for "Person of Interest" Designations: Increased Pressure to Solve Crimes

Public pressure on investigative agencies seems to grow by the day. With a non-stop 24-hour cable news cycle focused heavily on crime stories, it is perfectly natural that police officials want to appear as though they are getting closer to solving whatever crime has most recently gained media attention.

But naming a "person of interest" is a cheap and destructive way out of this predicament. The power of government brings with it the obligation of restraint.

There are many circumstances where this obligation puts government officials at a disadvantage. For example, government prosecutors have an obligation not to try their cases in the press, even when defense lawyers are spinning tall tales about weaknesses in the government's case.

But the government - with immense power - is rightly held to a higher standard. Defense attorneys don't hold the key to the jail cells, or the right to order around the people with guns. Those who do have those powers, bear greater responsibility to exercise them prudently.

There are few traits more important in government officials, especially law enforcement officials, than an ability to take the heat. It's the quality that keeps them from rushing to judgment (and thus putting on blinders that may keep them from finding the true perpetrator), indicting weak cases, or even withholding or manufacturing evidence.

Naming persons of interest may be small potatoes, compared to some forms of government overreaching and irresponsibility. But it's also an easy practice to cure. Attorney General Alberto Gonzales ought to ban this practice. If he did, no doubt many of his counterparts around the country would follow suit.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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