No shield for reporter?

Sep 9, 2008 at 6:12 pm

A Detroit Free Press reporter may be questioned about the confidential sources who told him about a federal investigation into misconduct by a former federal prosecutor, a federal judge ruled.

David Ashenfelter, a Pulitzer Prize-winning 26-year veteran of the daily newspaper, reported in 2004 about an investigation into possible ethical violations involving then-Assistant U.S. Attorney Richard Convertino. His story cited “officials, who spoke on condition of anonymity, fearing repercussions.”

Convertino was the lead prosecutor in the 2003 “sleeper cell” trial in U.S. District Court in Detroit, a high-profile terrorism case in which two men were convicted. But in 2004, at the U.S. Attorney’s request, U.S. Judge Gerald Rosen overturned those convictions.  Prosecutors said Convertino hid evidence from the defense and presented false evidence at the trial.

Last year, Convertino was acquitted of obstruction of justice and other charges in the case. Now in private practice in Plymouth, Convertino sued the U.S. Department of Justice in a whistleblower and privacy case. As part of the case’s discovery phase, he’s seeking information from Ashenfelter about his sources for the 2004 report about the investigation.

In court documents, Ashenfelter had argued for protection under Michigan’s “shield law,” which protects reporters from revealing their confidential sources.

But there is no federal shield law, and federal courts have been divided on the existence and scope of that privilege.

U.S. District Judge Robert Cleland granted Convertino’s request to depose Ashenfelter in an Aug. 28 order. Throughout his opinion, Cleland cited the Sixth Circuit Court of Appeals, the next level up from U.S. District Court in Detroit, and its determination that reporters do not have First Amendment privilege protecting them from revealing confidential sources.

“Simply put, this court is bound by the Sixth Circuit’s determination,” Cleland wrote. “Convertino is not asking for information that he knows, has already received through discovery from Ashenfelter or another source, or can ascertain from other intelligence he has accumulated during discovery.”

Forty-nine states — including Michigan — have shield laws protecting reporters from revealing their confidential sources. But Cleland found that Convertino’s suit dealt with strictly federal issues and, therefore, state shield law did not apply.

Free Press attorney Herschel Fink says he is reviewing the ruling, only saying “I do not agree” with Cleland’s opinion. Ashenfelter and Convertino did not immediately return telephone calls. Cleland does not talk to reporters, a woman in his chambers said.

Dawn Phillips Hertz, attorney for the Michigan Press Association, says that not only should Ashenfelter not have to reveal anything about his sources, but Convertino’s entire lawsuit against the Justice Department should be dismissed.

“The information [in Ashenfelter’s story] was clearly in the public interest. Requiring Ashenfelter to disclose his sources will only create an inappropriate pall on journalism,” Hertz says. “To conduct a witch hunt to punish the reporter and the paper is highly inappropriate.”


Errata: The original posting of this story contained an error. Richard Convertino resigned from the U.S. Attorney’s office.