Ex-prosecutor gets go-ahead to question Detroit reporter

Thursday, September 11, 2008

Editor's note: In a later story today, the Associated Press quoted Free Press Executive Editor Caesar Andrews as saying: “We will clearly fight this. We will clearly look for some options.”

DETROIT — A federal judge has ruled a newspaper reporter can be questioned
about unnamed sources used in an unflattering story about a government
investigation of a former federal prosecutor.

David Ashenfelter of the Detroit Free Press had claimed a reporter’s
privilege in resisting the subpoena. But U.S. District Judge Robert Cleland said
the 6th U.S. Circuit Court of Appeals, which covers Michigan, does not recognize
a reporter’s privilege.

“Simply put, this court is bound by the Sixth Circuit’s determination,”
Cleland said.

Richard Convertino, a former U.S. attorney in Detroit, wants to know the
source who provided Ashenfelter with information about an ethics investigation
by the U.S. Justice Department. The story ran in 2004.

The Justice Department conducted an in-house probe and said it couldn’t find
the leaker.

“Convertino has tried to use other means of discovery to unmask Ashenfelter’s
sources,” Cleland said in a ruling Aug.

“He did not go directly to Ashenfelter until it became reasonably clear that
doing so would probably be the only way for him to learn which official or
officials supplied the reporter with the relevant information,” the judge

Convertino wants the information for a lawsuit against the Justice
Department, which is pending in federal court in Washington. He says his privacy
rights were violated.

Ashenfelter, who won a Pulitzer Prize in 1982, declined to comment yesterday
on Cleland’s ruling. Free Press Executive Editor Caesar Andrews said the
newspaper had not decided what to do next.

“We need to walk through exactly that,” he said. “This is a highly
unfavorable ruling, and we need to find some kind of way of honoring our
sources, protecting our sources. … Certainly the potential impact is awfully

Messages seeking comment were left with Convertino and his attorneys.

Convertino was a high-ranking prosecutor who handled the first major
terrorism trial after 9/11. But it turned into a disaster for the government:
Two convictions in Detroit in 2003 were overturned at the Justice Department’s
request because evidence was withheld.

Convertino and a former State Department investigator were indicted for their
work on the case, but a jury acquitted them in October 2007.

Ashenfelter wrote a story in January 2004 that said Convertino was being
investigated by the Justice Department’s Office of Professional Responsibility.
The story listed many allegations and attributed the information to officials
who asked for anonymity because they feared repercussions.

Convertino filed a lawsuit against the government a month later, accusing
officials of violating the Privacy Act by leaking information about him to the
Free Press.

In seeking Ashenfelter’s sources, Convertino’s attorneys said the sources did
not deserve to be protected because the information they shared was meant only
to smear Convertino.

In ordering Ashenfelter to comply with the subpoena, Cleland said
Convertino’s interests outhweighed Ashenfelter’s First Amendment interests in
protecting his sources.

“Virtually every case in which a court compels a reporter to disclose a
confidential source implicates at least some risk, direct or otherwise, that
news gathering activities protected by the First Amendment may be hindered,”
Cleland wrote. “However, this generalized danger is minimized in this case, as
the anonymous DOJ officials may well have violated federal law by communicating
with Ashenfelter as to these matters.

“If the informants indeed violated the Privacy Act as Convertino alleges,
potential sources of further similar violations should be deterred from
interactions of this kind with representatives of the press. This is not an
instance where the reporter’s informant reveals hitherto unknown dangerous or
illegal activities that, being unlikely otherwise to come to light, result in
reporting that is obviously more weighty in a court’s calculation of First
Amendment safeguards.”

Tags: , ,