Source of protection

Nov 19, 2008 at 4:42 pm

RENO, Nev. — With a second order from a federal judge for Detroit Free Press reporter David Ashenfelter to submit to a deposition, editor Paul Anger said this week the newspaper is fighting against it “tooth and nail.”

Former federal prosecutor Richard Convertino wants to ask Ashenfelter about a source who told the 26-year Freeper about an internal Justice Department investigation into the attorney’s work.

Convertino had successfully prosecuted the country’s first post-9/11 terrorism trial in mid-2003 — a suspected “sleeper cell” operating out of a southwest Detroit apartment. But in December of that year, U.S. District Judge Gerald Rosen ordered a review of the court file after learning documents the prosecution had were not turned over to the defense. Rosen later overturned the four convictions in the case.

In early 2004, Ashtenfelter, who won a Pulitzer Prize in 1982 for exposing a U.S. Navy cover-up of the circumstances surrounding some deaths aboard ships, quoted unnamed sources in a story about an internal Justice Department review of Convertino’s work.

Convertino later resigned from the Justice Department and is now in private practice concentrating on defense work. He sued the department in 2007 in U.S. District Court in a whistle-blower and privacy case, alleging his rights were violated by the leak to Ashenfelter. As part of that case, Convertino wants to know who gave the information to Ashenfelter.

Last week, federal judge Robert Cleland issued an order granting Convertino’s request to depose Ashenfelter. In his first such order in August, Cleland noted the Sixth Circuit Court of Appeals, the next level up from Detroit’s federal district court, has not recognized a First Amendment privilege for reporters to not name sources.

Free Press Attorney Herschel Fink submitted a motion this week that Cleland should allow the federal court in Washington, D.C. — where Convertino’s suit against the Justice Department was filed — to decide whether Ashenfelter could be deposed.

Anger, appearing here Monday at a National Judicial College workshop for judges, journalists and court officials, talked about the Free Press’ commitment to protection of sources. The paper will never, he said, reveal the source who provided the Kwame Kilpatrick-Christine Beatty text messages. (See today’s related News Blawg item.)

But there may not be an easy choice in the Ashenfelter-Convertino case.

Journalists are protected by state laws from disclosing such sources of information, but without a federal shield law or court recognition of the privilege related to the First Amendment, Ashenfelter is not protected in the Convertino case. If he doesn’t submit to the deposition, Ashenfelter could be imprisoned, fined or both.

“Our reporter has said, ‘I’m not going to be the first Pulitzer winner to go to jail,’” Anger said.